[182] [135] make. If considered as a condition to the en- provisions which the parties deliberately omitted Messrs. J. R. Beckwith and J. McConnell, for appellants: Parties to actions on charter-party contracts must be the contracting parties named in the 2 Chitty, Pl. 11th Am. ed. 221, note; Abbott, Ship. 5th ed. 165; 1 Camp. 532; 4 Taunt. 4, 52; Splidt v. Bowles, 10 East, 279; Moores v. Hopper, 2 Bos. & P. N. R. 411; Morrison v. Parsons, 2 Taunt. 407, 414; Major v. White, 7 Carr. & P. 41; Robson v. Drummond, 2 Barn. & Ad. 303; Humble v. Hunter, 12 Ad. & El. N. S. 310. To make time the essence of a contract, it must appear from the contract itself that the parties really intended to make such time a real element and consideration of their agreement. Barnard v. Lee, 97 Mass. 92; Seton v. Slade, 7 Ves. 265; Hepburn v. Dunlop, 14 U. S. 1 Wheat. 196 (4:70); Brashier v. Gratz, 19 U. S. 6 Wheat, 533 (5:324); Taylor v. Longworth, 39 U. S. 14 Pet. 174 (10:406); Fuller v. Hovey, 2 Allen, 324; Goldsmith v. Guild, 10 Allen, 241; Kirchoff v. Voss,67 Tex. 320; Watson v. Walker, Id. 651. It is conceded that a railroad corporation is a private corporation, though its uses are public, and that a contract embodied in terms in its provisions, or necessarily implied by them, is within the constitutional clause prohibiting legislation impairing the obligation of contracts. If the charter in this way provides that the charges, which the company may make for its services in the transportation of persons and property, shall be subject only to its own control up to the limit designated, exemption from legislative interference within that limit | will be maintained. But to effect this result, the exemption must appear by such clear and and unmistakable language that it cannot be Where no specific time for loading is named reasonably construed consistently with the res-in the charter-party, reasonable time is the true ervation of the power by the State. There is construction. no such language in the present case. The contention of the plaintiff in error therefore fails, and the judgment must be affirmed. J. H. W. CULLIFORD ET AL., Copartners, v. Adams v. Royal Mail Steam Packet Co. 5 C. B. N. S. 492; Harris v. Dreesman, 23 L. J. Exch. 210; Chitty, Cont. 433. Evidence of prior correspondence, conversations or negotiations is inadmissible to alter or import a new obligation or covenant into a written contract. Cockburn v. Alexander, 6 Man., G. & S. 791; Shore v. Wilson, 5 Scott, N. R. 958; Smith v. Jeffryes, 15 Mees. & W. 561; Ford v. Yates, 2 JOHN B. VINET, Admr. of A. J. GOMILA, Scott, N. R. 645; Lewis v. Marshall, 7 Man. & Deceased ET AL. Charter party, construction of-time of loading -unreasonable delay-stipulations. 1. Where a charter-party contains a provision that the vessel is guaranteed to carry not less than 10,000 quarters of 480 pounds of grain, but contains no provision as to the time when the loading of the grain shall commence, or be completed, or when the grain shall be shipped, the charterers have no right to cancel the charter party if the vessel is not ready to load by a certain day so as to enable them to comply with their contract with another party. 2. Where, on loading the vessel, it was ascertained that she could take no more than 9635 quarters, as she was then stowed, and the agents of the vessel notified the charterers that they would take out coal and make room for the balance of the cargo and that the vessel would be ready by a day specified, but the charterers refused this proposal and sold the cargo,-held, that they did this wrongfully. 3. Held, under the circumstances, and as there was no day specified in the charter party for the commencement or completion of the loading and no canceling date named in the charter-party, that there was no unreasonable delay in the action of 4. The court is bound to give effect to the stipulations of the contract in a charter party but not to the owners of the vessel or their agents. G. 729; Phillipps v. Briard, 25 L. J. Exch. 233; Hudson v. Clementson, 18 C. B. 213; Sotilichos v. Kemp, 18 L. J. Exch. 36; S. C. 3 Exch. 105; Sinclair v. Stevenson, 2 Biug. 514; Farquharson v. Barstow, 4 Bligh, N. R. 560; Bromley v. Johnson, 10 Week. Rep. 303; Emery v. Parry, 17 L. T. N. S. 152; Angell v. Duke, 32 L. T. N. S. 320. The same rule obtains in