Frese

Appeal from judgment in favor of plaintiff and from an order denying defendant’s motion for a new trial.

The facts upon which the question as to whether or not the. defendant is liable are in substance as follows: On November 3, 1897, the plaintiff (as party of the second part) entered into a contract with the Brunette Sawmill Company (as party of the first part), by the terms of which plaintiff chartered from said company the American barkentine Wrestler for a voyage from Frazer River in British Columbia to Fremantle in Australia. The company agreed to furnish for plaintiff to said vessel at designated loading-place or places a full cargo of sawed lumber at the basis price of seven dollars net for rough merchantable, payable when cargo should be loaded. The charter party or contract contained the following clauses:—

The above shows not only a charter party, but a contract by the owners of the vessel to furnish a cargo of lumber for the vessel at a specified rate per thousand feet, and by plaintiff to pay not only the freight as per the charter party, but seven dollars per thousand for the cargo of lumber when loaded on the vessel.

On December 4, 1897, without the consent of…