WATTS V. CAMORS the charterers could have the decree re- | full and complete cargo.say about 11,500 quar J. R. Beckwith, for plaintiff: erred in not decreeing the full 072.70 as damages. Atract to lade a ship is simply a contract in no manner, as a contract, from a to build a ship or a house, and is govhy the law of the place where the contract or is to be executed, as the case may be. af Louisiana is a part of this contract. the rule both at common law and the ters of wheat in bulk, and pay to the said party It is agreed that the lay days for loading and The cargo or cargoes to be received and deTa v Ins. Co. 9 Allen, 311; Haviland V.livered within the fifteen days above specified, 34 N. Y. 643; Mavor v. Bush, 16 the dangers of the sea and navigation of every Thompson v. Ketchum, 8 Johns. 189; nature and kind always mutually excepted. Wright, 30 N. Y. 259: Cox v. U. S. 6 M. 12 31 U. S. bk. 8, L. ed. 359); Lanusse Barber, 3 Wheat. 102 (16 U. S. bk 4, L. ed. 4. Gass, 6 N. Y. 124; Curtis v. Le 15 N. Y. 227; 6 Paige, 230; 2 Kent, Com. Story. Conf. Law, § 317, 320, 332, 349, 3.52, 29. See La. Civ. Code, arts. 9, 42117-2121, 2124, 2125, 2127, 2130. sana there is no hairsplitting learning tence of confusing agreed liquidated to meaningless "penalty." Penalty matted damages under all circumstances thes there has been absolute default on the cligations. To the true and faithful performance of all and very of the foregoing agreements we, the said parties, do hereby bind ourselves, our heirs, executors, adminisirators and assigns, and also the said vessel, freight, tackle and appurtenances, and the merchandise to be laden on board, each to the other, in the penal sum of estimated amount of freight." B. Bloom, 18 La. Ann. 276; Hunt v. &la. Ann. 500. #J. Ward Gurley, Jr., for defendants. Yace Gray delivered the opinion of was a libel in admiralty by a citizen of the Kingdom of Great Britain, the steamship Highbury, against two New Orleans in the State of Louisia charter-party the terms of which The district court dismissed the libel, and the libelant appealed to the circuit court, which found the following facts: The charter-party was executed at New Orleans on August 7, 1879, by the libelant, through his agents A. B. French & Co., and by the respondents. The libelant complied in all things with his contract. The Highbury arrived at the port of New Orleans on or before September 11. On that day, she being in that port and ready to receive cargo, her master notified that fact to the respondents, tendered her to them, and demanded of them a full cargo of wheat in bulk, according to the terms of the charter-party. On the next day, the respondents in writing refused to accept the ship, or to furnish the cargo, for the reason that her tonnage was greater than that expressed in the charter-party. Thereafter, during the lay days, various negotiations were pending between the parties, until September 30, when the master caused public protest to be made before a notary and witnesses of the respondents' refusal. October 19, the master obtained at the same port a full cargo of cotton and oil cake, the freight of which exceeded in value, by $532.10,that of the cargo of wheat which the respondents had contracted to furnish. On sner-party, made and concluded City of New Orleans, La., the 7th At, 1879, between A. B. French & for the owners of Steamship Highof the burthen of 1,100 tons, or thereartered meas rement, now due here h and 20th of September, of the first 15. B. Camors & Co., of the second part, That the said party of the first the freighting and chartering of e of the said vessel (with the excep- The actual tonnage of the Highbury was the eaten and necessary room for the 1,203 tons, registered measurement. Her ac26ze of provisions, sails and cables) tual carrying capacity for grain was about f the second part, for a voyage 11,500 quarters of wheat, depending upon the La to Havre, St. Nazaire, Ant-length of voyage between coaling stations. The 1 or Bremen, orders, on signing estimated amount of freight, the penalty stipon the terms following: The said ulated in the charter-party, was $20,872.50. At the date of the charter-party, the Highezbi, stanch,strong, and in every for such a voyage, and receive on bury was a new ship, and neither of the conthe aforesaid voyage, the mer-tracting parties in New Orleans knew her exact registered measuaement or tonnage or ben after mentioned. arty of the second part doth