'V. HOADLli:Y.

447

in their course, have made an express for a year·or other definite period. It is evident to us that they didn:ot.make such an agreement; that the employment'was to continue indefinitely, as long as it was satisfactory to both parties. In thil!l view of the proof, the libelant having been paid for the time he worked, his libel should have been dismissed. The judgment of the district court inust be reversed, and the libel dismissed, at the cost of the libelant. .,

AKTIESELSKABET BANAN v. HOADLEY et (CIrcuit Court of Appeals, SecoIJd Circuit. February 27, 1894.) No. 67.
CHART£B-PARTY-SUBCHABTER-EVIDENCll:.

The owner of the steamship Banan claimed that, when her charterer had .become unable to fulfill the terms of the charter, respondents entered personally into a verbal charter of the ship from month to month, in substitution of the orilrtnal charter. The respondents asserted that they had subchartered the vessel from the original charterer for one month only, for which time. they had used her, and the hire for which they had paid, and that theiJ,' connection with the ship had therenpon ceased. The shipowner presented a bill for charter money for the succeeding .month, which remained unpaid, and on which this suit was founded. 'Held, on the evidence, that the verbal charter alleged by the ship had not been proved, and that the libel should be dismissed.

Appeal from the District Court of the nnited States for the Southern District of New York. This was a libel by the Aktieselskabet Banan against Russell H. Hoadley and others to recover charter money under a charter of the steamship Banan. The district court dismissed the libel" and the libelant appeals. In the court below, Brown, District Judge, delivered the following opinion:
The libelant contends that when the Honduras Company became unable, after two months, to continue to fulfill the terms of its charter of the steamship Banan, by paying the monthly hire in advance, the respondents agreed to take the vessel by.a substitution of themselves in place of the charterers, except that the hire should. continue .from month to month only, with a further agreement to give Mr. Holmes, the owners' agent here, a reasonable notice before stopping the hire; 1. e. about a week, as Mr. HolmeS! states his understanding to have beeu. The respondents deny any such contract. The defendant Monroe, thougA adwitting much of the alleged conversation with Mr. Holmes, testified tha:the made no agreement to hire the vessel at all from Mr. Holmes, that he refused to take any charter from him, but that be proposed only to take a subcharter from the Honduras Company. This accords precisely with what was actually done, and Mr. Bowron confirms Mr. 'Monroe in his statement that he refused to sign any charter from Mr. Holmes; and Mr. Spitzer sayS, in one passage of his testimony, that Mr. Monroe d,id speak of a subclla,rter. The evideo\..e leavesuo doubt that the respondents, on the next day, March 11th, by their house in New Orleans, where the ship then was, took from the Honduras Company a 8ubcharter for one month; and on notice thereof,by telegraph from New Orleans, Mr. Monroe. on the following day, March 12th, paid to Mr. Holmes the hire of the ship for one month from March 11th. The .receipt of the bill for' th8.t. tponth'll p!1yment was signed by Mr. Holmes in

448

• ,m'. 8ffi.t,-.in. 11k.e mann.er .. . 111onm'jWeof'S8. Banan to the .$to
  : H8:d'tbfile two 'bills been
  

bID ,descrlbed tM oilor tM 'll1ohthis'hlre frt m March IV' The billrt:!ndered to. Mr. ,Monroe on' Ai)r1l11th,'.l?ed.. ' tbat CM.'rge '.

or

a.s., tor ' !'fourtb Trading Co. ,(AprU 1151 aCcru1ngupon an of· the 'the bills eould not. have so hire as they did,'. and tbey would not natural],); so drawp.; was no discharge or 'release of the' origllllil cbal'terers, nor any intent to discbarge theP1. , 'Tbere is an entire absence, also, of any written or any 'memoranda,' to sustain Mr. Holmes' version, such as might naturally have been expected in so important a negotiation, it there was, as he any new letting of the vessel from him to Mr. Monroe for 110adley & Co. On the contrary, the written memoranda made by· botb' parties, ,rendered by 'Mr; Holmes here, and the subcharter from the Honduras Company" in New precisely confirm Mr. Monroe's version, and 8i'e'llicompatible with the libelant's cont e n t i o n , ,,\.I' By the subcharter, Mr. Holmes lost Jlothing, but made at least one month's additional hire, and had the possibility.or; renewals of the, subcharter from the Hon4JP1llIJ,EJompany. The paymentuatklreceillt for both March ,and April expressly "tor the 3d month1s" and "for the 4th month's hire." This ,sham! a payment and an acceptance -on account of the' original charter, as Mr., Monroe testifies,and' not upon :any new bargain, Mr. Monroe denies positively, tbat ,he made any promise a'S to a renewal; but,' it anything was said, it; was ,no part of any bargain 'wltl1'Mr. Holmes, and 'was a matter of eourtesy GnlY. It was without consideration, and not .of any legal obligation. ,It was not material to anythitig"dlme, lis between Mr. Holmes and Mr. Monroe. Mr. Holmes parted with nothing on the faith of it. The libelants" OJ} the 11th of April,' were in no worse condition tor want of prior notice than on ,the 11th ot March, when the' original charterers became unable to eontinue the charter. ';I.'he charter did. not require any prior notice of diseontinl1ance,.and,as I have sald,was not released.. The confirmation of the respondents' version by all the contemporary written memoranda, and the ,ll,bsen(}e ,otany terms as the' respondents allege, satisfy Jl1.e thaf there was. no substlmtlQJ:1 .01' new bargain made. The City of 4Q Fed. 61:17,701; Wheclwrightv. Fed. 862. The libel must therefore' be diil'mlssed, with' <!osts.

regarded at the time <Mr. Holmes to the

Georgli!' nethune AdaDls, for appellant. George Walton Green, for appellees. Before LAOOMBE and SHIPMAN, Circuit Judges.
"": ',·,,(f·'

;,,:.r,'· ' .. :. ,

PER'pURIA.M. .We'are not inciUhed to give as much weight to the various items of documentary evidence as did the learned district judge. Upon the oral testimony of the however, who examined};>eforehim, there was such conflict on the single of fact invqlved in the case that his decision thereon should Il()t be reversed, in the absence of any new proof or of mani· fest error; neither of wb,ichis shown here. Decree a:Olrmed, with interest and costs. .. ,

WENC:.KE et al·. v. VAUGHAN. <Circuit Court of Appeals, Circuit. . Jan,l1art 2, '1894.) No. 164.
CHAaTlIlR PAR'1"r:""NoTIOlIl OF RlIlADINEsS FOR OARGO-WAr'VER OF OBJECTIONS.

The master of a chartered vessel' gave notice of readiness for cargo sevell da:ys' before (he time when the charterers would be entitled to cancel tbe contract for failure to arrive'lflid give such notice. He tlllled,