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electric company the agent of the railroad agreement upon the Western Union Telecompany was at the same time employed by graph Company; (3) that under the circumthe electric company to handle the telephone stances the telegraph company was guilty of business of the electric company; that there gross negligence in failing to transmit and was a regular stage line open between Yering- deliver the message. The court thereupon afton and Wabuska in April and May, 1907; firmed the judgment of the District Court that the distance between Yerington and for the amount of the payment, adding inWabuska was approximately 11 miles, and terest. could be traversed in the stage in about 11⁄2 hours.
 In our view of the case it is unnecessary to consider the correctness of the decision of the Circuit Court of Appeals as to the binding obligation of the oral contract made with the agent of the telegraph company, or the question of negligence of the company in the transmission and delivery of the message. The right of Hastings and Lange to recover was based upon the theory that the contract was an option terminable by the act of the buyer in failing to make the payment on the contract, which payment, it is found, would not have been made had the message been promptly delivered. An option is a privilege given by the owner of property to another to buy the property at his election. It secures the privilege to buy and is not of itself a purchase. The owner does not sell his property; he gives to another the right to buy at his election.
It is found that the telegraph company did not promptly, upon the receipt of the message on the evening of April 29, 1907, transmit it to the town of Wabuska, Nev.; that the defendant did not promptly deliver the message to the electric company for further transmission over its telephone line to Wabuska, Nev., but, on the contrary, defendant wholly failed
and neglected to transmit the message to Wabuska until May 2, 1907, and wholly failed and neglected to deliver it to the electric company until May 2, 1907; that the delay in the transmission of the message occurred wholly on the lines of the telegraph company, and was caused by that company, and did not occur on the lines of the telephone of the Yerington Electric Company.
It is further found that, if the telegraph company had proceeded with reasonable promptness to transmit and deliver the mes
sage to the bank, the same would have
reached Yerington before the bank had received the draft mailed to it as aforesaid, and it would not have placed the amount represented thereby to the credit of Pitt and Campbell, or either of them, or paid any amount thereon; that by reason of the gross negligence of the telegraph company the message was not delivered to the bank until May 2, 1907, between the hours of 8:30 and 9 a. m.; that the bank had received the draft, and thereafter, on April 30, had paid over the amount thereof in gold coin to Pitt and Campbell pursuant to the terms of the contract between the plaintiffs and Pitt and failure to make the payments required. The Campbell on account of the payment to be agreement contains positive provisions bindmade on or before May 1, 1907, and had given ing the owner to sell and the purchaser to credit to Hastings and Lange for the amount buy upon the terms of the instrument. It is of said payment, all of which was done with- true the stock is to be deposited with the out any knowledge of said message or the bank in escrow, and it is authorized to dedetermination of Hastings and Lange to re-liver the same to Pitt and Campbell upon decall said draft; that Hastings and Lange did fault in payment. The findings do not show not make any further payments on the pur- whether Pitt and Campbell took back the chase price of said shares of stock, but abandoned the contract with Pitt and Campbell There was no understanding that Pitt and stock upon default of subsequent payments. and forfeited and lost all moneys paid Campbell should take back the stock when the payments were not made, and no agreement which put it in the power of the purchasers to relieve themselves of the obligations of their contract by failing to keep up the payments. The right of Pitt and Campbell to receive the stock from the bank and end the contract was stipulated; it was a provision inserted for their benefit, of which they might avail themselves at their election.
In our opinion Stewart v. Griffith, 217 U. S. 323, 30 Sup. Ct. 528, 54 L. Ed. 782, 19 Ann.
It was found that the 625,000 shares of stock of the Kennedy Consolidated Gold Mining Company have been at all times, and since and including April 29, 1907, practically valueless.
