'MORSE tI. LEHIGH & W. COAL
his canal-boat from Albany to New York, but not by any particular tug or steamer. The company employed the tugs Robertson, Winants,and Betts to take tbe tow, of whicb tbe libelant's boat was one, up the river, and itfl,bout. and get the tow started on its course down tbe river; and the negligent acts by wbicb the libelant's boat was injured were committed by these tugs while they were in charge of the tow, before the Syracuse .undertook any towage service, or was under any responsibility for ipe managelllent or supervision of the tow.. The suit could as well be maintained against any otber of the steam-boats or tugs owned by the Schuyler Towing, Company which had no connection whatever with the voyage or tow in question as against the Syracuse. The libelant has mistaketJ, ,bill remedy, and for that reason the decree of the district court dismissing, the libel is affirmed, with costs of this court. The question has arisen as to the taxation of costs in the district court. It has long been the practice in this circuit to permit the taxation of fees of witnesses for travel, not exceeding 100 miles from the place of trial, unless the distance is Wholly within the district of the court, although the witness was not subprenaed, but attended upon the trial voluntarily, at the request of the party for whom he testified. The cases of U. S. v. Sanbom,28 Fed. Rep. 299, and of Spaulding v. Tucker,2 Sawy. 50, and Hainea 'V. McLaughlin, 29 Fed. Rep. 70, have been cited.' The first holds that the witness' fees may be taxed for the whole distance between his residence and the place of trial, although his residence is outside of the district, and. more thana hundred miles from the, place of trial, and .although he has not been subpoonaed, but attends vohmtarily; and the latter hold that in no case can a witness' fees be taxed unless he bas been subpoonaed to appear. These cases have been considered, but witb the result that the rule which has heretofore obtained in this circuit seems the more roosonl:\ble, and gives tqe best practical effect to the la.nguage and spirit of sections 876, 863, and 850, Rev. St. U. S.
et at v.
(Oircuit Oourt, S.
York. October 15, 1888)
Libelll-nts offered a schooner to defendants' agent to load, whereupon the agent filled up a "coal order" to one of defendants' coal pockets, which libelants 'accepted. nothing being said about chartering the vessel. Held, that the order was incorporated in the contract, and defendants were relieved from liability for failure to furnish a load by a clause to that effect in the order.
1ll.!\.dD,liralty. On appeal from district court. Libel for demurrage by Benjamin W. Morse and others against the Lehigh & Wilkesbarre Coal Compwy. Decree for respondent, and libelants appeal.
Henry S. Ward, for appellee.
Gee. A. Black, for appellants.
LACOMBE, J. A "coal order," such as the one now before the court, was considered in Rackett v. Stickney, 27 Fed. Rep. 878. It was there held that, when delivered by one of the parties, and accepted by the other, as the result of verbal negotiations, it is conclusively presumed that such acceptance is all assent to its terms; but also that, when an independent contract has been concluded verbally between the partil;is, assent to its modification will not be implied from the acceptance by one party of an order directed by the other party to his own agent, and which is to be delivered to the agent, and retained by him. Inasmuch as the document now under consideration is precisely such an order, the question whether or not the respondent is by the second clause of its indorsement relieved from liability for failure to furnish a load depends upon the determination of the further question whether or not an independent contract was concluded before the "order" was given. The libelants' broker, Van Cleaf, testifies that he called upon Wilder, the shipping clerk of the respondents, about January 15, 1886, and asked if they could charter a schooner of about 1,300 tons, then at Warren, R. 1., for Boston, or any port east. Wilder said that he thought he could, and in answer to a further inquiry offered $1.50 a ton ·for a voyage from Port Johnson to Mystic wharf, Boston. Van Cleaf asked time to telephone to his principals, which was granted. He did so, and, a satisfactory answer being received, at once came back from the telephone room and· told Wilder that libelants accepted that charter, to which Wilder replied, "All right." Immediately thereafter Wilder filled up the order to the respondents' agent at Port Johnson, inclosed it in an envelope, gummed britnot sealed, and directed to such agent, and .delivered· it to Van CleM. If this version of the interview is correct it would seem that a complete agr.eement of charter was made between the parties when Wilder assented to the libelants' acceptance of his offer; and the subsequent order to respondents' own agent would not, under the decision above referred to, be operative to relieve them from their obligation to load the vessel with reasonable herself at Port Jo.hnson. Wilder's promptness upon her statement of the conversation, however, is somewhat dift'erent. He says that Van Cleaf offered the schooner Charles E. Balch to l<;lad, and that he (Wilder) said he would give !tim an order to one of the respondents' coal pockets; and thereupon filled up the order and handed it to Van Cleaf, who took it and went out, nothing being said about chartering the vessel. If this version is correct, the order itself was incorporated in the contract, and respondents' only obligation was to conform to its terms. The learned district judge has evidently accepted Wilder's statement as the more credible. As he saw both witnesses, and could best judge of the relative value of their testimony, his finding will not be disturbed. Decree affirmed, with costs.