en-carrying capcity. All the negotiations be jence and furnish to the said vessel a tween them, preliminary to the contract, were 407 [355] [356] [359] with reference to her carrying capacity, which, | of the charterers to accept her cannot therefore By reason of the respondents' failure to accept the ship, furnish a cargo, and comply with their contract, the libelant suffered damages to the amount of $5,693.15 (consisting of $611.15 for expenses incurred in fitting up the Highbury to receive a cargo of wheat; and $5,082 for the delay, after the expiration of the fifteen lay days; of twenty-one days, at the rate of £50 a day, in obtaining and loading another cargo), with interest from the date of the libel. The circuit court stated, as conclusions of law, that the libel should be maintained, and that the libelant recover from the respondents the sum of $5,693.15, with interest and costs, and entered a decree accordingly; and each party appealed to this court. The opinion of the circuit court upon the merits is reported in 10 Fed. Rep. 145. 2. The concluding clause of the charter-party, by which "to the true and faithful performance of all and every of the foregoing agreements" the parties bind themselves, their heirs, executors, administrators and assigns, and also the vessel and freight, and the merchandise to be laden on board, each to the other, "in the penal sum of estimated amount of freight,” is clearly not a stipulation for liquidated damages, but a penalty to secure the payment of the amount of damage that either party may actually suffer from any breach of the contract. The principal object of this clause appears to be to pledge the ship and freight as security for the performance of the agreements of the owner, on the one hand; and the merchandise to be laden on board, as security for the performance of the agreements of the charterer, on the other. It is in the form of a penalty; In this case, as brought before us by the ap-it covers alike an entire refusal to perform the peal and the cross appeal, three questions have been argued, which may naturally and conveniently be considered in the following order 1. Is the statement of the registered tonnage of the Highbury in the charter-party a warranty or condition precedent? 2. If it is not, is the owner of the ship entitled to recover the estimated amount of freight; that is to say, the sum of $20,872.50, as liquidated damages? 3. If both these questions are answered in the negative, have the charterers shown any error in law in the amount of damages for which a decree was rendered against them in the circuit court? as the contract, and a failure to perform it in any par ticular, however slight; and for any breach, whether total or partial, a just compensation can be estimated in damages. At the common law, indeed, before the Statute of 8 & 9 Wm. III, ch. 11, § 8, judgment might have been rendered for the full amount of the penalty. But in a case like this, a court of equity would stay proceedings at law, upon payment of the damages actually suffered. Clark v. Barnard, 108 Ú. S. 436, 453 [Bk. 27, L. ed. 780, 786] et seq.; Sloman v. Walter, 1 Bro. Ch. 418; In re Newman, 4 Ch. D. 724. And at the present day, even a court of law would regard such a clause in such a contract as a penalty only, and not as liquidating the damages. Tayloe v. Sandiford, 7 Wheat. 13 [20 U. S. bk. 5, L. ed. 384]; Van Buren v. Digges, 11 How. 461, 477 [52 U. S. bk. 13, L. ed. 771, 777]; Higginson v. Weld, 14 Gray, 165; Harrison v. Wright, 13 East, 343. 1. In the charter-party, the ship is described Steamship Highbury, of the burthen of 1,100 tons, or thereabouts, registered measurement"; and the owner agrees to receive on board, and the charterer engages to provide, "a full and complete cargo, say about 11,500 quarters of wheat in bulk." In fact, her regis- In Abbott on Shipping, Shee's ed. pt. 4, ch. 2, tered tonnage was 1203 tons, a little more than § 2, speaking of charter-parties, it is said that 9 per cent above that stated in the charter;"it is usual for each of the parties to these con but this was not known to either party at the tracts to bind himself, his heirs, executors and time of entering into the contract; and her ac-administrators, and the owner or master to bind tual carrying capacity corresponded to the cargo which the charterers engaged to furnish, and the owner agreed to receive on board. The statement in the charter-party, concern[360] ing the