IIKONETTI ·V. :rOSTER.
mate in the case of the Santee. It is observed, in that case, that an actnal delivery from the tackles of the ship upon the cart of the wrong person would make the ship liable. 2. Ben. 525; 7 Bl. 188. The evidence does not show any such to Blum as that. On the contrary, the proof direct is that the goods were landed on the wharf, and afterwards taken away by Blum's draymen. I think, therefore, the case is governed by the case of. the Santee, and that the ship is not responsible, because the goods in question were delivered, within the meaning of the bill of lading, and the consignees had full notice to attend, and did, in fact, attend, upon th& discharge of the vessel to receive their goods. Libel dismissed, with cost..
(District Court, D. MalsacJnuettl. May, 1880.)
CJu.RTER-PA.RTY-GUARANTY OJ' VESSEL'S OAPACITY.-A
charter-party guaranteed the vessel to be able to stow and carry, on the draft of water allowed by the surveyorso[ the board of underwriters, at least 1,000 tons dead weight. A survey indicated that the capacity to so stow and carry on such draft was but 925 tons. Held, that the charterers were 110&bound to accept and load such vessel.
C. T. « T. H. Russell, for libellant. A. « J. R. Churchill, for respondents. NELSON, D. J. This is a libel to damages for refusing to load a vessel. The libellant is the owner of the Italian bark, Caterina S., and by a charter-party executed between the parties, December 3, 1878, in which she is described as of "619 tons, or thereabouts, register measurement,'; lei the bark to the respondents for a voyage from Boston to a port in the United Kingdom, or on the continent between Havre and Hamburg, both inclusive, for which the respondents agreed to pay a lump sum of £1,050 British sterling. The charter-party recited that the bark was then "in a Mediterranean port, ready to proceed to Trapani, and there to take a cargo of salt for Boston direct, after discharging which she is to load under this charter," and it contained this clause:
"The said party of the second part (the respondents) doth engage tQ provide and furnish to said vessel a full and complete cargo of wheat and (or Indian oorn and) 01" other lawful ,merchandise, say as much as she can reasonably stow and carry, (which is guaranteed by vessel not to be less than 1,000 tons dead weight,) on the draft of water allowed by the surveyors appointed by the marine underwriters, under whose inspection the vessel is to· load." On the arrival of the bark in Boston, in May, 1879, freights had fallen, and it having been ascertained by a survey that she could stow and carry, on the draft allowed by the underwriters' inspection, only 925 tons dead weight of Indian corn, (corn being the cargo for which the charter was obtained,) the respondents refused to load her. The question in the case is whether, upon the breach of the libellant's guaranty that the vessel should stow and carry not less than 1,000 tons dead weight of Indian corn, under the circumstances stated, the respondents were justified in throwing up the contract. It seems to me too clear to admit of any doubt that they were. The guaranty is not a mere descriptive statement as to the capacity of the vessel, or a stipulation that something should be done or happen in the future, but it is an absolute warranty as to an existing state of things, expressed in clear and definite terms. It was intended as a substantive part of the contract, and is to be regarded as a condition upon failure of which the respondents might repultiate the contrad altogether, no part of it having been ex-ecuted in their favor. No case has been cited where a stipulation of this nature has been held to be independent, and not 8. condition precedent. This contract, like all mercantile contracts, is to be constrned according to its plain meaning to men of sense and understanding; and I think those parties never could have in. tended by this charter-party to require the respondents to load It vessel of less capacity than is called for by the libellant's guaranty. Lowker v. Bangs, 2 Wall. 728; Fearing v. Cheeseman, 3 Cliff. 91; Graves v. Legg, 9 Exch. 709; Behn v. Burgess, 8 Law Times, 207; McAndrew v. Chapple, L. R. 1 C. P. 643. The entry is to be: Libel dismissed, with costs.
CAMPBELL V. CRAMPTON.
(Circuit Court, N. D. New York. May 17, 18BO.)
CONTRACT-CAPACITY TO CONTRACT-LAW TO GOVERN.-Where, a con,. tract is made in one state, to be performed in another, the capacity of the parties to make the contract is, as a general rule, to be determined . by the law of the plaee where it is entered into. SAME-AGREEMENT TO MARRY-NEPHEW AND AUNT.-Where a contract for marriage between nephew and aunt was entered into in Alabama, where such marriages were declared incestuous, upon the trial of an action for a breach of such contract in New York the court charged that, if the parties could lawfully marry in New York, and by the terms of their promises they were to be fulfilled by a marriage in New York, the agreement was valid, and damages for the breach of such contract recoverable. Held, erroneous. MARRIAGE-VALIDITY of.-GeneraIIy, a mal'riage valid at the place of solemnization is valid every where. SAME-PLACE' OF PERFORMANcE,-lt is not the mere place of solemniza. tion of a marriage ceremony, but the place where the parties are to be domiciled, that is to be deemed the place of performance of the mar. riage contract. SAME-NEPHEW AND AUNT-CONTRACT TO MARRy.-While, under the laws of the state of New York, a marriage between nephew and aunt may not be voidable for consanguinity, it by no means follows that an agreement to marry between parties so related will be tolerated, or damages be permitted to be recovered for breach thereof.
Ransom If Joyce, for complainant. Wm. Douglas and A. K. Potter, for defendant. WALLACE, D. J. The plaintiff having recovered a verdict for $10,000 for breach of contract of marriage, the defendant now moves for a new trial, alleging error in the rulings upon the trial. The plaintiff is a half-sister of the defendant's mother. She was temporarily residing at Mobile, Alabama, which was the domicile of the defendant, when the marriage engagement took place. Subsequently the plaintiff returned to the state of New York. The evidence authorized the jury to fin4 that at the time of the engagement to marry the parties did not contemplate an early marriage; that it was not until after the plaintiff had removed to the state of New York that any definite plan as to the time or place of the marriage was enterv.21 noA-27
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