The Circuit Court of Appeals held: (1) That the contract was an option terminable
 What, then, is the nature of this agreement? It contains the positive undertaking
of the owner to sell and the purchaser to buy 625,000 shares of stock upon terms which are named. Upon the first payment being made, the certificates are to be deposited with the bank in escrow, to be delivered when the final payment agreed upon is made, and in event of default in payment the bank is authorized to deliver the shares of stock to Pitt and Campbell, and all payments are to be forfeited, and the rights of the parties to cease and determine. We are of opinion that this is far more than a mere option to purchase, terminable at the will of the purchaser upon
by the buyers' failure to *make the payments required; (2) the oral agreement for the transmission of the message was a binding
ter*minable by the purchasers at their will. Stewart v. Griffith, supra.
As the recovery of the amount paid, with interest, as adjudged in the Circuit Court of Appeals, is founded upon its conclusion that the contract was an option, and the damages the amount paid and forfeited by the failure to stop the payment of the draft, and as we are not able to accept that view of the contract, it follows that the judgment of the Circuit Court of Appeals must be reversed, and the cause remanded to the District Court for further proceedings in conformity to this
Cas. 639, is controlling upon this point. In | tains a privilege of ending it at the election of that case there was a sale of land, and the the vendor for nonpayment of the sum stippurchaser by the terms of the agreement paid ulated does not convert it into an option $500 as part of the purchase price. It was provided that in case of nonpayment of the balance of the first half of the purchase price on November 7, 1907, the $500 paid on the contract was to be forfeited, and the contract of sale and conveyance was to be null and void and of no effect. The contention was that the defendant was free to withdraw from the contract if he chose to lose the $500. But this court held, after considering the terms of the contract, that the $500 was part of the purchase price to be paid; that the land was described as being sold; and that in view of such stipulations, the purchaser had bound himself to take the land. As to the provision for the forfeiture of the $500, and the stipulation that the contract should become null and void upon nonpayment of the remainder of the purchase price, this court said:
"The condition plainly is for the benefit of
(253 U. S. 136) MECCANO, Limited, v. JOHN WANAMAKER, NEW YORK.
(Argued Jan. 26 and 27, 1920. Decided May 17,
ORDER GRANTING TEMPORARY INJUNCTION RE-
*the vendor and hardly less plainly for his benefit alone, except so far as it may have fixed a time when Stewart might have called for performance if he had chosen to do so, which he 1. COURTS 383(1)—JUDGMENT REVERSING did not. This being so, the word 'void' means voidable at the vendor's election and the condition may be insisted upon or waived at his choice. Insurance Co. v. Norton, 96 U. S. 234; Oakes v. Manufacturers' Insurance Co., 135 Mass. 248, 249; Titus v. Glen Falls Insurance Co., 81 N. Y. 410, 419."
The condition in the contract in Stewart v. Griffith that nonpayment should render the contract null and void is the equivalent of the stipulation in the present agreement, much relied upon by the respondent, that upon nonpayment of the stipulated sums the rights of each of said parties should cease and determine. We think the attempted distinction between Stewart v. Griffith and the instant case is untenable.
Under Judicial Code, § 128 (Comp. St. § 1120), making the judgment of the Circuit Court of Appeals final in certain cases, and section 240 (Comp. St. § 1217), authorizing the Supreme Court to review by certiorari any case in which the judgment or decree of the Circuit Court of Appeals is made final, a judgment reversing an order granting a preliminary injunction in a suit for infringement of a patent and copyrights and for unfair competition may be brought up by certiorari and treated as if before the court on appeal.
2. APPEAL AND ERROR 863, 1175(3)—ON
APPEAL FROM ORDER GRANTING TEMPORARY
On an appeal to the Circuit Court of Appeals, under Judicial Code, § 129 (Comp. St. § 1121), from an order granting a preliminary injunction, the court is not limited to a consideration of the order appealed from, but may dismiss the bill and terminate the litigation, if an insuperable objection to maintaining the bill clearly appears.
3. INJUNCTION 135-GRANT OF PRELIMI
NARY INJUNCTION DISCRETIONARY.