registered tonnage of the ship, clearly does not constitute a warranty or condition precedent that she is of 1,100 tons registered measurement. The intention and the agreement of the parties, as apparent upon the face of their written contract, were that the steamship Highbury should receive and carry a full and complete cargo of about 11,500 quarters of wheat in bulk. There being no willful or fraudulent misrepresentation, the description, "of the burthen of 1,100 tons, or thereabouts, registered measurement" (if it could under other circumstances be held a warranty), is 'controlled by the designation of the ship by name, and by the unequivocal stipulations regarding the cargo to be carried. Brawley v. United States, 96 U. S. 168 [Bk. 24, L. ed. 622]; Norrington v. Wright, 115 U. S. 188, 204 [ante, 366]; Barker v Windle, 6 E. & B. 675; Ashburner v. Balchen, 7 N. Y. 262; Morris v. Levison, 1 C. P. D. 155. The refusal the ship and her freight, and the merchant the cargo to be laden, in a pecuniary penalty for the true performance of their respective covenants; this is commonly done by a clause at the end of the instrument. Such a clause is not the absolute limit of damages on either side; the party may, if he thinks fit, ground his action upon the other clauses or covenants, and may in such action recover damages beyond the amount of the penalty, if in justice they shall be found to exceed it. On the other hand, if the party sue on such a penal clause, he cannot in effect recover more than the damage actually sustained." In such cases, accordingly, the courts of the United States, sitting in admiralty, award the damages actually suffered, whether they exceed or fall short of the amount of the penalty. The Salem's Cargo, 1 Sprague, 389; The Marcella, 1 Woods, 302. In England and in this country, a court of admiralty, within the scope of its powers, acts upon equitable principles; and when the facts before it, in a matter within its jurisdiction, are such that a court of equity BELL V. FIRST NATIONAL BANK. relieve, and a court of law could not, it | ber 30, and that it was by reason of the failure the duty of the court of admiralty to grant of the charterers to accept the ship, furnish a The Juliana, 2 Dobson, 504, 521; The cargo and comply with their contract, that the 1 W. Rob. 182, 192; The Virgin, 8 owner suffered damages to the amount decreed, 4,550 [33 U. S. bk. 8, L. ed. 1036,1040]; no error in law is shown in the decree; and it rar. Lu, 2 Sumn. 443; Hall v. Hurlbut, is not open to revision by this court in matters 159, 600: Richmond v. New Bedford of fact. Act of February 16,1875, chap. 77, § 1, 18 Stat. at L. 315; The Abbotsford, 98 Ú. S. Co. 2 Lowell, 315. 440 [Bk. 25, L. ed. 168]; The Francis Wright, 105 U. S. 381 [Bk. 26, L. ed. 1100]: The Con nemara, 108 U. S. 352 [Bk. 27, L. ed. 751]. Decree affirmed. provisions of the Civil Code of Louisiand the decisions of her Supreme Court, show that in the courts of that State, in fatal breach of the contract by one , the other might have judgment for the amount of the penalty stipulated by the although for a partial breach he could over his actual damages. Louisiana True copy. Test: James H. McKenney, Clerk, Sup. Court, U. 8. v. Code of 1870, arts. 1945, 2117, 2124, 2125, HUMPHREY BELL ET AL., Plffs. in Err., [373] Nair v. Thompson, 5 Mart. (La.) 525, English v. Latham, 3 Mart. (La.) N. We'v. Thorn, 16 La. Ann. 188, 196; Latv. Bloom, 18 La. Ann. 276. But the law of Louisiana does not govern question, whether it is treated as a question struction of the contract of the parties, ☛ question of judicial remedy. His considered as depending upon the inthe parties as manifested by their writtract, the performance of that contract # regulated by the law which they must med to have had in view when they ased it. Wayman v. Southard, 10 Wheat. 