(40 Sup.Ct.) to carload and less than carload shipments, f loads, and to ascertain the cost of shipping stock and that a law of the state provided for the in the car in excess of the minimum carload inspection of cattle scales when installed weight." by railways at their cattle yards, it was pointed out that, in accordance with many adjudged cases establishing that it was a part of the duty of a carrier to install stockyards in which to hold cattle intended for shipment and to receive inbound cattle when unloaded, it had by further legislation been *75 made the duty of carriers to establish stockyards at their stations. Declaring that no difference in principle existed between the duty to furnish stockyards and the duty to install stock scales, the conclusion of the Commission was thus summed up: "After a very careful examination of the evidence in this record, this commission is of the opinion and finds that live stock scales are a necessary facility at stockyards for the weigh ing of live stock received for the purposes of shipment, not only for the convenience of the public at large, live stock buyers and individual shippers, but in the necessary weighing preliminary to properly loading and subsequent to the unloading of live stock at such stockyards, and that there is an actual public necessity for the installation of a stockyards scale at the stockyards of the defendant at its station at Albee, in Grant county, in this state." Disposing of the first of these contentions the court said: "The fallacy of the first proposition is so clear that discussion would be idle. The carrier owes no duty to the local buyer or seller of live stock until the stock is tendered at the stockyards for shipment." In passing upon the second proposition the court quoted a passage from a text-book (10 Corpus Juris, 59), in which, after stating the general duty of a common carrier to furnish appliances necessary or appropriate for discharging its duties as a common carrier, it was declared: cannot be efficiently discharged without the aid "The duty of a carrier of live stock it is said of pens or yards in which the live stock offered for shipment can be received and handled with safety and without inconvenience to the public, before being loaded in the cars in which they are to be transported and such duty is strictly analogous to the duty of the carrier to construct and maintain a secure depot for inanimate freight." Applying such doctrine the court, without citation of authority or reference to any legislative enactment or administrative practice supporting the view, and without referring to the South Dakota statutes relied upon by the Board, making it obligatory upon the carrier to put in cattle pens at all stations, without imposing any such duty to put in cattle scales, but, on the contrary, giving power only to inspect such scales when put in, held, wholly as a matter of first impression, that the identity between the two (cattle yards and cattle scales) was so complete Conforming to these conclusions, the order awarded directed the installation of a stock scale of a certain capacity “in such a manner as to permit of the weighing of live stock loaded into and unloaded from cars at that station, as well as the weighing of stock received into the stockyards at Albee." An intermediary court to which the case was removed held that as the furnishing of a stock scale was no part of the duty of a common carrier, the railway could not be compelled to furnish it without taking its property without due process of law, and that the obligation which existed to erect that this result would be all the more flag-cattle yards at every station also established rantly brought about by compelling the railway to furnish the scale upon the theory that if furnished it would afford a facility for the trading in cattle at the place where it was installed. The complainant and the Board of Railroad and Warehouse Commissioners, as appellants, in invoking the reversal of the judgment of the intermediary court and the affirmance of the order of the Board, as stated by the Supreme Court of the state, in that *76 court relied solely upon *two grounds: "First, that local buyers and sellers of live stock have the right to demand the installation of stockyard scales for their own convenience in buying live stock; and, second, that it is the duty of the carrier to furnish the shipper such facilities as will enable him to avoid underloading cars where the rate is fixed upon minimum *77 the duty to install cattle scales at every station. The judgment of the intermediary court was therefore reversed and the order of the Board affirmed. Eliminating, as this conclusion did, all the questions pressed before the Board obviously with the purpose of taking the case out of the reach of the Minnesota decision, based upon a supposed duty to put in scales because of the advantage which would result to dealers in cattle, it clearly follows that this case is decisively controlled by the ruling in the Minnesota case, and therefore leaves us only the duty to apply that ruling. Coming to do so, the judgment below is therefore reversed and the cause remanded with directions for further proceedings not inconsistent with this opinion. It is so ordered. (253 U. S. 101) 160 C. C. A. 556. The case is here upon writ WESTERN UNION TELEGRAPH CO. v. of certiorari. BROWN et al. Upon stipulation the case was tried in the (Argued Jan. 20 and 21, 1920. Decided May 17, District Court without a jury, and the court 1. SALES STATED. 1920.) An "option" is a privilege given by the owner of property to another to buy the property at his election, and the owner does not sell the property, but gives to another the right to buy at his election. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Option.] 