the United States and except in case of fraud, accident and mis take, is the same in equity. Brawley v. U. S. 96 U. S. 168 (24:622); Willard v. Tayloe, 75 U. S. 8 Wall. 557 (19:501); Forsythe v. Kimball, 91 U. S. 291 (23:352); The Delaware, 81 U. S. 14 Wall. 579 (20:779); Bliven v. New Eng. Screw Co. 64 U. S. 23 How. 420 (16: 510); Oelricks v. Ford, 64 U. S. 23 How. 49 (16: 534); Grace v. Am. Cent. Ins. Co. 109 U. S. 278 (27:932); Bank of U. S. v. Dunn, 31 U. S. 6 Pet. 51 (8:316); Phila. W. & B. R. Co. v. Howard, 54 U. S. 13 How. 337 (14:170); Specht v. Howard, 83 U. S. 16 Wall. 564 (21:348); Brown v. Wiley, 61 U. S. 20 How. 442 (15:965); Brown v. Spofford, 95 U. S. 474 (24:508); Martin v. Cole, 104 U. S. 30 (26:647); Renard v. Sampson, 12 N. Y. 561; Bedford v. Flowers, 11 Humph. Messrs. J. D. Rouse, Wm. Grant and J. Ward Gurley, Jr., for appellees: The suit was properly brought against the firm of Culliford & Clark. Atkins v. Disintegrating Co. 85 U. S. 18 Wall. 272 (21:841). The writ may be levied upon any property or credits of the defendants. 242; Warren Academy v. Starrett, 15 Maine, | cific Mills, 14 Allen, 389; Hamer v. Hathaway, 443; Goodloe v. Hart, 2 La. 447; Adams v. Gay- 33 Cal. 117; Douglass v. Kraft, 9 Cal. 562; nard, 5 N. 8. (La.) 249; D'Aquin v. Barbour, 4 Crosby v. Watkins, 12 Cal. 85; Pelberg v. Gor La. Ann. 441; Ripley v. Paige, 12 Vt. 353; ham, 23 Cal. 349. Cook v. Parkarson, 16 La. 129; Arnous v. Davern, 18 La. 43; Labauve v. Declouet, 19 La. 381; Boody v. McKenney, 23 Maine, 517; Jarvis v. Palmer, 11 Paige, 650; Renshaw v. Gans, 7 Pa. 117; Ellmaker v. Franklin Fire Ins. Co. 5 Pa. 183; Whitney v. Lowell, 33 Maine, 318; Smith v. McCall, 1 McCord, 220; Airey v. Brig Ann C. Pratt, 1 Curt. C. C. 395; Perrine v. Cheeseman, 11 N. J. Law, 174; Hanson v. Stetson, 5 Pick. 506; Pierson v. Hooker, 3 Johns. 68; Bradley v. Anderson, 5 Vt. 152; Coon v. Knap, 8 N. Y. 402; Gardner v. Chace, 2 R. I. 112; Ewer v. Washington Ins. Co. 16 Pick. 502; Driscoll v. Fiske, 21 Pick, 503; Keller v. Webb, 126 Mass. 393; Black v. Bachelder, 120 Mass. 171; Lewis v. Thatcher, 15 Mass. 431; Lee v. Howard Fire Ins. Co. 3 Gray, 588; Conner v. Clark, 12 Cal. 168. The stevedore is the agent of the shipper and charterer where the shipper or charterer has the appointment. Blaikie v. Stembridge, 6 C. B. N. S. 894; Swainston v. Garrick, 2 L. J. Exch. 255. The fact that the stevedore is paid by the master does not make him the agent of owner or ship. Quarman v. Burnett, 6 Mees. & W. 499; Major v. White, 7 Carr. & P. 41; The Catharine Chalmers, 32 L. T. N. S. 847. The vendee cannot be put in default until the vendor complies with his part of the agreement. Provosty v. Putnam, 19 La. Ann. 84; Wilbor v. M'Gillicuddy, 3 La. 382; Brashear v. M' Masters, 15 La. 282; Rucker v. Liddell, 5 La. Ann. 577; Dawson v. Duplantier, 15 La. 289. The damages, at the time of the default, are the only damages that can be recovered. Vance v. Tourne, 13 La. 229; Williams v. Barton, 13 La. 410; Gobet v. Municipality No. One, 11 La. Ann. 300; Glover v. McAllister, 2 Rob. (La.) 161; Wilkins v. Bassett, 12 Rob. (La.) 28; Arrowsmith v. Gordon, 3 La. Ann. 105; Marchesseau v. Chaffee, 4 La. Ann. 25; Dennery v. Bisa, 6 La. Ann. 365; Grant v. McDonogh, 7 La. Ann. 447; Reading v. Donovan, 6 La. Ann. 491; Thompson v. Howes, 14 La. Ann. 45; Roberts v. Powers, 15 La. Ann. 187; McClure v. King, 15 La. Ann. 220; Bohn v. Cleaver, 25 La. Ann. 420; Campbell v. Miltenberger, 26 La. Ann. 72. Manro v. Almeida, 23 U. S. 10 Wheat. 473 (6:369). Out of an express contract an implied one often arises. Work v. Leathers, 97 U. S. 379 (24:1012); Ye Seng Co. v. Corbitt, 7 Sawy. 375; Stanton v. Richardson, L. R. 7 C. P. 421; 3 Eng. (Moak) 314; L. R. 9 C. P. 390; 10 Eng. (Moak) 223; Lyon v. Mells, 5 East, 429; Havelock v. Geddes, 10 East, 564; Tarrabochia v. Hickie, 1 Hurl. & N. 183. Because there was no canceling date fixed in the charter-party, respondents had not their own option as to the time when they would tender compliance with their contract, but were required to do so within a reasonable time. Jaques v. Millar, L. R. 6 Ch. Div. 153; 22 Eng. (Moak) 728; Doe v. Benjamin, 9 Ad. & Ell. 644; 36 E. C. L. 228; Dawson v. Duplantier, 15 La. 289; La. C. C. art. 2050; 1 Pars. Ship. & Adm. 310, citing Weisser v, Maitland, 3 Sandf. 