Page:Federal Reporter, 1st Series, Volume 9.djvu/850

THB TOBAIi CAIN. 835 �On July 11, 1879, the respoiwjents, who are owners of the biig Tnbnl Gain, charfcered her to the libellants for a voyage from iurk's island to New York, to carry a cargo of sait, in bulk, at the priee of seven cents per busliel, and the libellants contracted to fumish such cargo with quick dispatch on her readiness to recoive it, and to pay at the rate of $40 per day for any detention of the vessel through their fault. The Tubal Gain proceeded to Turlc's island pursuant to the terms of the charter-partyi and arrived there on September 8, 1879, but no cargo could be at once procured. After waiting until the six- teenth of September, and failing to obtain any cargo, she returned to New. York. Before leaving Turk's island her master was requested to go to In- agua, where it was stated that sait could be procured, but he declined to do so. �On the sixteenth of October the owners, the respondents, commenced an action in the supreme court of this state to recover $1,358.84, their damages against the present libellants for an alleged breaeh of the charter-party, in not furnishing a cargo of sait as agreed. The libellants appeared in that action on October 18th, and upon the same day flled their libel in this court to recover $1,000 for their damages against these respondents for their alleged breaeh of the charter-party in not " waiting a reasonable time at Turks island, or procuring a cargo, or going to Inagua for a cargo, as requested." �The respondents in their answer, as a def enee in this cause, set up the same breaeh of the charter-party by the libellants which they alleged in their com- plaint in the state court, and also pleaded in abatement the pendency of the suit in that court. On December 27, 1879, the libellants, as defendants in tha suit in the state court, put in their answer, alleging that the master of the Tubal Gain, though requested, " ref used to await a reasonable and customary time for the said cargo, or to procure a cargo of sait, or to proceed to Inagua," by which it was alleged that the owners were " guilty of a breaeh of the terma of the charter-party, and not entitled to the compensation named." �In May, 1881, a trial of the suit in the state court was had before the court and a jury, and a verdict rendered for the owners for $970.41 damages, for which sum and costs judgment was duly entered in their favor on May 28, 1881. The respondents now ask leave to set up by supplemental answer the recovery of this judgment as a bar to the further prosecution of this action. �It is admitted that an appeal from this judgment has been taken, and is still peuding. �This motion is made upon the call of the cause on the day calendar; and, alongwith the proposed supplemental answer, ad uly-authenticated copy of the judgment roll in the other suit is also presented to the court, and a decision requested upon the meritsof the proposed plea as a virtual disposition of this case. �From the facts above stated it is apparent that the daims of the respective parties upon the pleadings in the two suits are mutually exclusive of each other. The claim of each party in the two actions is based solely upon an alleged entire breaeh of the charter-party by the other, and an entire failure in its performance. Neither party could be defeated in either action except upon proof of facts showing ��� �