Eastern times. [volume] (Bath, Me.) 1846-1857, 1854-10-19

J. S. Sewall of Bath, and G. F. Shepley OF
Portland. for libellant.
Lot M. Morrill, of Augusta, and w. P. Fes-
sender of Portland, for claimants.
Blanding agreed topurchase cargo of ship
timber in vessel lying at Bath. He went on
board, examined part of the timber, which
was declared to be sample of the cargo
agreed to the terms of the contract, and or
dered the vessel to proceed with the cargo to
Augusta, and agreed to pay for the towage.
The vessel got on rock, and he ordered part
of the cargo to be discharged and sent for
ward in gondcla. and employed surveyor
to survey the cargo of the gondola before the
vessel arrived. The contract was uer6dl, and
this was held sufficient acceptance of the
timber to take the case out of the statute of
frauds.
When a maratime lien within the jurisdic-
tion of the Admiralty is given by state stat
ute, it will be enforced by this Court accord
ing to its own process and modes of proceed
ing.
WARE, District Judge. This is a libel
against new and unfinished vessel for ma
Ferial furnished by the libellant, for building
1t. The contract was made by Mr.. Harding
of Bath, for and in behalf of the libellant, the
master of the sch. William, for her cargo,
which had just arrived from Nova Scotia, at
Bath, consisting Of hackmetac knees, spruce
knees, and hackmetac timber. The price was
agreed upon, and it was also agreed to pay
thirty dollars for tOwage of the vessel to Au-
gusta. The contract set forth in the libel was
made August oath, the day before Harding
had informed Blanding of the arrival of the
vessel, and he, the next Monday went to Bath.
Blanding and Handing went on board the yes
sci together, to examine the timber. Some
of the cargo was on deck. The matches fore
and aft were taken off, and Banding exam
ined the knees as far as he could He then
inquired the character of the cargo, and was
told he had seen fair sample of it. Bland
ing and Harding returned, and Thomas Nc
Fadden was called as witness to the con-
tract. 1t was repeated in his presence.
1t was proposed to reduce the contract to writ
ing, but Banding replied that it was unnec-
essary. Haines, the master, was at this time
confined by sickness and was not present dur
ing any part of the time-the whole business
being done by Harding as his broker. Bland
ing said he thought the knees would suit, and
ordered the vessel to Augusta. On her pas
sage up she struck on a rock, and it became
necessary to Tighten her. A part of her car
go was taken into lighter, and landed on the
wharf in Augusta, before the vessel arrived.
Blanding was on board the vessel, and or
dered part of the cargo discharged into the
gondola. Before the vessel arrived, Blanding
having gone to Augusta, employed Doe,
surveyor, to survey the knees and timber,
which had been discharged from the gondola
Sawyer, the master builder Of the ship, was
dissatisfied with the knees, as was also the
surveyor, and Blanding concluded to reject it
as unfit for his purpose. In the meantime,
Harding had gone from Bath to Augusta, and
on examination he was dissatisfied with the
surveyor, and it was concluded to employ an
drew McFadden of Bath, well known sur
veyor of large experience, was sent for, and
he actually surveyed the whole cargo.
1t is objected by the respondents that there
was no actual and completed contract; that
there was no such delivery and acceptance of
the cargo or any part of it as to render it con-
elusive and binding on the parties, it not hav-
ing been reduced to writing. There is no
doubt as to the verbal assent to the bargain
The agreement was made after an examna-
tiOsi Of part Of the cargo which was exhibited
as a sample, and it was not disputed that most
of the cargo corresponded with this. Bland
ing agreed to take the cargo and ordered the
vessel to Augusta. When the vessel got on
fhe rock, Blanding was there and ordered a
part of it put into gondola. This was for
warded and landed on his wharf In Augusta.
Now if it be contended that his acceptance at
Bath was not such an acceptance as would
bind him, because there was no formal deliv-
cry Of any part of the cargo, yet his following
hhe vessel to her place of discharge, ordering
a part to be sent forward by gondola and
employing a surveyor, ,Oas such delivery and
acceptance as ,Ods binding on him, provided the
cargo, on a survey, proved to be equal to the
sample examined, and that it did SO is not
denied. must, therefore, consider the con-
tract sufficiently established, provided that
proved by Thomas McFadden constituted the
whoie contract. 1t appears that in the month
OF July, this vessel was at Bath, under the
command of VIM. Haines, the father Of the
libellant, and that between him and Blapdipp
there was some negotiation for the purchase
of cargo of ship timber. After the depar-
ture of the vessel, memorandum of the terms
of an agreement as it was understood by
Haines, was made in writing, by McFadden,
lHardlng's clerk) and transmitted to Bland
ing at Augusta. The dimensions and price
OF the knees and timber were stated, and that
they were to be received at Nova Scotia sur
vey; Blanding assented to the terms. except
as to the Nova Scotia survey, with which he
said he would have nothing to do. The
agreement If rightly understand it, was tha
this circumstance of the survey was an ele-
ment in the contract nf Auoust anJ +h,@ al .