BLACKSHERE v. PATTERSON et al., 72 F. 204

SIMONTON, Circuit Judge (after stating the facts). The parties to this contract were men of experience and ability. Each knew precisely what he wanted. The language of the contract is carefully chosen and clearly expressed. The shipper wanted to take advantage of any fluctuation of freights in his favor. The agents of the shipping line were not afraid to take the risk. The shipper would not agree to the rates fixed so long in advance, and he therefore adopted the standard by which it could be fixed in the future.

He did not select as this standard freight rates which might be prevailing at neighboring ports, nor the average freight rates'from all, or any, or two or more, American ports. No doubt ■he saw the advantage Boston would enjoy if the competition for freight should become eager and fierce, and he selected Boston rates as his standard. Nor did he content himself with the rates charged or to be charged. Carefully avoiding the result of rebates and concessions, he adopted as his standard the average rate of freight received — that is, actually received — by the Boston-Liverpool steamers.

So the shipping agents agreed to carry his cattle during the last four months of 1894, and were content to receive therefor the average rate of freight received by the Boston-Liverpool steamers, month by month, during the existence of the contract. The Baltimore Line did carry the cattle.

The testimony establishes that the Boston-Liverpool steamers did carry cattle during these same months; that only two lines, and only the steamships of these lines, carried cattle between Boston and Liverpool during these months; that one of these lines received, month by month, for such carriage, 46 shillings per head as freight, and that the other line received, month by month, for such carriage, 50 shillings per head, the average being 48 shillings per head. The claim of the libelants is in the very words of the contract.

The •appellant contends that these rates so received by the Boston-Liverpool steamers were fixed in advance for the whole time, and that he meant rates fixed month by month, in accordance with the law of supply and demand. The contract does not say so. Indeed, how could the contract limit itself to rates fixed just before; or during the performance of the contract? Cattle are not like a bill of goods in a warehouse near a wharf. It takes time to transport cattle to a port and prepare them for shipment.

Freight engagements for cattle in quantities must be made in advance,— can scarcely be made at the beginning of or during the month of actual shipment. At any rate, this contract is absolutely silent as to the date when the rates were to be fixed. It confines itself to the rate of freight which was received. The appellant seeks to confine the libelants to rates of freight prevailing or received at other American ports, and to ignore the rates received at Boston by Boston-Liverpool steamers.

But, when the contract was made, he selected the rates of freight received by the Boston-Liverpool steamers, — not rates prevailing, nor rates charged, but rates received, — in preference to freight rates at any one or some or all of the other American ports.

If the .demand for freight room had continued and increased, and if at all other American ports it had risen to 75 or 100 shillings per head, but the Boston-Liverpool steamers, bound by their contract, could not take advantage of it, could we compel the shipper here, in spite of his contract, to ignore the lower Boston-Liverpool rates, and to pay the higher rate, because it prevailed at other ports? “Non hrnc in foedera venit.” So tiie appellant is bound by the terms of his contract, however unexpected to him may be its result. The decree of the district court is affirmed, with costs.