(dissenting.) The verdict was directed for the damages sustained by the plaintiff from the failure of the defendant to furnish at least 250 passengers to be carried by thé plaintiff by steamer and railway from the city of New York to the city of Borne, and back to the city of New York. The passengers were Mexican pilgrims, visiting Borne by way of Naples, and the contract between the parties for their carriage was made by correspondence. And the right of the plaintiff to maintain the action to the extent to which it has been permitted depends upon the existence of an obligation on *808the part of the defendant to furnish 250 passengers. It did furnish no more than 134, and the damages awarded were for the loss arising out of the difference between that' number and 250. Whether the defendant became liable for these damages must be acertained from the letters themselves which passed between the agents. These letters, as they are contained in the case, commenced with one written on the 24th of March, 1888, by the agent of the defendant to those representing the plaintiff. It refers to a preceding conversation relating to the business, and then .adds: “Our people in Mexico advise that upon favorable terms they can secure a party of about 175 or 200 people, with a possibility of increasing the number. These people will be divided into classes as follows: 75 first-class, 75 second-class, 50 steerage.’’ The plaintiff’s agents replied on the 27th of March stating the prices for the different classes of passengers, but without, mentioning any number. The agent of the defendant wrote again expressing dissatisfaction concerning the rates, and still further: “I have to say that I am in receipt of a telegram from Mexico advising that all arrangements have been made so that this party can leave there at an early date next month, and there is a probability that there will be 250 people, or more.” The plaintiff’s agents under the same date, which was March 31, 1888, wrote again to the same person, making as a part of their letter this statement: “We beg to confirm the under-' standing arrived at between us, viz., that you will ship not less than 75 first-class, 75 second-class, and 100 third-class passengers for the round trip;” and then again mentioned the terms for the passengers. The rates were accepted by a letter in reply on the same day, and adding further: “Regarding the numbers of the party, I beg to say that my latest advice from Mexico, as mentioned in my previous letter of this date, is that there is a probability that the party will exceed 250, but I have not been furnished with information as to the exact number of each class. I have telegraphed the first and second class capacity of the Bolivia, and of course if our people exceed those numbers in either class, such excess numbers will have to adapt themselves to the accommodations which can be furnished.” Nothing further was stated as to the number until the 12th of April, and then the agents of the plaintiff wrote: “Dear Sir: We were very much surprised to learn from your representative this morning of the great fall-off in the numbers of the Mexican excursion party from what were guarantied in your letter of the 31st ult. to us, and for which we have been making preparations, namely, 75 first-class, 75 second-class, and 100 third-class passengers. Every other consideration having been sacrificed by us to accommodate this party, we beg to notify you that we shall hold you responsible for the passage money due to us on the numbers originally arranged for.” And on the next day the.defendant’s agent to whom this letter was addressed replied, concerning the terms of the agreement, as follows: “I beg to correct the impression which you seem to have that my letters of the 31st .ult. guarantied you 75 first-class, 75 second-class, and 100 third-class passengers. Those letters contained information as, to size of the party exactly as I received it from Mexico, namely, ‘ that there is a probability that the party will exceed 250; ’ and in fact one of the letters distinctly states that no information had been received as to the number of people in each class. Tour Mr. Martin has seen all recent telegraphic correspondence between our people at Mexico and this office upon the subject of this pilgrimage, and while I have expected that the numbers would be in-accordance with indications contained in suqli telegrams I have made no definite guaranty, either verbally or in writing, and, moreover, had you been guarantied 250 people it would have been unnecessary for you to have made daily inquiries during the present week as to the number in the party, as you have done. ”
It seems quite clear from this correspondence that the defendant did not become bound to furnish as many as. 250 passengers. The first suggestion as *809to the number was that the people in Mexico advised that they could upon favorable terms secure a party of 175 or 200, with a possibility of increasing the number. That was followed by a later letter saying that all arrangements had been made for the party to leave Mexico, and that there was a probability that there would be 250 persons or more. And the plaintiff’s agents in reply stated that they begged to confirm the understanding arrived at that not less than 75 first-class, 75 second-class, and 100 third-class passengers would be shipped. There had, however, been no definite understanding or agreement to that effect made. But all that had been done was to make the statement of what were considered probabilities as to numbers. And that, as it was finally expressed, was “that there is a probability that the party will exceed 250. ” But there was no agreement in this, or any preceding letter, that it would reach that number. At most, estimates were given which the facts failed to realize. And when the statement was made of the understanding of the plaintiff’s agents, that was not accepted as a correct result of what previously had been written, but the writers were informed that there was a probability that the party would exceed 250, as that was mentioned in the preceding letter of the agent of the defendant. This was not an acceptance of the understanding mentioned by the plaintiff’s agents, but, at most, it was a reference to what was written in the preceding letter as to the number of the party expected; and in that letter the number was mentioned as probably 250, or more. It did not obligate the defendant to furnish a party of 250 persons, but stated the advices, and probabilities only, which placed the plaintiff’s agents in a position where they could judge for themselves as to the number of people probably to be carried. What was written failed to create any positive obligation that this number of people would form the party. The agents on each side were supplied with the same information as to what might be expected. And the hopes created by it exceeded the reality. For the result of the disappointment the defendant did not become liable, certainly not to the extent determined at the trial. The judgment and order should be reversed, and a new trial ordered, with costs to the defendant to abide the event.