2. CORPORATIONS 116-CONTRACT HELD A SALE OF STOCK, AND NOT AN OPTION TERMINABLE AT WILL. A contract whereby the owners of stock agreed to sell, and the other parties agreed to buy, the stock for a price payable in installments, and which provided that the stock should be deposited in escrow until final payment, and that in case of default the stock might be returned to the sellers, and all payments theretofore made should be forfeited to them, and the rights of each of the parties should cease and terminate, was a sale, and not an option terminable by the purchasers at will, as the provision for termination of the contract was for the benefit of the sellers, and hence the measure of damages for delay in delivery of a telegram stopping payment of a draft sent as a payment on the contract was not the amount of the draft. On Writ of Certiorari to the United States Circuit Court of Appeals for the Ninth Circuit. Action by George M. Brown, executor of William Lange, Jr., deceased, and another, against the Western Union Telegraph Company. A judgment for plaintiff was affirmed by the Circuit Court of Appeals (248 Fed. 656, 160 C. C. A. 556), and defendants bring certiorari. Reversed and remanded. See, also, 248 U. S. 552, 39 Sup. Ct. 8, 63 L. Ed. 418. *102 *Messrs. Beverly L. Hodghead, of San Francisco, Cal., and Rush Taggart and Francis Raymond Stark, both of New York City, for petitioner. made findings from which it appears: On March 16, 1907, W. C. Pitt and W. T. Campbell entered into a contract with Hastings and Lange for the sale of 625,000 shares of the capital stock of the Kennedy Consolidated Gold Mining Company. In this contract it was stipulated that Pitt and Campbell agreed to sell and deliver to Hastings and Lange, who agreed to buy, take, and receive from them, 625,000 shares of the Kennedy Consolidated Gold Mining Company, upon the following terms and conditions: First. The total price to be paid for the shares of stock to be $75,000 in gold coin of the United States payable $7,500 on the execution of the agree ment; $11,250 on or before the 1st day of May, 1907; and the like sum on or before the 5th of July, 1907, the 5th of September, 1907, the 5th of November, 1907, the 5th of January, 1908, and the 5th of March, 1908. It was agreed that immediately upon payment of the first-named sum Pitt and Campbell would deposit in escrow in and with the Lyon County Bank, of Yerington, Nev., certificates of stock indorsed in blank representing in the aggregate 625,000 shares of the capital stock of the mining company, and would thereupon enter into an escrow agreement with Hastings and Lange and the bank, under which agreement the bank should hold the shares of stock to be delivered to Hastings and Lange upon the payment by them of the final sum provided for, and the bank was constituted the agent of Pitt and Campbell for the purpose of receiving the payments #105 *under the agreement, and it was further agreed that in event of default by Hastings and Lange the bank should be authorized, under the terms of such deposit in escrow, to deliver all the shares of stock so deposited with it to Pitt and Campbell, and all payments theretofore made by Hastings and Lange should be forfeited to Pitt and Campbell, and that thereupon all rights of each of the parties should forever cease and terminate. Hasungs and Lange paid to Pitt and Campbell the initial sum of $7,500, and Pitt and Mr. Samuel Poorman, Jr., of Los Angeles, Campbell deposited in escrow with the Lyon Cal., for respondents. *103 *Mr. Justice DAY delivered the opinion of the Court. This is an action by Brown, executor of Lange, and Hastings to recover damages from *104 the Western Union *Telegraph Company for failure to deliver a message sent by Hastings and Lange to the Lyon County Bank, Yerington, Nev. A judgment was recovered against the telegraph company in the District Court, which was affirmed in the Circuit Court of Appeals for the Ninth Circuit. 248 Fed. 656, County Bank certificates of stock representing 625,000 shares of the stock of the mining company properly indorsed, and the bank re ceived said certificates in escrow and held the same in accordance with the contract. After the execution of the contract Hastings and Lange arranged with the bank to treat drafts that they might send it in partial payment as gold coin, and to pay the amount of such drafts in gold coin to Pitt and Campbell under said contract; that for the purpose of making the payment mentioned in the contract which became due on or before May 1, 1907, Hastings and Lange on April 27, 1907, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (40 Sup.Ct.) sent by mail from Oakland, Cal., to the Lyon [ on April 30, 1907, it would receive the draft County Bank, at Yerington, Nev., a draft for and make payment of the amount thereof to the sum of $11,250 United States gold coin, Pitt and Campbell, in which event the amount payable to the order of the bank; that the would be wholly lost to them, as they did not draft was received by the bank at Yerington, intend to continue under their contract, havNev., on April 30, 1907, some time between ing learned that the stock was of little or no 8:30 a. m., the time the bank opened for busi- value. It was further found that thereupon ness, and 9 o'clock a. m. of that day; that the agent represented that the telegraph comon April 29, 1907, before the message herein- pany would insure the immediate delivery of after mentioned was delivered to the tele- the message to the bank at Yerington if plaingraph company, Hastings and Lange were in- tiffs would pay the sum of $1.45, which sum formed and believed that the stock of the was in excess of the company's regular mining company was of little or no value, charge. Plaintiff accepted the proposal, and and upon obtaining such information they paid the sum to the agent. In the presence determined