purchase money of section B." He then proceeds, in answer he says to a request to that effect, to give the prices for each division, upon an out and out purchase of a gross sum; and referring to Laver's statement that Fuller was on the point of completing the negotiations for division B, he says: "To faciliate completion of the matter, had you not better write to or see Mr. Van Santvoord, whom we will instruct to give you as much assistance as he can. We could not, of course, undertake any litigation in respect of infringements, after we had disposed of our rights for a fixed sum." He says, further: "Our wishes have always been to give him exclusive rights, and I thought that the agreement expressed as much before you raised the question. At any rate we are willing to alter it to faciliate your negotiations. The question is, how is it to be done? One plan is for us to send power of attorney out to Mr. Van Santvoord, and tell him to alter the agreement and sign for us. Another, and I think a preferable plan, is to write to him to prepare two fresh copies of agreement, distinctly giving Laver exclusive rights, and referring to the old agreement, which will be thereby canceled. He will theng let you see the alterations. One copy must be sent to Laver for signature, and another to us, and on the return you and Van Santvoord can exchange them. You must clearly understand, however, that we shall not consent to any other alterations, or to introduce any fresh clauses."

On May 9, 1873, Ingle wrote to the appellant as follows:

"DEAR SIR: Yours of twenty-ninth March came duly to hand, with inclosures, and I delayed answering it for a week or two, as I was expecting to hear from Mr. Fuller. I have now heard from him, and you no doubt know to what effect. He complains of the agreement not giving you exclusive rights. I think it expressed enough for the purpose contemplated at the time, and you were satisfied with it. At any rate, we intended to give you exclusive rights, and have in all good faith acted up to that intention, inasmuch as we have refused many offers of agency since October, 1870, the date of our agreement with you. I suppose Mr. Fuller will send you the letter I wrote him in reply; at any rate I will write him by this post a line requesting him to do so; then you will see exactly what I propose to do. I may say that I have also by this post instructed Mr. Van Santvoord, our solicitor in New York, to prepare full agreements, giving you exclusive rights, and send them to each of us to be resigned and exchanged; when this is done they will supersede the others, and I hope will be sufficient for Mr. Fuller's purpose.

"Speaking generally, our view with regard to this matter is this, (I mean Dennett's and my own,) that we gave you a liberal margin of time to make preliminary arrangements, and asked for only a moderate royalty on each section. You had the option of holding or abandoning up to certain dates. If you had decided to surrender, we should have been losers of two years of valuable time, and should have had all our work to begin over again. As you elected to keep the patent-right, you could hardly expect us to forego the just claims for which we stipulated, after such very liberal reservations in your favor. We do not suppose for a moment that you expect this. We do not wish to press you hardly in the matter, but it is really time now that some tangible return was made to us; of course, if the section B is sold at once, and the money paid over, as we hope it will be, we forego any claim for royalties already due on that section."

*It is also shown that the appellees, on May 10, 1873, wrote to their solicitors in New York, giving instructions in reference to drawing up a fresh agreement, giving the appellant the exclusive rights which he required; but that neither the appellant nor Fuller, his agent, communicated with the solicitors on the subject. It was not until November 3, 1873, that appellant wrote to Ingle refusing to sign any new agreement, and claiming that the defect in the original agreement had resulted in the loss of the sale of the

patent in Massachusetts for the price of $30,000, and intimating that, in con sequence thereof, the appellant was entitled to treat the whole matter as at an end. On October 12, 1874, the appellees, having in the mean time, by further correspondence, insisted upon their rights under the contract, and demanded payment of the royalties which had accrued, brought an action in the circuit court of the United States for the district of California, against the appellant, to recover the amount due on account thereof. And on September 3, 1875, the appellant filed this bill in equity in the same court, in which it was claimed that, by reason of the mistake in omitting from the contract a grant of the exclusive right to the appellant to use and sell the said invention under the said patent, the said indenture was not the agreement of the appellant, and that in November, 1873, because of said defect, he had surrendered said invention and indenture, and all his rights thereto and thereunder, to the appellees. The bill prayed that the indenture be ordered to be canceled, as executed by mistake, and that the appellees be perpetually restrained and enjoined from the prosecution of the action at law upon it.

