By reason of the failure of the defendants to perform their contract, the libellants have .suffered damage, and are entitled to recover at least the $2,800 gains which they were thereby prevented from makingon the transportation of the 200 passengers engaged for the voyage, with interest from the date the Garibaldi might have completed the voyage to this port, say June 1, 1880, amounting in all to $3,173.33t, with the costs and expenses of suit. There will be a decree accordingly.
(Circuit Oourt, E. D. Louisiana. November 18,1881.)
. Parol evidence is inadmissible to alter the terms of a written contract.
In Admiralty. E. N. Whittemore, for libellant. B. Egan, for claimants. PARDEE, C. J. This suit is brought on a bill of lading, and damages are claimed for the non-delivery of the freight in time at the place of consignment. The libellant makes out a case and proves $102.45 damages by the deterioration of the goods and the expenses of telegraphing, and additional freight. There is no defence, except an alleged verbal instruction from the wharf-master to the clerk of the boat to make Qertain inquiries, and in a certain contingency to deliver the freight at another place than that named in the bill of lading. Objection is made to the introduction of evidence to sustain this defence, and the objection is well taken. See The Thames, 14 Wall. 98; also, The Delaware, fd. 579, where the precise question is decided. The judgment of the district court was manifestly right, and should be affirmed. Let a like decree as in the district court be entered in this case, with costs.
· Reported by Joseph P. Horner, of the New Orleans bar.
MEYER V. NORTON.
(Clircuit Oourt, fl. Kentucky., November 15,1881.)
REMOVAL OF CAUSES-AcT OF
1875. Within the meaning of the third section of the act of 1875, the petition for removal is filed in time, if filed at the first term at which, by the law and practice of that court, the cause could have been made ready and tried.
There has been atrial, within the meaning of that act, if a judgment has been , rendered in the court sustaining a demurrer to the answer put in in the suit there, and dismissing a cross-petition with costs.
BARR,D. J. This action was commenced on the fifteenth of December, 1874, in the Louisville chancery court, by Mayer & Hay against the Louisville, Paducah & Southwestern Railroad Company. and certain subscribers to its capital stock.
The plaintiffs had judgments against said company, upon which executions had been issued and returned "no property found," and sought to subject to the payment of their judgments certain unpaid subscriptions to the capital stock of the company. They had process of garnishment issued and served, and they also made the subscribers to the stock parties defendant. One of the defendants pleaded that Norton & Calhoun, to whom the company had made a mortgage on its property to secure three millions of dollars which had been issued in coupon bonds, had a claim on the unpaid stock subscription, and required that they be made parties. This was done by an amended petition, filed April 12, 1875, and Norton & Calhoun entered their appearance, and without filing answer moved the court to remove the cause to the United States circuit court. The petition for removal was filed the fourth of June, 1875. Previous to that time, in April, 1875, Norton & Calhoun had filed in this court a suit for the foreclosure of the mortgage executed to them on the road and its property, and when the cause was removed to this court it was consolidated witb the suit already pending. This mortgage was dated March 1, 1870, and suit for its foreclosure was brought April 25, 1875. The cause remained in tbiseourt until October 2,1877, wben it was l'emanded to the state court; this court making the following order: .. Meyer &0 Hay v. L., P. & S. W. R. Co. "This day came Eckstein Norton and Philo C. Calhoun, by H, C. Purdell, their counsel, and on their motion it is. ordered that this cause be, and the same is. hereby remanded back to the Louisville cbancery court, from whence it came." Norton & Calhoun filed their answer and cross-petition on the nineteenth of October. 1877, in which they claimed the unpaid subscription to the capital stock of the L., P. & S. W. R. Co. as being included in the mortgage. and asked that the unpaid stock subscription of certain parties, wbo were made defendants in the cross-petition, should be decreed to tbem as trustees under the mortgage. Meyer & Hay filed a demurrer to tbis answer and cross-petition, which was sustained by the Louisville chancery court, and as ther failed to