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tained in the record, which have been severely criticised by respective counsel, are about evenly divided.
We therefore turn our attention to other facts. The condition of "charterers' surveyor" in the charter is of especial importance to the charterers of the ship. This is conceded by both parties. It was, therefore, natural that such a condition would be insisted upon by Starr & Co. The previous interviews had been with reference to other conditions and other terms,-as to the price of freight, time of loading the ship, and where the cargo was to be taken, etc. There had been nothing said as to where the charter was to be signed. No authority had been given for the signing of the charter. When the cable came from Balfour, Williamson & Co. that they were arranging for the signing of the charter at Liverpool, it would be unreasonable to believe that the charterers would authorize the signing of the charter without some understanding and direction as to the usual terms and the insertion of the condition "charterers' surveyor." It would be unbusinesslike for merchants or shippers to overlook this important provision. The testimony of Mr. Bannister is in accord with business methods of business men engaged in such business transactions. There is nothing unreasonable about it. Mr. Bruce, in his testimony, recognizes the importance and reasonableness of such a proposition. He gives as a reason for believing that Mr. Bannister had not previously referred to the terms "charterers' surveyor" the fact that the original offer for the ship, on the 2d day of June, was cabled without a "single word in that cable conveying any special conditions," and immediately adds that, "if there had been any, it was our duty to have sent them forward." Here is a special recognition of the duty of Balfour, Guthrie & Co. to be loyal to their agents, a principle that is well established in the law. Mechem, Ag. § 454. If the reason thus given by Mr. Bruce is sound, and it certainly is, it logically follows that the cable of June 4 must have been inspired by Mr. Bannister, for this cable does contain the special conditions that Mr. Bannister testifies he gave to Mr. Bruce, and it was the duty of Balfour, Guthrie & Co. to embody the conditions in the cable. Moreover, it is perfectly clear from the evidence that the cable of June 4 was sent by Balfour, Guthrie & Co. with full knowledge that charterers of vessels for cargoes of wheat or flour always desired to appoint their own surveyors, and especially was this true of Starr & Co. This Mr. Bruce admits to be true, and by his own reasoning it was the duty of his firm to insist upon such terms being provided for in the charter, and, in this connection, it must be borne in mind that there is no evidence that Starr & Co. had at any time authorized its agent to sign the charter upon any other condition. The subsequent acts of the parties show still more clearly that Starr & Co. never consented to the signing of the charter without "charterers' surveyor" was specified therein. On June 5, Balfour, Williamson & Co., in answer to the cable of June 4, sent by Balfour, Guthrie & Co., replied, "Galgate: Charter signed here. Previously agreed 'competent surveyor.' We cannot arrange otherwise." Is it not evident, without further discus
sion, that Balfour, Williamson & Co. exceeded their authority in agreeing to such terms and in signing the charter for Starr & Co.? The only authority ever given by Starr & Co., under any reasonable view that can be taken of this case from the evidence, was that contained in the cable sent by Balfour, Guthrie & Co. on June 4th. Up to that time there had been no authority to have the charter party signed in Liverpool. Bruce testified positively that the charter could not have been signed in Liverpool without Starr & Co.'s consent. They never consented except upon condition that "charterers' surveyor" should be inserted. There never was any valid contract agreed to between the parties which authorized the use of the terms "competent surveyor." If there is any clause in the charter party "in regard to which the minds of the parties have not met, the entire instrument is a nullity as to all its clauses." Compania Bilbaina de Navegacion, de Bilbao v. Spanish-American Light & Power Co., 146 U. S. 483, 497, 13 Sup. Ct. 142; Eliason v. Henshaw, 4 Wheat. 225; Insurance Co. v. Young, 23 Wall. 86; Minneapolis & St. L. Ry. Co. v. Columbus Rolling-Mill Co., 119 U. S. 151, 7 Sup. Ct. 168; Stove Co. v. Holbrook, 101 N. Y. 48, 4 N. E. 4. On the 5th of June Balfour, Guthrie & Co. addressed to Starr & Co. a letter, as follows:
"San Francisco, 5th June, 1891.
"Messrs. Starr & Co., San Francisco-Dear Sirs: We confirm having chartered to you the Br. steel ship 'Galgate,' 2,291 tons register, which sailed recently from New York for Sydney, on the following terms, viz.: To load as customary at this port at 38/9 U. K., H., A., Dunkirk, 5/- extra other usual continent, 2/6 less direct; canceling 31st March, 1/3 extra freight should vessel arrive on or before 29th Febr'y, 30 lay days; all other usual conditions; owners having the liberty of loading the vessel with coals at Newcastle, N. S. W., for this port, for their benefit; and, in accordance with your authority, our Liverpool friends advise that they have signed the charter in Liverpool on your behalf, copies of which will be handed to you as soon as received from them. Please confirm the foregoing and oblige. ** -To which Starr & Co. replied:
"San Francisco, June 5, 1891.
