Opinion of the Court.

there, and while the port was in the possession of the insurgents; the sellers declined for a time to deliver the cargo, because they feared that if the export duty, which by the law of Chili was payable upon all such cargoes, was paid by them to the insurgents, they might remain liable for it to the rightful government. It was held that the charterers were liable for the stipulated demurrage during the delay so occasioned. The court, speaking of the word "default" in the charter, said: "The most that can be claimed for its effect is that it excludes liability of the charterers for delay in loading or discharging, if the delay result from a sudden or unforeseen interruption or prevention of the act itself of loading or discharging, not occurring through the connivance or fault of the charterers." "But there was no interference upon the part of the Chilian government, or upon the part of any armed force, to prevent their obtaining possession of the cargo, or handling or moving the same, or placing it within reach of the vessel's tackle." 15 U. S. App. 374, 376.

In the case at bar, the defence of vis major, as pleaded in the answer, was that the ship owners were prevented from discharging the cargo, and the charterers were prevented from receiving it, any sconer than they did, by reason of acts of the public enemy, to wit, certain vessels of war, then in the harbor of Rio Janeiro, were engaged in firing upon the forts in the harbor and in making war upon the government of Brazil; that the firing between those vessels and those forts made it impossible to discharge or to receive the cargo from the vessel any sooner than it was discharged or received; and that the detention alleged in the libel was caused by those acts of the public enemy, and not by any default of the charterers.

66

The vis major, so pleaded, was, in the words of opinions above cited, a superior force, acting directly upon the discharge of the cargo;" "a direct and immediate vis major;" an "unusual and extraordinary interruption that could not have been anticipated when the contract was made;" "a sudden and unforeseen interruption or prevention of the act itself of loading or discharging, not occurring through the connivance or fault VOL. CLXXIX-8

Opinion of the Court.

of the charterers," and an "interference on the part of an armed force, preventing the handling or moving of the cargo.”

Upon principle, and according to the general current of authority, the detention alleged was not caused by default of the charterers, and did not render them responsible for demurrage, under this charter-party.

The Circuit Court of Appeals therefore erred in sustaining the exception, in the nature of a demurrer, to that article of the answer which set up the defence of vis major; and for this reason its decree for the libellants must be reversed. The decree of the District Court, which dismissed the libel, must also be reversed, and the case remanded to the District Court, in order that both parties may have an opportunity to introduce proofs upon the issue presented by that article.

In the brief of the libellants in this court, it is suggested that the allegations of that article of the answer were not in fact true; and reference is made to the master's deposition, taken after the delivery of the principal opinion in the Circuit Court of Appeals, in which he testified that during all the time that the vessel lay at the wharf, and until the completion of the discharge, there was no firing in the harbor or other act of hostilities, which prevented her discharge of the cargo or its reception by the consignees.

But on the same page of the brief it is admitted that "this question having been heard on the exception to the sufficiency of the defence, the question as to the truth of the allegations of the answer was not before the court." And this is conclusively established by its opinions and decrees. The principal opinion shows that it took up, in the first instance, the questions of law raised by the exceptions to the answer, because their determination might relieve the parties from the delay and expense of introducing proof. 35 U. S. App. 620. By the decree thereupon made, and set out in the record, the third exception, as well as the second, was sustained, upon the ground that the article of the answer to which it related was 66 insufficient in the law to constitute a defence;" and the fourth exception was overruled. In short, the defences of the cesser clause and of vis major were both held to be insufficient as matter of

Opinion of the Court.

law, so that no evidence in support of either of them was competent, and no evidence to contradict either was necessary or

material.

The only questions of fact, left open for the introduction of proofs, were those of payment and of accord and satisfaction, presented by the remaining article of the answer. That the Circuit Court of Appeals 'understood such to be the condition of the case is apparent from its supplemental opinion, after proofs had been taken, in which it observed that "most of the questions arising upon this appeal have been disposed of by this court upon a former occasion, and it remains to be considered whether the defences of payment and accord and satisfaction are sustained by the proofs;" and then proceeded, upon an examination of the proofs, to hold that those defences were not sustained as to the claim for demurrage, and to enter a decree for the libellants in accordance with its former opinion. 62 U. S. App. 368.

