The opinion
Shaw, C. J.
The subject of the contract of sale and purchase was a cargo of old railroad iron, to be carried by the barque Charles William from Savannah to Boston; it was a cargo, one cargo, only. It was then limited and measured by the quantity she could carry at once. Whether the plaintiffs knew of the capacity of that vessel or not is immaterial, because they agreed to and adopted it, as the description and measure of their purchase. The figures at the bottom, “ about 300 or 350 tons,” are undoubtedly to be taken as a part of the contract. But, taken with the context, they manifestly express an estimate only, and do not control the descriptive clause designating and limiting the subject of the contract. The defendant, having delivered a full cargo, has performed his contract, and the instructions of the judge were correct.
This case, though quite similar in facts, is distinguishable in principle, from that of Bourne v. Seymour, 16 C. B. 337, recently decided in England. There the subject of the contract of sale, as expressed in the bought and sold note, was “ about 500 tons nitrate of soda, in bags, of good merchantable quality.” The merchandise was to be shipped on the west coast of America by the seller, and delivered to the buyers at the London docks. In the course of the memorandum, it was stated thus: “ It is understood that the above nitrate of soda is to form the full cargo of the John Phillips, 345 tons register, now on her passage; ” but in case the John Phillips should be disabled, the seller agreed to deliver, and the buyer to take, another cargo or cargoes of about equal quantity. The John Taylor did reach the place of shipment, took on board a cargo of nitrate of soda, and arrived in London. The court, after some deliberation as to the meaning and intent of the parties, decided, as the effect of the contract, that, as the first and leading subject expressed was “ about 500 tons nitrate of soda,” and, though understood and expected to *591 form the cargo of the John Phillips, yet in case of her failure, still about that quantity to be sent and delivered in London, the subject of the contract was 500 tons, with such exception by the word “ about,” as the variance usually found to exist in such cases, arising from some little difference in the mode of weighing, and that this was not controlled by a reference to the capacity of the John Phillips. One of the learned" judges, Mr. Justice Crowder, commences his opinion thus: “ The question is whether this is a contract for 500 tons of nitrate of soda, or ! for the full and complete cargo of the John Phillips.’ ” The court believing from all the terms of the contract, that it was the former and not the latter, gave judgment for the plaintiff.
In the present case the subject of the contract of purchase and sale was, “ a cargo of old railroad iron, to be shipped pe barque Charles William.” The difference is obvious.
Exceptions overruled.