Lette.rspatent issued to H. M. Clark, on the first day of October, 1872, for an "improvement in dredge-boxes." Clark's device or can is provided with a cover, constructed with an annular ring or breast, at the inner edge of which is a vertical flange, or ledge, adapted to receive and hold, a secondary slip-cover. Underneath, and fitting to the annular top-cover, a thin metal diaphragm is secured, by adapting its edges so that they fit closely inside the turned down outward edge of the top-cover, and so that the ring of the cover, when inserted with its down-turned edge at the top, secures and confines the diaphragm against and within the top-cover. The diaphragm is perforated. It is not hl!lrmetically sealed in the cover, and there is no rounded upturned bead at the inner edge of the annular ring or breast. Any experienced mechanic, with Clark's dredge.box or can before him, could readily construct the complainant's paint.pot. In mechanical construction there is no substantial difference in the two devices. Clark's can was oonstructed to hold pepper, spice, and other dry substances, and, of course, a tight joint was not called for. A can constructed in the same way, with a diaphragm soldered to the annular ring, and thus adapted to hold liquid, shows no invention. The bill is dismissed for want of equity.
THE HAMILTON J. MILLS. THE WALTER A. SHERMAN. FORTIER V. FIVE HUNDRED AND FORTy-THREE THOUSAND THREE HUN-, DRED AND TWENTy-FIVE FEET OF PINE LUMBER, late Cargo of the Barge Hamilton J. Mills. SAKE and another 'V. FIVE HUNDRED AND SIXTY THOUSAND AND SIXTYTwo FEET OF PINE LUMBER, late Cargo of the Barge Walter A. Sherman.
D. New York. January, 18811.)
DBMURRAGB - CONTRACT - " GOOD DISPATCH"-WAIVER OIl' DEMURRAGB - EVI. J)ENCE-DIIlMISSAL OIl' LlBEL. .
Upon examination of the evidence and the circumstances in this case, held, (1) that an agreement binding upon respondent to give good dispatch is not proven; and (2) that it is shown that the libelants waived their claim for de· murrsj[e, and the libel should be dismissed.
These are demurrage cases. On the twenty.fifth day of October, 1883, the libelants, as owners of the barges Mills and Sherman made a contract through Warner & Becker, ship·brokers, of Cleveland, Ohio, the special agents of Mary
THE HAHILTOH J. MILLS.
J. Poole, the respondent, to convey a quantity of lumber from Pene.
tanguishene, on Georgian bay, Ontario, to Buffalo, New York. The only authority given Warner & Becker is found in letters and tele· grams from S. G. Poole, the respondent's general agent at Buffalo. The statements and representations made by Poole during this cor· respondence, between October 2d and October 25th, so far as it is necessary to refer to them, were as follows: He stated that there were 2,000,000 feet of lumber in good condi· tion at the dock (not on the dock, as libelants erroneously assumed, but on or near the dock) of the Brentwood Lumber Company, at Penetanguishene, ready to deliver on the vessel's rail; that he would pay $3.25, but not $4, per thousand feet. On the twenty.fifth of October he received from Warner & Becker the following telegram: "If we can charter two million capacity, to leave bere Saturday, for your
lumber. at $3.50. shall we do so '("
The reply was:
"If cannot for less, will pay $3.50, loading as fast as possible."
On the same day, Warner & Becker gave the libelants the follow. . ing order:
.. CLEVELAND, OHIO, October 25, 1883· ..Brentwood Lumber Oompany. Penetanguishene, Ontario-GENTLEMEN: You will please deliver on rail of barp;es Hamilton J. Mills, Sherman, and S. D. Hungerford, <mrgoes of lumber, and consign same to Buffalo, N. Y .. Lake freight, three dollars and fifty cents ($3.50) per thousand, to be delivered on rail of barges and taken from rail at Buffalo, N. Y. Barges to have good dispatch in loading. Yours truly, WARNER & BECKER. "By order of S. G. POOLE, General Agent."
