THE ,ALIDA. ,
of underwriters, I am not disposed to have the matter re-examined. The adjustment made at the port of destination I understand to be the correct one, and clearly the one made at Passages, Spain, was erroneous, and the libellants were not bound by it, particularly. when the respondents· rejected it. Let a. decree in terms affirming the judgment of the district ,court be entered.
(Circuit Oo'lJlrl, B. D. P611insY!fJania. April 24,1882.,
PRACTICE-JOINDER Oll' ACTIONS IN REM AND IN PERSClNAH. Proceedings ill rem and in pqr801lO/m cannot bejoined in the same libel,
except in the cases specified in the admiralty rules promulgated. by the supreme
One party to a contract cannot recover damages for its breach if he has failed , ,; to perform his part of it. '
Appeal from the decree of the district 'court. See opinion reported in 8 FED. REP. 47. ' Theodore M. Etting and Henry R. Edmunda, for libellant. Henry Flanders, for respondents.' , McKENNAN, C. J. On the twenty-sixth of May, 1880, at Philadelphia, T. Conrow, for the owners of the steam-tug Alida,-he being the equitable and thus the real owner of the entire vessel,-proposed to charter to G. H. Ferris the tug for two months, at the priceof $500 per month, for the purpose of "towing in North Landing river and Currituck sound," North Carolina; the tug to be furnished with coal. This proposal was accepted by Ferris. It was also agreeed that Ferris should furnish the master with provisions for his crew, and should pay the current expenses of the tug, the amount so expended to he deducted from the hire of the vessel, and the residue, if any, to be paid at the end of each m:onth. The tug left Philadelphia on the twenty-seventh ofMay, arriving at Norfolk June lst,and proceeded to North Landing river, some 30 miles distant from Norfolk, where she remained in the service of the libellant until the fourteenth of June, when she retu.rned to Norfolk for want of supplies. The libellant did not furnish needed supplies for the nor pay her, current expenses. Nor was the master able'to obtain supplies upon
«'Reported by Frank P. Prichard, Esq., of the Philadelphia bar.
the credit of the libellant without implicating the vessel, and he, therefore, left the libellant's service and returned with his vessel to Philadelphia. The libellant has brought this suit to recover damages for an alleged breach of contract by the respondents, and in his libel prays for a decree against both the tug and' the respondent Conrow. It is obvious that a fulfilment by the libellant of the terms of the contract to be performed by him, is an essential condition of his right to recover. If he failed to do what he stipulated to do, the other party was thereby absolved from any duty of performance on his part. Now, he stipulated to furnish supplies to the crew of the tug. Upon the faith of his stipulation the owner of the tug entered into the contracct, and its observance was, besides, necessary enable the tug to render the service for which its owner contracted., But he neglected or failed to fulfil his engagement in this regard; and the efforts of the master of the tug to make his personal credit able supplies were unsuccessful. His default, justified the owner of the tug in withdrawing it from his service, and in refusing to proceed further in t}J.e execution of the contract. This is enough to dispose of the libel; but another question is presented upon the record and has been: fully discussed, which it is not, therefore, out of place to notice. 'In the court below the libel was excepted to and its dismissal urged because it unites a proceeding in rem with a proceeding in personam,. and it is insisted' on here. That these remedies are incompatible, and cannot, therefore, be joined in the same libel, is the unquestioned law of England. Cootes, Adm. Pro 8. So far as the question has been judicially considered in this country there is no sub8tantial diversity of decision. In Citizens' Bank v. Nantucket Str. Co. 2 Story, 57,and Dean V. Bates, 2 Wood. & M.87, it was stated with special emphasis to be the law, that proceedings in rem and in personam were so different in their character and result that they could not be joined in the same libel. These cases were both decided before the promulgation by the supreme court of rules in admiralty in 1847, and as only exceptional provision is thereby made for a joint libel, the general rule, as stated in the cases refarred to, must be considered as receiving .the sanction of the supreme court. '" On neither of the groutids stated can the libel here be maintained. and it must, therefore, be dismissed, with costs.
(District (Jourt, E. D. Pennsylvania. March 17,
CHARTER-PARTy-VERBAL OFFER-RENEWAL OF PREVIOUS OFFER-CHANGE IN TERMB- CONFLICT OF TE8TIMOMY - BURDEN ON PARTY ALLEGING ()HANGE IN THE OFFER.
Libel in personam by the owners of the bark Accame against Gill & Fisher, Limited, to recover damages for breach of charter-party. The testimony disclosed the following facts:
On Aprill, 1880, Pietro Accame, the agent of the vessel, gave to the respondents an option, known as a cable refusal, to charter the bark for a voyage to continent of Europe, with full range of ports. This option expired April 3d, without having been taken advantage of by respondents. Afterwards Carl Gardeicke, the Pbiladelphia agent of the bark, made a verbal offer to Mr. Barker, one of respondents' firm, to charter the bark for a voyage to the continent of which offer was accepted. Mr. Gardeicke testified that his offer contained a eondition exclUding the port of Rouen. Mr. Barker, however, testified that nothing was said about the exclusion of Rouen, and that he understood the terms of the offer to be the same as those of the cable refusal. On the day of the acceptance of the offer Gardeicke prepared and sent to respondents a charter. which respondents the same day refused to sign be": cause it contained a clause exclUding Rouen.. Subseq1}ent negotiations failing to remove this misunderstanding as to the terms onhe contract, and freights having declined. the owners of the bark chartered her at reduced rates, and tiled this libel against respondents for damages.
Edward F .. Pugh and Henry Flanders, for libellant. Richard C. McMurtrie, for respondents. BUTLER, D. J. The alleged contract is not satisfactorily proved. The contr.acting parties were Mr. Gardeicke, the libellant's broker, and Mr. Barker, of the respondents' firm. That Mr. Gardeicke intended to inform Mr. Barker that Rouen was to be excluded from the voyage, and believes he did so, is clearly shown by his subsequent conduct, as well as by his testimony taken in the case. But it is quite as clearly shown by the testimony of Mr. Barker, and his conduct at the time of the transaction, and immediately after, that he was not so informed. Mr. Gardeicke may have mentioned the subject, but Mr. Barker cannot have understood him. His telegrams of. the same day, and refusal to sign the written charter-party containing the exclusion, a few hours after the conversation, render this quite clear. The previous offer of the vessel without the exclu4ReporLcd by Frank P. Prichard, Esq., of the Philadelphia bar.