Plaintiff sues the defendant for $1385 62 on a contract of affreightment.

The allegations are that he agreed to carry single claret staves for the defendant, the staves to be about one and a half inches thick, five inches wide, and from thirty-six to forty inches long, at fifty-eight dollars per thousand; that during his absence from his vessel, the defendant caused staves of much larger dimensions to be stored in the vesel, by which he was enabled to carry only 66,110 staves instead of 90,000, as he would have done in case the defendant had complied with his contract; that while the loading was going on he frequently remonstrated with him, and that he only permitted it to proceed after having been assured that it would be made all right.

Upon these questions of fact, plaintiff, and defendant, and their ' respective agents, all testified.

As usual, they contradict each other flatly. There is in the record the testimony of a witness in Bordeaux, who measured the staves as they were taken from the vessel, who says that they were one and six-eighths inches in thickness, but he does not give their length or breadth.

Now, the plaintiff signed a bill of lading for the staves. It is true he protested against it, but this was after it had been signed. If his allegations are true he should not have signed the bill of lading, or if he did he should have protested at the time of signing; at all events, he should have shown their incorrectness affirmatively.

The district judge gave a judgment of nonsuit. We can not say from the testimony before us that the plaintiff has made out his case.

Judgment affirmed.

Rehearing refused.