Page:Federal Reporter, 1st Series, Volume 2.djvu/827

 820 PEDEBAL REPORTKB. �to the fourth set the breach alleged is the failure to delîvei 214 42-60 bushels of the wheat shipped. �The answer denies ail knowledge as to the quantity of wheat shipped; avers that it was expressly understood that the quantity shipped was unknown; denies any breach of the contraet, and avers a delivery of aU the wheat shipped under the bills of lading referred to. Under these pleadinga the burden of proof is upon the libellants, and in order to recover they must show a deficieney in the wheat delivered, and the amount thereof. This bas not been done. No wit- ness bas been called who undertakes to state or pretends to know the quantity of wheat delivered in Havre; and tha case, so far as the libellants are concerned, is bare of evi- dence upon that point. But the master of the vessel is sworn by the claimants, and testifies, without qualification or dis- pute, that ail the grain shipped was duly delivered in Havre ; and in this he is oonfirmed by the circumstances that the bills of lading are produeed by the claimants at the trial, and must therefore be presumed to have been surrendered by the oonsignee« of tha grain upon the delivery of the grain. �I bave mot overlooked the testimony from which it was argued that upon the arrivai of the steamship at Bristol, England, whither jhe proceeded from Havre, that the master there sold wheat from the vestsel to the value of some nine pounds. The master's explanation of this circumstanoe is that he had the steamer cleaned at Bristol, and what he sold was "sweepings" -f the value of five pounds, which he paid over to the owners. But if the facts in regard to this trans- action be as contended by the libellants, (and I confess that the weight of the evidence appears to me to be with the mas- ter,) still it would do no more than create a suspicion. There would still be a total failure of evidence upon which it would be possible to find that any specifie quantity of grain shipped onder any of the bills of lading in suit had not been delivered. �The result is that tha libel must ba dismissed, and witb costs. ����