The Circuit Court of Appeals reinforced its conclusion that the contract was an option by stating that it was usual to sell mining property under privileges of purchase, and, when investigation showed that the property was not valuable, to terminate such options by forfeiting the sums paid therefor, and declining to make future payments. It is true that undeveloped mining property is often sold under option agreements. See 3 Lindley on Mines, § 859. But there is nothing to show that this contract was dependent upon the development of the mining property. The written agreement contains a positive undertaking to sell, upon the one part, and, upon the other part, to buy shares of the mining stock. Whether the shares sold constituted all the shares of the company does not ap- injunction will not be disturbed on appeal, unAn order granting or denying a preliminary pear. Nor is the relative proportion of those less contrary to some rule of equity or the resold to the whole amount of the stock any-sult of an improvident exercise of judicial diswhere shown. The fact that the contract con- cretion.
Whether a preliminary injunction shall be awarded rests in the sound discretion of the
APPEAL AND ERROR 954(1)-GRANT OR DENIAL OF INJUNCTION NOT DISTURBED, UNLESS INEQUITABLE OR AN ABUSE OF DISCRETION.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
5. APPEAL AND ERROR 1092-SUPREME | Fed. 912. An appeal was taken to the Circuit COURT WILL NOT DISTURB ACTION ON PRE- Court of Appeals, Sixth Circuit. The same LIMINARY INJUNCTION, EXCEPT FOR STRONG corporation instituted the present suit in the United States District Court, Southern District of New York (December 9, 1916) seeking like relief against John Wanamaker, a customer of Wagner.
The trial court granted a preliminary inJunction, asked upon the bill, supporting affidavits and exhibits-January 12, 1917, It expressed general agreement with the conclusions announced in the Ohio cause and said: "It seems quite apparent that the patent is infringed and that diagrams and directions as to construction have been borrowed by defendant from complainant's copyrighted catalogues, and that the system of construction adopted by the defendant is a direct imitation of complainant's system."
Except for strong reasons, the Supreme Court will not interfere with the action of the Circuit Court of Appeals on appeal from an order granting a preliminary injunction. 1108-REVERSAL OF
6. APPEAL AND ERROR
DECREE RELIED ON BY LOWER COURT PROP
ERLY NOTICED ON APPEAL.
Where a preliminary injunction in a suit for infringement of a patent and copyrights and unfair competition was evidently granted in reliance on a decree rendered in another suit brought by plaintiff against the party whose goods defendant was handling, the Circuit Court of Appeals properly took notice of the subsequent reversal of such decree.
7. APPEAL AND ERROR 891-FINAL DE
CREE FOR PLAINTIFF CANNOT BE GRANTED
An appeal followed, pending which the Cir
ON APPEAL FROM ORDER GRANTING INJUNC-cuit Court of Appeals, Sixth Circuit (No
TION, ON EX PARTE AFFIDAVITS.
While, on an appeal from an order granting a preliminary injunction, in a suit for infringement of a patent and copyrights and for unfair competition, the cause might be dismissed, if it clearly appeared that no ground existed for equitable relief, the court could not render a final decree for complainant on ex parte affidavits and decrees of other courts in a suit by the same plaintiff against the party whose goods defendant was charged with selling.
S. APPEAL AND ERROR
VIEW OF PRELIMINARY INJUNCTION.
On review of a judgment reversing an order granting a preliminary injunction, the only matter for review is the action of the courts below respecting such injunction, and the Supreme Court cannot go further and decide the issues involved on their merits.
On Writ of Certiorari to the United States Circuit Court of Appeals for the Second Circuit.