The questions of payment, and of accord and satisfaction, need no extended notice. They are pure questions of fact, depending on conflicting evidence and on the peculiar circumstances of the case; upon which, had they been the only questions presented by the record, a writ of certiorari would not have been granted; which appear to this court, upon examination of the proofs, to have been rightfully decided by the Circuit Court of Appeals; and which it would serve no useful purpose to discuss. But for the reasons above stated, in considering the effect of the defence of vis major,

The decrees of the Circuit Court of Appeals and of the District Court are reversed, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this court.

MR. JUSTICE MCKENNA was not present at the argument and took no part in the decision of this case.

Counsel for Parties.

SIGAFUS v. PORTER.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND

CIRCUIT.

No. 8. Argued November 15, 16, 1899.-Decided October 29, 1900.

The defendant in the court below moved to dismiss this case on the ground that the contract in relation to the property in question was with Griffith alone, and, that motion being denied, proceeded to offer evidence. Held that he could not assign the refusal to dismiss as error.

In Smith v. Bolles, 132 U. S. 125, it was held that, "in an action in the nature of an action on the case to recover from the defendant damages which the plaintiff has suffered by reason of the purchase of stock in a corporation which he was induced to purchase on the faith of false and fraudulent representations made to him by the defendant, the measure of damages is the loss which the plaintiff sustained by reason of those representations, such as the money which he paid out and interest, and all outlays legitimately attributable to the defendant's fraudulent conduct; but it does not include the expected fruits of an unrealized speculation; and further that, in applying the general rule that 'the damage to be recovered must always be the natural and proximate consequence of the act complained of' those results are to be considered proximate which the wrong-doer, from his position, must have contemplated as the probable consequence of his fraud or breach of contract." In this case that decision is affirmed and applied to the facts and issues here, and it is held that, upon the assumption that the property was not worth what the plaintiffs agreed to give for it, they were entitled, a verdict being rendered in their favor, and if the evidence sustained the allegation of false and fraudulent representations upon which they relied and were entitled to rely, to have a verdict and judgment, representing in damages the difference between the real value of the property at the date of its sale to the plaintiffs and the price paid for it, with interest from that date, and, in addition, such outlays as were legitimately attributable to the defendant's conduct, but not damages covering "the expected fruits of an unrealized speculation."

THE case is stated in the opinion of the court.

Mr. Edmund Wetmore for plaintiff in error. Mr. Henry B. Johnson was on his brief.

Mr. Albert Stickney for defendants in error.

Opinion of the Court.

MR. JUSTICE HARLAN delivered the opinion of the court.

This action was brought to recover damages for deceit alleged to have been practiced by Sigafus, the plaintiff in error, upon Porter, Hobson and Morse, the defendants in error, in the sale by the former to the latter of a gold mine in California, known as the Good Hope Consolidated Gold Lode Mining Claim (consisting of the San Jacinto and Good Hope Quartz locations), and as the Annex, adjoining the Good Hope mine on the south. The complaint alleged that the defendant Sigafus was president of the Good Hope Consolidated Gold Mining Company, a corporation of California possessing the legal title to the property in question, and that with the exception of a few shares standing in the name of his son-in-law he owned its entire capital stock, and was in fact the sole beneficial owner of the mine and the lands and property appurtenant thereto;

That prior to December 28, 1893, the defendant representing his own interests and those of the company as well as those of his son-in-law, and acting by one William H. Griffith, entered into negotiations with the plaintiffs for the sale of the mine, mining claims and their appurtenances;

That in the course of such negotiations the defendant falsely and fraudulently and with intent to deceive and defraud the plaintiffs, represented to them that the lands and mines and mining claims contained a large and valuable vein of goldbearing ore, large and valuable deposits of gold, and that all of the gold-bearing quartz would average in milling more than $16 per ton;

That he laid before the plaintiffs a false and fraudulent report or statement in writing in regard to the lands and mines and mining claims, made by one Burnham, who was therein represented to be an independent and disinterested mining engineer and expert, and to have made a careful and complete examination in the premises, which report or statement in substance stated that the pay streak in the mine had an average width of two feet, that 2434 tons of ore from the mine had been milled and yielded an average value in gold of $23.78 per ton, that the mine had been operated and the ore taken therefrom had been