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Robert v. Powell, 168 N. Y. 411, was also an action for injuries caused by a stepping-stone. The court said: “There are some objects which may be placed in or exist in a public street, such
a as hydrants, hitching posts, telegraph poles, awning posts or stepping-stones, such as the one described in this case, which cannot be held to constitute a nuisance. They are in some respects incidental to the proper use of the streets as to a highway.
The stepping-stone in this case, located upon the sidewalk in front of a private house, was a reasonable and necessary use of the street, not only for the convenience of the owner of the house but for other persons who desired to visit or enter the house for business or other lawful purposes.”
It was further remarked: “The question involved in this class of cases is, whether an object complained of is usual, reasonable or necessary in the use of the street by the owner of the premises, or any one else.”
City of Cincinnati v. Fleisher, Ad' mr., 63 Ohio St. 229, 234, also passed upon a city's liability for the existence of a steppingstone upon a sidewalk. The court said: “It [the stone) was within that portion of the street by the curb which, according to common usage, is devoted to carriage blocks, lamps, hitching posts and shade trees, which pedestrians of ordinary care observe and avoid.” And Elster v. Springfield was quoted, to the effect that "the laying of sewers, like that of gas and water pipes, beneath the soil, and the erection of lamps and hitching posts, etc., upon the surface, is a street use, sanctioned as such by their obvious purpose and long-continued usage.”
It was held in Macomber v. City of Taunton, 100 Massachusetts, 255, that a hitching post was not a defect in the highway for which the city was liable for permitting it to remain.
Plaintiff in error cites City of Scranton v. Callerson, 94 Pa. St. 202, and Davis v. City of Austin, 22 Texas Civ. App. 460. In the first case, an iron water plug in the middle of a street
a and projecting above its surface, was held to be a nuisance. Obviously the case is not in point. The second case sustains
the contention of plaintiff in error, but cannot be followed against the authority and reasoning of the other cases.
2. The second contention of plaintiff in error is that it was the duty of the District of Columbia to so light the street as to show the presence of the stone thereon, the District having full knowledge thereof. This duty is made to rest mainly upon section 233 of the Revised Statutes of the District of Columbia, which is as follows:
“The proper authorities are directed to increase, from time to time as the public good may require, the number of street lamps on any of the streets, lanes, alleys, public ways and grounds in the city of Washington, and to do any and all things pertaining to the well lighting of the city."
This, in one sense, is but another form of the first contention. The duty of a city to especially illuminate a place where an object is, or to put a policeman on guard by it to warn pedestrians, depends upon the object being an unlawful obstruction.
The plaintiff in error can claim nothing from the general duty of the city under the statute to light the streets. The exercise of such duty was necessarily a matter of judgment and discretion, depending upon considerations which this record does not exhibit.
MOORE v. UNITED STATES.
APPEAL FROM THE COURT OF CLAIMS.
No. 71. Argued December 6, 1904.-Decided January 3, 1905.
Usage may be resorted to in order to make definite what is uncertain, clear
up what is doubtful, or annex incidents, but not to vary or contradict the
terms of a contract. Under contracts between a San Francisco coal dealer and the United States
for the delivery of coal at Honolulu “at wharf” or “on wharf as customary,” the customs referred to held to be those of Honolulu and not of San
Francisco, and that the United States, in the absence of any provision to the contrary, could not be held liable for the demurrage paid by the shipper to the owners of vessels carrying the coal for delay in discharg
ing their cargoes on account of the crowded condition of the harbor. In engagements to furnish goods to a certain amount the quantity specified
governs. Words like "about” and “more or less” are only for the pur
pose of providing against accidental and not material variations. Under the contract in this case for delivery of "about” 5,000 tons of coal
the United States cannot refuse to accept more than 4,634 tons, but is liable for the difference in value on 366 tons tendered and acceptance refused.
The facts are stated in the opinion.
Mr. L. T. Michener, with whom Mr. W. W. Dudley was on the brief, for appellant:
As the agreement was prepared by the Government it will be construed most strongly against it. Garrison v. United States, 7 Wall. 688, 690; Chambers v. United States, 24 C. Cl. 387, 392; Simpson & Co. v. United States, 31 C. Cl. 217, 243; Edgar & Thompson Works v. United States, 34 C. Cl. 205, 219.
The Government was bound by the customs of the Port of San Francisco. 2 Parsons on Contract, side pp. 535, 539; Robinson v. United States, 13 Wall. 363, 366; Hostetter v. Park, 137 U. S. 30, 40; Honge v. Woodruff, 19 Fed. Rep. 136; Smith v. 60,000 feet of Lumber, 2 Fed. Rep. 396; Moody v. 500,000 Laths, 2 Fed. Rep. 607; Pleasant v. Pendleton, 6 Rand. (Va.) 493; Barlow v. Lambert, 28 Alabama, 704; Foley v. Mason, 6 Maryland, 37; Van Hoesen v. Cameron, 54 Michigan, 609; McClusky v. Klosteman, 20 Oregon, 108; Lyon v. Culbertson, 83 Illinois, 33; Maclachan on Mer. Ship. 360; Abbot on Ship. 228; Parsons on Ship. 324; Barnard v. Kellogg, 10 Wall. 390, distinguished. It is immaterial whether or not the officers and agents of the United States had knowledge of the custom. Phillips on Ins. $ $ 980, 1003; Thatcher v. McCulloch, Olcott, 365; Lowry v. Russell, 8 Pick. 360; McMasters v. Pa. R. R. Co., 60 Pa. St. 372; Pittsburg Ins. Co. v. Dravo, 2 Phil. W. N. C. 194; cases and authorities cited supra.
