Page:Federal Reporter, 1st Series, Volume 10.djvu/405

MAURY ». CULLIFOED. aVa �October, 1S79. They did not do it, and have no excuse therefor but inconvenience to themselves, and the refusai of libellant to take an earlier or later ship, or a ship not complying with the contract. And in the record is an attempt to prove a custom in England that the clause in the charter-party giving libellant authority to cancel the contract in case no ship arrived by the twentieth of October, really means that libellant waived all damages if the ship did not arrive according to the charter, reserving to himself, if the ship ever did arrive, the privilege of accepting her or not. In other words, the owners had the option of sending the ship or not. If sent in time, the charterer must accept her; if not in time, the charterer might use his option to accept or reject her. And this, the witnesses swear, is necessary to secure mutuality of contract. But the learned proctor for respondents bas not argued this defence, either orally or in his brief, and I doubt if he relies on it. In McAndrew v. Adams, 27 Eng. C. L. 297, under similar clauses in a charter party, no such custom was urged or considered. �I finally conclude that under all the circumstances of this case, and the authorities presented, I will maintain jurisdiction, and hold the defendants for all damages claimed in the libel and resulting from the failure of defendants to execute their contract. A reference and further proof will be necessary to ascertain such damages. It follows that the cross-libel filed by the defendants for damages growing out of the attachment issued in this case must fall. A decree in accordance herewith -will be entered by the clerk, and on the final decree the facts and the conclusions of law will be found as set forth herein. ��� �