Wilfred v. Myers
40 F. 170
E.D. Va.
1889
Check Treatment
Hughes, J.,

(after stating the facts as above.) It is a matter of doubt from the evidence in this case whether Lamb & Co. had any authority to make a complete and final contract for the charter of this ship. Their function would seem t'o have been merely to find a customer, and to state to him the terms of charter; all besides depending for validity upon ratification by Bowring & Archbold in New York. If they had authority to contract at all, and if the letters and telegrams of Bowring & Archbold are to be regarded as defining that authority, it was merely to charter the first-class new steamer Netherholm, bound at that time to Halifax and Bridgewater, registered tonnage, 1,295, dead-weight, 2,900, for 62s. *173Od. per ton registered. The entire contention of the libelants rests upon the assumption that this was the only contract that Lamb & Co. had authority to make, and that Myers & Co. knew this from custom or otherwise; and, having made some contract with Lamb & Co., this and nothing else was the contract that was made. It was evidently on a different basis that Myers & Co. proceeded in the negotiation. Page was made to know from the commencement of the negotiation that the acceptance of the ship by Myers & Co. at the high rate charged depended upon her cubical capacity. This was not known to Myers & Co., and no source was open to them from which they could obtain the information, except Lamb & Co. This firm could have informed Myers & Co. that the capacity was 141,356 for no other purpose than to aid them in making up their minds whether to take the ship or not. It -was not meaningless, objectless talk.. It was a piece of information known to themselves, which Myers & Co. were casting about to obtain, and which Myers & Co. could not obtain except from them. It was the inducement, or a chief inducement, to taking the ship. Nor was it until the cubical capacity was given, that Myers & Co. declared that they would take the ship. Lamb & Co.’s statement of the ship’s capacity, under the conditions and circumstances existing at the time of the statement, made it a part of the contract on the part of Myers & Co., whatever it might have been on the part of Lamb & Co. A warranty or guaranty may enter into a contract without express words to that effect or even the intention of the person who makes the representation which constitutes it. What, then, was the result of this negotiation at the hour of 11 o’clock on the morning of the 11th October? Myers & Co. contracted on the inducement of the ship’s capacity being 141,356 cubic feet. Lamb <& Co. contracted on the basis that the capacity wras not guarantied. Their minds did not meet, for the lawr makes the statement of the cubical capacity, under such circumstances, a warranty. When the charter came afterw'ards to Myers &Co. for signature, this discordance of minds immediately developed itself. Myers inserted the cubical capacity clause; Page objected to it. Their minds had not met. When the charter subsequently went to New York, and the house there “repudiated” the capacity clause, it was thereby still further shown that the minds of the contracting parties had not met, and were at hopeless variance. There had been no contract. Nothing is more true in the transactions of business men than that “it takes two to make a bargain.” It is elementary law that there shall be a meeting of minds — a mutual agreement — upon all its material terms and provisions, in order to constitute a contract. If a firm in New York sends orders to Norfolk that a ship shall be chartered as they prescribe, and not otherwise, sending also her cubical capacity; and negotiations are made in winch the other party declares, “I will take the ship on your statement of her cubical capacity, which I have no other means of ascertaining except from you;” and the firm in New York afterwards withdraws the statement, and insists upon its obliteration, — then there is no contract. Such was the case at bar, and decree must bo for respondents.

On the subject of warranty, where it is not expressed in the contract, *174and arises necessarily out of the representations of parties, made during the negotiation of the contract, the authorities sustaining my view of this case are very numerous. See Whart. Ag. §§ 72, 158, 161, 167, 168, 170, 708; 1 Add. Cont. § 65; Schuchardt v. Allens, 1 Wall. 369; Pol. Cont. 527, 528; Insurance Co. v. Kasey, 25 Grat. 270; Grim v. Byrd, 32 Grat. 300; Veazie v. Williams, 8 How. 134; Crump v. Mining Co., 7 Grat. 352; Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. Rep. 12; Bannerman v. White, 10 C. B. (N. S.) 844; 2 Add. Cont. §§ 625, 626; Smith v. Richards, 13 Pet. 26, 38, 42; Carv. Carr, by Sea, 133-136; Cave v. Coleman, 3 Man. & R. 2; Salmon v. Ward, 2 Car. & P. 211; Wood v. Smith, 4 Car. & P. 45; 1 Evans, Ag. 76, 77; Bristow v. Whitmore, 9 H. L. Cas. 404; Behn v. Burness, 3 Best & S. 751; Lowber v. Bangs, 2 Wall. 736, 737; Glaholm v. Hays, 2 Man. & G. 257; Ollive v. Booker, 1 Exch. 416; McAndrew v. Adams, 1 Bing. N. C. 29; Davison v. Von Lingen, 113 U. S. 40, 5 Sup. Ct. Rep. 346.