schooner at least 500 feet away, although of the latter were obscured, and failed to do so because her lookout was inattentive at the critical time, The case is not one in which it can be seen thatthe fault of either vessel was not contributory to the collision. As the witnesses were examined in the presence of the district judge, and no new proofs have been taken by the parties.in this court, his conclusions of fact ought not to be disturbed by this court ,if they turn upon a question of the. credibilityof,the witnesses for, the respective, parties. It seems improbable that if the red light of ,the schooner had been visible to the steamer at any time after she. had' come about on her starboard tack it would not have been observed by one of the pilots or the 109kout, or that they would. have. failed to see. her even with her lights obscured,H she had, been a distance of 500 feet. It seems improbable that the pi- . lots, situateli as they were, where their opportunities for observation were favorable, and, exercising the vigilance to be expected when in charge of a steamer carrying a large number of passengers and a cargo of valuable freight, would not have seen the schooner if she had been plainly visible; or if their inattention had been otherwise momentarily occupied, they would perjure themselves as to the fact when there was a lookout at ,his proper place, upon whose vigilance they had a right to rely, and :when blame could not reasonably be imputed to them. But the distriot judge discredited ,their testimony, as well as the testimony of the look()ut, as to the impracticability of seeing the schooner asufficient distance away to avoid collision because of. the darkness of the night. He. had an opportunity to observe the bearing and appearance of these witnesses, and to judge whether they appeared to be candid and truthful ,or not. This court has no such opportunity, and any impression derived from reading their testimony should give way, wbere the proofs present a. fair conflict of fact, to the. judgment of the district judge based upon the personal observation of the witnesses.. The decree of the district court is affirmed. Neither party is entitled to the costs of the appeal. both having appealed·
. SHAW t1. FOLSOM.
NewYor7c. November 11,1889.)
On an appeal from the district court in an admiralty cause, the circuit court wU1 not award increased damages to the appellee, though the allowance made by the district court was too small The case of The Hespf/T', 122 U. B. 256, '1 Sup. Ct. Rep. U'l'l, commented upon.
In Admiralty. Libel for damages. 88 Fed. Rep. 356. H. G. Ward, for appellant.
On appeal from district court.
WALLACE, J. I find that the, facts in this case are that the master of the brig called the attention of the charterer's agent, while the ship was being loaded, to the clause' in the charter-party by the terms of which the cargo to' be furnished to the charterer was not to exceed 850 tons; informed him that, if more cargo was put on board,the ship could not cross the bar in Charleston harbor; stated that he believed the full amount bad been put on board. but, yielding to ll.nd relying on the statements of the agent to' the cOlttrary, permitted 91 t tons more than the agreed quantity to be laden on board. It was in the power of the agent to ascertain much more definitely the quantity put on board than the master could, because he knew how much the carts and lighters would carry, while the ship lay in the open roadstead, some distance from shore, and the sea was so rough that the master could not determine with accuracy' the draught of the brig. Upon these facts, the decree of the district court was, in my opinion, more favorable to the appellant than it should have been, and the libelant should have recovered the whole expenses of the delay of his ship at the bar in Charleston harbor, as well as the stipu. lated demurrage per day. As the libelant has not appealed, he cannot <:Iaim greater damages in this court than were allowed by the district court. Airey v. Merrill, 2 Curt. 8; Allen v. Hitch, ld. 147; The Alonzo, 2 Cliff. 548. This court cannot decree increased damages without first reversing the decree of the district court; and this it cannot do on the prayer of the appellee. The Pey/ana, 2 Curt. 21, 27. See, also,The Roarer, 1 Blatchf. 1. The libelant cites the case of The Hesper, 122 U. S. 256, 7 Sup. Ct. Rep. 1177, and insists that the appeal of the charterer opens the whole case, and authorizes the court to decree in his favor beyond the sum awarded by the district court. I do not understand that the supreme court, in that case, intended to overthrow the long-established rule, repeatedly declared by it, that the party to an admiralty cause, or to an equity cause, who does not appeal, can only be heard in support of the decree of the court below. Chittenden v. Brewster, 2 Wall. 191; Stratton v. Ja'NJis, 8 Pet. 4; The William Bagaley, 5 Wall. 412; The Quickstep, 9 Wall. 665; The Stephen Morgan, 94 U. S. 599. That case was a suit for salvage; and while it decides that an award to a salvor who appeals may be reduced, although the adverse party does not appeal, it ,decides nothing more; and it is not to be supposed that the court would overrule its previous decisions without saying so. or without referring to them. As an authority upon the general question, see The City of Antwerp, 37 Law J. Adm. 25, decided on appeal to the privy council in 1868.
m..ARK f'. REEDEB.
