CABROLLtI. WALTON Ie' W1'IANllf 00.
about, equal, amounting altogether to '38,000, I allow to the libelant $750 against both,-one-third to go to the' officers and crew of the tug inpt'oportion to their wages, .the other two-thirds to her oWJlera,-with
CARROLL fl. WALTON
(DlBtrlct COlt"' D. Delaware. September l19, 189L)
hnfOJPAL AND AGEN'l'-8COPB OP AUTJIORITY-PttROJIASB THROUGH BROKERS.
AWtlmlngton firm empowered certain New York brokers to purchase a cargo of "refuse salt" equal to a sample received from the latter, the cargo theJl being 1JI. transit from Canada. The purchase having been made1 the 8ellers billed the article' to the purchasers as "salt-cake," which is an entirely altrerent article. The latter notified their brokers of the mistake, who presented the matter to the sellers. The latter. assured them that the salt was like the sample, which representation they telegmphed to the purohasers. The cargo having arrived in New York, the purchasers requested the prokers to examine it, whioh the latter refused to do, becaull8 they were Ignorant of. the difference between the two articlello Thereupon the purchasers wrote them that the matter appeared to be straight, and ordered them to .ecure a and forward the salt in it, which was done; but on its arrival the tlole waS found to besalt-cake, and the purchasers refused to receive it. Hel.d, that the brokers acted within their authority, and an injury having resulted,to the boat from the acids in the salt-cake, in consequence of the delay caused by the refusal to receive it, the purchaseR were liable therefor, as well aa for freight and
In Adtniralty. Libel in personam by Thomas Carroll againattha Walton & Whann Company. Hyland' & Zabriskie, fur libelant. Btnj. Nttlds, for respondents.
WALES, J. The libelant sues to reeover freight, llnd damHis claim is founded on a charter-party, which reads as follows:
"JUNE 11, 1889. "We have tbls day cbartered for our principals, the Walton & Wbann Co., Wilmington, Del., the steam canal-boat J. H. Taylor, to take about one bunin bnlk frum the canal-boat dred and sixty-five (165) tons of refuse W. E. Durye-d. at pier 6, East river, to the works of the Walton & Whann Co., Wilmington, Del.. at the rate of one dollar (81.00) per ton of 2,240 ebarterers to load and discharge boat, and captain to trim boat, to insure well, vessel to be loaded wH.h eustomal'1 dispatch. , ..HELLER t HmsH & Co·· "S. G., "Agents.
"WH. DENNY, -f'hf'(» Hr. Dsnng. 10 South St.·
The Duryea's cargo, which had· been purchased for the defendants by their agents, Heller, Hirsh & Co., was taken on board of the Taylor, and urried to Wilmington, where the libelant reported his arrival and
readine8l3 t6 discharge to defendAnts, who refused to accept a. delivery of or permit the cargo to be landed at their wharves; assigning as a reason f9r their refusal that.the cargo. Wail. not like the sample by which they had purchased, and that their New York agents had exceeded their authority in chartering the libelant's boat. In consequence of this action on the part of the defendants; the libelant alleges that he was detained at Wilmington for several days before he could dispose of his cargo by storing it in ,s. warehouse, and that in the mean time his vessel was injured by the action of the acid contained in the cargo, which had eaten away her oakum and softened her lining. The answer of the defendants repudiates the contracts made by their agents, both in buying the Duryea's cargo and in chartering the Taylor.· The'question presented by the pleadings, and discussed at the hearing, is o,ne of agency. The that Heller,Hirsh & Co., who had preViously sent a sample of refuse salt to the defendants, were instructedpy the latter tobuy a quantity similar in quality to the sample, and to ship the same to Wilmington, instead of doing which they had bOllgJit' entirely different article, which was. of small value, and of no use to the defendants; and that as Heller, Hirsh & Co. acted as special only, and under particular instructions, the libelant contracted with them at his peril, and cannot recover in this suit. The evidence. covers many pages, copies of letters. and telegrams which passed between the defendants and their New York agents in relation to this business; and after a careful examination of these papers, in connection: ",ith the or.all testimony, I have comEl to the conclusion that the defendants' agents acted strictly within the authority COnferred on them by their principals, both in ,the pUrchase and in the tranS'., ... shipment of the Duryea's cargo. Heller, Hirsh & Co. were commission merchants and brokers in chemiCt\Is: a.nd in New York, and had had dealings,with for many transactiopo,: On May 1, 18$9, to Heller, Hirsh & Co., inquiring: "What have you '\\;8.y of refuse Jbat you ca,n. forsbip!l1,ent during the p;resentmonth?" On day, Heller,.Hirsh & Co. replied: express to-night we are sending you sample of refuse salt for your it, will you please let us have your best offer for 200/300 Wilmington by After some further correspondence, a price was agreed on; Heller, Hirsh & Co. were instructed buy; fallowin'" sales-note wtLS sent to the de-: fendants: . ..
May 7, 1889.
"Sold, foraccoutlt'of Mess. E. S. Kuh <\, Tusks, to the Walton & Wbann Co.LWilmington, Del., two hundred to two hundred and fifty (200/250} tons of refuse salt, in bulk, similar to sample sent,at'tberate ot three :dol. Jars and fifty (lents ($3.50) per gross ton, f. o. b. vessel, York. ,.. . ..... .,', "HELLER.,HmSH & Co·· Brokers. "Terms Cash."'· .
