Page:Federal Reporter, 1st Series, Volume 4.djvu/584

570 FEDERAL REPORTBE. �ground of fraud. If it was an innocent mistake, then it is unjust and unconscionable for him to insist on the benefit of it. Moreover, the correspondence between the parties shows clearly that the defendants admitted the libellants' right to a. re-adjustment of the amount of the freight if their claim was sustained that the freight measurement in faet exceeded that whieh was made the basis of the alleged subsequent agree- ment. �In their letter of April 4, 1874, after stating the return of the freight measurement reeeived from California, the libel- lants say: "We would call your attention to the latter, (i. e,, the freight measurement,) and think we ought to be paid on the difference as per charter-party, namely, 2,948 feet." In reply the defendants, on the eighteenth of April, wrote: "Your favor showing the amount of oak delivered at the Mare island navy is at hand. I have been from home, or it would bave sooner had attention. I hope to receive an explanation soon showing the difference of measures, and as soon as we do, will eaU on you to adjust the account." Mr. Bigler bas testified that, in using the words "will call on you to adjust the account,"'he referred only to the account of interest which, under the alleged subsequent agreement, was required to be made. It is impossible to believe that this is so. The perfectly obvions meaning of the letter is otherwise. That which the letter, to which this is a reply, alone asks to have adjusted, is a difference in the amount of freight. �The reply, without objeeting to the justice of the demand, if the alleged fact on which it is based is true, asks time to ascertain if the fact of excess of actual cargo over bill of lad- ing is correctly stated, and promises to call and adjust the ac- count on ascertaining how the alleged fact is. There was no possible occasion for time to inquire as to the actual p^mount of the cargo, if ail that the defendants intended to adjust was the interest under the agreement ; and as matter of construc- tion their letter mùst be held to be a written admission that the existing contract between the parties in respect to the amount of freight was the charter-party and that alone. The rule excluding paroi evidence to vary a written agi-eenient ����