In Error to tbe Circuit Court of tbe United States for tbe Northern Division of tbe District of Washington.

This action was brought in the circuit court for the district of Washington by the Rock Island Alaska Mining Company, the appellee, against the corporation styled Frank Waterhouse, Limited, appellant, to recover the sum of 821,055.19, with interest, alleged to be due on a certain charter party, and for merchandise furnished and services rendered to the said appellant by the appellee. The cause was tried by the court and a jury, resulting in a verdict for the appellee (plaintiff below) in the sum of §18,919.19, with interest and costs of suit, and is brought to this court, on a writ of error sued out by the defendant in the court below, and Its surety on a bond given to secure the release of attached property.

The litigation arose from the following transactions and circumstances:

The Rock Island Alasita Mining Company (Hereafter referred to as the “Rock Island Company”) is an Iowa corporation, and In July of 1898 was the owner of two steamers, the Rock Island and Rock Island No. 2, which were lying in the harbor of St. Michaels, Alaska. This corporation was at that time represented at St Michaels by II. U. Crockett, its vice president, E. L. Kahlke, its secretary, and William C. Knaaek, its general manager. Frank Waterhouse, Limited (hereafter referred to as the “Waterhouse Corporation”), is a British corporation, organized early in 1898, and from the lime of its organization has had its chief office in America at Seattle, Wash.; Frank Waterhouse being the American manager of said corporation, in charge oí its Pacific Coast business, and residing at Tacoma, Wash. This corporation was the owner of the British steamship Garonne, which sailed from London, England, on April 2, 3898, with a partial cargo and a number of passengers bound for St. Michaels, via Victoria and Vancouver, British Columbia. In June, 1898, the ship left Victoria wiih a full cargo and full list of passengers, arriving in St. Michaels harbor about July 4th; Capt. C. G. Oonradi being the master in charge thereof. To nearly all of the passengers tickets had been sold by the Waterhouse Corporation beyond St. Michaels to various points on the Yukon; the tickets issued on the prepayment of fare being two-coupon transportation tickets, one coupon calling for passage on the Garonne to St. Miehaels, and the other being an order on “Agent Connecting Line, St. Michaels, Alaska,” for one ticket from St. Michaels to Dawson, to be charged to the account of the Waterhouse Corporation, The Garonne also carried to St. Miehaels 377% tons of freight, including 49% tons belonging io the Water-house Corporation, consisting of clothing, blankets, «hardware, and drugs, all of which was consigned to Dawson. The Waterhouse Corporation had received in advance as freight upon the cargo a sum exceeding §36,000, and a further sum of about §8,000 was to be collected upon delivery of the consigned goods at Dawson by an employe of the corporation who was proceeding to Dawson on the Garonne. It appears that it was the intention of the Water-house Corporation io transfer the passengers and cargo of the Garonne to a river steamer at St. Miehaels, the Robert Kerr, which was to be operated by F. W., Limited, a corporation organized to engage in river transportation on the Yukon in connection with the ocean transportation of the first-named corporation. Frank Waterhouse, manager of both corporations in this country, had contracted with a firm in Seattle to construct the steamer Robert Kerr and send it to St Michaels in time for the opening of navigation on the Yukon river. The Waterhouse Corporation had also contracted with the Milwaukee-Alaska Gold-Dredge Mining Company for exchange of business with the latter’s river steamer Milwaukee. It was expected by the Waterhouse Corporation that both of these steamers would he at St. Miehaels upon the arrival there of the Garonne, and it sent by the Garonne a master, purser, and pilot, under contract of employment for the season on the Yukon river upon the Robert Kerr, or any other river boat selected by the Waterhouse Corporation. When the Garonne arrived at St Michaels on July 4, 1888, neither of the expected river steamers, the Robert Kerr or Milwaukee, had arrived. Capt. Oonradi looked around for other means of sending his passengers and cargo up the river, and in the course of a few days (neither of said river steamers having then reached St. Michaels) completed negotiations with the officers of the Rock Island Company for the use of the steamer Rock Island, and entered into the charter party upon which this litigation is based; assuming to do so on behalf of the Waterhouse Corporation. This charter party was written in duplicate, each party retaining one of the original documents, and reads as follows:

“This indenture of charter party made and executed this fifth day of July, 1898, by and between Rock Island Alaska Mining Company, owners of the steamer Rock Island, party of the first part, and the Frank Waterhouse, Limited, of London, the party of the second part, witnesseth as follows: The ~ party of the first part, for the considerations hereinafter mentioned, and the covenants on the part of the party of the second part to be kept and performed, does hereby lease and charter to the party of the second part that certain stern-wheel steamboat called ‘Rock Island,’ now lying a.t the port of St. Michaels, Alaska, to have, use, and operate upon the Yukon river so long as said party of the second part shall wish, not extending beyond the season of 1898. Said party of the second part shall have absolute and complete control and management of said steamer while they shall retain her, and shall provide said steamer with officers and crew for the operation thereof, with the exception of two engineers, pilot, and secretary of the Rock Island Alaska Mining Company, which parly of the first part agree to provide and pay for; and, further, the party of the second part snail maintain said engineers, pilot, and secretary in like as their own crew until steamer is returned to party of the first part. Said steamer to be delivered upon demand to party of the second part alongside of the British steamship Garonne, in the harbor of St. Michaels, and upon such delivery in good condition this charter party shall begin. For the use of said steamer aforesaid, party of the second part agrees to pay the party of the first port the sum of five hundred dollars per day during the period of their use thereof, and until said steamer be delivered to the party of the first part as hereinafter provided; first payment to be made at Dawson City upon arrival of the steamer, to cover number of days consumed, and in like manner upon the arrival of steamer at St. Michaels. Said party of second part may surrender said steamer to party of the first part, and cancel and annul this charter party, at any time after expiration of one month from date of charter, by delivery of steamer Rock Island to party of the first part, either at St. Michaels or Dawson City, in like condition as received, except ordinary wear and tear. In witness whereof, the respective parties hereto have caused these presents to be signed this fifth day of July, 1898, by the Rock Island Alasita Mining Company, by its vice president and general manager, duly authorized, and the Frank Waterhouse, Limited, by C. G-. Conradi, Captain S. S. Garonne, its authorized agent, on the date first above mentioned.

“The Rock Island Alaska Mining Co.,

“By Wm. C. Knaaclc, Gen. Mgr.,

“By I-I. U. Crockett, Vice President.

“Frank Waterhouse, Ltd.,

“By C. G. Conradi, Capt. S. S. Garonne.

“Attest: E. L. Kahlke, Sec’y.

“Witness: Jno. C. Hayden.

“[Corporate Seal of Rock Island Alaska Mining Co.l”

At the time the charter party was entered into, Capt. Conradi, assuming to act on behalf of the Waterhouse Corporation, also entered into an agreement with the Rock Island Company to furnish transportation on the steamer Rock Island to Forty-Mile Post, on the Yukon river, to two passengers, and for 15 tons of machinery and supplies then stored on said steamer, and to render all assistance possible with the crew of the steamer Rock Island in unloading said machinery and supplies at destination. The consideration for this transportation was the sum of $500, the receipt of which was acknowledged by Conradi in the agreement.

In accordance with the terms of the charter party, the steamer Rock Island was delivered alongside the Garonne, and receipted for by Capt. Conradi, on behalf of the Waterhouse'Corporation, on July 7, 189S, at noon. Capt. Conradi also receipted in the same way for a quantity of coal then on board the Bock Island, agreeing to return an equal amount to the defendant in error upon surrender to it of the steamer. The officers and cr.ew employed by the Waterhouse Corporation at once took possession of the Rock Island, with two engineers, pilot, and secretary provided by the Rock Island Company, and proceeded to stow' away so much of the cargo of the Garonne as the Sock Island was able to take, including a portion of the cargo owned by the VTaU'i'housu Corporation. Thu loading consumed four days, at the expiration of which limo the Sock Island shirk'd up the Yukon river. The steamer Sock Island No. 2, in command of the officers of the Rock Island Company, started up the river at about the same time. Considerable delays’ were experienced oy the Rock Island through stopping at river points, cleaning boilers, and loading wood for fuel, and when about 1,300 miles from the mouth of the river she grounded on ¡he Ft. Yukon bar. Assistance was asked of the Rock Island No. 2, which steamer spent about six days in trying to poll the Rock Island from the liar and In unloading and reloading her cargo, but finally abandoned the effort and continued Tip the river to her destination. Later the Rock Island was pulled off the bar by another steamer, the officer in charge of the vessel paying ?1,000 for the service. After still fur I her delays by breakage of machinery, trouble with ¡he steam capstan in. making landings, etc., she finally reached Dawson at 7:30 a. m. of August 23d. Upon the arrival of the Rock Island at Dawson, demand was at once made by the Rook Island Company for the amount due under the charter parly. Capt. Jordison, in comma ml of the Rock Island for the Waterhouse Corporation, had not the money with which to pay it, and entered into an agreement with the representative of the Rock Island Company tiiat the money collected as freight charges should he paid into the Bank of British North America at Dawson, to this credit of H. U. Crockett, vice president of the Rock Island Company, from which should first be paid the wages due the crew, and the port and customs charges; the balance to be retained by the Rock Island Company on account of tlie hire of the steamer. The Waterhouse Corporation received the porvion of the cargo belonging to it, and through iis agent, Longmire, obtained a storeroom in Dawson, and exposed the goods for sale. The remaining cargo was delivered to the several consignees; the freight thereon collected and paid into the hank. The steamer Rock Island was Hum, on August 2d, 1898, surrendered to the Rock Island Company; Capt. Jordison and the purser, Oilkison, giving the company a receipt acknowledging having had the sicamor under charter from July 7, 1898, until August 20, 1898, at noon. A few minor transactions were subsequently had in Dawson: The Rock Island Company purchased certain goods of the Waterhouse Corporation ai. its store, and agreed io take a part of the equipment which had been supplied the steamer Rock Island by the Waterhouse Corporation at St. Michaels; the price to be fixed in Seattle upon arrival of the representatives of the re-specific partios. The Rock Island Company also transported to St. Michaels from Dawson three passengers, under agreement with Capt. Jordison, the fare charged being !?50 each.

