Opinion of the Court.

below, for the one thousand dollars per year until the end of the term, is well taken, for the reason that, while it might not within one year have mined sufficient ore to produce a royalty of a thousand dollars, still the defendant was entitled, if the plaintiffs did not exercise their right to rescind the lease, to have the full term of ten years in which to mine the property and ascertain, if possible, whether the amount required to produce the minimum of royalty might not be obtained. In any event the plaintiffs could not recover on the entire contract more than the difference between the whole amount of the royalties during the entire term, and the sum of $10,000, even if they could recover this sum by reason of the failure of defendants to work the mine. This action was prematurely brought.

II. The defendant requested the court to charge that if as an inducement to defendant to enter into the lease Charles Bamford represented the mine to be well supplied with ore, and the defendant on the faith of such representation entered into said lease, and in fact there was not sufficient ore in said. mine to be taken out in paying quantities, the plaintiffs could not recover and the defendant was entitled to recover its expenditures under this lease. It is submitted that the refusal of the court to charge as requested in this request is error, because the defendant, as has been suggested before, entered into this lease upon the statements and representations of Mr. Charles Bamford as to the condition of the mine. If, in point of fact, these statements were untrue, whether the statement was made wilfully or through ignorance, then the defendant, having gone on in reliance upon the statements of Charles Bamford, and having expended large sums of money and finding the mine to be worthless, was entitled to recover the expenditures which it had incurred in endeavoring to develop this mine.

Mr. L. A. Fuller, (with whom was Mr. M. L. Towns on the brief,) for defendants in error.

MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.

Opinion of the Court.

The defendants requested the court to charge the jury that the plaintiffs could not recover rent for any particular year, unless it appeared that the ores mined on the leased property in that year, were sufficient, on the basis of the royalties stipulated, to amount to one thousand dollars; and that unless enough ore was found to enable the company, giving proper care and attention, to prosecute the mining without loss, then the consideration, upon which its agreement was based, failed, and plaintiffs could not recover. These propositions, embodied in specific requests for instructions to the jury, were rejected by the court. The same propositions constituted the grounds upon which the company, at the close of the plaintiffs' evidence, asked the court to dismiss the complaint. That motion and the specific requests for instructions were denied. The action of the court in those respects is assigned for error.

In our opinion no error was committed by the court below. Looking at all the provisions of the lease, it is clear that the defendant engaged to pay, as rent, in each year, the royalties fixed in the lease; and if, in any year, the royalties fell below the sum of one thousand dollars, it was to make up the deficit, so that the latter sum should, in any event, be paid annually as rent. The defendant took the chance of a failure to find ore in sufficient quantities to justify working the mines, and the plaintiffs took the chance of not obtaining more than one thousand dollars, annually, during the existence of the lease, for the use of buildings and fixtures that had cost them more than sixty thousand dollars. To secure the payment, annually, of at least one thousand dollars, the right was reserved to the plaintiffs to terminate the lease, if the company failed, in any year, to pay that sum as rent. And that the company might get the advantage of any developments indicating that the leased premises were of substantial value, the exclusive privilege was reserved to it of purchasing them at any time while the lease remained in force for the price of one hundred and twenty-five thousand dollars. The rulings of the Circuit Court were in harmony with these views.

We are also of opinion that no error was committed in refusing the defendant's request for instructions upon the subject

Opinion of the Court.

of the alleged false representations. The charge, upon that issue, was very full and satisfactory. The court said, in substance, that a person who makes representations of material facts, assuming or intending to convey the impression that he has actual knowledge of the existence of such facts, when he is conscious that he has no such knowledge, is as much responsible for the injurious consequences of such representations, to one who believes and acts upon them, as if he had actual knowledge of their falsity; that deceit may also be predicated of a vendor or lessor who makes material, untrue representations in respect to his own business or property, for the purpose of their being acted upon, and which are in fact relied upon by the purchaser or lessee, the truth of which representations the vendor or lessor is bound, and must be presumed, to know. Touching the alleged representations as to the value of the leased property, the court said that general assertions by a vendor or lessor, that the property offered for sale or to be leased is valuable or very valuable, although such assertions turn out to be untrue, are not misrepresentations, amounting to deceit, nor are they to be regarded as statements of existing facts, upon which an action for deceit may be based, but rather as the expressions of opinions or beliefs; that, as a general rule, fraud upon the part of a vendor or lessor, by means of representations of existing material facts, is not established, unless it appears such representations were made for the purpose of influencing the purchaser or lessee, and with knowledge that they were untrue; but where the representations are material and are made by the vendor or lessor for the purpose of their being acted upon, and they relate to matters. which he is bound to know, or is presumed to know, his actual knowledge of them being untrue is not essential.

