Page:Federal Reporter, 1st Series, Volume 3.djvu/53

46 FEDERAti BEFOETEB. �Notwithstanding the admission in the answer of the con- tract as stated in the libel, the respondents took testimony to show that the contract on the part of the tug was to tow the barge to the mouth of the canal and not into the canal. After the testimony was closed respondents moved to amend their answer in this respect : filing an affidavit that the admis- sion had been made under a misconception of the language of the libel. This motion was opposed by libellant. �Eespondent also offered evidence, under objection from libellant, to show certain declarations of the master of the barge with regard to the loss, made in the absence of libel- lant, long after the suit had been brougbt and after the mas- ter had left libellant's employment. Oeorge P. Rich, for libellant. �H. G. Ward and J. Warren Coulstnn, for respondents. Upon the motion to amend the answer the court delivered the following opinion : �BuTLEE, D. J. As Originally drawn, and until the testi- mony had been closed and the argument commenced, the answer raised no question respecting the contract. The statements of the libel, in this particular, were admitted, and the respondent averred performance by placing the barge "in the mouth of the canal." The motion to amend, so as to permit the question whether the contract required the barge to be placed in the mouth of the canal, to be raised, is allowed. This will not, however, relieve the respondent from the effect of his admission and statement, as evidence, in passing upon the new issue raised. They must be considered in the light of ail the circumstances, and accorded such in- fluence as may seem just. �Upon the merits of the case disclosed by the pleadings and proofs the court delivered the following opinion : �Butler, D. J. I will not enter upon a discussion of the evidence. It is conflicting; but I believe it shows, with rea- sonable certainty, that the contract was to run the barge into the mov.th of the canal; that it was not so run in; and that the loss of the barge was the direct consequence of this failure. ����