The Portland daily press., 1874-11-18
CITY AND VICINITY.
Superior Court.

OCTOBER CIVIL TERM, 1874, sYMoNDs, j.. pREsIp
ING.
TUEsDAY.-John F. Randall ct ais vs. Charlie,
Smith. Assumpsit upon an alleged breach of contract
to carry cargo Of coal from New York to Portland
The fncts of tie substantially these: On
the 18th Of March, 1872 the defendant master of the
schooner W. B. Darling, wrote to Bunker Brothers
ship brokers in this city, to procure him order fol
a load of coal from New York to Portland. Bunker
went to Randall g. McAister and asked them if they
could load the schooner; they said they could, and
gave him an order on Day, Hudder & Co., for cargo
at 1925 per ton freight. This order Bunker says he
forwarded to the defendant but the defendant says
he pever received it.
Two days later the plaintiffs learning Day, Hudder
81 Co. could not give the vessel quick dispatch gave
Bunker another order of the same TENOR but direct,
ed to Van Wyckle Stout g. Co., as follows:
~, PORTLAND, March 81, 1872
Messrs. Van Wickle, Stout g. Co.
Cents Load the schooner William B. Darling with
Fulton Lehigh Egg Coal, freight 1925 per ton Give
Signed) RANDALL, McALLIsTER q Co.
This order Bunker sent to the defendant in New
York with letter. stating that Randall wished him
to use it instead of the first one
Immediately upon receiving this order Captain
Smith wrote Bunker Brothers that he had received
the order for plaintiffs, but that he would not
carry ton of coal for them at any price; that they
had told him he should not carry any for them, and
he Smith hoped he never should
MT. Randall states that the conversation between
him and Bunker when he applied for an order, was
in substance that Bunker to him stating he had
this schooner on the way to New York, and wanted
to know If they could load her at $3.50 per ton Told
him we could not, but would at $685. He said ne
would take the order at that rate provided the
schooner could have quick dispatch. Randall told
him he had thousand tons of coal at Day, Hudder
& Co.'s. and the same amount at Van Wyckle, Stout
& Co.'s, and if he could not give him good dispatch
at enc place he would at the other.
The plaintiffs allege that they had the coal ready
for delivery at Van wyckle, Stout & Co.'s and could
have given the vessel quick dispatah that they used
due diligence after the defendant threw up the ORDER
to procure other vessels but unable to do SO on
account Of the scarcity of vessels
Under these state of facts the plaintiffs claim that
an express contract was made between the parties,
binding the plaintiffs to furnish cargo Of coal and
binding the defendant to carry it from New York to
Portland at stipulated price.
The defendant on the other hand claims that it
was not contract for the purposes alleged but was
rather in the nature Of an order or license to the
shipmaster to 60 and procure cargo and bring it to
Portland but until he received the cargo the CONTRACT
was not completed
Inc presiding Judge instructed the jury that the
papers in the alone did not constitute contract
and that whether there contract or not depend.
ed upen what took place between Randall and Bunk
er in the Office of the plaintiffs at the time he procur
ed the first order, which was question Of fact for
the jury that if they found there Contract and
that plaintiffs had the coal ready to deliver to the
schooner at the time alleged, they would find for the
plaintiff, otherwise they would find for the defend
ant. Verdict for the defendant.
This case has been tried resulting na verdict
for the dfendant, exceptions taken, and sustained.
B. d. Verrill for plaintiffs.
Strout & Gage for defendant.
Thomas Woodward ct al. VS.. David L. Fernald
This is an action against the General Inspector Of
Fish to recover damages occasioned by the alleged
misconduct of one Of his deputies in inspecting and
branding mackerel as No. 1, which were less than
thirteen inches, and of poor quality. On trial,
Strout G. Holmes-Howard & Cleaves for plaintiffs
Strout & Gage for defendant.