The facts proved as to the conditions at Honolulu do not
relieve defendant. Williams v. Theobald, 15 Fed. Rep. 468; citing Randall v. Lynch, 2 Camp. (N. P.) 352.
The parties having contracted in such a way as to fix the rate of discharge, it follows inevitably that local conditions at Honolulu could not relieve them from such contract stipulations.
If the shipper or freighter covenants to do a particular act, which it becomes impracticable for him to do, he must answer for his default. Cross v. Beard, 26 N. Y. 85; Abbott on Shipping, 307, 387; Ford v. Cotesworth, L. R. 4 Q. B. 127; Williams v. Theobald, 8 Sawyer, 443, 448; Allen v. 385 Tons of Coal, 27 Fed. Rep. 316; 9 Am. & Eng. Ency. of Law, 223, 242.
Even if there were no contract at all concerning lay days or demurrage, the law will imply a contract that the ship shall be detained a reasonable time only, and that the ship shall have reasonable demurrage therefor. Maclachlan, 546; 1 Parsons Mar. Law, 152; 1 Leggett on Bills of Lading, 297.
The burden of getting wharf at Honolulu was on the Government and not on the shipper. 1 Parsons on Ship. 226; Porter on Bills of Lading, $ 400; Oliver on Shipping, 77; Scrutton on Charter-parties, 90; Stewart v. Rogerson, 6 L. R. Com. Pl. 424; Jacques v. Wilson, 7 Times L. R. 119; Tharsis Co. v:Morrell, L. R. 2 Q. B. (1891,) 647, 652; The Boston, 1 Lowell, 464; Manson v. Railroad Co., 26 Fed. Rep. 923; Nelson v. Dahl, 12 Ch. Div. 562; Choate v. Meredith, 1 Holmes, 500; Moody v. 500,000 Laths, 2 Fed. Rep. 607; Daris v. Wallace, 3 Clifford, 133; Thatcher v. Gas Light Co., 2 Lowell, 362; Smith v. Lee, 66 Fed. Rep. 344; P. & R. R. R. Co. v. Northam, 2 Ben. 1; Reed v. Weld, 6 Fed. Rep. 304.
If the wharves were all occupied the Government should have directed other delivery. Williams v. Theobald, 8 Sawyer, 443, 448; Nelson v. Dahl, 12 L. R. Ch. Div. 568; Ford v. Colesworth, L. R. 4 Q. B. 127; Cross v. Beard, 26 N. Y. 85; Allen v. 385 Tons of Coal, 27 Fed. Rep. 316.
In the absence of any express agreement as to the time for unloading, the law implies a contract to unload within a rea
Argument for the United States.
sonable time, and if the charterer or consignee fails to do so, through his own fault or that of his agent, he is liable for damages in the nature of demurrage for the detention of the vessel. 9 Am. & Eng. Ency. of Law, 253, n. 3; Melloy v. Lehigh Co., 37 Fed. Rep. 377; Sprague v. West, Abb. Admr. 548, 553; Bacon v. Transp. Co., 3 Fed. Rep. 344; Hangood v. Tons of Coal, 21 Fed. Rep. 681; Crawford v. Mellor, 1 Fed. Rep. 638; Hyperion's Cargo, 2 Lowell, 93; The T. L. Adams, 26 Fed. Rep. 655; Empire Co. v. P. & R. R. R. Co., 70 Fed. Rep. 263; S. C., affirmed 77 Fed. Rep. 919; Randall v. Sprigg, 74 Fed. Rep. 247; Hoxie v. Reuben Doub, 46 Fed. Rep. 800.
The Government having accepted the cargoes as consignee is liable the same as if it had been the charterer or party to the bill of lading. 1 Parsons Ship. 312; Sutton v. Housatonic R.R. Co., 45 Fed. Rep. 507; N. German Lloyd v. Heule, 44 Fed. Rep. 100; Neilson v. Jesup, 30 Fed. Rep. 138; The Thames, 14 Wall. 98, 107; Gates v. Ryan, 37 Fed. Rep. 154.
The authorities established that the Government is liable as consignee for the demurrage paid by the charterer to the shipowner. Cases cited supra and The Rebecca J. Moulton, 5 Dec. of Comptroller, 305; 275 Tons of Phosphates, 9 Fed. Rep. 209; Young v. 140,000 Bricks, 78 Fed. Rep. 149; Falkenberg v. Clark, 11 R. I. 278; Abb. on Ship. 306; 1 Kay on Shipmaster & Seaman, 151; Jesson v. Solly, 4 Taunton, 52; Mitchell v. Langdon, 10 Biss. 527; Wright v. New Zealand Co., L. R. 4 Exch. Div. 165, 170; Tillett v. Com. Avon W ks., 2 Times Law Rep. 675; Carver on Carriage by Sea, $$ 644, 712.
As to the true rule of interpretation of "more or less” “about,” “say,” and equivalents, see Brawley's Case, 11 C. CI. 522; S.C., affirmed 96 U. S. 168, 173, and Norrington v. Wright, 115 U. S. 188.
Mr. Special Attorney Philip M. Ashford, with whom Mr. Assistant Attorney General Pradt was on the brief, for the United States:
The contracts are silent as to the carriage of the coal which