In the meantime the Garonne had returned to Vancouver. Upon her arrival there, Capt. Oonradi reported the making of the charter party to Waterhouse, manager of the Waterhouse Corporation, delivering to him one of the duplicates of the document. Wilis look place at some time between July Aid and 25th. Some eight or ten days later, on August 2d, Waterhouse wrote a letter to the Rock Island Company, slating that Capt. Oonradi had exceeded Ills authority as master of the vessel in entering into the charter party for the steamer Bock Island, and that he had no authority, as agent of the corporation, to make sueli a. charter; that, as manager of the corporation, ho (Wa terhouse) had no right to confirm the action of Capt. Oonradi without referring the same to the trustees of the corporation, — and therefore gave notice that (he charter party was not ratified, but that the matter was referred to the trustees for such action as they might see fit to lake. Upon the return to Seattle of H. U. Crockett, vice president of the Rock Island Company, and as soon as he recovered from an illness contracted en route, he called upon Waterhouse at the Seattle office of the Waterhouse Corporation, and asked for a settlement of the account between that corporation and the Hock Island Company. Waterhouse! then and there notified Crockett, as the representative of the Rock Island Company, of (he intention of the Waterhouse Corporation to repudiate the charter party. Thereupon lhis suit was brought by the Rock Maud Company against the Waterhouse Corporation, in the circuit court of the United States for the district of Washington, for the hire of the steamer Rock Island under the charter party; for the value of the coal used on the said steamer, and not returned as per agreement; for the services of the steamer Rock Island No. 2 on the Ft. Yukon bar; and for the transportation of three passengers for the Waterhouse Corporation from Dawson to St. Michaels on the return of the Rock Island. Certain credits were allowed by the Rock Island Company for transportation of goods on the Rock Island up the Yukon, for cash received at Dawson, for goods purchased at Dawson from the Waterhouse Corporation, and for goods on board the Rock Island taken by the Rock Island Company at Dawson under agreement, which, with $500 disallowed by the court upon demurrer, left the amount claimed at the trial $20,565.19. The Waterhouse Corporation denied, in its answer, that Conradi was at any time its authorized agent for the purpose of entering into or executing the alleged charter party, or in any way authorized to enter into or execute the same in behalf of the corporation. It also denied that the steamer Rock Island, in good condition or otherwise, was delivered to the Waterhouse Corporation in St. Michaels harbor on July 7, 1898, and accepted by it, or that the Rock Island Company duly performed the contract on its part to be performed, or that the Waterhouse Corporation kept the steamer under said charter for 50 days, until August 26, 1898, and used it during that time in the transportation of freight and passengers between St. Michaels and Dawson. By way of affirmative defense, the Water-house Corporation, while not admitting that it entered into the charter party, or that the same was entered into or executed in its behalf by any person authorized so to do, or that it had in any way ratified or accepted said charter party, alleged that if, for any reason, it was liable to the Rock Island Company in any sum whatever upon said charter party, it was entitled to sundry abatements from the total amount of the hire of said steamer Rock Island called for by the terms of said charter party, and to sundry set-offs against the claims of the Rock Island Company, by reason of the following facts, and in the following amounts: (1) In the sum of $12,500 for 25 days’ prolongation of the trip of the steamer under the charter party by reason of the steamer’s unsound and bad condition, having a weak and defective capstan, and boilers and engines of weak construction, and inadequate strength and power for the exigencies of navigation upon the Yukon, with leaky steam pipes and fittings, and not having the necessary equipment of ringbolts, spars, and stout cables for use in getting afloat when grounded on sand bars or shoals, all contrary to representations alleged to have been made by the officers of the Rock Island Company, and for other reasons (not, however, supported by any proof); (2) in the sum of $7,610.60 for expenses of operating the steamer, and maintaining its crew and passengers thereon, during said 25 days’ unnecessary prolongation of her trip; (3) in the sum of $1,000 for extra expense in getting the said steamer towed off by a passing steamer from a shoal in the Yukon river, on which she was grounded in the course of the said trip, — this expense necessitated by reason of the disregarding of a verbal agreement by ) the Rock Island Company, alleged to have been made between it and the persons representing the Waterhouse Corporation when said charter party was entered into, to the effect that the chartered steamer and the steamer Rock Island No. 2 should render mutual assistance, without charge, in getting each other afloat in case either of them grounded; (4) in the sum of $478 for damage to merchandise of the Waterhouse Corporation forming a part of the cargo of said steamer, by reason of steam escaping from leaky pipes and fittings into the hold where the merchandise was stowed, wetting and otherwise injuring it.