The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1849-06-09
Superior Court.


JUrE S.-.7ige,non .4shbsenncr George Baicher.
This action brought by plaintiff to from
the defendant about $4,000 Tor freight Of vessel, al
legged to have been chartered by defendant frem plain
tiff 1t seemed that in 1S47 the defendant chartered
from plaintiff the schooner John Haughten to trans
port cargo Of Indian corn to the port Of Cork in
Ireland The charter party described the vessel Of
the burthen Of 100 tons whereabouts; the sum to
be paid for freight, the number of lay days, and
also set forth in the instrument The vessel was
accordingly delivered to the defendant at one
of the East River PIERS and he detained for Elk
days. after which, he refused to procure the freight
have anything to do with her, and returned her
to the plaintiff The latter after chartered her
for coasting voyage The suit defended on two
grounds first that the charter party having described
the schooner to be of 100 tons it equivalent to
warranty that she Of that tonnage and IL it after
wards turned out, 1t did, that she not OF that
burthen be could not recover. The second ground of
defence was, that defendant entrapped into the
them to be false at the time he made them regard
to the tonnage OF the vessel. II was also shown
the part Of the defendant that he offered plaintiff $500
to release him from the contract to procure char
ter party for the vessel from the government at 81
a month, both Of which offers the plaintiff refused
but the Chief Justice in his charge did not make
any reference to either Of these last two defences
they were, Of course, out Of the case.
His Honor charged the jury that from the very ella
borate manner in which the had been tried his
duty would merely consist in stating the nature of the
action and the rules Of law applicable to it. The char
stance agreement the part Of the defendant that
he would procure freight for the schooner for
from this port to port in ireland; and also that he
would pay the freight at certain rate that defendant
executed the charter party is not denied, and that
there has been breach Of It, is also clearly proved
That she hired TO Smith g. Co, and by them re-
ceived and kept for number Of days and that subse
quently defendant made his mind not to perform the
charter party on his part is also admitted The first
ground Of defence taken by the defendant Ia that the
schooner described Of 100 tons, and that
that description amounted to warranty the part OF
tho plaintiff, thnt this schooner actually OF that
burthen, and il that was so, defendant undoubt-
edly would not be bound to carry the agree
ment into effect; the Of that Ia, that If a
stipuates in express terms, that vessel is OF
particular buIthen tonnage then he is bound by his
stipuoton; but on tho other hand, mere representa-
ton that 1t is where the other party has oppor
tuniy Of inspection ascertainng all the facts and
judging for HIMSELF these mere representations do not
amount to warranty and upon q reference to the
charter party in this case it by appears that
IL contained an express stipulation the part Of the
plaintiff that the vessel Of the burhen Of 100 TONS
but Of the burthen Of 100 tons, or less In judy
men oflaw therefore there warranty, and this
ground Of defence must fail The second ground of
defence, to wit: that he entrapped into tho
tract by the representations of the plaintiff by which
he was induced to do that which he would not have
done he were put in possession OF the facts they
really we're This IL a good defence If made out; all
contracts maze in fraud, void tx therefore tho de-
scription Of the vessel audulontly made by plain
til or his agent and II defendant entrappod into
this contract he has right to set it up, and Il IL
good defence but II must made to your entire
sati.fsccn In order to constitute the fraud here act
would be necessary that plaintiff represented this
vessel to be o. the burthen If 100 registered tons that
he made The representation knowing IL to be false at
tho time for the purpose OF deceivng the defendant
and that the latter acted on the faith u that repre-
senation relied it. ad signed the charity party
der the con yiction that 1t was made in good faith
These the two grounds Of defence which no sets
up but the latter II mater Of fact which you to
decide lis honor then laid down tbs rule n. o. da-
images. Sealed verdict Tomorrow (ihis) morning