Page:Federal Reporter, 1st Series, Volume 4.djvu/365

 VON LINGEN V. DAVIDSOH, 851 �BtanceS in the mîdst of which the parties were àeting. These assutaptions and calcnlations are^facts in the light of ■which thie ihdefinlte word is tô be read. Since "a,boût" may meàn a longer or shorter period, accordiùg to circiunstànces, these circiï'mstanoes tend to show what liinitation the parties put npon it in this transaction. �Another important f act is f ound in the practical interpreta'-' tion which the parties have^ by their conduct, put oïl the" language they have used. Gregg &Go., in Philadelphia, seem to have assumed that the vessel would be about to sail f roni Benizaf with cargo, -within the meaning of their telegraphie authority to Erickson, if she were there loading, and they cbnsequently, in their first draft of the charter-party, de- Scribed her as "sailëd or loading at Benizaf." This, how- ever, dîd not meet ihe views of Schumacker & Co., and they declined to enter into the contract on those ternis, claiming tfiat they had agfeed for a vessel that was "about to sail." In this way they, in effect, sàid that, according to their un- derstanding of the language upon which they had been act- ing, a vessel might not be "about to sail" if she was only load- ing at Buch a port as Benizaf, and with such a cargo as she was getting there. To this suggestion Gregg & Co. appar- ently assented without objection, for they immediately sent forward the new charter-party, with their signature affixed, in which the vessel was described in accordance with the lan- guage' they had used in their telegram to Erickson. Such conduct shows clearly that the word "about" was used' ad- visedly, as indicating some shorter period of time than load- ing would necessarily imply. • �Under these circumstances it seems to me clear that the parties must have understood their language tomean that the Whickham had either sailed or was about ready to sail with cargo. It is difficult to reconcile any other interpretation with the undisputed facts in reference to which the parties were acting. Taking this as the effect of the contract, I bave had no difSculty in reaching the conclusion that the vessel was not in the condition she was represented to be. Her carrying capacity was something over 1,100 tons. Hei ����