(dissenting).' The contract may be treated as made by the letters of September 25 and 26,1917, or by the subsequent formal contracts of October 3d, 10th, and 16th. If the first view is right, then the appellant showed no excuse, since nothing short of frustration would serve. I can find no iota of evidence in the record that the appellant could not have secured some sort of cargo space for the coffee. If the second view is right, as I think, then we must have recourse to the excuses provided in the formal contracts.
Before doing so, however, we must examine the situation when the contracts were made. The following ships had been commandeered by the government: The Edward Luekenbach on June 4th, the Florence Luekenbach on June 21st, the Edgar F. Luckenbaeh on September 13th, and the Julia Luekenbach on the same day. The appellant agreed to lift the coffee without the aid of these vessels, at least with the chance that they would not be available. Again the general requisition of all its ships was made on October 13, 1917, three days before the last contract was made. Plainly that was not regarded as to that contract as of itself an excuse. More than that, if it did not apply to the last contract, we are bound to say that this practical construction of the language was applicable to exactly the same language in the two earlier contracts as well. In short, while the appellant might show in fact that the government took all the space on all its fleet, the requisition of itself was not an excuse.
The J. L. Luekenbach was shelled in Oex tober, but Thaekera says that she remained in the government service, by which I understand that she went on under the requisition of October 13th. The Pleiades was specifically requisitioned on November 2d, but as she in fact lifted 2,500 bags of this very commitment after that date, clearly she was only contingently beyond • the appellant’s control. While the Harry Luekenbach was eventually torpedoed, it was after the contract was cancelled. Thus of the fleet available on October 3d to 16th only two had certainly been lost, the Lewis and the D. W. Luekenbach, which were torpedoed in October. I can find no evidence in the record of any other changes in the appellant’s carrying capacity, if we count out the general requisition for the reasons already given.
One ground of my brothers’ decision is *1000that the appellant had reserved the right to cancel in ease in its judgment “the conditions of war and hostilities” made it “unsafe or imprudent for its vessels” to sail. That I submit created only an option to cancel on that ground, and the letter of November 16th, which did cancel, was not an exercise of the option'. The case does not raise the question, therefore, whether a promisor may excuse himself on other grounds than those which he gives at the time he repudiates. The excuse did not arise at all until he exercised the option, and the letter only gave as .an excuse that the service had been interrupted, which it had not, except as I have already tried to state.
The other ground of the decision is the general requisition. As I have already shown, the appellant may not avail itself of this; but, if it might, it proves too little. The requisition directed owners “to continue the operation of their steamers for account of the government, as they have been doing for themselves.” I read this to be no more than that the government would get the profits and aeeept the losses, but that, in the absence of contrary orders, the owners should fill their commitments. To make an excuse it must have been followed by proof that the government had excluded the cargo in question, and there is no such proof. It is possible that the truth is so, but we cannot decide the ease on surmise.
Malins was the libelant’s broker, and he did say that the appellant did not carry the goods because all ships -were being gradually commandeered. All he could have known was at secondhand, and I cannot treat this testimony as sufficient proof that .the appellant could not have got other vessels, and certainly not that they could not have carried this cargo in their own- ships. Nor does any of the testimony satisfy me that this last was the fact. The witnesses clearly assumed that the requisition was itself enough to excuse them as to these ships merely because .the government controlled the space. The.appellant was obliged to go further, and to show in detail what space the government used, what they used for their own cargo, and what they were forced to exclude. Such loose expressions as the record contains do not carry this burden.
We cannot reverse this decree without assuming facts from the general condition of shipping in the autumn of 1Ó17, in respect of which we may or may not he right, and of the commitments of the appellant, which we do not know at all. It is impossible to say whether they gave preference to others than the appellees, or whether they were prevented from carrying any cargo at all. Especially since the contracts are to be read with the general requisition as an existing fact, the excuse ought to be made out with certainty that the government’s action under it actually prevented the carriage. In addition and conclusion, as I said at the outset, I cannot find anywhere any proof that the appellant could get no other vessels. I agree that the possibility appears somewhat fanciful when we recall that period, but I cannot agree that our recollection will take the place of proof. Indeed, while I rather suspect generally that the result below was in fact unjust, I do not see how, on this record, any other could have been reached.