been prepared and will be forwarded to the Supreme Court. The fact that instructions are thus desired as to a single question out of the many arising upon this writ of error affords no sufficient ground for withholding the decision of this court as to the other questions in the cause. Compton v. Wabash R. Co. 31 U. S. App. 486, 68 Fed. Rep. 263, 15 C. C. A. 397. This opinion is therefore placed on file, and when instructions are received as to the questions certified the cause will be finally disposed of." 51 U. S. App. 693, 708, 84 Fed. Rep. 430, 439, 28 C. C. A. 443, 453. This case was heard here upon the question certified from the circuit court of appeals. But after it was argued and submitted, this court directed the entire record to be sent up, and the case is now before us upon writ of certiorari. 1. At the trial in the circuit court, the evidence in behalf of the plaintiff's being closed, the defendant moved to dismiss the complaint upon several grounds, one of which was that the contract in relation to the property in question was alone with Griffith. That motion was denied, and the defendant then introduced evidence in his behalf. The circuit court of appeals properly held that as the defendant did not rest upon the denial of his motion to dismiss, but introduced evidence, he could not assign the refusal to dismiss as error. Columbia & P. S. R. Co. v. Hawthorne, 144 U. S. 202, 36 L. ed. 405, 12 Sup. Ct. Rep. 591; Union P. R. Co. v. Daniels, 152 U. S. 685, sub nom. Union P. R. Co. v. Snyder, 38 L. ed. 597, 14 Sup. Ct. Rep. 756; Runkle v. Burnham, 153 U. S. 216, 38 L. ed. 694, 14 Sup. Ct. Rep. 837. 2. After calling attention to the material issues of fact, and after stating the general propositions of law upon which, when applied to the evidence, the rights of the parties depended, the circuit court charged the jury: The circuit court refused to give this instruction, and to such refusal the defendant took an exception. The question presented by the charge to the jury touching the measure of damages has been heretofore determined by this court in Smith v. Bolles, 132 U. S. 125, 129, 33 L. ed. 279, 281, 10 Sup. Ct. Rep. 39. That was an action to recover damages for alleged fraudulent representations in the sale of 4,000 shares of mining stock at the price of $1.50 per share, that is, $6,000. The petition alleged that the stock was wholly worthless, but would have been worth at least $10 per share, that is, $40,000, if it had been as represented by defendant. The prayer was for $40,000 as damages arising from the sale of shares of stock for which only $6,000 was paid. The trial court instructed the jury that "the measure of recovery is generally the difference between the contract price and the reasonable market value if the property had been as represented to be, or in case the property or stock is entirely worthless, then its value is what it would have been worth if it had been as represented by the defendant, and as may be shown in the evidence." This court held that instruction to be erroneous. Speaking by the Chief Justice we said: "The measure of damages was not the difference between the contract price and the reasonable market value if the property had been as represented to be, even if the stock had been worth the price paid for it; nor, if the stock were worthless, could the plaintiff have recovered the value it would have had if the property had been equal to the representations. What the plaintiff might have gained is not the question, but what he had lost by being deceived into the purchase. The suit was not brought for breach of contract. The gist of the action was that the plaintiff was fraudulently induced by the defendant to purchase stock upon the faith of certain false and fraudu"The measure of damages in actions of lent representations, and so as to the other this nature is the difference between the persons on whose claims the plaintiff sought value of the property as it proved to be and to recover. If the jury believed from the as it would have been as represented. You evidence that the defendant was guilty of the may find that the plaintiffs were influenced fraudulent and false representations alby one or more, and not by all, of the repre-leged, and that the purchase of stock had sentations, and to the extent that the plaintiffs have been injured by one of several misrepresentations, they are entitled to recover for that; that is, if you find the various is sues of fact which I have left for your consideration in favor of the plaintiffs." To the giving of this instruction the defendant took an exception. The defendant asked that the jury be instructed as follows: "If the jury find for the plaintiffs, they can only find as damages the direct pecuniary loss, if any, the plaintiffs suffered by reason of the false and fraudulent representations and acts of the