This is an action of assumpsit, for an alleged breach of a contract, of which the following is the substantive part, to wit: “ The party of the first part agrees to the chartering of the whole of the said schooner, (the Susan,) under and over deck, for a voyage from Bangor or Mill Creek, to Philadelphia, and the party of the second part agrees to furnish to the said schooner a cargo of spars or other materials, and pay for the use of the vessel four hundred dollars upon delivery of cargo in Philadelphia.”
This agreement was entered into in Philadelphia, April 15, 1853, the schooner then being at that port. On receiving notice that the schooner had arrived at Bangor, and was in readiness to receive her cargo under the contract, the defendant offered to furnish a cargo of spars, but which were so large that they could not be taken into the hold of the schooner without enlarging her port-holes. This, the master declined to do, and the defendant refused to furnish other freight. After waiting three days at Bangor for a cargo, *193and none being offered by the defendant except the spars aforesaid, the schooner sailed for Calais, Maine, and the owners bring this action.
Whether the action can be maintained depends upon the construction of the contract, which is a mere memorandum, inartificially drawn, and entirely destitute of those specific details which are usually inserted in charter-parties, by which the rights and duties of the respective parties are defined. If the memorandum is to be treated as a contract of affreightment, in which the plaintiffs agree to take a cargo of spars for the defendant from Bangor or Mill Creek to Philadelphia, at a price agreed, then it was the duty of the plaintiffs to furnish a ship tight and staunch, and strong, well furnished in all respects, victualled and manned, and of suitable capacity to receive and transport such spars as are ordinarily shipped from those ports to Philadelphia, and a failure to furnish such a vessel would bo a breach of contract on the part of the owners. 3 Kent’s Com., 204. If on the other hand the contract was a hiring of the vessel by the defendant for the voyage, with a knowledge of her capacity, for the purpose of transporting or having transported in her a cargo of spars or other materials, then it was the duty of the defendant, on her rendition to him at Bangor or Mill Creek, in a proper condition to perform her voyage, to furnish her, without delay, a cargo of spars or other materials suitable to her capacity, as she was at the time of hiring, and the owners were under no obligation to remodel the schooner or in any way to change her construction.
As we have already remarked, the contract is entirely wanting in details. Its construction, however, considered in connection with the situation of the parties, is not difficult. The defendant, by himself and agent, had been on board the schooner, and had a full opportunity to examine her and ascertain her capacity before the agreement was executed. There is no suggestion of fraud or concealment on the part of the owners. No latent defects have been discovered. Under these circumstances the owners “ agree to the char*194tering of the whole of said schooner, under and over deck, for a voyage from Bangor or Mill Creek to Philadelphia,” and the defendant “agrees to furnish the said schooner a cargo of spars or other materials, and pay for the use of the vessel four hundred dollars upon delivery of cargo in Philadelphia.”
Here, it will be observed, was a chartering of the whole vessel, under and over deck, on the one part, and on the other part an agreement to pay a given sum for the use of the vessel. There is no stipulation for carrying freight of any kind on the part of the owners, and no agreement to pay freight, on the part of the defendant. He simply agrees to pay four hundred dollars for the use of the vessel, and to furnish her with a cargo of spars or other materials. It does not even appear by whom she was to be sailed.
In view of these considerations we cannot doubt that the agreement is to be treated as a contract of hiring rather than of affreightment; a contract of hiring, in which the hirer knew the character and capacity of the schooner before he entered into the contract. He then took her as she was, so far as her general capacity and construction was concerned. All that the owners could be held to guaranty was, that she ■was sea-worthy. The defendant was entitled to load her, but he must load her with a cargo, whether it was of spars or other materials, suitable to her capacity. The case of Beecher and al. v. Becktel, decided by Nelson, J., in the Admiralty Court of New York, cited from the New York Tribune, September 24, 1853, is in point, and is sustained by sound reasoning.
The plaintiffs, therefore, are entitled to maintain their action, and the only question is as to the amount they are' entitled to recover. Under their contract they would have been entitled to the round sum of four hundred dollars on delivering their cargo in Philadelphia. It was in evidence that the schooner would carry about 100,000 feet of lumber; that the freight on lumber from Bangor to Philadelphia, at that time, was three dollars per thousand. It does not appear that the owners might not have obtained a freight of *195lumber, if they had desired to do so. Had they so done, the difference between such freight and the contract price for the use of the vessel for the voyage would have been one hundred dollars, which sum they must be deemed to have lost by the failure of the defendant to comply with his contract. In addition to this, the schooner remained at Bangor waiting for freight three days. The evidence shows that her time for those three days was worth from fifty to sixty dollars. We adopt the medium, fifty-five dollars. It was .the duty of the plaintiffs, immediately after the breach of the contract on the part of the defendant, to seek other employment, so that no unnecessary loss should be sustained. Such seems to have been the course adopted by them, and there is no evidence of any greater loss having been sustained than the items referred to above.
A default is therefore to be entered, and judgment for one hundred and fifty-five dollars damages, with interest from the date of the writ, and costs.