The Accame

12 F. 345, 1882 U.S. Dist. LEXIS 113

• Court: District Court, E.D. Pennsylvania
• Decided: March 17, 1882
• Status: Published

Opinion

Butler, D. J.

The alleged contract is not satisfactorily proved. The contracting parties were Mr. Gardeicke, the libellant’s broker, and Mr. Barker, of the respondents’ firm. That Mr. Gardeicke intended to inform Mr. Barker that Bouen was to be excluded from the voyage, and believes he did so, is clearly shown by his subsequent conduct, as well as by his testimony taken in the case. But it is quite as clearly shown by the testimony of Mr. Barker, and his conduct at the time of the transaction, and immediately after, that he was not so informed. Mr. Gardeicke may have mentioned the subject, but Mr. Barker cannot have understood him. His telegrams of the same day, and his refusal to sign the written charter-party containing the exclusion, a few hours after the conversation, render this quite clear. The previous offer of the vessel without the exclusion of Rouen, made it necessary to bring the proposed change in this regard very distinctly to Mr. Barker’s mind. Although the offer had not been accepted, Mr. Barker was justified in regarding Mr. Gardeicke’s subsequent proposition as a renewal of it, in the absence of specific information to the contrary; and this information I am satisfied Mr. Barker did not receive, however much Mr. Gardeicke may have intended and sought to convey it.

This view of the facts renders an examination of other questions discussed unnecessary. There was no contract; and the fact that the writing signed by libellant remained for some time in respondents’ possession, UDder the circumstances shown, is unimportant. The libellant was fully iníorméd, from the outset, that it would not be signed, and knew that it was at his disposal.

A decree must be entered dismissing the libel, with costs to respondents.