defendant; and the value of the mine if the same had been as represented affords no proper element of recovery. The value of the mine when plaintiffs bought it must be applied in reducing and extinguishing the plaintiffs' loss." been made in reliance thereon, then the defendant was liable to respond in such damages as naturally and proximately resulted from the fraud. He was bound to make good the loss sustained, such as the moneys the plaintiff had paid out and interest, and any other outlay legitimately attributable to defendant's fraudulent conduct; but this liability did not include the expected fruits of an unrealized speculation. The reasonable market value, if the property had been as represented, affords, therefore, no proper element of recovery." These principles have been applied in numerous cases in the Federal courts. Atwater v. Whiteman, 41 Fed. Rep. 427, 428; Glaspell v. Northern P. R. Co. 43 Fed. Rep. 900, 904; The Normannia, 62 Fed. Rep. 469, 481; Wilson v. New United States Cattle Ranch Co. 36 U. S. App. 634, 73 Fed. Rep. 122 994, 997, 20 C. C. A. 244; Rockefeller v. Merritt, 40 U. S. App. 666, 674, 35 L. R. A. 633, 76 Fed. Rep. 909, 22 C. C. A. 608. In the case last cited Judge Sanborn said: "The true measure of the damages suffered by one who is fraudulently induced to make a contract of sale, purchase, or exchange of property, is the difference between the actual value of that which he parts with and the actual value of that which he receives under the contract. It is the loss which he has sustained, and not the profits which he might have made by the transaction. It excludes all speculation, and is limited to compensation.' Substantially the rule announced in Smith ▼. Bolles has been applied in the following cases in state courts: Reynolds v. Franklin, 44 Minn. 30, 31, 46 N. W. 139; Redding v. Godwin, 44 Minn. 355, 358, 46 N. W. 563; Wallace v. Hallowell, 56 Minn. 501, 507, 58 N. W. 292; Woolenslagle v. Runals, 76 Mich. 545, 553, 43 N. W. 454; Buschman v. Codd, 52 Md. 202, 209; Greenwood v. Pierce, 58 Tex. 130, 133; Howes v. Axtell, 74 Iowa, 400, 402, 37 N. W. 974; High v. Berret, 148 Pa. 263, 23 Atl. 1004. In the last-named case which was an action to recover damages for deceit in the sale of shares of stock in a mining corporation-the supreme court of Pennsylvania said: "The remaining question is, What is the proper measure of the plaintiff's damages? His damages should equal the loss which the deceit which the jury have found was practised upon him inflicted. The loss, in the transaction before us, is the difference between the real value of the stock at the time of the sale and the fictitious value at which the buyer was induced to purchase. His actual loss does not include the extravagant dreams which prove illusory, but the money he has parted with without receiving an equivalent therefor." The same principle was recognized by the English court of appeal in the leading case of Peek v. Derry, L. R. 37 Ch. Div. 541, 591, 594. That was an action to recover damages for the fraudulent representations of the defendant whereby the plaintiff was induced to take shares in a certain company at the price of £4,000. The question of the proper measure of damages in such a case was directly presented and considered. Lord Justice Cotton said: "The damage to be recovered by the plaintiff is the loss which he sustained by acting on the representations of the defendants. That action was taking the shares. Before he was induced to buy the shares, he had the £4,000 in his pocket. The day when the shares were allotted to him, which was the consequence of his action, he paid over that £4,000, and he got the shares; and the loss sustained by him in consequence of his acting on the representations of the defendants was having the shares, instead of having in his pocket the £4,000. The loss therefore must be the difference between his £4,000 and the then value of the shares." Sir James Hannen, referring to the question of damages, said in the same case: "The question is, How much worse off is the plaintiff than if he had not bought the shares? If he had not bought the shares he would have had his £4,000 in his pocket. To ascertain his loss we must deduct from that amount the real value of the thing he got.' Lord Justice Lopes said: "The question in this case is, What is the loss which the plaintiff has sustained by acting on the mere representation of the defendants, and what is the true measure of his damage? In my opinion it is the difference between the £4,000 he paid and the real value of the shares after they were allotted." The case having been carried to the House of Lords, the judgment therein was reversed, but not upon grounds at all affecting the ruling made in the court of appeal upon the question of the proper measure of damages. Derry v. Peek, L. R. 14 App. Cas. 337. some There are