The barges left Cleveland October 27th, and reaohed Penetanguishene November 4th. They commenced loading Monday, November 5th. In order to expedite the loading, the mills were closed down and the mill hands worked several until 12 and 1 Q'clock. The Sherman, carrying 651,060 feet, finished loading on the twenty· seventh of November; the Mills, 650,000 feet, on the 20th; the gerford, 340,000 feet, on the 22d. The tow started for Buffalo on the 23d, reaching there on the fourth of December. On the of October the libelant Fortier and his agent, Rice, had an interview with Poole, at the latter's office in Buffalo. A copy of Warner & Becker's order, containing the clause for "good dispatch," was then exhibited to Poole, and he, in return, showed Fortier the entire cor· respondence with Warner & Becker. Poole there stated that Warmr & Becker were mistaken in saying that there were 2,000,000 feet of lumber on the dock at Penetanguishene; that there were not to exceed 500,000 feet; that the remaining lumber could be run down on a tram-way at the rate of 100,000 feet per day, and that it take a number of days to complete the loading., .On the 30th, Poole telegraphed the lumber company not to load unless the barges would load without demurrage. On the same day, Rice"lJ,sFortier's repre-
sentative, went to Penetanguishene to examine the facilities for loading, and on the 31st advised Fortier by telegram of the general situa· tion, stating that it would take 16 or 18 days to load. He also advised Fortier of Poole's telegram to the lumber company not to load if there was any claim for demurrage. In reply, Fortier telegraphed Rice to present order for cargoes on arrival of the barges, and if the lumber company refused to load, to notify him and he would send further instructions. Meanwhile Rice, and Crossfield, the representative of the lumber company, had attempted to negotiate upon the question of demurrage. As a result of this conversation, Crossfield, on the 31st, telegraphed Poole as follows: "You must settle question of demurrage with Mr. Fortier, owner of barges. Telegraph whether to load." On the first of November Poole answered in these words: "Fortier says no demurrage, but load as fast as possible." This telegram was accepted by Rice and the lumber company as final, and the loading commenced as soon as the barges were ready. Poole testifies that this telegram was sent with Fortier's approval and assent. Fortier denies this. Damages are demanded for the delay in loading, not for fraudulent representations. Benjamin H. Williams, for libelants. George Olintl)n, for respondent. COXE, J. Of the issues involved in tbese actions but two will be examined: First. Was there an agreement binding upon the respon· to give good dispatch? Second. Did the libelants waive their claim for demurrage? Whether or not there was a valid agreement for good dispatch depends entirely upon the authority delegated to Warner & Becker. Their instructions were wholly in writing, and nowhere contained permission to insert such a clause. The nearest approach to it is found in the stipulation to load as fast as possible, but this language precludes the idea that the respondent intended to limit herself to any given number of days. Fairly construed, in view of preceding slate· ments, it meant simply that every facility which the dock to which the barges were consigned, and the premises adjacent thereto, afforded, would be used in loading. For so much the brokers were au· thorized to contract, but surely no inference can be drawn from the language used which justified the insertion of a clause, which, if the libelants' contention is correct, bound the respondent to accomplish the absolute impossibility of loading in from two to four days. There was nothing in the correspondence and nothing in the general character of the brokers' employment to warrant it. They were the particular agents of the respondent to make this single agreement. Their au· thority was specific and should have been strictly pursued. Having exceeded it, the principal is not bound. Nor can it be said that the contract, as interpreted by the libelants, was, by any act of omis-
THB HAMILTON J. MILIS.
sian or commission, subsequently ratified. Poole knew nothing of the stipulation for good dispatch until shown the order by Fortier, four days after it was given. He then, if his own statement is to be believed, distinctly repudiated it. But upon the uncontradioted testimony there was no ratification. Warned by a similar experience a short time previous, Poole endeavored, from the inception to the end of the negotiations, to avoid all claims for demurrage. He knew that by no human power could the barges be loaded in four days at the Brentwood dock. At the interview with Fortier and Rice, on the 29th, the entire oorrespondence with Warner & Becker was produced, and facts stated whioh proved to a demonstration that suoh rapid loading was entirely out of the question. The next day, in order that all doubt regarding his position might be removed, he telegraphed not to load if demurrage was demanded. In view of all this, to say that Poole consented to a oonstruction which rendered his principal liable in damages if she failed to accomplish an impossibility is to reflect seriously upon his sanity. That the respondent fairly performed the oontract thus limited and defined, is, it is thought, sufficientlyestablished by the proof. Indeed, it is not seriously disputed that the loading progressed as rapidly as the situation at the Brentwood dock permitted. . Second. Did the libelants waive their claim for demurrage? On the first of November Poole sent to the agent of the Brentwood Lumber Company the following dispatch: "Fortier says no demurrage, but load as fast as possible." The respondent contends that this telegram was duly authorized by Fortier. The libelants insist that it contains a false statement, and was without Fortier's knowledge or consent. What is the proof? Poole testifies that on November 1st, at pis office, he showed Fortier Crossfield's dispatch of the day previous, in which he says that the question of demurrage must be settled at Buffalo; that after reading it Fortier replied, substantially, that he should not demand demurrage, but vessels must be loaded as fast as possible; tbat the dispatch in question was then written, and after being shown to Fortier, was sent with bis full knowledge and approbation. Poole is partially corroborated by the clerk in his office, who recollects seeing a dispatch handed to FOl'tier on that day. He also remembers that after Fortier had given his consent, a messenger was called and the dispatch delivered to him. Fortier denies that such a conversation or transaction took place at any time. He thinks, however, that he was at Poole's office and had an interview on November 1st, but he does not give the particulars of the conversation. He says that on the previous evening, having in his hands Rice's dispatch advising him oiPoole's direction not to load unless demurrage was waived, he stepped into Poole's office and told him that the vessels had not arrived; that there was no person at Penetangnishene authorized to demand demurrage, and that he wanted Poole to load according to order. That this was a most extraordinary, irrational and incon·
. I'Jl\D'Bll.A.L BEPOB'fEl\.
sequential statement, unless it bore upon the question in dispute, whiobhad been referred to them for settlement by Crossfield's telegram, will hardly be' denied. When asked if the telegram waiving demurrage was shown him, Fortier, without saying positively that it was not, evidently desires to leave that impression, for he testified that. a telegram was shown him, it had referenoe to an en· tirely different matter. This alleged telegram was not produced or satisfactorilyaccbunted for in any way. Poole denies that he showed Fortier any telegram' but the one waiving demurrage. It will be observed that Poole's evidence is positive and affirmative, Fortier's negativ.eand indirect. But; disregarding the disputed testimony, what are the presumptions to be drawn from the admitted facts? What are the probabilities? In order to answer these questions intelligently,'it is necessary to understand the situation and the surroundings t)f,the parties. Fortier knew that Poole disputed his interpretation cifthe order for good dispatch, and insisted that the brokers had no authority to insert that· clause; he knew thltt Poole contended that he was only required to load as fast as possible at the Brentwood dook. He knew that Poole had telegraphed his people at Penetanguishene not to load unless all claims for demurrage were abandoned; that Rice and Crossfield had refused to settle the question of demurrage; that unless it was settled he must abandqn .all expectation of procuring a cargo upon this order. His vessels had then passed Port Huron, and had entered the open lake. There was no way to recall them or direct them to another port. The season was growing late, and it can hardly be supposed that Fortier overlooked the fact that even with good dispatch, as he interpreted the order.. his ba,rges- could not, in all probability, be released before November 24th.or 25th; sci near the close of navigation,that even if another commission could be obtained it would be hazardous to undertakeit. The alternative thus offered Fortier was either to load without demurrage, or refuse to do so and lose his freight. With his barges at an obscure and distant port, the opportunity for further employment during the season was by no means certain. Was it wise for him to abandon a certainty for a doubtful and disputed claim which could only be rea.lized upon, if at all, at the end of a protracted litigation? Is it not reasonable to suppose that in these circumstances, even though he felt himself aggrieved, he concluded to accept the lesser of two evils which confronted him? It is incredible that this barrier of demurrage, which was regarded aEl insurmountable by Poole, could have been removed without some notice being taken of it by those most interested; that his apparently. unconditional surrender should have taken place without even a murmur of comment or inquiry. And yet, if the libelants' theory is correot, the subject was never alluded to, though the parties met in consultation after the question had assumed this serious shape. Is this position reason· able? To maintain it evidence must be rejected, probability disre-
garded, and Poole found guilty oh most atrocious piece of chicanery. He must be convicted of a fraud, alike infamous and transparent; a trick which could not have remained long undiscovered, and which wonld brand him not only as a scoundrel, but also as a simpleton. There is nothing in the proof to warrant such a conclusion. The weight of evidence and the presumptions are with the respondent upon this issue. It follows that the libels must be dismissed, with costs.
(District (Jourt, W. D. Pennsylvania. January 8,1886.)
CoLLISION-UNLICENSED PILOT AT WHEEL-FAULT.
While the mere fact that an unlicensed pilot was at the wheel at the time of a collision will not of itself fix the responsibilit)' therefor, yet that circumstance may well be taken into consideration in determining the question of which party was at fault. .
In a conflict of evidence as to the exact position at the time of a collision of a fleet of flat-boats, moored at an abutment at the libelants' landing, greater weight should be given to the testimony of the witnesses who, by reason of their connection with the fleet, had the better opportunity of knowing what the fact was.
In Admiralty. Morton cf: Hunter, for libelants. Barton et Son, for respondents. ACHESON, J. This suit is .for the recovery of damages caused by the sinking of the libelants' flat, loaded with coal, which occurred about noon of May 17, 1882. This flat was one of a fleet moored at the libelants' abutment or ice-breaker at their landing at East Liverpool, Ohio. It was struck by a flat in the tow of the steam tow-boat Hunter No.2, and sunk immediately after the, collision. The towboat, having seven craft in tow, had come down the Ohio river, her destination being the landing of Turnbull & Sharp, which is a few hundred feet above the lib'elants'landing on the 'same side ofthe river. She attempted to land at the abutment of Turnbull & Sharp, but failed to do so,missing the landing, and in backing out from the Ohio shore the collision Charles E. Sloane, the pilot of the tow-boat, in his testimony says: "We lost control of the boat and tow that far that we missed making the landing at Turnbull & Sharp's'!' But why they so lost control of the boat and tow he does not satisfactorily explain. It is true, the water was high,-at a stage of about 18 feet; but Sloane further states: "We have made that landing at Turnbull & Sharp's frequently before on water about the same stage. There was nothing unusual ip. the water, nor in the size of our fleet, nor in the elements, to prevent us making the landing, excepting a