NEW ORLEANS W ATER,-WORKS
SOUTHERN BREWI!\G CO.
NEW ORLEANS WATERMWORKS CO. V. SOUTHERN BREWING CO. S.um v. PEOPLE'S ICE Co. SAME V. MCG1NNIS OIL & SOAP WORKS.!
D. Louisiana. June 7, 1888.)
COURTS-FEDERAL COURTS-FoLLOWING STATE DECISIONS. In Wat,r- Works 00. v. Refinery Uo., 35 .La.Ann. 1111. the supreme court of Louisiana hela that in spite of the charter of the water-works. giving that corporation the exclusive privilege of supplying water from the Mississippi to the city and its inhabitants, and reserving to the city council the power to grant persons contiguous to the river the privilege of laying pipes for his own use. the council. under said charter and the general Jaws of the state. could grant such priviles:e to persons without regard to their contiguity. In this de· cision the United l::ltates supreme court held that no federal question was in· the determination of the council's power. under the state laws, being for the state supreme court. (8 Sup. Ct. Rep. 741.) Before this ruling. but after the state decision, the United States stlpreme court. in the case of WaterWorks 00. v. Rwers. 6 Sup; Ct. Rep. 273,without referring to the state decision, held that the council's grant of such privilege under the provision of the state constitution adopted after the water-works charter had been granted, which abrogated monopolies, impaired the obligation of the state's contract with the company. Held, that the United States circuit court in Louisiana should be governed by the decision of the state supreme court. the matter being, as conceded by the United States supreme court, one for its determination, and the parties being all of them Louisiana corporations. BILLINGS, J., dissenting.
In Equity. Final hearing on injunction. J. R. Beckwith, for complainants. A. Goldthwaite and W. S. Benedict, for defendants. Argued before PARDEE and BILLINGS, JJ.
PARDEE, J. Assuming that the questions arising under the constitution, upon which our jurisdiction rests, are to be decided in favor of the complainant, there remains the question of construction of complainant's cbarter, and the general laws of Louisiana with reference to the right of the city of New Orleans through its council to grant licenses or permits to the defendants to lay pipes in and across the public streets to their respective establishments for the sole purpose of supplying themselves ra-· spectively with water from the Mississippi river. In the case of WaterWorkB Co. v. 'Refinery C6., 35 La. Ann. 1111, this question of the authority of the city of New Orleans under the complainant's charter and the laws of the state was presented to the supreme court oithe state of Louisiana, lmd was decided in favor of the right. It is true that in the case the refining company, among other defenses to the suit, set up that it was a contiguous person to t,he Mississippi river, and therefore within the letter of the proviso in the eighteenth section of complainant's charter, but the court wholly ignored the contiguity defense, and based its judgment wholly upon the general law of the state, and upon the copstruction and effect of the charter from the legislature to the water-works ,company, and of the license from the city council to the refining company, and in no degree upon the constitution or any law of the state subIPublication delayed by inability to obtain copy of opinion at time of delivery.