. qp.estion becomes one or construction, as applied to the known facts in business; in other words, the vessel should have been kept in the coolest of passages that those engaged in the trade were accustomed to keep. It seems to me clear that the cool passages those engaged in the trade usually took were to the north, or just south, of the Azores, and from thence to the southern point of the Great Banks; and that the John H. Pearson, by not taking this course, violated an express provision in the charter-party. In either view of the construction put upon these words, "the northern passage," by the supreme court, I am of opinion that the libelants have tnade out their case upon the evidence, and that a decree should be entered in their favor.
D. PennB1/lmania. Jan\1ary 18,1888.) Tpw- UNflAPB
" COXDlTIOX 01'
A b\lving ,a tqw 11;1 cbarge,attempted to run past the piers of · . bridge on a bad Jiigbt, a lligliwind. The tow collided with one ,of the ptersi and sunk. The impingement, was so slight tbat if the to1'V .'had beeu in good,order no serioUlJmIBcbIef would have'ensued. Whenthe trip was undertaken it was known to both the owners of the tow and the mas, ter, of the tow-boat. that, the to,:, was unfit to encounter the hazard!lof the . trip;' Held, tbat negligence was Imputable to both parties, and but half dam"aps were recoverable bVthe owner. Clf the tow. . : . . "
In Admiralty. C. L. Snowden & Co. against HenryM"Hodgson and others, late,owners of the tow-bos,tThe Wl)l·. Kra.ftjto recover damages for negligenttowage, causing loss of libelant's boat. K'T/,(Khfc'Reed, for libelants. baac S. Voorltis, fonespondents.
J. '. It has" been that it is negligence in both of t1i,e to",. and the master of the tug to proceed on a voyage with a tow known, to be unfit. to encQunter .the hazardlil of the ttip,and, in case ofthelo,Bs of the tow due to, such concurrent negligence, the damages ,$h'oU'!d'l)e equally divided between the parties. . MaBOn v. TM Wm.MurRep. 404j T Wllt. Co:1:, 9 Feel"Rep. 672; Connolly v: Rosa, 11 Fed.' Rep; 842; The BtWdbttown, 16 Fed. Rep. 270. A careful consideration of the proofs in this case has brougbtl)le to the concl\lslonthat this principle is jtl'stIyappll6a'ble here. TlieltBe1ants' flat-boat was very old,-well nigh worn out,-and had been sided up to hold a cargo of nutcoal, with which it was loaded deep down in the water; and it was leaki.ng badly. These facts were known to Browll, the master of the Wm.
Kraft, and to: Sloan, the engineer and;one of the owners of the boat. They both hesitated to take the flat-boat in charge because they consid. eredit hazardous to undertake to tow it in its bad condition. The Wm. Kraft hitched to the flat-boat after dark, about 8 or 9 o'clock. Sloan says:· "The night was very windy and bad." The risky condition of the flat-boat was fully known to the libelants, or at least to their agent, Livingston, who delivered it to the tow·boat. I think it clear that the immediate cause .of the sinking of the flat-boat was its collision with the pier .of the Redstone bridge. But the impingement was so slight that if the flat-boat had been staunch and in good order, it is not at all likely that any serious mischief would have ensued. Indeed, the unfit condition of the tow contributed directly to the disaster. But then, on the other hand, as the master of the WIll' Kraft had undertaken to tow a flat·boat known to be so tender as not to be able to endure knocks which would not hurt sound vessels, it was his duty to exercise care commensurate with the necessities of the .occasion, artdha should not have attempted to run past the piers of the bridge on a bad night,and in a high wind. The Mohler, 21 Wall. 230; ,. . agreement that the flat-boat should be towed. I1t the risk of The the owners' fs hot·satisfact()rily established. This is not se't ilp in the answer, J:l,either Br<;>wn nor Sloan testifies. to any such un'<lerstandfng. 'This defense, urged at the hearlng, rests exclusively upon :the unsupported recollectioll of two bystanders, Province and Swa.ine, as to the which (they say) Slqan used in his conversation with Livingston when tho flat was taken in tow. But the proofs in the whole ' do not su&tain this'defense. . As necessity io remove t,he wreck out of the channel or the river, I think the cost thereof is a proper item of claim here. Correcting, then, the mistake admitted to exist in the libelants' bill, the damages are as follows. viz.: ornut coal, ' . ' 6,100 ·.Contractprice per bushel,:(including fiat-boat,) · 7 eta.
Deduct for towage and tolls,' ,u,,',' ':. -
"'Add cost'of removing wreck,
r .. .' "
;, Total damages. ... .$573 76 ,The entitledtOa'deCre.e for one-half of the damages, viz·· $286.88, with'interest :(rom, the date, of suit·. The unexplained delay in suing Justly deprives the libelantS of interestfrom the date ,0£ the loss. ' .. ' . , .'. , .Let a decree with this opinion.
DANIEL '11. BROWN.
DANIEL '11. BROWN
Colorado. February 17, 1888.)
Ina suit to set aside a deed of mining property on the ground of fraud, plaintiff's evidence, on motion for a receiver and an injunction, showed that defendants had discovered ore on the mine before they bought plaintiff's interest in the mine from his agent, bilt he did not clearly prove that this discovery had been concealed from his agent, and·failed to prove, as alleged in his bill, that defendants agreed to pay the ag!3ntadditional compensation for his o,wn interest in ,thll mine, which they had also bought, conditioned on the value,of ,the ole tlieymight take out. The agent received a larger proportional price for his own interest in the mine than that he obtained for plaintiff. Held, that the. evidljnce was insufficient to sustain the motion.
.In Equity. On motion for injunction and .';'J;4:is was a suit brought by George M. Dalliel against David R. C. Brown, ;Elwer 'r. :Butler, James M. Downing, John C. Eames, George H. HewC. Bates to set aside certain conveyances. itt,: J. F.. Downing, :'fhe billalleges that plaintiff,authorized one Thomas Bracken to sell plaintiff's half interest in a certain mine for the best price he could obtain, not less than that defendants Brown, Butler, Eames, and discovered a large body of valuable ore on this mine, and, fraudulently concealing this discovery from Bracken, induced him to sell to defendant Hewitt, for their benefit. plaintiff's half interest in the mine for $5,000; that, at the same time, they purchased Bracken's quarter interest in the same mine for $3,000, and the promise of a larger sum, conditioned upon the value of the ore they might take out; and that defendants had taken $250,000 worth of ore from ,the mine. a. J. Hughes, for plaintiff. Patterson & Thomas and J. B. Belford, for defendants.
' I think the bill in this case states facts which, if sup. ported by evidauce, would call for the relief which the plaintiff demands, the question whether the plaintiff be entitled to any such orders as he now asks for turns upon the evidence. I think the evidence terids to prove that ore was discovered in this mine by Mr. Eames before the contract was made for the purchase of the property. I do not attach much weight to;the circ.umstance that Mr. Bracken got moreJor his interest in tbe property" in proportion to the amount of his interest, than giventot'Pe It often happens, among tenants in common, that one for his interest in the property than is obtained by another, and, according to my observation, those .who own small interv.33F.no.15-54