Page:Federal Reporter, 1st Series, Volume 9.djvu/442

 IB BENG 00. V. COEBITT. 427 �The libellants allege that they suffered damage by reason of the iion-performance of the agreement by the defendant in this: That iheir agent Hop Kee had purchased, and was ready to deliver on said vessel before March 1, 1880, 2,440 mats of rice of 46^ pounds each, and 200 boxes of nut oil of 72 pounds each, and that they had dis- posed of the same, to arrive at this port per the Garibaidi, at a net gain of $881.80— $780.80 on the rice, and $101 on the oil; and that before said date they had secured 265 passengers for the return trip of said Tessel, at the rate of $40 per head, and would have made upon the carrying of the same, after defraying all expenses of trans- portation, board, etc., the net profit of $4,076; that they were com- pelled to expend $600 in returning these passengers from Hong Kong to their respective homes, upon the failure or refusai of the defend- ants to take them to Oregon; and that freights were then so high that the libellants could not procure other transportation for said freight and passengers and realize any profit thereon. Unfortunately, Hop Kee died without his deposition being taken, and what he did in and about the cartying out of this contract is not clearly shown. However, upon the evidence in the case it does not appear that he pur- chased any rice or oil for the libellants, as alleged, for the reason, in all probability, that Forbes told him early in January, in effect, that the Garibaidi would not return to Portland. Neither is the evidence satis- factory as to the claim for $500 alleged to have been paid for returning the proposed passengers to their homes. And, on the argument, I understood the counsel for libellants tacitly to abandon the claim for damages on these accounts. But it does appear from the evidence that Moy Toy and Fune Gib, who were passengers to Hong Kong on the Garibaidi, procured, as agents or runners for the libellants, 200 pas- sengers for Portland, at $40 apiece; but as the master of the Gari- baidi had given Hop Kee notice that she would not make the voyage, he was compelled to decline to sell them tickets therefor. �It also satisfactorily appears from the evidence that there were no other means available to the libellants for transporting said passen- gers, and that the priee of passage on the regular steamer to San Francisco was $60 per head. The transportation of 200 passengers for $2,900 — the price of the charter — would cost $14.50, and from the evidence it appears that it would cost ndt' to. exceed $12 apiece more to board and take careof them on the.voyage; so that it fol- lows that the libellants stood to make $2,800 net profit on the ven- ture, and were only prevonted from doing so by the failure of the ��� �