"This was a motion for a 'decision on the merits of this cause' by this court under the following circumstances: A suit was brought in the District Court for the Southern District of New York for an injunction for infringement of a copyright, and of a patent, and for unfair competition in the manufacture of a mechanical toy in absolute imitation of the plaintiff's. The plaintiff applied for and got *an injunction pendente lite [241 Fed. 133], from which the defendant appealed. That appeal is still pending undetermined in this court. Meanwhile the plaintiff had in the District Court required the defendant to answer certain interrogatories, by which it appeared that the defendant procured from one Wagner the toys which it sold in althe patent, and also the 'manuals' which went leged unfair competition and in violation of with the toys and explained their uses, which are alleged to infringe the copyright. The interrogatories further showed that Wagner had agreed to hold the defendant harmless for any sales of the toys and manuals, and that in pursuance of that undertaking he had taken a share in the defense of this suit. While it did not appear exactly what that share was, it may be assumed, for the purpose of the motion only, that Wagner has assumed the chief conduct of the case, and that the defendant remains only formally represented.
"The plaintiff sued Wagner in Ohio upon the three same causes of equity and obtained a decree upon all. Later an appeal was taken to the Circuit Court of Appeals for the Sixth CirFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
Suit by Meccano, Limited, against John Wanamaker, New York. An order granting a preliminary injunction (241 Fed. 133) was reversed by the Circuit Court of Appeals (250 Fed. 450, 162 C. C. A. 520), and plaintiff brings certiorari. Affirmed and remanded. *Messrs. Reeve Lewis and W. B. Kerkham, both of Washington, D. C., for petitioner.
Mr. H. A. Toulmin, of Dayton, Ohio, for respondent.
vember, 1917), reversed the Ohio District Court's decree so far as it sustained the patent, approved it otherwise, and remanded the cause for further proceedings. Wagner v. Meccano, 246 Fed. 603, 158 C. C. A. 573.
Mr. Justice McREYNOLDS delivered the opinion of the Court.
Proceeding against Wagner and others in the United States District Court, Southern District of Ohio, Meccano, Limited, obtained a decree (July 8, 1916) affirming the validity, and restraining infringement, of its patent for mechanical toys, also restraining unfair competition in making and selling such toys and the further infringement of its copyright #138 upon trade catalogue and illustrated manual relating thereto. Meccano v. Wagner, 234
January 25, 1918, after argument, but before determination of appeal from the preliminary order, petitioner moved for final decision on the merits, claiming that the decree of the Circuit Court of Appeals, Sixth Circuit, "is final and conclusive as to the case at bar, under principles enunciated by the Supreme Court." Being opposed, the motion was denied-March 24, 1918. The court said
cuit, and the decree was affirmed except as to | 708, 44 L. Ed. 856; Harriman v. Northern the patent, which was declared invalid, and Securities Co., supra; United States Fideliwhich the plaintiff has now withdrawn from ty & Guaranty Co. v. Bray, 225 U. S. 205, this suit. No final decree has been entered, and 214, 32 Sup. Ct. 620, 56 L. Ed. 1055; Denver the Ohio cause now stands for an accounting in the District Court. This motion is upon the record in the Ohio suit, which is made a part of the moving papers, and it presupposes that this court may pass a final decree for the plaintiff upon the appeal from the injunction pendente lite, upon the assumption that that record is a complete estoppel against the defendant here and leaves open no issues for determination between the parties."
New York Trust Co., supra. This power is not limited to mere consideration of, and action upon, the order appealed from; but, if insuperable objection to maintaining the bill clearly appears, it may be dismissed and the litigation terminated.