adjudged cases holding to the broad doctrine that in an action for deceit, based upon the fraudulent representations of a defendant as to the property sold by him, the plaintiff is entitled to recover, by way of damages, not simply the difference between its real, actual value at the time of purchase and the amount paid for it by the seller, but the difference, however great, between such actual value and the value (in excess of what was paid) at which the property could have been fairly valued if the seller's representations concerning it had been true. So, in the present case (taking it to be as set out in the plaintiffs' pleadings), although the defendant agreed to take, and the plaintiffs agreed to pay, $400,000 for the property in question, the latter-according to cases, interpreting literally the words used in them-could retain the property and recover by way of damages the difference between its real value at the date of purchase and the sum of $1,000,000, which the plaintiffs alleged it would have been worth at that time if the representations of the defendant concerning it had been true. We held in Smith v. Bolles that such was not the proper measure of damages, that case being like this in that the plaintiff sought damages covering alleged losses of a speculative character. We adhere to the doctrine of Smith v. Bolles. Upon the assumption that the property was not worth what the plaintiffs agreed to give for it, they were entitled to have-if the evidence sustained the allegation of false and fraudulent representations upon which they were entitled to rely and upon which they in fact relied-a verdict and judgment representing in damages the dif ference between the real value of the property at the date of its sale to the plaintiffs and the price paid for it, with interest from that date, and, in addition, such outlays as were legitimately attributable to the defendant's conduct, but not damages covering "the expected fruits of an unrealized speculation." If the plaintiffs were inveigled by the fraud of the defendant into purchasing this mining property, a judgment of the character just indicated would make them whole on account of the loss they sustained. More they are not entitled to have at the hands of the law in this action. Many other questions have been discussed 'by counsel, but as they may not arise upon another trial, we deem it unnecessary now to consider them. It results that the trial court erred upon the question of the measure of damages applicable to the case. Its judgment must be reversed, with directions for a new trial and for further proceedings consistent with the principles of this opinion. It is so ordered. ing a decree of the District Court for the The facts are stated in the opinion. 102 * Mr. Justice Gray delivered the opinion of* the court: Mr. Justice Brown and Mr. Justice issued by this court to review a decree in ad Peckham dissented. (179 U. S. 100) This case comes up by writ of certiorari miralty of the circuit court of appeals for the second circuit, which reversed a decree of the district court of the United States for the southern district of New York; and ap GEORGE W. CROSSMAN and Herman pears by the record to have been in substance as follows: Sielcken, Petitioners, v. WILLIAM BURRILL and Others, Owners of the Bark Kate Burrill. Demurrage-liability of charterers-effect of cesser clause-delay in unloading caused by public enemy. 1. ing: "Charterers' responsibility to cease when vessel is loaded and bills of lading are A libel in admiralty in personam was filed in the district court of the United States for the southern district of New York by the owners of the bark Kate Burrill against her charterers to recover fifty-three days' demurrage for her detention at Rio Janeiro in Brazil, in unloading a cargo of lumber shipped for that port from Pensacola in The cesser clause of a charter party say. Florida, under a charter party dated March 7, 1893, by which the charterers were to pay a stipulated rate of freight on proper delivery of the cargo at the port of discharge, and which contained these other provisions: signed,"-does not relieve the charterers from liability for demurrage under provisions of the charter requiring them to pay demur rage for any delay in delivery by their fault or that of their agent, and declaring that the vessel is to have an absolute llen upon the cargo for all freight, dead freight, and demurrage, where the bills of lading, which do not mention demurrage or refer to any other provisions of the charter than those concerning freight and average, have been assigned, and the delay in unloading is made by the assignees of the bills of lading, who thereby became consignees of the cargo, since the rights of the shipowners against those consignees depend altogether upon the contract created by the bills of lading, except so far as that contract refers to the charter party. 