1, 4. S. bk. 6, L.ed. 252, 264]; Pritchard v. Jo, 106 U. S. 124 [Bk. 27, L. ed. 104]. As and Englishmen entering into a party of an English ship for an ocean must be presumed to look to the genantime law of the two countries, and not *25cal law of the State in which the contataimed. considered as a question of the remedy to be judicially administered, the y and admiralty jurisdiction of the courts United States, under the national Con5 and laws, is uniform throughout the And cannot be limited in its extent, or d in its exercise, by the laws of the ni States, United States v. Howland, 4 1017 C. S. ok. 4, L. ed. 526]; LivSory, 9 Pet. 632 [34 U. S. bk. 9, L. * Ball v. Southard, 12 How. 139 [53 13, L. ed. 927]; Neves v. Scott, 13 [54 C. S. bk. 14, L. ed. 140]; The sar, 2 Story, 455; The St. Lawrence, 1 B. 72 (66) C. S. bk. 17, L. ed. 180]; The 21 Wall. 558 [88 U. S. bk. 22, L. 54 Rev. Stat. 913, 914. it court, therefore, rightly held that <ftanterers were liable only for the amount of -** which their breach of the contract liv caused to the owner of the ship. tended, in behalf of the charterers, hip was tendered on September 11, writing on the next day, it was ty of the master and the owner at once aber carro, and thus prevent any at might follow, instead of lying idle ay days had expired; and therefore, true laid down in Warren v. Stod 8. 224 [Bk. 26, L. ed. 1117], no Guld have been decreed. 2er ut court having found, as facts, Suegotiations were pending between -sm after the first refusal until Septem FIRST NATIONAL BANK OF CHI CAGO. (See S. C., Reporter's ed., 373-383.) Bills of exchange-protest without allowance of 8 *A bill of exchange, dated March 4th, payable in Submitted Oct. 30, 1885. Decided Nov. 16, 1885. ERROR to the Circuit Court of the United States for the Northern District of Illinois. The history and facts of the case appear in the opinion of the court. Mr. O. H. Horton, for plaintiffs in error: The pretended protests were made on the days the drafts were due, without allowing days of grace. The protests were premature, and the drawers were thereby discharged. Bank of Washington v. Triplett, 1 Pet. 31 (26 U. S. bk. 7, L. ed. 28); Hoover v. Wise, 91 U. S. 313 (Bk. 23, L. ed. 394); National_Bank v. City Bank, 103 U. S. 670 (Bk. 26, L. ed. 418); Perkins v. Franklin Bank, 21 Pick. 485; Montgomery Co. Bank v. Albany City Bank, 8 Barb. 399; S. C. 7 N. Y. 461; Bowen v. Newell, 8 N. Y. 194; Ivory v. Bank, 36 Mo. 475; Cook v. Renick, 19 Ill. 601. Messrs. Charles A. Dupee and H. A. Gardner, for defendant in error: The acceptor's declaration that the bills were due May 21 and 31, was a declaration that the sixty days after sight and the three days of grace expired on those dates. Dan. Neg. Inst. sec. 633; Kenner v. Creditors, 7 Mart. (N. S.) 540. As the language of Turner, the acceptor, was equivalent to saying that sixty days would terminate on May 21st and 31st, and as he testified that they did mature on those days and were then dishonored, there was here no disputed fact for the consideration of the jury. The authorities cited by plaintiff in error to this point are not inconsistent with these posi tions. *Head note by Mr. Justice BLATCHFORD. 409 [374] [375] SUPREME COURT OF THE UNITED STATES. OCT. TERM, This suit was brought in the Circuit Court of the United States for the Northern District of Illinois, by the First National Bank of Chicago, as indorsee, against the plaintiffs in error; copartners under the name of Humphrey Bell & Co., as the drawers of three bills of exchange. One was in this form: Mr. Justice Blatchford delivered the opin- | the trial, was read in evidence by the plaintiff. Canton, Ill., March 4th, 1878. "Accepted. Payable at Messrs. Barclay & The foregoing description applies to each of W. D. Turner, Jr." the other two bills, and the writing across its face, except that each was for £800, and one was dated March 11, 1878, and had in the writing across its face "Due 31st May," instead of "Due 21st May." and before the charge, the defendants requested At the close of the evidence on both sides, the court to instruct the jury as follows, among as foreign bills; that upon such bills three days, other things: "That the bills of exchange sued calle days of grace, are allowed by law after on in this case are what are known to the law the day on which they become due or mature: that such a bill does not become due, in fact or are duly protested on the last day of grace (or in law, on the day mentioned on its face, but on the last day of grace; that, unless such bills such protest is not duly made, and the drawers on the second day, if the last day be Sunday), from the evidence and under the instructions and indorsers are thereby discharged from liaof the court, that the bills of exchange sued on bility upon such bills. That, if the jury believe, in this case were not protested upon the last day of grace (or upon the preceding day, if the last day fell on a Sunday), then the verdict of refused to instruct as requested as to either of the above points, and the defendants excepted the