"We pass the question of practice whether this court, under the doctrine of Mast, Foos & Co. v. Stover Mfg. Co., 177 U. S. 488, 20 Sup. Ct. 708, 44 L. Ed. 856, may enter a decree for
[3-5] The correct general doctrine is that whether a preliminary injunction shall be awarded rests in sound discretion of the trial court. Upon appeal, an order granting or denying such an injunction will not be disturbed, unless contrary to some rule of equity, or the result of improvident exercise of judicial discretion. Rahley V. Columbia Phonograph Co., 122 Fed. 623, 58 C. C. A. 639; Texas Traction Co. v. Barron G. Collier, Inc., 195 Fed. 65, 66, 115 C. C. A. 82; Southern Express Co. v. Long et al., 202 Fed. 462, 120 C. C. A. 568; City of Amarillo et al. v. Southwestern Telegraph & Telephone Co., 253 Fed. 638, 165 C. C. A. 264. The informed judgment of the Circuit Court of Appeals exercised upon a view of all relevant circum
the plaintiff upon such an appeal as that now pending. Mast, Foos & Co. v. Stover Mfg. Co., supra, was a case where the bill was dismissed, and no case has so far held that the plaintiff could obtain an affirmative decree. As we think the motion must be denied upon the merits, we leave open the question whether the plaintiff may in any event so terminate the litigation. * * It is apparent that some of the issues are different from those litigated in Ohio; they involve, not only the defendant's rights to sell Wagner's toys and manuals, but any others which it may procure elsewhere. * At best the rule in Mast, Foos & Co. v. Stover Mfg. Co., supra, is limited to those cases in which the court can see that the whole issues can be disposed of at once without injustice to the  Pending the New York appeal the situparties. Whatever may be the result here, itation underwent a radical change-the Ciris apparent that the case involves more than can cuit Court of Appeals, Sixth Circuit, reversed be so decided." 250 Fed. 250, 162 C. C. A. 386. the decree upholding petitioner's patent. Evidently the trial court had granted the preliminary injunction in entire reliance upon that decree, and after its reversal the court below properly took notice of and considered the changed circumstances. Gulf, Colorado & Santa Fé Ry. v. Dennis, 224 U. S. 503, 505, 506, 32 Sup. Ct. 542, 56 L. Ed. 860.
stances is entitled to great weight. And, except for strong reasons, this court will not interfere with its action. No such reasons are presented by the present record.
April 15, 1918, the court below reversed the challenged preliminary order. After stating that the trial court very naturally followed the Ohio District Court, it referred to the partial reversal of the decree there announced and expressed entire agreement with the Circuit Court of Appeals, Sixth Circuit, in holding the patent invalid. And, having considered the evidence relating to copyright and unfair competition, it found no adequate ground for an injunction. 250 Fed. 450, 162 C. C. A. 386. The cause comes here by certiorari. See Ex parte Wagner, 249 U. S. 465, 39 Sup. Ct. 317, 63 L. Ed. 709.
 Petitioner maintains that its motion for final decree upon the merits should have been sustained. But the appeal was from an interlocutory order and the court could only exercise powers given by statute. On such an appeal a cause may be dismissed if it *142
[1, 2] Decrees by Circuit Courts of Appeals are declared final by section 128, Judicial Code (Comp. St. § 1120), in cases like the present one. We therefore had authority to bring this cause up by certiorari and may treat it as if here on appeal. Section 240, Judicial Code (Comp. St. 1217) Harriman v. Northern Securities Co., 197 U. S. 244, 287, 25 Sup. Ct. 493, 49 L. Ed. 739; Denver v. New York Trust Co., 229 U. S. 123, 136, 33 Sup. Ct. 657, 57 L. Ed. 1101. The power of Circuit Courts of Appeals to review preliminary orders granting injunctions arises from section 129, Judicial Code, which has been often considered. Smith v. Vulcan Iron Works, 165 U. S. 518, 17 Sup. Ct. 407, 41 L. have expressed conflicting views, we cannot now declare which is right or undertake finalEd. 810; *Mast, Foos & Co. v. Stover Manu-ly to decide the several issues involved upon facturing Co., 177 U. S. 485, 494, 20 Sup. Ct. their merits. The matter for review here is
clearly appears that *no ground exists for equitable relief; but finally to decide a defendant's rights upon the mere statement of his adversary, although apparently supported by ex parte affidavits and decrees of other courts, is not within the purview of the act. He is entitled to a day in court with opportunity to set up and establish his defenses. The motion for final judgment was properly overruled. Eagle Glass & Manufacturing Co. V. Rowe et al., 245 U. S. 275, 281, 38 Sup. Ct. 80, 62 L. Ed. 286.
Petitioner's motion to enter a disclaimer must be denied.