318, and many other cases. The breach of warranty was complete in June, and the law gave defendants no right to repair it afterwards. Cable v. Leeds, 6 La. Ann. 293; Gould v. Banks, 8 Wend. 562. The party injured by a breach of contract is entitled to recover all his damages, including gains prevented, as well as losses sustained, provided they are certain and such as might be expected to follow the breach, if the special circumstances under which the contract is made are communicated and made known to both parties. Messmore v. N. Y. Shot & Lead Co. 40 N. Y. 422; Griffin v. Colver, 16 N. Y. 489; Starbird v. Barrons, 38 N. Y. 230; Booth v. Spuyten Duyvil R. M. Co. 60 N. Y. 487; 13 Eng. Rep. 52, Moak's note (collecting all the authorities); 22 Eng. Rep. 734, note: Deming v. Grand Trunk R. Co. 48 N. H. 455 (where the leading authorities are reviewed); Hadley v. Baxendale, 9 Exch. 341; Ye Seng Co. v. Corbitt, 7 Sawy. 368; 3 Suth. Dam. 230-234; 2 Suth. Dam. 402; Goodloe v. Rogers, 9 La. Ann. 273; Lobdell v. Par The measure of damages against vendors for nondelivery of goods is the difference between the price or value of the article as fixed by contract and the fair market value at the time of default. Anticipated profits are not recover-ker, 3 La. 332; Rugely v. Goodloe, 7 La. Ann. able. 294; Ward v. N. Y. Cent. R. Co. 47 N. Y. 29. The sale was publicly made in the usual manner by a regular and licensed auctioneer, to the highest and last bidder. Such a sale has the sanction and approval of the authorities. Bazin v. Liverpool & Phila. Steamship Co. 5 Am. Law Reg. 459; The Gold Hunter, 1 Blatchf. & How. 300; The Joshua Barker, 1 Abb. Admr. 215; The Bark Col. Ledyard, 1 Sprague, 530; Douglas v. M'Allister, 7 U. S. 3 Cranch, 298 (2:445); Shepherd v. Hampton, 16 U. S. 3 Wheat. 200 (4:369); Marsh v. McPherson, 105 U. S. 709 (26:1139); Brown v. M'Gran, 39 Ú. S. 14 Pet. 479 (10:550); Loudon v. Shelby Co. Tax. Dist. 104 U. S. 771 (26:923); Fowler v. Merrill, 52 U. S. 11 How. 375 (13:736); Swift v. Barnes, 16 Fick. 196; Bartlett v. Blanchard, 18 Gray, Forestier & Co. had a right to refuse accept429; Shaw v. Nudd, 8 Pick. 9; Essex Co. v. Paance of the incomplete cargo. Sands v. Taylor, 5 Johns. 395; Girard v. Taggart, 5 Serg. & R. 19; Mertens v. Adcock, 4 Esp. 251; Greenwood v. Cooper, 10 La. Ann. 796; Henderson v. Maid of Orleans, 12 La. Ann. 352; Camp v. Hamlin, 55 Ga. 259; Pollen v. LeRoy, 30 N. Y. 558; Springer v. Berry, 47 Maine, 331; Maclean v. Dunn, 4 Bing. 722. Louber v. Bangs, 69 U. S. 2 Wall. 728 (17: | terers are not to be held responsible for im768); Behn v. Burness, 3 Best & S. 751; 8. C. proper stowage, 113 E. C. L. 749; 8 L. T. 207; Deshon v. Fosdick, 1 Woods, 286; Glaholm v. Hays, 2 Man. & G. 257. 5. Steamer to have liberty to call at any ports for coal or other supplies. * * * * * "13. Sixteen running days, Sundays except Mr. Justice Blatchford delivered the opin-ed, are to be allowed the said merchants (if the ion of the court: This is a libel in admiralty, in personam, filed in the District Court of the United States for the Eastern District of Louisiana, on the 9th of July, 1883, by A. J. Gomila and Learned Torrey, composing the firm of Gomila & Co., against J. H. W. Culliford and John S. Clark, composing the firm of Culliford & Clark, as owners of the steamship Deronda, a British vessel, to recover damages for the alleged [136] breach of a charter-party entered into at New Orleans on the 19th of June, 1883, chartering that vessel to Gomila & Co. The material parts of the charter-party are as follows: "It is this day mutually agreed between DeWolf & Hammond, as agents of the steamship Deronda, of 1,090 tons net register or thereabouts, now in New Orleans, and Mess. Gomila & Co., of New Orleans, merchants, that the said steamer shall, with all convenient speed, proceed to New Orleans, or so near thereto as she may safely get, and there, being in hull, boilers, and machinery tight, staunch and strong, classed 100 A 1, and every way fitted for the voyage, shall load as customary at such safe loading berth, always afloat, as ordered by charterers on arrival (and, if afterwards required by them to shift, they to pay the ordinary expense of towing), a full and complete cargo of wheat maize rye in and or and or and or bulk ship's sacks, as customary, which is to be brought to and taken