Page:Federal Reporter, 1st Series, Volume 10.djvu/159

 WATTS V. CAM0B8. 147 �freight, the penalty for default stipulated in the cbarter-party. The defendants claim that the representation in the charter-party of the register measurement of the Highbury was a substantive patt bf the eontract, amounting to a warranty, and as the Highbury's aetual tonnage largely exceeded the representation by over 100 tons, the defendants had a right to reject the ship and disregard the charter. And the defendants forther claim that as they rejected the ship at once, it was the duty of the master and owners to at once have taken in othet cargo, lessening any damages that might follow from the avoid- ance of the charter-party; and that, in fact, thereafter the ship.did recoive a more valuable freight, and therefore was not damaged at all by the conduct of the defendants. �The first question to decide is as to the effect of the misdescription of theregister measurement of the Highbury. There is much evi- dence bearing on the customs and usages prevailing among shippers of wheat as to the size of cargoes, and what will avoid contracts for grain in bulk. And in this case there is evidence tending to show that charte'rers had no wheat to ship, and that freights were lower in September,1879,thanin August.and also tending to show that defend- ants were informed before the charter-party was made of the aetual carrying capacity of the Highbury; but all of this is immaterial in the view I take of the eontract. The eontract, taken as a whole, can be made effective only by coneidering the ^representation of the register measurement as descriptive merely; in fact, the evidence shows that it was known to neither of the parties at the time the charter-party was entered into. The real Consideration of the eontract was, in the course of things, the carrying capacity of the ship, and this is shown by the agreement on the part of defendants to furnish a cargo of, say, about 11,500 quarters of wheat. As the defendants ask the court to construe the agreement, it would be necessarily void at the option of the defendants. If a ship of 1,100 tons carrying capacity had been tendered they could reject it, as it would not carry about 11,500 quarters of wheat, the stipulated amount of cargo. If a ship were tendered able to carry a cargo of 11,500 quarters, then they might reject it, as they have in this case, because the tonnage was over 1,100 tons, register measurements. In other words, the charter- party was binding on the owners, but the eharterers might use their pleasure. The court can not give any sucii construction, as the terms of the charter-party do not warrant it. �The description in the charter-party of the register measurements of the Highbui'y was a mere representation, and not aWarranty ; 'and ��� �