was in public nse, with the consent of the patentee, in the year 1861. The affidavits state the declaration of a third person in regard to what he had ascertained could be proved by other persons, and also his declarations as to the effect of these discoveries upon the suit against the Duryeas. I think that the truth of the declarations of the third person is not sufficiently manifest to justify me in opening cases so carefully prepared as these were. The plaintiff's motion is denied, except as to an accounting of the profits and an assessment of damages for the nse of No. 137,911 by the Buffalo Grape Sugar Company before its purchase by the Messrs. Jebb.
(District Court, S. D. New York.
July 3, llSr>.)
CHARTER-PARTY-CONSTHUCTION-" THE SEASON OF 1882"-PRlOR CON'l'RACT BY TELEGRAMS-EvIDENCE.
Where a complete contract for the charter of a vessel was made by telegram .. for the season of 1882, .Jnding Oclober 31st," and the vessel made one voyage under the contract at lower rates than for single voyages, and a formal charter was then drawn up, and was signed by the captain, in the charterer's office, for "the season of 1882," omitting the words" ending Octoher 31st," and the evi· dence showed that no new or different contract was intended from that already partly executed, held, that the prior contract by telegram was competent evi· dence of the intention of the parties, and of the meaning of the phrase" season of 1882," although, in the absence of such evidence, the expression by custom would bind the vessel until navigation was closed by ice; accordingly held, that the captain was justified in refusing to run under the charter after October 31st.
In Admiralty. Jennings & Russell, for libelants. Jas. K. Hill, Wing & Shoudy, for claimants. BROWN, J. This was an action for damages on a charter-party, for the vessel's refusal to continue her trips after October 31st until the actual close of navigation, some six weeks subsequent. A perfect contract between the libelants and the master of the Calabria had been made by telegrams. After a series of negotiations the libel· ants definitely accepted, by telegram, the offer of the Calabria, at a definite price, "for the season ending October 31st." The Calabria made one voyage under this contract, and in part fulfillment of it, at less rates than for single voyages; and then, in the libelants' office, a more formal charter-party was drawn up, chartering the vessel "for the season of 1882," without repeating the words of the telegram, "end· ing October 31st." In interpreting the meaning of the ambiguous phrase, "the season of 1882," in this charter, the prior telegrams were competent evidence, and must be taken into consideration. Merriam v. U. S. 107 U. S. 437;_ S. C. 2 Sup. Ct. Rep. 536; Brawley
U. S. 96 U. S. 168; Rhodes v. Cleveland R. M. Co. 17 FED. REP. They control and limit the meaning of the phrase, "the season of 1882," and prove beyond controversy the sense in which that phrase was used and the intent of the parties. That intent is controlling. In the case of The Miantinomi, 3 Wall. Jr. 46, the word "ton" was thus shown to be intended to be 2,240 pounds, and not the statutory ton of 2,000 ponnds. The contract by telegram in this case was a binding contract. It was made after somewhat prolonged negotiations. It was partly exe· cuted, and could not be changed except by some subsequent contract intended to vary it, upon which the minds of the parties met. The f3vidence satisfies me beyond doubt that, in the execution of the more formal charter, no change in the previous contract was intended, at least, on the captain's part. His testimony is explicit that it was stated by him at the time that the season was to end as agreed on by the telegrams. was no conceivable motive for the captain's receding from this part of the existing contract. The object of the meeting at the libelants' office was not to make a new contract. The contract was already fixed and certain. The object was merely to put the existing contract into more formal shape. In fixing the meaning of the phrase, "the season of 1882," the informal contract by telegram must be read with the formal contract afterwards drawn up, as explanatory of it. The telegrams make certain the intention of the parties, unless there be evidence of a common intention to make a new contract; and there clearly was no such common intent. If the indorsement on the charter by Mr. Wooster was intended to h,--ld the captain to anything different, it is clear that the captain did not assent to it. The captain did not sign it; and it is no part of the charter itself. Mr. Wooster's testimony also shows that the season was to close on the thirty-first of October, "if the captain wished, or had any offer, to carry deals off shore." In that conversation it appears that the only point spoken of by Mr. Wooster as material to him was that the captain should not, after the tbirty-first of October, enter the service of the libelants' rivals and competitors in business. The captain stated that he had no wish to do so; and after the thirty-first of October he did not do so. I cannot find, therefore, that the libelants have either a legal or a meritorious cause of complaint; and the libel should, therefore, be dismissed, with costs.
426; Knowles v. Toone, 96 N. Y. 534.
NEWMAN 'V. DAVIS.
NEWMAN v. DAVIS and others.
(Circuit Oourt, E. D. Arkansas. August 1,1885.)
EXECUTION SALE-TITLE ACQUIRED BY PURCHASER.
In Arkansas a judgment creditor purchasing land at execution sale, on his own judgment, acquires the title and the rights of a bona fide purchaser for value against third persons claiming the same throu/<h the judgment debtor by secret trusts, or unrecorded instruments, of which he has no notice, actual or constructive, before the sale, and he buys subject 10 all the equities and rights of third persons, of which he lias actual or constructive notlCe before he purchases.
In Equity. In uno the plaintiff and Charles H. Carlton jointly purchased, and paid for, the plantation in controversy. The deed for the plantation, which was recorded, was made to Carlton alone, who gave the plaintiff a written paper stating he held the legal title to an undivided half of the plantation in trust for the plaintiff. This paper was not acknowledged or recorded. On the twenty-eighth of July the defendants Davis and Gaines recovered judgment in the circuit of Chicot county-the county in which the lands in controversy lieagainst Carlton for $1,357.26. Executions were issued upon the judgment, which were levied on the plantation purchased by the plaintiff and Carlton, as the property of the latter, and upon a sale of the property on said executions the defendants Davis and Gaines became the purchasers for $1,005, and after the expiration of the year al· lowed by law for redemption, received a deed for the property. On the seventeenth day of April, 1879, Dowdle recovered judgment in this court against Carlton and Street for $2,120.73. Chicot county is in this district, and this judgment was a lien on the real estate of Carlton in that county. Execution issued on this judgment, upon which the same plantation was sold on the sixth of February, 1880, and purchased by Street for $625. The lien of this judgment being prior to that of the judgment of Davis and Gaines, the latter, on the tenth day of July, 1880, purchased Street's certificate of purchase, paying him therefor $718.75, and took an assignment of the same, and afterwards procured a deed thereon, for the premises, from the marshal. The bill seeks to establish and quiet the plaintiff's title to an undivided half of the plantation, as against the defendants Davis and Gaines, whose title was acquired in the mode above stated. The bin alleges the defendants, including Street, had notice of the plaintiff's equitable title to half of the lands before they purchased them at the execution sale, and that they had the like notice before purchasing Street's certificate of purchase. The bill did not waive an answer nnder oll,th; and the answer, which is nnder oath, denies explicitly any notice to Street or the defendants of the plaintiff's equitable title to the undivided half of the plantation, until after the defendants had v.24F,no.11-39