The chief, if not the only, instance in which it is alleged the defect in the license actually operated to the injury of the appellant, is the loss of the sale of the patent for the New England states; and as to that the proof wholly fails. The only witness examined on the subject is the appellant himself, who knew nothing of it, except as he learned it from Fuller, his agent; and his evidence, being hearsay, cannot be regarded. The parties with whom the negotiations took place, and who, it is said, refused to proceed after discovering the defect in the license, are not examined nor even named. Fuller, the agent of the appellant, who personally conducted the negotiation, is not examined as a witness at all; and in his letter to Ingle of June 23, 1873, gives an entirely different account of the reasons for the loss of the sale. He there says:

"Your decision not to protect the patent renders it valueless, even if it could not be infringed. The duration of the patent is so short no parties would dream of paying large sums for it. Acting as Mr. Laver's attorney, I did the best I could to dispose of it for New England states. That is now abandoned unless the patent can be extended.”

There is no proof of fraud or misrepresentation on the part of the appellees, and all charges to that effect in the bill are substantially withdrawn by the appellant in his testimony.

It is claimed, however, on the part of the appellant, that he has a strict right in equity to the relief prayed for in his bill, on the ground that no contract was ever in fact entered into, the minds oi the parties never having met upon the same terms. But there is no foundation for such a contention. The minds of the parties did meet. There was in fact an actual agreement, the terms of which were perfectly well understood by both parties. They acted upon that understanding from the time the instrument was executed; and when the appellant first discovered that it did not have the legal effect intended, and gave notice to the appellees accordingly, there was no controversy between them on the subject. The common intention was at once admitted and the necessary correction promptly of

fered. There was, no doubt, a mistake, but it was in the instrument which undertook to express the agreement, and not in the agreement itself. It did not relate to any matter of fact which was the basis of the contract, an error in regard to which would be fundamental, and therefore fatal, but affected only the document which professed to express, but did so incorrectly, the actual intention of both parties. It is equally wide of the mark to say, as it was argued, that the contract has failed by reason of the failure of the consideration. The appellant cannot say that he did not acquire something by reason of the license, although his right was not, as it was intended to be, exclusive. But, so far as appears in the case, he had the same benefits and advantages he would have enjoyed if the instrument had contained the exclusive grant it was supposed to secure; for the parties on both sides acted upon that construction, and, as we have already shown, no actual loss is proven to have arisen to the appellant by virtue of the defective assurance.

That the instrument imperfectly expressed the agreement of the parties was not the exclusive fault of the appellees. It was the duty of the appellant to have discovered the error before executing the contract. He did not, in fact, find it out until after two years from its date; and then, applying for its correction, failed to avail himself of the offer of the appellees, promptly made, in response to his demand to execute a corrected agreement.

The only equity which the appellant could claim was to have the mutual mistake in the language of the instrument corrected, until some default had occurred on the part of the appellees. But they were in no default. They offered to make the correction as soon as they had notice of the mistake; but the appellant declined to accept it. After the further lapse of more than six months, he insisted on his right to put an end to the agreement itself. This he was in no position to do. His delay to assert such a claim, if his right had been otherwise better founded, constituted such laches as would, at least, greatly weaken his title to relief, if it did not amount to a bar; and coupled with the loss to the appellees of the value of their own rights under the patent, which cannot be restored, would make it inequitable, as against them, to absolve the appellant from the legal obligation of his contract.

We see no ground in the facts of the case for the application of the principles and authorities invoked by the appellant as a warrant to grant him the relief for which his bill prays. The decree is accordingly affirmed.

(109 U. S. 110)

GOOD INTENT Tow-BOAT Co. and others v. ATLANTIC MUT. INS. Co. OF NEW YORK and others.

ATLANTIC MUT. INS. Co. OF NEW YORK and others v. GooD INTENT Tow-BOAT Co. and others.

(November 5, 1883.)

BALVAGE - PUMPING OUT SHIP-AMOUNT ALLOWED-APPEAL NOT DOCKETED IN

TIME.

The owners of three steam-tugs which had pumping machinery were employed by the master and agent of a ship sunk at a wharf in New Orleans, with a cargo on board, to pump out the ship for a compensation of $50 per hour for each boat, "to be continued until the boats were discharged." When the boats were about to begin pumping, the United States marshal seized the ship and cargo on a warrant on a libel for salvage. After the seizure the marshal took possession of the ship and displaced the authority of the master, but permitted the tugs to pump out the ship. After they had pumped for about 18 hours, the ship was raised and placed in a position of safety. The tugs remained by the ship, ready to assist her in case of need, for 12 days, but their attendance was unnecessary, and not required by any peril of ship or cargo. In libels of intervention, in the suit for salvage, the owners of the tugs claimed each $50 per hour for the whole time, including the 12 days, as salvage. The claims were resisted by insurers of the cargo, to whom it was abandoned. The district court allowed $500 to each tug, and $500 to the crew of each tug. On appeal by the owners of the tugs, the circuit court decreed to each of them $1,000. On further appeal by them, this court affirmed that decree.