 If the two Circuit Courts of Appeals
the action of the courts below upon the preliminary order for injunction and we may go no further. Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U. S. 301, 311, 29 Sup. Ct. 495, 53 L. Ed. 805; Lutcher & Moore Lumber Co. v. Knight, 217 U. S. 257, 267, 30 Sup. Ct. 505, 54 L. Ed. 757.
The judgment of the Circuit Court of Appeals is affirmed. The cause will be remanded to the District Court for further proceedings in conformity with this opinion.
(253 U. S. 117)
SPILLER v. ATCHISON, T. & S. F. RY. CO.
SAME v. ST. LOUIS & S. F. R. CO.
(Argued Jan. 15, 1920. Decided May 17, 1920.)
3. COURTS 383 (1)—JUDGMENT OF CIRCUIT COURT OF APPEALS INVOLVING LESS THAN $1,000 REVIEWABLE BY CERTIORARI; "FINAL
A judgment of a Circuit Court of Appeals involving less than $1,000 is made "final" by the combined effect of Judicial Code, §§ 128, 241 (Comp. St. §§ 1120, 1218), and is therefore reviewable by certiorari under section 240 (Comp. St. § 1217).
Court and granting a new trial, is not a “final judgment" if it is advisable to review such judgment without further protracting the litigation it is reviewable by certiorari under Judicial Code, § 262 (Comp. St. § 1239), authorizing the Supreme Court to issue all writs necessary for the exercise of its jurisdiction.
5. COMMERCE 95-REPARATION ORDER NOT
In an action to recover the amount awarded by a reparation order of the Interstate Commerce Commission, the order cannot be rejected as unsupported by evidence, when material documentary evidence before the commission has not been introduced before the court because of its bulk.
6. COMMERCE 95-FINDINGS OF COMMISSION NOT INADMISSIBLE BECAUSE OF ERRORS OF PROCEDURE OR IN CONCLUSION.
Under Interstate Commerce Act Feb. 8, 1887, 13, as amended by Act June 18, 1910, § 11 (Comp. St. § 8581), requiring the Interstate Commerce Commission to investigate claims for reparation in such manner and by such means as it shall deem proper, section 16, as amended by Act June 18, 1910, § 13 (Comp. St. § 8584), making its findings and order prima facie evidence, and section 17, as amended by Act March 2, 1889, § 6 (Comp. St. § 8586), authorizing it to conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice, where the essential facts found are based on substantial evidence, and there has been no denial of the right to a fair hearing, its findings and order may not be rejected as evidence because improper evidence was admitted, or the best possible available evidence was not produced or a different conclusion might have been reached.
7. COMMERCE 87-EVIDENCE HELD TO SUP
PORT FINDINGS OF COMMISSION IN REPARA-
In a proceeding before the Interstate Commerce Commission for reparation in connection with excessive freight charges on shipments of cattle, where the claims were based in most cases upon data furnished by commission houses to which the cattle were consigned, evidence that few of shippers kept books, and that they relied upon commission companies to do this, and that the companies made a practice of paying the freight, selling the cattle, and remitting the proceeds after deducting the freight in connection with the verification of the claims by the carriers, held to sustain findings that the shippers whose names were mentioned in the claims sustained damages to the extent of the excessive charges as determined by the commis
87-COMMISSION ENTITLED TO TREAT CHECKING OF CLAIMS BY CARRIERS AS EVIDENCE, AND NOT LIMITED BY QUALIFYING STATEMENTS.
4. COURTS 383(1)—JUDGMENT OF CIRCUIT COURT OF APPEALS GRANTING A NEW TRIAL REVIEWABLE BY CERTIORARI; "FINAL JUDG
Where, in a proceeding before the Interstate Commerce Commission for reparation, a summary of the claims showing the consignor, consignee, etc., were submitted to the carriers for investigation, and the carriers, in addition to check marks and other marks indicating that the items were correct, inserted waybill references, car numbers, etc., though they undertook
Though a judgment of a Circuit Court of Appeals, reversing the judgment of the District
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes