Page:Federal Reporter, 1st Series, Volume 10.djvu/787

A CARGO OF MALT, 775 �nal contract. The representatives of these conjpanies fix the rates frotn time to time aecording to the supply and demand for boats of the ordinary size car- rying from 8,000 to 8,500 bushels. By these rates there would have been owing to the libellant $47, or a little less, and that amount was tendered to him before his libel was flled. The representative of the Erie Ilailroad Com- pany testifled that when boats were scarce a higher price was allowed for boats earrying 10,000 bushels or over, but otherwise no distinction was made for extra size; and that frora November 8th to llth he paid .$10 for such boats. The other companies had not paid for any boats higher than from $3 to $8 during the whole perioJ, but whether they actually had larger boats at the time does not appear, �The libellant's boat was, as I must find, upon the testimony, of extra size, for which he is entitled to $10 for November lOth and llth, which will entitle him to $51, instead of the $47 tendered. The libellant's claim to the beneat of a new contract at the absolute rate of $10 per day after November lOthcannot be sustained. The orig- inal contract was an entire contract. It embraced three principal points: First, the rate of five dollars per day for 30 days; second, the guaranty by the claimant of 30 days' pay, whether the cargo was unloaded before that time or not ; third, the privilege to the claim- ant after 30 days, in case the malt was still aboard, to continue the use of the boat at the "going rates" of the three companies named. The privilege for the use of the boat after 30 days at "going rates" is as clearly embraced in the original contract as the guaranty of 30 days' pay whether used the whole time or not. There is nothing unreasonable, unfair, or improbable in such an agreement. Having a guaranty of 30 days at a fixed price, there is certainly nothing unreasonable in the libellant agreeing to receive the current rates thereafter ; and it would be unreasonable to subject the cargo to the alternative of an immediate transi'er after 30 days, or to the pay- ment of arbitrary and excessive rates, unless the contract plainly gave to the libellant that right. The original contract in this case does not do so, and to allow the libellant, at the moment the 30 days expired, to fix an arbitrary price for any continued use of his boat, would be equivalent to disregarding altogether the express stipulation for the further use of the boat at "going rates." The stipulation being an essential part of the original contract, the libellant had no legal right to vary it. �Nor was the notice given by the libellant on November lOth of the character required to change the contract, if he had had a right to change it. The language of this notice imported no more than that $10 was the "going rates," and that the libellant would accordingly ��� �