from alongside as customary, at merchants' risk and expense, at ports of loading and discharge (all lighterage required to be paid for by cargo), and at charterers' risk, not exceeding what she can reasonably carry over and above her tackle apparel, fuel, provisions, and furniture, and, being so loaded, shall there with proceed under steam to a safe port, always afloat, in the United Kingdom or on the Continent, between Bordeaux and Hamburg, both inclusive, excluding Rouen, calling at Queenstown or Falmouth for orders, which are to be given within twelve hours of arrival or lay days to count, or so near thereunto as she may safely get, one port only to be used, and deliver the same on being paid freight, all in British sterling, as follows: Five shillings and three pence sterling per quarter of 480 pounds weight, delivered in full, if call ing at Queenstown or Falmouth or ordered direct to Continent. If ordered to Continent from port of call, ten per cent. additional. If ordered to United Kingdom direct, three pence off. Charterers having option of Elsinore for orders to discharge at Copenhagen or Aarhuns, at five shillings and nine pence per quarter of 480 lbs. Steamer is guaranteed to carry not less than ten thousand quarters of 480 lbs. [137] "4. Stevedore for loading said steamer to be appointed by charterers, under captain's directions, at current rates for such labor. Char steamer is not sooner dispatched) for loading and discharging, and ten days on demurrage, over and above the said lay days, at six pence sterling per gross register ton per day, "14. Should the steamer not be ready to load at New Orleans on or before the charterers or their agents have the option of canceling this charter. "15. Lay days to commence the day after the steamer is declared ready to receive cargo, and having been passed by the surveyor of grain vessels, and written notice given by the master to the charterers or their agents. * "19. Penalty for nonperformance of this agreement, estimated amount of freight." The charter-party was signed by DeWolf & Hammond, as agents of the vessel, and by Gomila & Co. The libel alleges that, on the 28th of June, 1883, the libellants provided and furnished a cargo of 10,000 quarters, of 480 pounds each, of corn, to the vessel, for her voyage; that the loading was then commenced and proceeded with until June 30, 1883, when all further loading of cargo was stopped by official order of the marine inspector of the port, who was present at the time, and who pronounced the vessel full all over, as in fact and truth it was; that, when the loading was so stopped, and the vessel declared to have a full and complete cargo, only 82,588 bushels, the equivalent of 9,6358 quarters, of 480 pounds each, had been loaded on the vessel, and it was in fact impossible to properly stow in her any greater quantity, and she was entirely unable to carry the 10,000 quarters, of 480 pounds each; that the respondents wholly failed to comply with the said guarantee; that, in consequence thereof, the libellants were prevented from fulfilling their contract of sale of the 10,000 quarters of corn of 480 pounds each, with special reference to which they had entered into the charterparty; that, afterwards, the libellants, in order to save loss as far as possible, offered the cargo, which was so loaded on the vessel, to the respondents, at the price at which the libellants had sold it, which offer was refused by the respondents; that, all other negotiations for a settlement failing, the libellants were obliged to have the cargo sold, for account of whom it might concern, which was done, at public auction, on the 7th of July, 1883, after notice to the respondents, through De Wolf & Hammond, and advertisement in the newspapers of New Orleans, that being in the opinion of the libellants for the best interests of all parties concerned; that the libellants had performed all their undertakings in the charter-party, but the respondents, and their agents, and the master of the vessel, had not performed the undertakings of the respondents contained in the charter-party; and that the libellants had thereby sustained damages to the amount of more than $24,559.70. [138] [139] [140] land, and of which De Wolf & Hammond were The vessel was attached on process, and the " "To W. J. Hammond, Liverpool: "Fix Deronda, 5-6, Aarhuns; guarantee The case was tried in the district court, on proofs taken on both sides, and on the second of June, 1884, that court entered a decree in favor of the libelants for $9,360.97, with 5 per cent. interest from June 30, 1883, until paid, "Third. On the 18th, De Wolf, agent, and and costs of suit, against the respondents and the master called on Gomila & Co. and conagainst Thomas D. Miller and Emile L. Car- sulted as to whether the Deronda could carry riere, as sureties in the bond releasing the ves- 10,000 quarters of corn, the question relating sel from attachment. The decision of the dis- more to space than to weight. At this consultrict court is reported as Gomila v. Culliford,tation calculations were made by Mr. Gomila, 20 Fed. Rep. 734. The respondents and their of the firm of Gomila & Co., and the master, sureties, and also the libelants, appealed from as to the cargo space of the steamer from her that decree to the circuit court. Further general plan, and her ability to carry 10,000 proofs were taken in the circuit court, and that quarters of corn, both reaching the conclusion [141] court, on the 28th of February, 1885, filed its that the steamer would be able to carry 10,000 findings of fact and conclusions of law, and quarters, and Gomila advised the master to so rendered a decree in favor of the libelants, cable owners. A cable message was then made against the respondents, and against Miller and up by the master and De Wolf from Gomila's Carriere, as such sureties, for $23,993.76 dam-code book, in which the master said, 'the vesages, with 5 per cent interest from June 30, 1883, until paid, and costs of suit. The material findings of fact by the circuit court were as follows: "First. On the seventh day of June, 1883, Gomila & Co., who were large grain dealers in the port of New Orleans, entered into the following grain contract: "Bought from Gomila & Co., by Messrs. E. Forestier & Co., at the price of (60 cts.) sixty cents per bushel of 56 lbs., on board seller's vessel, with freight at (68.) six shillings per quarter, and to be shipped from New Orleans during the month of June, not later than the 30th (midnight), (seller's option), a cargo of not over 12,000 and not under 10,000 quarters (480 lbs.) of No. 2 mixed corn of the standard of New Orleans inspection. Destination: Elsinore, for orders to Copenhagen or Aarhuns. Any difference in freight for account of seller; cash on delivery of documents. "New Orleans, June 7th, 1883. 'GOMILA & Co.' "Second. June 18, 1883, the steamship De- sel will carry 10,000 quarters of grain if we "The same day the following cable message "JUNE 18TH. "To W. J. Hammond, Liverpool: "To which message, on June 19, De Wolf & Hammond received the following answer: 66 6 JUNE 19TH. "Fix Deronda. After hard work got Culliford, owner, accept your offer, but must exclude Rouen; cannot go there. W. J. HAMMOND.' "Fourth. On June 19 the charter-party was entered into, of which a true copy is attached [142] to the libel, except the indorsement in red ink across the face, and is made part of this finding. "Fifth. The canceling date of said charterparty was not fixed because Gomila & Co. waived it, as the ship was in port and they had confidence in the ability and willingness of the master to get the ship ready in time. "Sixth. On the 28th of June the ship was ready to receive cargo and the loading then commenced. No formal tender appears to have been made of the ship on that day, but the loading was commenced with the consent of all concerned. The loading was continued, with slight interruptions from rain, and until 20 minutes past three o'clock in the afternoon of the 30th of June, when the loading was stopped, and the ship was declared by the underwriters' inspector to be full all over and ready to proceed on her voyage, and the inspector gave his certificate to that effect. She then had only 9,635 quarters on board, equivalent to 82,588, bushels, and could take no more with safety, as she was then loaded and stowed, although libelants had the balance of the cargo of 10,000 quarters in barges along side, and it could have been put on board before midnight if the ship could have taken it. Seventh. After the loading had begun, and before it was known whether the Deronda could take the guaranteed quantity, all parties supposing that she could, Gomila & Co., as is usual in such cases, handed their copy of the charter-party to Forestier & Co. The latter, without authority from the charterers, took the copy to the ship's agent unindorsed and obtained a charter in their own name, but otherwise the same in all respects as charter to Gomila & Co., for the purpose, as they explained, of appearing to their correspondents as original parties. Gomila & Co. were advised of this by De Wolf, of De Wolf & Hammond, before the loading was finished, on June 30, but replied to him that they would not object to such a change if the vessel fulfilled the guarantee in the charter, but that if she failed they would expect the return of the papers. On this point the court finds that Gomila & Co. did not authorize the surrender of their charter and the giving of a new one to Forestier & Co., save upon the condition that the Deronda should first execute her guarantee. [143] "Eighth. When, on the 30th of June, the steamer was loaded, as described in the sixth finding, all parties had notice at once that the steamer could not carry the quantity guaranteed; whereupon Gomila, who was about to depart for St. Louis, left the matter in the hands of Bangston, of Forestier & Co., to arrange, instructing him substantially as follows: "I have no doubt this matter can be arranged with the owners, and anything you do to protect me I will be satisfied with. It seems to me the best way to arrange the matter would 128 U. S. U. S., Book 32. be to telegraph to the owners that if they will take the cargo off our hands at twenty-eight one and one half pence, as agreed upon, no one will be injured and I will be satisfied; but in case they do not do this, then all that I ask is to be made whole in my contract, and you can make negotiations to that effect.' "Forestier & Co. cabled their correspondents as follows: 'Deronda. We have shipped 9,600 quarters; reply if in order or not. What do you propose? Cable at once;' and received answer, July 2, to refuse Deronda; and De Wolf & Hammond cabled claimants as follows: "JUNE 30TH. "" "To Culliford & Clark, Sunderland: "Deronda loaded; carries 9,635 quarters; cargo sold not less than 10,000 quarters. Copenhagen, 28-3; present value 25; buyers refuse acceptance, as cargo falls short. Charterers hold ship responsible. Advise. DE WOLF & HAMMOND.' "To this last dispatch the following was sent: ''JULY 1ST. "Complete swindle. Captain knows ship discharged 10,380 Bordeaux. Compromise; pay value grain. "CULLIFORD & CLARK.' "JULY 3D. ""To Culliford & Clark, Sunderland: "Cargo on board, 2,065 tons maize, 170 tons coal; surveyors refuse load deeper; ship full all over; no advantage Newport; cargo sold, June loading; shippers can sell Copenhagen, 258., you paying difference, or owners buy cargo 28.3 cif.; best can do. Which do you advise? Cargo maize, No. 2 mixed, sail grade, very good. May we draw on you for same? "DE WOLF & HAMMOND.' "To which the following answer was made: "'JULY 4. "Consult indemnity lawyer, McConnell. If he approves, dispatch Deronda; give bail, if necessary. First telegram simply means paying difference value alleged short shipment; save delay. "CULLIFORD & CLARK.' "It does not appear that charterers at the time had any knowledge of these dispatches. "Ninth. Negotiations were opened and continued between the parties with a view to compromise, but without result until July 5, on which day Forestier & Co. notified Gomila & Co. that they refused the cargo because it was short and their buyers in Copenhagen had declined to accept it. They claimed damages of Gomila & Co. for violation of the contract of sale, consisting in the loss of their commissions, amounting to $3,194.39, which Gomila & Co. paid. "Tenth. From July 3 to July 5 Gomila & Co. telegraphed to some of the best known dealers in England and France for quotations and offers. The best offer was twenty-three shillings, ordinary terms, or twenty-four shillings, rye terms (shippers guarantee sound condition on arrival). Libelants then decided to sell the cargo on board, at the shipper's risk in the Port of New Orleans, with the privilege of the charter, and so notified Messrs. De Wolf & Hammond, at the same time giving the owners the option of taking the cargo at the price at which it had been sold to Forestier & Co. [144] |