jury must be for the defendants." The court to each refusal. The declaration was in assumpsit. Each of the defendants separately pleaded non assumpsit, and there were various special pleas, on which issue was joined. At the trial the court directed the jury to find a verdict for the plain- plaintiff was entitled to a verdict, and directed tiff for $10,937.13 damages, which was done; them to render a verdict for the plaintiff for The court then charged the jury that the and for that amount, with costs, a judgment $10,937.13 damages, which was done. was rendered for the plaintiff, to review which such ruling and direction the defendants exthe defendants have brought this writ of error. cepted. In the charge set forth in the bill of After making certain necessary proof, the exceptions, the views of the court on the quesTo plaintiff offered in evidence the three bills, and tions embraced in the instructions so requested a notary public's certificate of protest accom- and refused, were given in these words: "Sevpanying each. The bill of exceptions says: eral defenses are urged against the plaintiff's "The paper introduced and read in evidence as right to recover. the certificate of protest of said £850 draft prematurely presented for payment, and prostates, that on the 21st day of May, 1878, at tested; that is, as I have said, the bills are pay. First. That the bills were the request of the City Bank of London, the able sixty days after sight; they were accepted notary public exhibited the original bill of ex- by Turner, and, by the terms of the acceptchange, before copied, to a clerk in the bank- ances, were made payable, the two first on the ing house of Messrs. Barclay and Company, twenty-first and the last on the thirty-first of bankers, London, where the said bill is accepted May, 1878, and were protested for non-paypayable, and demanded payment of its con-ment on the days on which they were respec tents, which demand was not complied with, tively made payable. The defendants contend but the said clerk thereunto answered, 'No or- that, as the law allows three days of grace on ders,' whereupon the said notary protested the all bills of this character, they should not have said draft against the drawers, acceptor and been presented for payment, or payment deindorsers. The other two papers introduced as manded, until three days after the date named certificates of protest of the other two of said in the acceptance, and that, therefore, the prodrafts are in the same form, and state the pro- tests are void and inoperative. *** As to the test to be in each case the same day they are first point made, that the bills were prematurely stated to be due in the acceptance thereof. When the drafts and certificates of protest were were never protested at all, this defense raises offered in evidence, the defendants objected to a question of law upon undisputed facts. The protested, which is equivalent to saying they the admission of each of them, but the objec- bills each appear on their face to have been action was overruled, and they were read in evi- cepted by Turner, on whom they were drawn, dence, to which the defendants excepted. the last on the thirty-first of May, 1878, and were protested for non-payment on that day. payable, the two first on the twenty-first, and There is no proof in the record, nor on the bills, nor has any been offered, tending to show when Turner first saw these drafts, that is, when they were presented to him for acceptance. The law applicable to these bills, giving sighted until they were due—that is, sixty days sixty-three days from the time they were so The bill of exceptions purports to set forth all the evidence offered by either of the parties on the trial, but there is no evidence showing any presentation for payment of any one of the bills on any other day than that stated in the acceptance as the day it was due, nor is there any evidence showing when the acceptances tion taken at Liverpool, sixteen months before were written by Turner, although his deposi 410 cee days grace-is unquestioned, and ad- of rare occurrence. But no reported case has d to be the law governing the rights of been found in England or in this country where parts to this paper. This acceptor saw such an acceptance has been held to have intake his acceptance payable on a day cluded, by mere force of its words, ex vi termini, and I am of opinion that the court the days of grace. d that, by the terms of this acceptance, ed to and did make the bills payable, further days of grace, on the days ze in his acceptance; and therefore the bills properly protested for non-payment on 2 rst and thirty-first days of May." Pyoctended for the plaintiffs in error that were prematurel protested, and the ners were thereby discharged, because it t appear that three days of grace were we, and that the court erred in ruling oth tever of the bill 66 Some cases may here be referred to which go to support the conclusion at which we have arrived. In Griffin v. Goff, 12 Johns. 