"Dear Sirs: We have your favor of this date advising charter to us of the above ship, and we hereby confirm said charter in terms of your letter.
The contention of appellee is that these letters constitute the contract; that, the contract being in writing, its terms cannot be changed by parol evidence. It is, among other things, argued by appellee in support of this contention that the principles announced in the cases of bought and sold notes should be applied to this case, and, in this connection, several authorities are cited tending to show that Balfour, Guthrie & Co. were not under any obligation to disclose to Starr & Co. the information they possessed concerning the surveyor clause in the charter party, and that the letter of Balfour, Guthrie & Co. of June 5th was confirmed by Starr & Co., and hence these two letters of that date must be accepted as stating the terms of the contract entered into by the parties. The authorities cited relate to cases where the business was conducted by a broker who acted for both parties, and in such cases the entry in the broker's books is held to constitute the contract, and to be such a written contract as v.68F.no.1-16
will take the case out of the statute of frauds, which requires the contract to be in writing. Lord Ellenborough, in Heyman v. Neale, 2 Camp. 337, said:
"After the broker has entered the contract in his book, I am of opinion that neither party can recede from it. The bought and sold note is not sent on approbation, nor does it constitute the contract. The entry made and signed by the broker, who is the agent of both parties, is alone the binding contract. What is called the bought and sold note is only a copy of the other, which would be valid and binding, although no bought or sold note was ever sent to the vendor or purchaser. The defendant is equally liable in this case as if he had signed the entry in the broker's book with his own hand."
This rule necessarily implies that the principal, from the very nature of the transaction, must have had full knowledge of all the facts. If it be affirmatively established by parol evidence that the broker, in any given case, exceeded his authority, then the principal would not be bound by any entry made by the broker. The rule contended for is based on the presumption of knowledge on the part of the principal of all the essential facts, and this principle is recognized in all the authorities in relation to bought and sold notes, where the question is presented and discussed. Thus, in 1 Benj. Sales, § 296, it is said that "the bought and sold notes, when they correspond and state all the terms of the bargain, are complete and sufficient evidence to satisfy the statute." Goom v. Aflalo, 6 Barn. & C. 117; Sivewright v. Archibald, 20 Law J. Q. B. 529. But it may be shown that the broker had no authority from his employer to make the bargain which he has entered in his book. 1 Benj. Sales, p. 315, note 13; Peltier v. Collins, 3 Wend. 465. If the entry in the broker's books varies upon any material point from the contract concluded and agreed upon between the parties, the entry is not binding. Davis v. Shields, 26 Wend. 341; Pitts v. Beckett, 13 Mees. & W. 743; Goodman v. Griffiths, 1 Hurl. & N. 577; Sumner v. Stewart, 69 Pa. St. 321. In Benjamin on Sales (section 209) the author says:
"Parol evidence is always admissible to show that the writing which purports to be a note or memorandum of the bargain is not a record of any antecedent parol contract at all; *** on the same principle, parol evidence is admissible for the purpose of showing that the written paper is not a note or memorandum of the antecedent parol agreement, but only of part of it, and the decisions are quite in accordance with this view. Thus, if the writing offered in evidence contains no reference to the price at which the goods were sold, parol evidence is admissible to prove that a price was actually fixed, and that the writing is thus shown not to be a note of the agreement, but only of some of its terms. So where a sale of wool was made by sample, and one of the terms of the bargain was that the wool should be in good dry condition, parol evidence was admitted to show this fact, and thus to invalidate the sold note signed by the broker, which omitted that stipulation.'
