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6d. per ton registered. The entire contention of the libelants rests upon the assumption that this was the only contract that Lamb & Co. had authority to make, and that Myers & Co. knew this from custom or otherwise; and, having made some contract with Lamb & Co., this and nothing 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 purpose than to aid them in making up their minds whether to take the ship or not. It was not meaningless, objectless talk.. It was a piece of information known to themselves, which Myers & Co. were casting about to obtain, and which Myers & Co. could 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 given, 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 time of the statement, made it a part of the contract on the part of Myers & Co., whatever it might have been on the part of Lamb & Co. A warranty or guaranty may enter into a contract without express words to that effect or even the intention of the person who makes the representation which constitutes it. What, then, was the result of this negotiation at the hour of 11 o'clock on the morning of the 11th October? Myers & Co. contracted on the inducement of the ship's capacity being 141,356 cubic feet. Lamb & Co. contracted on the basis that the capacity was not guarantied. Their minds did not meet, for the law makes the statement of the cubical capacity, under such circumstances, a warranty. When the charter came afterwards to Myers & Co. for signature, this discordance of minds immediately developed itself. Myers inserted the cubical capacity clause; Page objected to it. Their minds had not met. When the charter subsequently went to New York, and the house there "repudiated" the capacity clause, it was thereby still further shown that the minds of the contracting parties had not met, and were at hopeless variance. There had been no contract. Nothing is more true in the transactions of business men than that "it takes two to make a bargain." It is elementary law that there shall be a meeting of minds—a mutual agreement-upon all its material terms and provisions, in order to constitute a contract. If a firm in New York sends orders to Norfolk that a ship shall be chartered as they prescribe, and not otherwise, sending also her cubical capacity; and negotiations are made in which the other party declares, "I will take the ship on your statement of her cubical capacity, which I have no other means of ascertaining except from you;" and the firm in New York afterwards withdraws the statement, and insists upon its obliteration,-then there is no contract. Such was the case at bar, and decree must be for respondents.

On the subject of warranty, where it is not expressed in the contract,

and arises necessarily out of the representations of parties, made during the negotiation of the contract, the authorities sustaining my view of this case are very numerous. See Whart. Ag. §§ 72. 158, 161, 167, 168, 170, 708; 1 Add. Cont. § 65; Schuchardt v. Allens, 1 Wall. 369; Pol. Cont. 527, 528; Insurance Co. v. Kasey, 25 Grat. 270; Grim v. Byrd, 32 Grat. 300; Veazie v. Williams, 8 How. 134; Crump v. Mining Co., 7 Grat. 352; Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. Rep. 12; Bannerman v. White, 10 C. B. (N. S.) 844; 2 Add. Cont. §§ 625, 626; Smith v. Richards, 13 Pet. 26, 38, 42; Carv. Carr. by Sea, 133-136; Care v. Coleman, 3 Man. & R. 2; Salmon v. Ward, 2 Car. & P. 211; Wood v. Smith, 4 Car. & P. 45; 1 Evans, Ag. 76, 77; Bristow v. Whitmore, 9 H. L. Cas. 404; Behn v. Burness, 3 Best & S. 751; Louber v. Bangs, 2 Wall. 736, 737; Glaholm v. Hays, 2 Man. & G. 257; Ollive v. Booker, 1 Exch. 416; McAndrew v. Adams, 1 Bing. N. C. 29; Davison v. Von Lingen, 113 U. S. 40, 5 Sup. Ct. Rep. 346.

PRICE V. THE SONTAG.

(District Court, D. New Jersey. October 10, 1889.)

COLLISION-VESSELS AT DOCK-NEGLIGENT STOWING OF ANCHOR.

The canal-boat M. and the bark S. were lying at dock securely fastened, with their bows pointing in the same direction. The S. was astern of the M. about 5 feet, and drew 20 feet forward and 19 feet aft. The M. drew 7% feet. The depth of water in the dock at high-tide was about 21 feet, with a rise and fall of 6 feet. The inshore anchor of the S., weighing 4,000 pounds, with a shank 8 feet long, hung from her port bow, so that the stock was even with, or just above, the surface of the water. The M. was hemmed in by the S. and other boats, and was unable to move in any direction. The dock was full of boats and ice, with the wind blowing off shore. When the tide was half ebb, and the S. aground, the anchor of the S. caught under the bilge of the M. on her starboard stern quarter, and the M. was careened to port and pitched forward. The anchor of the S. was lowered, but not enough to clear the M., as the tide receded, and the fluke penetrated the seam of the M., causing a leak, which sank her in a few hours. Held, that the S. was solely to blame, as her anchor was not properly stowed.

