: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
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FEDEiil' iiErolirilt,'vol.
40.
tJf the ofparlies, during of the contract, the authorities sustaining trly view of this numerops. 'StleWbart'.Ag. §§ 72.158; 161, H>1,'168j 179;',108;1 add. Cotlt. §M; JiUens, 1 Wan. 369; Pol.Cont. 0,27,' 528; ,Iris:urance, Co. v; Kase1J, 25 (lrat.'270j Grim v'. Byrd, 32 Grat. SOO; V"eazie Willia'TM, 8',How. 134;' '(}fump v. (70., '7 Grat. 352; Norring(()lt v. Wright, 115U; S. 1'$8; 6 Sup. Ct. Rep. 1,2; Bannerman v. White,ro C. B. (N. 8.)844j 2 Add.Cbnt: §§ 625,,626; Smith v. Rich-
v.
'3Mar.;:&R. 2; SalmGrf,V'
&;P. 211; Wo,ocJv. Srmth, 4 Car. 77; Eristowv.Whitmo/"e,9 L. Cas. 404; 'Behn V..Jtu.hie.98, 3 &'8. 751j'LOtvber v. Bangs, 2 Wal1. 736, 737j Glah'olm'v.lIays, 2 Mah.&G. Booker, 1 416; Mel'Blng. N. C. 29;1Ja:visrm v. Lingen, 113 U. S. 5: Ct. Rep., 346. ' " '
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M, and b,u-Il: So ,were Iy;ing at dock securely with their bows'poin'tfuK In"'the saine direction. The S. was astern of the M.,about 5 f,eet, and ,dtew OO:feeHO!iward'and,19!faet aft: ThEiM;drew feet; The'depth of water ' <look high-tld,e , r' in feetj witll a rise an!i :(all' of 6. feet. ,The inshoril ancbor of,the S., weigblng4,OOO,p01:mds\withasbank 8 fe,et long, hung from her 'p6n' tibW; '80 tbat'the 1iWGlt was even !Wl'tb, or the eurfa(',e of the water.f (,liee,M.Was jn: bYl tpe !S. !'nd othel-" an4'!i'rM unable to move In any dii'ectic'jri. ' The'dock was full of boats, ana ice with the wind blowing off shore: 'I t'Wben, the' ttdewas half ,ebb, abd th6'S,'aground, the anehotof'the S. caught , e,o! the M.O,D, sta,'rbOard",stern, quart,e,r, ana, ',the, M. waspareened ite port pItched forward. The anchor of, the S, was lowered, not enough to Cllear ttie M., as,tbe tide receded',8nd"t'he flllke;penetrated the seamiof the M., caussank few>llour,a. 'J;lliw" tllall the S. wl¥Isolely te blame, , ,. as her avcnor was not properly stowed. l ' '. . : - j ' l :)
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