2. A clause in a charter party for cesser of the liability of the charterers, coupled with a clause creating a lien in favor of the ship owner, is to be construed, if possible, as inapplicable to a liability with which the lien is not commensurate. 8. A detention of a vessel for unloading, which is caused, not by any act of the shipowners or of the charterers, but wholly by the actual firing of guns from an enemy's ships of war upon the forts in the harbor, directly affect ing the vessel and making the discharge of the cargo dangerous and impossible, cannot be considered as caused by "default" of the charterers within the meaning of a charter party stipulating for demurrage in case of their default. [No. 26.] Argued March 14, 1900. 5, 1900. "Cargo to be furnished at port of loading at the average rate of not less than 20,000 superficial feet per running day, Sundays excepted; and to be discharged at port of destination at the average rate of not less than 20,000 superficial feet per running day, Sundays excepted. "Lay days to commence from the time the vessel is ready to receive or discharge cargo, and written notice thereof is given to the party of the second part, or agent; and for each and every day's detention by default of the said party of the second part, or agent, fifty-nine dollars United States gold (or its equivalent) per day, day by day, shall be paid by the said party of the second* part, or agent, to the said party of the first part, or agent. "The cargo to be received at the port of loading within reach of ship's tackles, and to be delivered at port of discharge according to the custom of said port. Vessel to discharge at safe anchorage ground in Rio Bay designated by charterers. "The bills of lading to be signed as presented, without prejudice to this charter. Any difference in freight to be settled before the vessel's departure from port of loading. If in vessel's favor, in cash, less insurance. If in charterers' favor, by captain's draft upon his consignees, payable ten days after arrival of vessel at port of discharge. VesDecided November sel to have an absolute lien upon the cargo for all freight, dead freight, and demurrage. Charterers' responsibility to cease when the signed." ON WRIT OF CERTIORARI to the United vessel is loaded and bills of lading are States Circuit Court of Appeals for the Second Circuit to review a decision revers The libel alleged, in the 4th article, that should have been paid, in accordance with the terms of said charter party." The bills of lading (as appears by the copy annexed to the answer) state that the lumber had been shipped by the respondents, and was to be delivered "unto order or to their assigns, they paying freight for the said lumber as per charter party dated 7th March, 1893, and average accustomed." the vessel was loaded with the cargo of lum- | failure, and to hold said cargo until the same ber at Pensacola, and sailed thence for Rio Janeiro, where she arrived about August 30, 1893; and, in the 5th article, "that on Sep tember 4, 1893, notice in writing that the vessel was ready to discharge her said cargo was duly given by the master of said vessel or her duly authorized agents to the Companhia Industrial do Brazil, the agent of the respondents at said port of Rio, who received the said cargo;" but that the vessel did not complete the discharge until November 28, 1893, being a period of fifty-three days beyond the twenty-six days, Sundays exclusive, allowed for the discharge by the charter. The libel was allowed to be amended in the circuit court of appeals, by alleging "that at the time of giving the notice of her readiness to discharge her cargo, mentioned in the 5th article, the said vessel was in fact ready to discharge upon the charterers designating a safe anchorage for that purpose;" by setting forth more particularly the times of the delay and suspension of the discharge of the cargo, and by alleging that during all those times the vessel was ready and willing to discharge the same; and by further alleging that there had been no payment or accord and satisfaction of the claim for demurrage. Among the defenses set up in the district court, and more fully, but with no substantial difference, in an amended answer filed by leave in the circuit court of appeals, and to the sufficiency of each of which defenses the libellant filed exceptions in either court, were those which are here numbered, for convenience, as the exceptions were numbered in the circuit court of appeals, and which were stated in the amended answer as follows: Second. "That the charter party referred to in the libel contained a clause providing that the vessel should have an absolute lien upon the cargo for freight and demurrage, and that the charterers' responsibility should cease upon the loading of the cargo and signing of