Page:Federal Reporter, 1st Series, Volume 4.djvu/582

568 FEDERAL REFOBTEB. �cargo, etc., or until the moneys so paîd by them shall be refunded by C. H. Marshall & Go., or the notes delivered up to them. And then foUows an agreement as to giving up the notes or refunding the money in case of wreck or other event defeating the delivery. The amount of the notes was com- puted at the rate named in the charter-party, 45 cents per cubic foot upon 57,166 cubic feet. These figures were fur- nished to Mr. Lamson by Mr. Bigler as the quantity of lumber shipped.namely : timber 45,137 3-12, andplank 12,028 10-12; and these amounts were minuted in pencil on the unsigned bill of lading produced at the same interview by Mr. Bigler. It is testiûed by Mr. Bigler that Mr. Lamson demanded that Bigler & Co. should pay freight on a larger amount, whieh Mr. Bigler stated to him was the quantity on which the gov- ernment paid him, that amount including the cubic contenta of the logs sawn into plank, instead of the 12,028 cubic feet, the quantity of the plank. But I am not able to credit the testimony of Mr. Bigler on this point. It is grossly improb- able. The other party to the conversation is dead. The captain, who Mr. Bigler swore was present, denies that he was there. The witness Bigler is not only an interested party, but is to such a degree what may properly be called a swift witness, that bis statements are to be received with great cau- tion on any point on which he may be mistaken. Mr. Bigler having furnished the figures, the notes were filled out and signed; the blanks in the receipt were filled, and it was signed. The bill of lading was also signed by Lamson in the name of C. H. Marshall & Co., and delivered, with the receipt, to Mr. Bigler. This bill of lading provides that the freight is to be paid "as per charter-party." At the same time, Mr. Bigler signed an agreement to pay any unpaid notes not yet matured upon presentation of the receipt for the delivery of the cargo. I think it sufficiently appears from this paper, called an agreement, and from that signed by Mr. Bigler, and the bill of lading signed and delivered at the same time, that this paper or receipt signed by the libellants was not, within the intention of the parties, a new and substituted contract as to the amount of freight, but that the transaction represented ����