423, in 1815, a promissory note dated August 12, was made payable on the 1st of December then next; and it was held that the indorser was discharged, because payment was demanded of the maker on the 1st of December and not on the 4th. In Kenner v. Creditors, 7 Mart. N. S. 540, in 1829, a bill drawn at 60 days' sight was accepted by an acceptance which was dated September 12, and made payable on November 14, 1 was said by Chief Jr. Fice Marshall, in de- and was protested on the latter day. It was alng the opinion of this court, in 1828, in leged that the holders had lost recourse on the Band & Washington v. iplett, 1 Pet. 25, 31 drawers, (1) because the acceptance was made 8. bk. 7, L. ed. 3 40]: The allow for payment on the 63d day after sight instead addar of grace is a Sage which pervades of the 60th; and (2) because it was protested on whole commercial world. It is now uni- the day of payment instead of the last of the really understood to enter into every bill or days of grace. But the court held that the 14th a mercantile character, and to form so of November was the peremptory day of pay. ely a part of the Contract, that the bill ment, and not the day from which the days of 20 tot become due, in fact or in law, on the grace were to be reckoned, because it appeared 57 toned on its face, but on the last day from the face of the bill that the days of grace fre. A demand of payment previous to were included between the 12th of September dar will not authorize a protest, or charge and the 14th of November; that the acceptance This is universally ad-was according to the tenor of the bill; and that if the bill has been accepted." the protest was timely. The view taken was, The days mentioned in the acceptano-s in that a dated acceptance is not vitiated by the as those on which the bills would be- express designation of a day of payment, when ce, are the 21st and 31st of May respect that day is designated according to the tenor of 7, and there is nothing to indicate that those the bill; and that when it appears, from a comare the last days of three days of grace, parison of the tenor of the bill, the date of the 53 days from the several days of the acceptance and the day designated for payment, war of the acceptances. We are of opinion that the latter is the third after the expiration 32st appear affirmatively, in the case of of the days after sight, the day thus designated scceptances like those in question, that is the peremptory day of payment, the accepi xt, in designating the day of pay- ance is according to the tenor of the bill, and be the word "due," included the days of the protest on the day expressly designated mare or the day so designated cannot be re- is timely. In Kenner v. Creditors, 8 Mart. N. Det us the peremptory time for presentment, S. 36, another case, decided a week after the any additional allowance. Babe says (2 Com. 469) that where an drawn at 60 days' sight, were not dated, but former one, the acceptances, which were of bills dball is not paid within three days were made payable on a day named. Proof as abomes due (which three days are to the day of acceptance was admitted, and, that ad days of grace)," it may be protested for being proved, it was held that the case fell unBest in Chitty on Bills, p. 874, it is der the rule in the case in 7 Martin, because it her sight, it is not payable at the precise those of grace had been computed and included wed, and (p. 376) that they are always nated as the day of payment. These views were the bill is due, which in England | Creditors, 1 La. 120. ted according to the law of the affirmed in another case, in 1830-Kenner v. three days. Chancellor Kent says | In McDonald v. Lee's Administrator, 12 La. In Perkins v. Franklin Bank, 21 Pick. 483, ster hours of the third day of grace in 1839, a bank post-note, dated December 7, interest "until due and no interest after." On [382] |