the bills of lading; that said vessel was fully laden, as alleged in the 4th article of the libel, and that thereafter, and long prior to September 4, 1893 (the date upon which it is alleged in the 5th article of said libel that notice in writing was given to the agents of the respondents at Rio Janeiro that said vessel was ready to discharge her cargo), bills of lading of similar tenor for the whole of said cargo were duly signed by the master of said vessel, a copy of which is annexed hereto, and made part hereof; and said bills of lading were duly assigned and delivered to the Companhia Industrial do Brazil, and by them assigned and delivered to Messrs. Manoel da Cruz & Filho, who thereby became the consignees of said cargo; and that thereupon all liability of these respondents to the owners of said vessel under said charter party ceased, and it became the duty of the master and owner of said vessel, upon the failure, alleged in the 5th article of said libel, of the consignee of said cargo to discharge the same at the agreed rate per day, to notify said consignee of the amount of the demurrage claimed by reason of said Third. "That when said vessel arrived at Rio Janeiro the owners of said cargo used" all reasonable diligence in and about receiv ing the cargo shipped upon the said vessel, and removing the same therefrom; that the libellants were prevented from discharging the same, and the respondents were prevented from receiving the same, any sooner than they did, by reason of the acts of the public enemy, to wit, certain vessels of war which were then in the harbor of Rio Janeiro, and were engaged in firing upon the forts in said harbor, and making war upon the govern ment of Brazil, and that the firing between said vessels of war and the said forts made it impossible to discharge the said cargo, or to receive it from the said vessel, any sooner than it was discharged or received; that the said cargo was delivered according to the custom of said port of Rio Janeiro, and that the detention alleged in the libel, if any such there be, was caused by said acts of the public enemy, and not by any default of the respondents; that the captain of the said vessel and Messrs. Phipps Brothers & Co., the agents of the libellants, acquiesced in the said delay, and recognized the necessity therefor." Fourth. "That when the said cargo was delivered, the said agents of the libellants accepted and received from the said consignee the sum of five hundred and fifteen pounds, six shillings, and five pence, British sterling, in full satisfaction and payment of all claim or demand under the said charter party, and an account was made and stated between the said agents of the libellants and the said consignees respecting all claims under the charter party aforesaid, and the bal ance due upon the said accounting was paid by the said consignee to the said agents, and accepted and received by them in full satisfaction thereof." The district court, understanding the facts stated in the answer to have been admitted, sustained the second exception, overruled the third and fourth exceptions, denied a motion to withdraw these exceptions and to amend the libel, and dismissed the libel. 65 Fed. Rep. 104. The libellants appealed to the circuit court of appeals, which, after allowing amendments of the libel and answer, sustained the second and third exceptions, and overruled the fourth exception, and authorized proofs to be taken upon the defense of payment and ac-* cord and satisfaction; and afterwards, being satisfied upon proofs so taken that there had been no payment or accord and satisfaction of the claim for demurrage, entered a decree for the libellants. 35 U. S. App. 608, *107 69 Fed. Rep. 747, 16 C. C. A. 381; 62 U. S. App. 368, 91 Fed. Rep. 543, 33 C. C. A. 663. The respondents thereupon applied for and obtained a writ of certiorari from this court. The libellants' claim for demurrage is based on the provisions of the charter party, by which, after the vessel is ready to discharge her cargo of lumber at the port of destination, and written notice thereof given to the charterers, they agree to discharge the lumber "at the average rate of not less than 20,000 superficial feet per running day, Sundays excepted," and to pay a certain sum, by way of demurrage, "for each and every day's detention by default of" the charterers or their agents. The charter party further requires "the bills of lading to be signed as presented, without prejudice to this charter," and contains these clauses: "Vessel to have an absolute lien upon the cargo for all freight, dead freight, and demurrage. Charterers' responsibility to cease when vessel is loaded and bills of lading are signed." After the vessel had been loaded, bills of lading were duly signed by the master, by the terms of which the cargo was to be delivered to the charterers or