Page:Federal Reporter, 1st Series, Volume 10.djvu/786

 77e ���FEDSBAIi BEFOBTEB. ���A Cargo of Malt. �[District Court, S. V. New York. November 10, 1881.) �L Okal Conteact — Ohange in— Notice to bb Given. �Where an oral contract was entered into by the libellant, who agrced to take on Iiis canal-boat a cargo of malt, and hold and transport the same at the rate of flve dollars per day for 30 days, and if at the end of 30 days the cargo was still on board, from that time the libellant should be paid the "going rates" until the cargo was removed, it was held that the latter stipulation was an essential part of the contract, and that the owner of the cargo was entitled to specifie notice of a change in the contract at the expiration of that time, and to be required to remove the cargo or pay the new rates. �In Admirai ty. �E. D, McCarthy and Mr. Ell'iot, for libellant. �Carpenter e Mosker, for respondents. �Bbown, D. J. This libel was filed to recover a balance alleged to be due for taking on board, holding, and transporting a cargo of malt upon a canal-boat of the libellant. �The oral contract, under whlch the cargo was taken on board, was made by the libellant with Mr. Karasay, tha agent of the claimant. Both substantially agree as to the terms of the contract, which were that the libellant would take the cargo aboard bis beat, and allow the claimant the use of her, for which the libellant was to be paid at the rate of flve* dollars per day for the flrat 30 days, which period of use Mr. Eamsay guarantied; and if, at the end of 30 days, the cargo was still on board, that from that time the libel- lant should be paid the " going rates " until the cargo was removed. �Under this contract the cargo was taken aboard at Newark on October 10, 1879. At the end of 30 days, on November lOth, the libellant called at the office of the claimant, received $150 for the 30 days, and then told Mr. Ram- say that " they were now paying $10 per day, and that he wanted that for the further use of his beat;" to which Mr. Eamsay replied, "If that is the going rate, you will get it." The libellant also testifled that about a week after- wards he called at the office of the claimant, Mr. Gray, and told him, sub- stantially, the same, to which, he says, Mri Gray did not reply. Mr. Gray tes- tifled that he had no recollection of any such interview, and that at the time stated he was not in New York, but in Buffalo. The cargo was ordered and taken to Brooklyn in December, where it was diseharged from the niuth to twelfth of that month. The libellant claimed $10 per day after November lOth, and payment at that rate being refused, he flled this libel on the tentli of December, 1879. �It was proved that by " going rates" is meant the rates as established and paid by the three railroad companies most largely engaged in the lighterage of grain, viz., the Pennsylvania, the New York Central, and the Erie Railroad companies; and tliese companies were mentioned and referred to in the origi- ��� �