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WALES, J. The libelant sues to recover damages alleged to have been sustained by his canal-boat, T. A. McIntyre, by coming in contact with the fluke of the Sontag's anchor on the 15th of February, 1888, under the following circumstances: Both vessels had been lying for several days in the Standard Oil-Dock, at Bayonne, in the state of New Jersey, with their bows pointing in the same direction, and their port sides securely fastened to the wharf by bow, breast, and stern lines. The Sontag was astern of the McIntyre, at a distance of not exceeding five feet. bark, being loaded nearly to her full capacity, drew 20 feet forward and 19 feet aft. The canal-boat, having on board 243 tons of coal, drew 7

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feet. The depth of water in the dock at high tide is about 21 feet, with a rise and fall of 6 feet. The inshore anchor of the Sontag, weighing 4,000 pounds, with a shank 8 feet long, hung suspended from her port bow, so that the stock was even with or just above the surface of the water. The two vessels had remained in their respective positions, without injury to either,, until the day of the accident. On that day the McIntyre was hemmed in by the Sontag at her stern, and by other boats along-side and ahead of her, and was unable to move in any direction. The dock was full of boats and floating ice, with the wind blowing strong from the north-west and off shore. At about 4 P. M., the tide being half ebb, and the Sontag aground, the captain of the McIntyre discovered that the anchor of the Sontag had caught under the bilge of his boat, on her starboard stern quarter, and that she was careened to port, and pitched forward. He immediately called to the people on the Sontag to lower their anchor, which was done, but not sufficiently to clear the McIntyre as the tide receded; and as a consequence the fluke penetrated a seam of the boat, making a V-shaped fracture, and causing a leak which sank her in a few hours.

The libel charges negligence on the part of the Sontag in leaving her anchor suspended in the manner described, when, according to rule and usage, it should have been carried at cat-head, or hauled in. The answer admits that the injury complained of was caused by the Sontag's anchor, but alleges that she had remained in the same place for several days, with her anchor hanging from the hawse-pipe, without doing any harm, and without complaint or notice to remove it, and that the anchor was promptly lowered on request. The answer also denies the existence of any rule or custom which requires the in-shore anchor of a vessel, moored as the Sontag was, to be catted or hauled in, and claims that the damage was caused primarily by the inattention of the McIntyre's captain to the fastenings of his boat, which were allowed to become loose, and let her sag down on the Sontag's anchor. There is no proof of negligence on the part of the canal-boat. She had taken her berth first, the Sontag coming in afterwards; and, if it was incumbent on either to keep at a proper distance from the other, that duty belonged to the bark, so long as the canal-boat remained stationary. The evidence does not show that there was any material change in the position of the McIntyre. The situation required some vigilance on the part of both vessels. When two vessels, moored at the same wharf, are lying so near to each other as these two were, there will be more or less play on their lines, with the rise and fall of the tide, and consequently some danger of collision; and it is the duty of each so to dispose of its tackle as to avoid injuring the other in case they come together. The Sontag was in fault by failing to perform this duty. The expert testimony proves the general custom and usage to be that vessels moored at wharves or piers, as these were, must have their in-shore anchors catted, and the off-shore ones hauled in on the forecastle. Such also is the rule established by the board of harbor masters of the port of New York, (rule 9.) The custom is founded on sound prudential reasons, for mutual protection in case of collision; and

one purpose of the rule is to prevent just such accidents as the one which happened to the McIntyre; since, if the Sontag's anchor had been catted, the accident could not have occurred. But, independently of local customs or rules, the maritime law requires that vessels, when navigating narrow rivers or coming into docks, should have their hamper properly stowed. The Palmetto, 1 Biss. 143; The Kolon, 9 Ben. 198, 199., The conclusion is that the Sontag was solely to blame; and there must be a decree for the libelant, with an order of reference to ascertain the damage.

