DIEBOLT v. CANAL-BOAT CHESTER HAlB.
does not preclude the parties to an agreement from varying or construing its terms by a subsequent writing. These letters constitute such a subsequent written admission as to the meaning of the contract. The testimony of the witness Bigler, in reference to this letter which he wrote himself, illustrates the untrustworthy character of his testimony as above referred to. In any view of 'the transaction the libellants are entitled to r"cover the balance of their freiRht according to the charter-party. The defendants are admitted to be entitled to the interest claimed. $461.49. Deducting this from $1,326.56, the balance of the freight, there remains due to libellants $865.14, with interest from April 4, 1874, $341,-in all, $1,206.14,-for which sum, with costs, the libellants are to have a. decree.
DIEBOLT ". CANAL-BoAT CHESTER HAIR.
(District Court, S. D. New YQI'k. --,1880.)
1 EsTOPPEI..-POSBESBION-SALE.-An authorized but long-continued possession does not estop the owner of a boat from claiming title against a bona jlde purchaser under an unauthorized sale.
2, 8AME--INACTION.-Buch estoppel cannot be based upon mere inaction,
not amounting to an'actual or intended abandonment of the boat.
In Admiralty. W. R. Beebe, for claimant. J. A. Hyland, for libellant, wall stopped by the court. CHOATE. D. J. I do not wish to hear the other side. I have no doubt whatever about the case. Diebolt was the owner of the boat, and the question is whether he has lost his title. It is claimed that he is estopped. He put the boat in possession of this man Highland under a contract which expressly reserved the title in Diebolt, and he gave Highland no authority to sell her. Dufresne got no better title than Highland got by his purchase from him. In the first place it is claimed that Diebolt is estopped
because he let Highland have the possession of the boat, and continue in possession for a long time with the entire control of her. It is well settled that an owner of personal property cannot be deprived of his title by reason of his putting it in the possession of another. Possession, and that apparent ownership which may be inferred from posession, is not such an indicium of ownership that a bona fide purchaser from the party in possession gets a good title 'as against the real owner, though the possession has been by consent of the owner. The case of Ballard v. Burgett, 40 N. Y. 314, settles this, and it is immaterial whether the possession continues one- year or four years. Then it is claimed that Diebolt is estopped by having permitted Dufresne to expend money in repairs. I have watched the evidence which would warrant the find· ing of an estoppel against the libellant, for the case of Dufresne is a hard one; and certainly, as to the payment of the purchase money, and the earlier repairs, they seem to have been made in good faith, and in the belief on Dufresne's part that he owned the boat, and that Highland had authority to sell to him; and when he bought her she was of very little value. As to the later repairs, there is evidence that he had been told that was looking after the boat. If Diebolt had known of and permitted repairs or rebuilding, knowing that the party expending th!3 money thought he had a good title by the purchase from Highland, an estoppel might arise. But there is no proof of such a thing. All that is shown, the utmost, is that he was slow, indolent, in hunting up the boat; but he made inquiries with a view to finding her after he heard of Highland's death, and finally sent an agent to find her. Mere inaction, not amounting to an actual or intended abandonment, is not enough to base an estoppel upon. The libellant must have a decree, with oosts.
oTOHANSSEN . V.Il4aX ELQIN4.
JOHANSSEN V. THE BARR ELOINA,
(DiltrictOourt, E. D. Netb YorJr. -,1880.)
DAMAGE BY CoLLISION-DEMURRAGE AND INTEREBT.-Where 8.
vessel at anchor in New York bay was damaged by collision with another one drifting, and recovered therefor, held, that the evidence warranted the conclusion that the anchor was lost by ueing slipped to avoid the collision, and the inference was fair that to recover it would costall it worth, the claimant making no attempt to repel it; that interest on' 'demurrage is not to be allowed under the practice of tllis court. '
Exception to Report of Commissioner. Butler, Stillman <t Hubbard, for libellant. Gcudert Bros.; for claimant. BENEDICT, :D. J. The evidence seems to require the conclusion that 45 fathoms of chain were lost, if any was lost. The evidence as to the value of the chain does not appear to be objected to, and it may be deemed sufficient to warrant the conclusion that the value of 45 fathoms of chain and the anchor was $694.54. As to the demurrage, the allowance of two days is all that the evidence will support. The charge of $10 for a translation of the log was properly disallowed. It was not a disbursement necessarily resulting from the collision. The charge for the protest is different, because the law of Norway makes it the duty of the master, in every case of collision, to take the testimony of his crew, and embody i. in a protest. The evidence warrants the conclusion that the slipping of the anchor was caused by the collision, and the circumstances gave no time to buoy it. It having been proved that the anchor and chain were slipped when the vessel lay out in the bay where the water is deep, the fair inference, in the absence of any other evidence, is that it would not be possible to recover it, except by an expenditure equal to its value. If such be not the fact, it was easy for the claimant to show it. The proposition that in all cases where property is gunk, in order to entitle a libellant to recover for its loss. direct evidence that it cannot be raised must be given. is not supported