In order to exclude oral evidence of a contract, it must first be settled that there is a subsisting written contract between the parties, and, where the immediate issue is whether the writing was signed by authority covering the contract, it is not competent to exclude oral testimony bearing on that issue upon an assumption of such writing. "To do so is to beg the question." Manufacturing Co. v. Maclister, 40 Mich. 84. Where a broker acts merely to bring the parties together, after which the parties negotiate with each other
directly, and the broker makes an entry of the sale in his book, such entry will not bind either party, nor will it prevent either party from giving parol evidence of the contract. Aguirre v. Allen, 10 Barb. 74. The contention of appellee cannot be sustained. Balfour, Williamson & Co. were not the agents of both parties. here sued upon is contained in the charter party. The real question to be decided is whether it was ever executed by the authority of Starr & Co. If it was, then appellee is entitled If it was not, then appellant is entitled to have the libel dismissed, unless it subsequently, with full knowledge of all the facts, confirmed or ratified the contract. To determine the question of authority, it becomes necessary to consider, as we have already done, all the facts and circumstances prior to and at the time of the signing of the charter, whether such facts are found in written instruments or by parol evidence. There is no dispute as to the terms or conditions expressed in the charter party. They are clear, plain, and unambiguous. No parol evidence was offered to change or vary any of its terms. Having arrived at the conclusion that appellant never authorized Balfour, Williamson & Co. to execute the charter in its behalf unless it contained the provision for charterers' surveyor, the only other question to be determined is whether it, with full knowledge of all the facts, has confirmed or ratified the same, or waived the condition of charterers' surveyor. The cable from Balfour, Williamson & Co. of June 5th, that they had previously agreed to "competent surveyor," was never shown to appellant. It had no knowledge of that fact. The letter of Balfour, Guthrie & Co. of June 5th did not inform appellant of the fact that the charter was executed with the clause "competent surveyor." It had the right, therefore, to assume that its demand in this respect had been inserted in the charter party. Unless it had full knowledge of what had been done, its letter in reply did not constitute a confirmation of the contract. It was the duty of Balfour, Guthrie & Co. in the letter of June 5th to have informed appellant of the facts set forth in the cable that day received by them from Balfour, Williamson & Co. Mechem, Ag. § 538; Devall v. Burbridge, 4 Watts & S. 305; The Distilled Spirits, 11 Wall. 356, 367. When an agent departs from instructions, and does not inform his principal of the fact of his departure, the principal cannot be supposed to confirm or ratify. Bell v. Cunningham, 3 Pet. 69. The general rule is well settled that a confirmation or ratification of the unauthorized acts of an agent, in order to be effectual and binding on the principal, must have been made with a full knowledge of all material facts, and that ignorance, mistake, or misapprehension of any of the essential circumstances relating to the particular transaction alleged to have been ratified will absolve the principal from all liability by reason of any supposed adoption of or assent to the previously unauthorized acts of an agent. Combs v. Scott, 12 Allen, 496; Clarke v. Lyon Co., 7 Nev. 75; Reese v. Medlock, 27 Tex. 121; Bannon v. Warfield, 42 Md. 22; Barnard v. Wheeler, 24 Me. 412; Bennecke v. Insurance Co., 105 U. S. 355; Owings v. Hull, 9 Pet. 607, 629. A waiver, to be available, must be clearly and explicitly
shown. There must be knowledge of all the facts. A waiver of a condition in a contract never occurs unless intended by the party, or where the act relied upon ought in equity to estop the party from denying it. Diehl v. Insurance Co., 58 Pa. St. 443; Bennecke v. Insurance Co., 105 U. S. 359.
It is argued by appellant that the words "usual terms" and "usual conditions," as mentioned in the telegrams and letters, meant San Francisco form of charter and charterers' surveyor. This is denied by appellee. It is unnecessary to decide this question. So far as the letters of June 5th are concerned, it is wholly immaterial what construction should be given to these words. If, as appellant contends, the term "usual conditions" includes charterers' surveyor, then it would be considered from the letters of Balfour, Guthrie & Co. that the condition for charterers' surveyor had been complied with, and Starr & Co's. confirmation would be in accordance with that understanding. If the term "usual conditions" did not include charterers' surveyor, then Balfour, Guthrie & Co. failed and neglected to inform Starr & Co. of the fact that "competent surveyor" had been inserted in the charter, as it was their duty to do, and Starr & Co. cannot be held to have confirmed the charter party with that provision, because they had never authorized its execution without the condition, "charterers' surveyor." Balfour, Guthrie & Co. must have known that Starr & Co. would not desire to confirm the charter unless charterers' surveyor was provided for therein. On the 5th of June, 1891, the same day of the letter to Starr & Co., Balfour, Guthrie & Co. addressed a letter to Balfour, Williamson & Co. which, among other things, contained the following:
"We confirm having fixed to Messrs. Starr & Co. the Galgate. Messrs. Starr & Co., we may mention, are not in favor of charters being signed on your side, as they distinctly prefer to use their own form of charter, which, however, in all respects is identical with that used by ourselves and other shippers. They are, however, perfectly definite in insisting that the ship shall employ their surveyor, and that no change whatever shall be made in the usual stevedore clause, and we cannot in the meantime state how they may view your having agreed to a 'competent' instead of ‘charterers'' surveyor in connection with the Galgate, although probably we may not have any difficulty regarding this. You must, however, bear in mind that, when charterers consent to your signing charter on their behalf, they do not expect that the conditions will be different in any way from those which would be granted to them here, and it is essential in cabling offers of vessels that you should distinctly advise us when the owners insist on any alteration in the form of the usual charter. *** Please send us six copies of each of the charters of these two vessels, so that we may hand them over to Starr & Co."
Leaving out of consideration the general remarks relating to the signing of all charters, and confining the construction of the letter to that portion which refers distinctly to the Galgate, it plainly indicates, in clear and unmistakable language, that Starr & Co. had never given any authority to have the charter signed without the proviso, "charterers' surveyor." They were unable to say how Starr & Co. would view the matter of having a "competent" instead of "charterers' " surveyor, but thought it probable there might be "no difficulty regarding this." On the 22d of June, 1891, after the re