To enforce the contract as one continuing during the time claimed would be highly inequitable; and, as against the insurers of the cargo, the right of the tugs to compensation must be regarded as having terminated when the ship and cargo were raised, and the tugs must be regarded as having been then discharged." The decree of the circuit court was entered May 24, 1880. June 26th a cross-appeal to this court, returnable at its October term following, was allowed. The bond thereon was filed in the circuit court, July 5th; but the appellants in it did not docket it, or enter their appearance on it, in this court, until September 27, 1883. Held, that it must be dismissed.

Appeals from the Circuit Court of the United States for the District of Louisiana.

Jos. P. Hornor and W. S. Benedict, for Good Intent Tow-boat Company.

P. Phillips, W. Hallett Phillips, and James McConnell, for Insurance Company.

BLATCHFORD, J. These were three libels of intervention filed in the district court of the United States for the district of Louisiana against the ship Tornado, her cargo and freight, and the proceeds. thereof in the registry of that court, to recover for salvage services rendered by three steam-tugs, the Rio Grande, the Norman, and the Harry Wright.

The libel in the case of the Rio Grande alleges an employment of her owners on the twenty-seventh of February, 1878, by the master and agents of the Tornado, "to pump out and raise said ship and her cargo," with the pumps and appliances of the Rio Grande, for a

compensation of $50 per hour, and claims $14,900, for 298 hours, from 6 o'clock P. M. on February 27th till 4 o'clock A. M. on March 12th. It alleges that the marshal of the United States seized the ship while the work was going on, and directed the libelants to proceed under the contract to finish the work.

The libel in the case of the Norman alleges an employment of her owners on the twenty-seventh of February, by the master and agents of the Tornado, "to assist in pumping out and raising said ship and cargo," by the use of the Norman and her appliances, for a compen sation of $50 per hour, and claims $13,900, for 278 hours, from 6 o'clock P. M. on February 27th till 8 o'clock A. M. on March 11th. The libel alleges that the ship was under seizure by the marshal when the work was commenced, and that the marshal continued the services of the Norman till the saving of the ship and cargo was fully assured.

The libel in the case of the Rio Grande alleges an employment of her owners, on February 27th, to pump water out of the ship, and to remain near her afterwards, ready to render service, for a compensation of $50 per hour, and claims $11,200, for 224 hours, from 10 o'clock P. M. on February 27th till 6 o'clock A. M. on March 9th. The libel alleges that the ship was raised and saved, with her cargo, late in the afternoon of February 28th, and that the marshal, after he seized the ship and cargo, continued the employment of the tug under said contract.

The resistance to these claims is made by the underwriters on the cargo, to whom the cargo was abandoned. Their answer alleges that the ship and cargo and her freight were seized by the marshal about midday of February 27th; that the three tugs came about sundown on the 27th, but performed no effective service in pumping during that night; that effective pumping began the next morning; and that by noon on the 28th the ship was raised out of the water, and was free from all danger of sinking or again taking in water.

The district court awarded $1,000 to each tug, one-half to her owners and the other half to her crew. The owners of the three tugs appealed to the circuit court, and that court awarded to the owners of each tug $1,000, and they have appealed to this court. The circuit court found the facts and the conclusions of law on which it rendered its decree. There is no bill of exceptions, and our review of the decree must be limited to a determination of the questions of law arising on the record. The material findings of fact by the circuit court were as follows:

"The ship Tornado was a vessel of 1,720 tons burden, and had come to the port of New Orleans for a cargo of cotton, which she had shipped and stowed away, to the amount of 5,195 bales. She was almost ready for sea, and was lying along-side the wharf in the third district of the city of New Orleans, at the foot of Marigny street, when, on Sunday, the twenty-fourth of February, 1878, at six o'clock A. M., smoke was found coming out of the main hatch, and a number of the crew were at once sent to the nearest fire-alarm