(O£rcu(t Oonrt, D. West VirgintlJ;., November,1889.)
On bill to resoind a oontraot for the purohase of lands by plaintiff, on the grou.nd of fraud' and false representations, it appeared that part of the lands wasoovered' by a patent older than that under whioh defendant, who was the vendor, olaimed, andwasolaimed adversely to defendant; but defendant agreed to oonveywith speoial warranty only, and plaintiff agreed to pay for all lapds within the exterior boundaries fixed by a oertain survey, exoept saoh as were shown by a survey, had at the expense of the vendee, to be held "by adverse title and possession," oonRti. tuting a better title than defendant's. The bill did not allege that those in pos. seasion, daWning adversely to' defendant,. had a better title than defendant. Plltintiff's attorney, to whom the question of title was by the oontract to be submitted, knew of the prior patent, but not of the extent of the interferenoe, and certified that suoh' patent nuld not, in any event, affeot defendant's title, except to a small extent. Both he and defendant's agent supposed that the interlook oovered only a small portion of. the and plaintiff the first payment on that supposition thoughnot preventea from making full investigation. No survey wa!'! had by the vendee to ascertain the extent of the interlook. .Held, that the interlook constituted no' ground for resoission, though greater than supposed. On cross-bill by defendant, praying for a sale of the lands to pay the purqhase money, defendant is entitled to a deoree for a sale of the lands for the amount of the prioe; less the amount paid, and less, also, the value, at the agreed prioe per aore, of the lands to whioh others may be shown to have a better right than defendant, with interest.,
SAlIlJl-,I'RINOIPAL AND AGENT-RATIPIOATION.
A contract for the. sale of lands was exeouted by W.,"as agent" 01 the owner, and, being presented to the latter, he approved it, and subsequently received from the vendee the oash'payment specified in the contract, without disolaiming, on either ocoasion, W. 's assumption of agenoy. Beld, in a suit brought by the vendee for a resoission of the oontraot upon the ground of fraud and false representations upon the part of W" that the vendor, having taken the benefit of Its provisions, oould not dispute W.'s agenoy, and was as muoh bound by his fraud or false representations in the making of the contraot as if W. had been authorized to make the 'sale as agent.
In Equity. , 'I'his is a suit in equity for the rescission of 8 contract for the purqhase of rea;l the ground both of mutual mistake and fraud in respectto the quantity of the lands sold. The contract in question was as follows: "Agreement made this 29th day of February, 1884, by and bet,ween C. C. Watts, O'f Charleston, W. Va., acting under an agreement in writing between himself and Charles Reeder,of Baltimore, Md., dated the 3d day of .February, 1884, and as the agent of said Reeder, of the first part, and H. M. Bell, of Staunton, Va., acting as the agent of E. W. Clark, of Philadelphia, Pa., of ,the second part, witnesseth: That the party of the first part, acting as aforesaid, has this day sold to the party of the second part, acting as aforesaid, a Certain tract and parcel of land lying and being in the counties of Boone, Logan, Wyoming. and Raleigh, in the state of West Virginia, containing 50,096 acres, be the same more or less, which tract of land was granted by the commonwealth of Virginia to Edward Dillon, by patent bearing date on the 16tll day of April, 1796, and is now claimed and owned by the said Charles Reeder by a regular chain of conveyance, the first being a tax-deed for said land executed by the clerk of Wyoming county, dated the 22d day of December, 1857, executed in pursuanoe of a sale thereof for taxes delinq uent thereon, in: tbename ·of the heirs of the said Ed ward Dillon,' and, the last to the said Reeder from C. C. Cox, dated the 27th day of August, 1870; and fora'pal·ticv.40F.no.9-33