Page:Federal Reporter, 1st Series, Volume 2.djvu/423

 416 FEDERAL 'BEPOETEB. �"The said party of the second part (the respondents) doth engage to provide and furnish to said vesael a full and com- plete cargo of wheat and (or Indian corn and) opother law- ful .merchandise, say as much as she can reasonably stow and carry, (whiçh is guaranteed hy vessel not to be less than 1,000 tons dead weight,) on the draft of water allowed by the Burveyors appointed by the marine underwriters, under ■whose inspection the vessel is to- load." On the arrivai of the bark in Boston, in May, 1879, freights had fallen, and it having been ascertained by a survey that she could stow and carry, on the draft allowed by the underwriters' inspec- tion, only 925 tons dead weight of Indian corn, (corn being the cargo for which the charter was obtained,) the respond- ents refused to load her. The question in the case is whether, upon the breach of the libellant's guaranty that the vessel should stow and carry not less than 1,000 tons dead weight of Indian corn, under the circumstances stated, the respond- ents were justified in throwing up the contract. �It seems to me too clear to admit of any doubt that they were. The guaranty is not a mere descriptive statement as to the capacity of the vessel, or a stipulation that something should be done or happen in the future, but it is an absolute warranty as to an existing state of things, expressed in clear and definite terms. It was intended as a substantive part of the contract, and is to be regarded as a condition upon fail- ure of which the respondents might repudiate the contract altogether, no part of it having been executed in their favor. No case has been cited where a stipulation of this nature haa been held to be independent, and not a condition precedent. Kiis contract, like ail mercantile contracts, is to be construed according to its plain meaning to men of sense and under- standing; and I think thoae parties never could have in- tended by this charter-party to require the respondents to load a vessel of less capacity than is called for by the libel- lant's guaranty. Lowker v. Bangs, 2 Wall. 728 ; Fearing v. Cheeseman, 3 Cliflf. 91; Graves v. Legg, 9 Exch. 709; Behnv. Burgess, 8 Law Times, 207; Me Andrew v. Chapple, L. E. 1 C. P. 643. The entry is to be : Libel dismissed, with costs. ����