their assigns, "they paying freight as per charter party," "and average accustomed,"-referring to the charter by its date, but not mentioning demurrage. The first question to be considered is how far the claim of the shipowners against the charterers for demurrage is affected by what is commonly called the cesser clause in the charter party, "Charterers' responsibility to cease when vessel is loaded and bills of lading are signed." The circuit court of appeals, approving and adopting in this particular the opinion of the district judge, held that the cesser clause afforded no defense to the libel; and we have no doubt of the correctness of that conclusion. The charter party, like many mercantile instruments in common use, is drawn up in brief and disjointed sentences, and must be construed according to the intent of the parties as manifested by the whole instrument, rather than by the literal meaning of any particular clause taken by itself. The question here is how the clause providing that the charterers' responsibility shall cease when the vessel is loaded and bills of lading are signed is to be reconciled with the other provisions of the charter, which not only require the charterers to pay freight on delivery of the cargo, and demurrage for any delay in such delivery by fault of the charterers or their agent, but declare that the vessel is to have an absolute lien upon the cargo for both freight and demurrage. The true rule of construction of the cesser clause, in such a connection, has been settled by a series of English decisions in which that excellent commercial lawyer, Lord Esher, lately master of the rolls, took a leading part; and is well summed up, with the reasons supporting it, by himself and other judges, in two recent cases in the court of appeal. Clink v. Radford [1891] 1 Q. B. 625; Hansen v. Harrold [1894] 1 Q. B. 612. In Clink v. Radford Lord Esher said: "In my opinion, the main rule to be derived from the cases as to the interpretation of the cesser clause in a charter party is that the court will construe it as inapplicable to the particular breach complained of, if by construing it otherwise the shipowner would be left unprotected in respect of that particular breach, unless the cesser clause is expressed in terms that prohibit such a conclusion. In other words, it cannot be assumed that the shipowner, without any mercantile reason, would give up by the cesser clause rights which he had stipulated for in another part of the contract." Lord Justice Bowen said: "There is no doubt that the parties may, if they choose, so frame the clause as to emancipate the charterer from any specified lia bility, without providing for any terms of compensation to the shipowner; but such a contract would not be one we should expect to see in a commercial transaction. The cesser clauses, as they generally come before the courts, are clauses which couple or link the provisions for the cesser of the charterer's liability with a corresponding creationg of a lien. There is a principle of reason which is obvious to commercial minds, and which should be borne in mind in considering a cesser clause so framed, namely, that reasonable persons would regard the lien given as an equivalent for the release of responsibility, which the cesser clause in its earlier part creates, and one would expect to find the lien commensurate with the release of liability." And Lord Justice Fry added: "The rule that we are prima facie to apply to the construction of a cesser clause followed by a lien clause appears to me to be well ascertained. That rule seems a most rational one, and it is simply this, that the two are to be read, if possible, as coextensive. If that were not so, we should have this extraordinary result: there would be a clause in the charter party the breach of which would create a legal liability; there would then be a cesser clause destroying that liability; and there would then come a lien clause which did not recreate that liability in anybody else." [1891] 1 Q. B. 627, 629, 632. In Hansen v. Harrold Lord Esher said that he thought that Clink v. Radford "was a right decision based upon sound mercantile reasons;' and, after quoting the passages above cited from the opinions in that case, added: "It seems to me that this reasoning has not been and cannot be answered. There fore the proposition is true, that where the provision for cesser of liability is accompanied by the stipulation as to lien, then the cesser of liability is not to apply in so far as the lien, which by the charter party the charterers are able to create, is not equivalent to the liability of the charterers. Where, in such a case, the provisions of the charter party enable the charterers to make such terms with the shippers that the lien which is created is not commensurate with the lia'bility of the charterers under the charter |