CARROLL 11. WALTON. &
At the date of this contract the salt was in Canada,oron it/! way from there to N.ew in the W. E. Duryea. Before the cargo was transshipped to; the J. E. Taylor, it was billed to the defenqjUlts by Kuh & Tuska assalt-.;:ake, and Heller, Hirsh & Co. were immediately notified by their principals that their bargain was for refuse salt, and not for saltcake. Heller,Hirsh & Co. at once called the attention of Kuh & Tuska to this and the latter firm assured them that the Ela1t was just like the !lample, and this representation was repeated to the. defendants by from their agents, June 10,1889. On the same day Heller, Hirsh &; Co.WrQte to the defendants: "We informed Messrs. K. & T. that you claimed to have purchased refuse salt, and they inform us that this is refuse salt like sample furnished by them and by which you bought." By this time the Duryea had arrived at New York, and the defendants requested their agents to examine her cargo, and ascertaIn its quality and condition. Heller, Hirsh & Co. declined to comply with this request, because, not being familiar with the article, and never havin handling it, they wO\lld not be competent to ing had any decide ,whether it was what it was represented to be or not. The defendants, having been thus put on .their guard as to the character of the cargo, accepted the statements of Kuh & Tuska, that it was refuse' similar to sample, and wrote to Heller, Hirllh & 00., .June 14, "All now appears to be straight regarding the salt, providing the salt is in good order as discharged in New York from the original barge." What was meant by " good -order" is shown from other testimony to be that the cargo should not be damaged by dampness caused by leakage of the vessel. Having ratified the action of their agents in the purchase of the Duryea's cargo, the defendants next instructed them to employ the captain of that boat to take the cargo on to Wilmington' without bulk, if he would do it on reasonable terms, and, failing to make that arrangement, to secure'anGthervessel.' The captain: of1he];)uryea demanded an exorbitant rate, and Heller, Hirsh & Co. chartered the Taylor. The evidence is not conflicting or contradictory in reference. to any Ifilltetial faCit'. The cargo, on its arrival at Wilmington, turned out to cake, and not ref\lse salt. The two materials areshnilnr in 'color, and, when pulvenZed,'are so much alike in appearance that it casual observer might think they were the same. Refuse salt is damaged, or impure CoIpmon ·. Salt-cake is.a .refuse produced in the manufacturecof.muriatic acid.' , Refuse' salt is not a fertilizer material, in any acceptation of that term, and is used as a mechanical ingredient only, by the manufacturers of fertilizers, who also sometimell use salt-cake, but for a different purpose. The libelant says that he did not kilOW tile difference benothave taken cargo on tween the board of his boat if he Had known What it was. His bill oflading calls for" a lotofref\lse. salt in bulk." Heller, Hirsh & Co. "were also ignorant of appearance andqQ.lUities of these articles, and prudently abstained ftoin paSsing jUdgment on the cargo. All theyconl<l do, and all
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I'BDEllAL urogTEl\'; Tol.· 48. '
they did; purchase fdfthe was to communi. cate to themihe representationsmMe byKuh & Tuska, 'and the derelied on instead of having fendants .:oompetentperson in New York to inspect the cargo, and report upon itlJ"illiture,andqualitY',There is no doubt that gross carelessness, or in· tenilomil naud,waspomtnitted by some one in causing a cargo ofsalt-cake to be put .on tbe'Taylbl'j and senttQ the defendarite; but, whether it was .' Ji;lfstakeor a trick, thelibelant \VaS as Innocentofitas were the defendor, their' agents. ' .As .I view: the, "evidence, Kuh' & Tusks would seem to' be' liable to the defendants. " They certainly ale not to the libel&01:;8'& there was DO privity of contract between thetnand him. Neither cduld thelihelant seek redress from HeUer, Hirsh &00., because they signed the charter-party as agents £Otthe defendants, and acted within thilsCOpeof their authority. Whitney v. Wyman, 101 U. S. 892. The libelant, therefore, has no other recourse than to the defendants. If I have not misunderstood the evidence, it proves that the defendants, throughtheii"speciaUy; instructed agents in New York, bought the cargo, and employed the libelant's boat to carry that identical cargo Wilmington. On this proof, a' decree niust be entered for the libelant, with an orderaf reference to ascertain t11e amounts respectively 4ue to hlJo for freight, demurrage and damages.
. BANDERS tI.
Coun. D. South Ccu'oUtl& Noftmber I, 18ln.)
A Bteamer meeting a Bloop on a river at night, 'Where there fa ample room, mu.t preaume that the latter 'Will maintain itlicourBe, and must keep out of the way' : if she attempts to paI!llllO near as to qause apparent danger of colll.ion, a4e lole in fault, althougli the sloop, under ItreY of exoitement, commits an error bv su enly ohanging its COU1'lIe. .. '
In Admiralty. Libel by'Samuel Sanders against the steaQler Santee for collision. J. F. F'Wken, for libelant. Sm'!Jfk &: Lee, for claimant. .BIMOlm>N, J. The libelant is the owner of the sloop E. O. Holland, small ve!lsel engaged ,in carrying freight about Charleston harbor and the adjacent streams and On' tJ;l,e night of 10th February last Santee in Ashley riv:er. The abe came into .coUision with the. aloop wu proceeding up the river under mainsail and jib, with a very