,;
WtLVRED 'D. MYERS.
171
carry five bales 1-0 the registered ton, whereas most vessels carry less,. some of. them not more than four bales to the ton, they agreed to take this ship at the unusually high price of 62s. 6d. per ton; whereupon Page returned to his office, and prepared a charter-party, which he sent to the office of Myers & Co. Later in the day Myers re· turned to his office, and found there the charter-party I which had been sent for his signature. On reading it he discovered that it contained no mention of the cubical capacity of the Netherholm. He thereupon in. serted in the paper the phrase, "Owners guaranty steamer'lC' capacity for cargo, 141,356 cubic feet," signed the charter-party, and returned it to Lamb & Co. At a conference soon held between Page and himself, Page insisted that his correspondents in New York would not guaranty tha capacity to be 141,356, and that he had stated the capacity to be about that figure. Myers then inserted the word "about" in the phrase, but afterwards erased it. Page expressed the belief that the NflIw York firm would not sign the charter with those words in, as they had not author. ized him to guaranty. !twas agreed between· them that the charter should be sent to the house in New York with the phrase in it, and also with a clause allowing the ship to receive cargo at the adjacent port of Newport News. The charter-party was sent to New York in the fonn thus described. On the hext day, the 12th October, Page received a telegram from the New York house, stating that the paper was not in proper form, and that J...amb & Co. were not authorized to guaranty cubic capacity. This was promptly shown to Myers, who at once replied that he had consented to take the vessel on the faith that her cubical capacity was what had been stated, and that their representa. tionof the capacity could not have been made for any other purpose than to enable him to determine whether to take her or not. The New York ,house also required that the charter-party should declare that the ship had sailed on the 6th'October from Mayport, England, for Halifax and Bridgewater, and should not stipulate that she was due at Norf.olk on the 1st November, as had been written in the charter. Myers refused to consent to the cancellation of the phrase guarantying the cubical capacity of the ship, and little was said of the clauses relating to Newport News, and to the ship being due at Norfolk 011 the 1st of No. vember. The New York house, Bowring & Archbold, had not in their telegram of the 12th to Lamb & Co. e1ther expressly affirmed or disaffirmed the charter-party, unless their refusal to guaranty the ship'fl cubiCal capacity was a disaffirinance. 'fhen followed attempts between Page and Myers to reach,a compromise, which were continued until the 16th October,oraJly and by letters. I do not think that negotiations materially change the character of the transaction which I have set forth. On the 16,th f Bowring & Archbold telegraphed thatthe owners of the Neth,. erholm:.deelined any compromise whatever, and insisted upon the char-' ter being carried out as verbally arranged with Lamb & Co., before the' charter was signed. This telegram was apparently intended as responsive to the last sentence of a letter from· Myers & Co. to Lamb & Co" or the 13tb"in which they had said: :.
172
J'BDERAL BEPORTEB,
vol. 40.
"The situation then appears to be that no completed cpntract exists between us. inasmnch as Messrs Bowring & Archbold. acting for the owners. have repudiated a charter wbich no one can deny contained the essential features of tho proposition made by you to us, viz·· to charter S. S. Netberholm, 141.356 cubic feet cargo capacity, for 62s. 6d. per ton register; which proposition thl'yclaim was not authorized in one of its most essential features; and you have tendered us, under their instructions, a contract which we will not accept because it does not embody wbat l'oU proposed on the day you first offered us the vessel." In reply to the peremptory telegram of the 16th, from Bowring & Archbold, Myers & Co. telegraphed on the same day, as follows: "Charter, as originally drawn. which you have repudiated and declare unin accol'dancewithtl;Je original proposition. You having repudiated it, weconsjder negotiations between Us at an end. .It may be added that, among other things that transpired after the 16th October, was the fact that freight8about that date took a decided decline; that Lamb & Co. chartere(lthe Netherholm to another Norfolk shipping firm at 57s. 6d.; that on the 18th the owners of the ship offered to allow the insertion of the clause guarantying the ship's cubical capacity; Rnd that Myers & Co. declined then to accept the charter, in consequence of having engaged their freights to other steamers. It was shown in evidence that it is quite unusual for charter-parties entered into in Norfolk to co.ntain a guaranty of cubical capacity; and