Page:Federal Reporter, 1st Series, Volume 4.djvu/581

 MARSHALL V, BIGLER. 667 �2. The defendants clearly waived the condition of the ohar- ter-party requiring a formai reoeipt of the delivery of the cajrgo. On the fourth of April, 1874, the libellants, having received advices of the delivery of the ca,rgo and of the quantity de- livered, as stated in the libel, wiote to the defendants giving in detail such retum, and calling on defendants to settle the bal- ance of the freight. The defendants replied to the letter on the eighteenth of April. This reply and the subsequent corre- spondence show that the defendants accepted this statement in the libellants' letter of April 4th in lieu of the promised receipt, without any objection to the form in which the anaount "was communicated. It is now too late to insist on a techni- cal complianee with this provision of the charter-party. �3. The defence set up in the answer, of a new and subse- quent agreement discharging the charter-party, grows out of a transaction that took place between Mr. Bigler, one of the defendants, and Mr. Lamson, one of the libellants, who bas died since this suit was comraenced. After the ship was loaded, and perhaps after she had sailed, Mr. Bigler came to New York and had an interview with Mr. Lamson at his office here. There had been some previous conversation between ■them regarding the giving of notes for the freight, and Mr. Bigler brought with him an unsigned bill of lading and the paper which is claimed' to be the new agreement, drawn at Newburgh, except that the details of the notes were not in- serted. It is à receipt for four notes, amounting in ail to $25,774.74, payable in three, four, five, and six months from their dates, August 14, 1873. The receipt states that "said notes are given to and received by us (G. H. Marshall & Co.) for our compensation for charter of ship Alexander Marshall, owned by us and chartered to said J. Bigler & Co., to convey a cargo of timber and plank from Newburgh to Mare's island, and when paid are to be in full for said compensation." �Then foUows an agreement to pay J. Bigler & Co. interest at 7 per cent, per annum on ail moneys they shall pay on said notes, or either" of them, from the dates of such payments to the time of the delivery to the said J. Bigler & Co., in New York city, of a receipted bill of lading, showing due delivery of said ����