CAMILLE v. COUCH.

(District Court, E. D. South Carolina. October 22, 1889.)

ADMIRALTY-JURISDICTION.

Admiralty will refuse to take jurisdiction of a libel for personal injuries inflicted by the master of a foreign vessel on a foreign seaman while on the high seas, where the relations of libelant to the ship have been settled by his and respondent's consuls.

In Admiralty. Libel for damages.

C. B. Northrop, for libelant.

J. N. Nathans, for respondent.

SIMONTON, J. The libel is for personal injuries inflicted by the master of the steam-ship Resolven on libelant on the high seas off the Canary His enislands. Libelant shipped at Cardiff, Wales, on British steam-ship Resolven, signing the articles as a resident of the isle of Malta. gagement was for one year, and the steamer was bound for the port of Charleston. Reaching this port, the libelant sought the French consul, alleging that he was a French citizen, and asking his good offices in obtaining a release from the shipping articles. The French consul saw her British majesty's consul, and, after some discussion and negotiation, libelant obtained his discharge, received the balance due him for wages to this port, and released the ship. The steamer is about to put to sea to-day. The libel was filed this morning, and the respondent was arrested. The action is between foreigners. The cause of action was on The cause, however, is within the juthe high seas on a foreign vessel. risdiction of this court, (The Belgenland, 114 U. S. 362, 5 Sup. Ct. Rep. 860,) if it chooses to take jurisdiction. The relations of libelant to this ship were settled by his own consul with the consul of the respondent. These gentlemen discussed these relations when they made the settlement. Dismiss the libel. Under all the circumstances I will not interfere.

DELBANCO v. SINGLETARY et al.

LEVY et al. v. SAME et al.

(Circuit Court, D. Nevada. July 29, 1889.)

1. REMOVAL OF CAUSES-TIME OF APPLICATION.

Defendants demurred to plaintiffs' complaints in the state court. The demurrers were heard and sustained in the state court, and plaintiffs were given leave and time to file amended complaints, which they filed. To plaintiffs' amended complaints defendants demurred, and at the same time filed their petitions and bonds for removal of the cases to this court. Held, that the petitions and bonds were not filed within the statutory time, and that the cases must be remanded. 2. SAME-FILING TRANSCRIPT-RULE OF COURT.

Under rule 79 of this court (ninth circuit) the plaintiff may, at any time after defendant has filed and submitted to the state court his petition and bond for removal of the cause, procure a transcript of the record of the cause from the state court, and file the same in this court, and, after service of notice thereof, as prescribed in said rule, this court will take jurisdiction of the case for all purposes. (Syllabus by the Court.)

Motion to Remand.

J. A. MacMillan and M. S. Bonnifield, for plaintiffs.

W. F. Goad, Wm. S. Bonnifield, and W. C. Belcher, for defendants.

SABIN, J. The points involved in each of the above cases are substantially the same, and the cases are considered together, the same ruling being applicable to each case. The actions were begun in the state court, and removed to this court. Summons and complaint were served on the defendant Singletary, May 27, 1889. By state statute defendants were required to plead or answer within 10 days after the date of service of summons, exclusive of the day of service, i. e., June 6, 1889. On that day, to-wit, June 6, 1889, all of the defendants in the actions appeared by counsel, and filed demurrers to the complaints on various grounds. On June 8th the demurrers were heard by the court, and sustained, and plaintiffs were given 10 days within which to file amended complaints, and defendants were given 20 days after service of said amended complaints to answer thereto. On June 15th plaintiffs served and filed amended complaints in each action, and on July 3d defendants filed demurrers thereto, together with their petitions and bonds for the removal of the cases to this court, and on July 5th the state court ordered the cases transferred to this court. Under rule 79 of this court plaintiffs caused a transcript of the record in each case to be filed in this court on July 8th, and they now move that the cases be remanded to the state court, on the ground that the petitions and bonds for removal were not filed within the time required by the act of congress of August 13, 1888.

Under repeated rulings of this and other circuit courts it is clear that the cases must be remanded. It has been repeatedly held by the supreme court, under the removal act of 1875, that the hearing of a demurrer was a trial of the case within the meaning of that act. Alley v. v.40F.no.4-12

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