respondent.Myers testified that this fact results from the concurrent fact that the cubical capacity of almost all ships loaded at Norfolk is known either by their having been loaded before at this port, :or that almost all of the ships t}lat apply for cargoes for European ports are described, as to their measurement, tonnage, and cubical capacity, in books published for the purpose of giving this information to shippers and charterers. Theda01ages claimed by libelants in this suit are the difference between the ·money which they received at the rate of 57s. 6d. per registered tonn/tge, and what they would have received at the rate of 62s. 6d., with theire.x:penses; aggregating about 81,640. In passing upon this case. I have not the aid of any written brief from counsel for the libelants, and do not recollect that in their oral argument any authorities were cited in support ofthe propositions for which they contended. Walke &- Old, for libelants. Sharp &- Hughe8, for respondents. HUGHES, J., (after Btating the fact8 a8 above.) It is a matter of doubt in this case whether Lamb & Co. had any authority from the to make a oomplete and final contract for the charter of this ship.. Their function would s.eem to have been merely. to find a customer, and to state to him the. terms of charter; all besides depending for validity upon ratificationby BO,wring & Archbold in New York. If they had authority to contract if the letters and telegrams of Bowring & Archbold Bre to ber.egarded as defining that authority, it was merely to charter the first-clal>S new steamer Netherholm, bound. at that time to Halifax and Bridgewater, registered tonnage, 1,295, dead-weight, 2,900, for 62s.
:WILFRED
"MYERS.
173
6d. per ton registered. The entire contention of the libelants rests upon the af;sumption that this was the only contract that Lamb & Co. had thority to make, and that Myers & Co. knew this from custom or othercontract with Lamb & Co., this and nothwise; and, having ing else was the contract that was made. It was evidently on a different basis that Myers &Co. proceeded in the negotiation. Page was made to know from the commencement of the negotiation that the acceptance of the ship by Myers & Co. at the high rate charged depended upon her cubical capacity. This was not known to Myers & Co., and no source was open to them from which they could obtain the information, except Lamb & Co. This firm could have informed Myers & Co. that the capacity was 141,356 for no other purposethlJ,n to,aid them in making up their minds whether to take the ship or' not. It was not meaningless, objectlesstalk. It was a piece of information known to themselves, which Myers & 'Co. were casting about to obtain, and whicn Myers &" Co,. not obtain except from them. It was the inducement, or a chief inducement, to taking the ship. Nor was it until the cubical capacity was giyen, that Myers & Co. declared that they would take the ship. Lamb & Co. 's statement of the ship's capacity, under the conditions and circumstances existing at the til;}1e of the,state!1;lent, made it a part of the contract on the part of Myer$ & Co., whatever It might have been on the part of Lamb &Co. , A warranty or guaranty may el)ter into a contract without express words to that effect or e'ven the intention of the person who makes the representation which constitutes it.. What, then, was the negotiation at the hour of 11 m,.orningof the result 11 thOctober'? Myers & Co. contracted on the inducement of the ship's capacity being 141,356 cllbicfeet. Lamb&Co.eobtracted on the basis that the capacity was llQtguarantied. Their mh{ds did not meet; for the law makes the of the capacity;l1nder such circumstances, a warranty. When the charter cameaJterwards to Myers &Co. for signature, this discordance of mipds developed itself. clause; Page objectp,d to it. Their Myers inserted the nlinds hOnd not met. When the charter subsequently went to New York, and the house there" repudiated" the capacity clause, it WIlS thereby still further shown that the minds of the contracting .parties had not mes and were at hopeless variance. There had been .no contract. is men than that "it takes two to more true in the transactions of make a bargain." It is elementary law that there shan be a meeting of ,rpinds-a mutual ,agreement-upon all its and ih order to constitute acontrp.ct., If a,.firm sends orders to ,Norfolk,tllat a ship shall be chartered as they prescribe, and not sending also her cubical capacity; and negotiation's' /ire made in the other Barty declares, "I will take the ship on. your statemento.f her cubical capacity, which I have no other mea(ls Cj)f ,ascertaining from YOll;" and the firm in New York afterwards withdraws the statellient, and insist11 upon itsobliteration,-th.ep there is no contract.. , SU9h was the case at bar, and must be for. respopdents. ......' On the subject of' warranty. )Vbere it.is not exprl;)Bsed in