We perceive no objections to these instructions. They were sufficient for the guidance of the jury in respect to the alleged false representations by the plaintiffs. Judgment affirmed.

VOL. CL-43

ERROR ΤΟ THE

Syllabus.

BELDEN v. CHASE.

COURT OF APPEALS OF THE STATE OF
NEW YORK.

No. 66. Argued November 3, 1893. Decided December 18, 1893.

This court has jurisdiction to review the judgment of the highest court of a state in an action at common law to recover damages caused by the collision of two steamers navigating inland waters over which the United States have admiralty jurisdiction, when that judgment denies rights claimed by the plaintiff in error under rules established by statutes of the United States for preventing collisions, or rights regarding the application of such rules.

The appellate jurisdiction of this court over questions national and international in their nature, arising in an action for a maritime tort committed upon navigable waters and within admiralty jurisdiction, cannot be restrained by the mere fact that the party plaintiff has elected to pursue his common law remedy in a state court.

In an action at common law for a maritime tort, the admiralty rule of an equal division of damages in the case of a collision between two vessels, when both are guilty of faults contributing to it, does not prevail; but the general rule there is that if both vessels are culpable in respect of faults operating directly and immediately to produce the collision, neither can recover damages for injuries so caused.

A steam pleasure-yacht is an "ocean-going steamer," and is not a “coasting vessel."

A steam pleasure-yacht, on the inland waters of the United States, is bound, when under way, to carry at the foremast head a bright white light, on the starboard side a green light, and on the port side a red light, as prescribed by rule 3 in Rev. Stat. § 4233; and is not required to carry ** in addition thereto a central range of two white lights," as prescribed by rule 7 of that section for "coasting steam-vessels ... navigating the bays, lakes, rivers or other inland waters of the United States," that rule not being applicable to a steam pleasure-yacht. Regulations established by a board of supervising inspectors, under Rev. Stat. § 4412, “to be observed by all steam-vessels in passing each other,” have the force of statutory enactment; are obligatory from the time when the necessity for precaution begins; and continue so while the means and opportunity to avoid the danger remains.

Where a vessel, meeting or passing another vessel, departs from the rules laid down by the supervising inspectors and a collision results, the burden of proof is on it to show that the departure was made necessary by immediate, impending, and alarming danger.

Statement of the Case.

Where a vessel has committed a positive breach of statute, she must not only show that her fault did not probably contribute to a disaster which followed, but that it could not have done so.

Two steamers on the Hudson River at night were approaching each other head and head. One gave a short blast from its whistle to indicate an intention to pass on the port side. The other answered by a similar blast, and then gave two whistles and changed its course so as to cross the bow of the first vessel. This resulted in a collision, whereby the second vessel was sunk. An action at law was brought in a state court by the owners of the sunken vessel against the owners of the first vessel. On the trial the court was asked to instruct the jury that the pilot who first blew the sharp whistle had the right to determine the course which each was to adopt; that the answer by a single whistle was an acceptance of his determination; that it then became the duty of the second vessel to pass the other according to that determination; and that the second vessel was guilty of negligence in giving the two whistles and in changing its course. The court refused these instructions, and instructed the jury, in substance, that they were to determine whether those in management of the vessels were guilty of negligence or not, and whether they did or omitted to do that which persons of ordinary care and prudence ought to have done. Held,

(1) That in refusing to give the instructions asked for and in charging in this general way, the obligatory force of the rules of navigation was substantially ignored;

(2) That the instruction did not put to the jury the question whether the second vessel was justified in departing from the rules, which was error;

(3) That the jury should have been told that two vessels approaching head to head and exchanging the signal of a single whistle, were bound to pursue the course prescribed by the rules;

(4) And that they should have been further instructed that if the first vessel assented to the signal of the two whistles, and there was an error in the course, it was at the risk of the second vessel, or, at the most, both were in fault and there could be no recovery.

THIS was an action at law brought by William Donahue, owner of the steamboat Charlotte Vanderbilt, in the Supreme Court of the State of New York, against William Belden, owner of the yacht Yosemite, for so negligently navigating the yacht as to run down and sink the steamboat in the Hudson River a little north of Esopus Meadow light-house, and some ninety miles north of New York City, at or about halfpast nine on the evening of July 14, 1882. Donahue died leaving a will, which was admitted to probate, and letters