Rawson v. Lyon

• Decision Date: 28 January 1885
• Citation: 23 F. 107
• Parties: RAWSON and others v. LYON and others. [1]
• Court: U.S. District Court — Southern District of New York

23 F. 107

RAWSON and others v. LYON and others. ^[1]

United States District Court, S.D. New York.

January 28, 1885

Benedict, Taft & Benedict, for libelants.

Scudder & Carter and Geo. A. Black, for respondents.

BROWN J.

This libel in personam was filed to recover the sum of $515.83, a part of the sum of $2,150, agreed to be paid by the respondents for the charter from the libelants to the respondents of the brig Dauntless, for a voyage from New York to Port au Prince and back in November, 1882. The answer alleges that 'at the time of the execution of the said charter it was represented, warranted, and agreed by the master and agents of the brig that she was of 247 tons register, and would carry 2,700 barrels, or from 290 to 300 tons, of Jamaica log-wood; on the faith of which the charter was accepted, but which agreement was, by mistake inadvertently omitted from the charter. ' Upon the trial it was proved that the brig, upon her outward voyage, took 2,940 barrels; but on her return voyage, though fully loaded she could take but 225 tons of logwood, instead of 290 or 300 tons. Considerable testimony was also offered to show that in negotiations leading to the execution of the charter-party the brig was represented by her captain to be able to take from 290 to 300 tons of logwood. This testimony was objected to as inadmissible to vary the written charter, which stated the tonnage correctly, but contained no representation as to the number of barrels, or the tons of logwood, that she could take. The difficulty was not in her ability to carry 300 tons weight, but in her capacity to stow so much logwood between-decks.

The answer does not allege any fraud, nor that the representation alleged was fraudulently made, but only that the representation was untrue. The evidence is not even conclusive that the brig could not have carried 290 to 300 tons of logwood, if the wood were of sufficiently large sticks, or if it had been sawed so as to be stowed compactly. Had the answer charged false and fraudulent representations, as the means whereby the respondents were induced to enter into this charter-party, I should have regarded the testimony offered as admissible according to weighty authorities. Cooper v. Schlesinger, 111 U.S. 148, 152, 155; S.C. 4 S.Ct. 360; Johnson v. Miln, 14 Wend. 195; Brown v. Tuttle, 66 Barb. 169; Thomas v. Beebe, 25 N.Y. 47; Bennett v. Judson, 21 N.Y. 238; French v. Newgass, L.R. 3 C.P.Div. 163; 1 Story, Eq. § 193. So if there were any mutual mistake of fact which was the foundation of the contract. Funch v. Abenheim, 20 Hun. 1. In the case of Baker v. Ward, 3 Ben. 499, however, evidence similar to that offered in this case was excluded, even where the answer expressly alleged false and fraudulent representations.

I do not deem it necessary to consider this question anew in this court in the light of subsequent authorities, inasmuch as upon the evidence, which was provisionally received concerning the conversations between the parties prior to the execution of the charter-par...