to make no further payments on of the plaintiffs the agent thereupon wrote their contract with Pitt and Campbell, and upon the message, immediately below the date to abandon their rights in and to said stock, thereof, the words, "Deliver immediately," and to withdraw from the transaction with and accepted the message for immediate transmission to the town of Yerington for imPitt and Campbell. It is further found *that mediate delivery to the bank and agreed to on the evening of April 29, 1907, plaintiffs immediately transmit and immediately decalled at the office of the defendant in Oak- liver it to the bank for the plaintiffs, and asland, Cal., and requested the agent in charge sured the plaintiffs of such immediate transto telegraph the Lyon County Bank at 1er-mission and immediate delivery thereof. The ington, Nev., as follows: *106 sum of $1.45 was in excess of the defendant's regular charge and usual toll; the usual charge for an unrepeated message being 98 cents, and for a repeated message the sum of "Oakland, April 29, 1907. "Lyon County Bank, Yerington, Nevada. "Draft mailed you Saturday under mistake. Do not pay any sum to Pitt and Campbell. | $1.47. The message was written upon a Return draft. Letter follows. "Hastings and Lange." Hastings and Lange stated to the agent of the telegraph company that it was necessary that the message be delivered to the bank be fore banking hours on the following morning, that is, before it opened for business on the 30th day of April, 1907, and desired to know of the agent in what manner they could be absolutely assured that the message would be so delivered, stating to the agent that they had a contract for the purchase of certain shares of stock of a mining company, and that payment under the contract was required to be made by them on or before May 1, 1907, to Pitt and Campbell through the bank, and that in default thereof the contract to purchase the stock would by its terms be forfeited, and the rights of the parties there to would cease and terminate; that for the purpose of making the payment they had blank form of the telegraph company, which is set forth in the findings. *108 It is further found that neither Hastings nor Lange read the printed matter on the blank, nor was either of them cognizant of the terms and conditions written thereon; the message was not repeated in the manner provided in the stipulations on the blank; that the regular course of communication by telegraph between Oakland, Cal., and Yerington, Nev., was by the lines of the Western Union Telegraph Company to Wabuska, Nev., which was the terminus of the telegraph that in order to transmit telegrams beyond company's lines for Yerington messages, and Wabuska it was necessary that they be transmitted from that point over the telephone line of the electric company to Yerington; that each of the companies received all messages offered it by the other company for further transmission, subject to the stipulations on the sum of $11,250; that in the ordinary telegraphic blanks, each company having and course of the mail between the city of Oak-charging their separate toll; that the offices of the electric company and the telegraph land, Cal., and the town of Yerington, Nev., the same would be delivered to the bank on company were both maintained in the Souththe following morning, that is to say, during the forenoon of April 30, 1907; that since mailing the draft they had learned facts touching the value of the stock which had determined them to make no further payments and to forfeit the contract and all money by them paid thereunder; that they were seek mailed to the bank a certain bank draft in *107 ing *by the message to intercept payment by the bank on account of the contract through said Pitt and Campbell; and that unless such message were transmitted, and delivered immediately to the bank before banking hours ern Pacific Railway Company station at Wabuska, and that the telephone instrument of the electric company was within a few feet of the telegraphic instruments of the telegraph company; that at the time the Southern Pacific Railroad Company employed an agent at Wabuska to attend to its railway business, and that by an arrangement between the railroad company and the telegraph company said agent was employed to attend to the telegraph business of the telegraph company at Wabuska; that by agreement between the railroad company and the graph Company; (3) that under the circumstances the telegraph company was guilty of gross negligence in failing to transmit and deliver the message. The court thereupon affirmed the judgment of the District Court for the amount of the payment, adding interest. electric company the agent of the railroad agreement upon the Western Union Telecompany was at the same time employed by the electric company to handle the telephone business of the electric company; that there was a regular stage line open between Yerington and Wabuska in April and May, 1907; that the distance between Yerington and Wabuska was approximately 11 miles, and could be traversed in the stage in about 11⁄2 hours. *109 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. [1] 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 further found that, if the telegraph [2] What, then, is the nature of this agreecompany had proceeded with reasonable ment? It contains the positive undertaking promptness to transmit and deliver the mes- of the owner to sell and the purchaser to buy sage to the bank, the same would have reached Yerington before the bank had re- 625,000 shares of stock upon terms which are ceived the draft mailed to it as aforesaid, named. Upon the first payment being made, and it would not have placed the amount rep- the certificates are to be deposited with the resented thereby to the credit of Pitt and bank in escrow, to be delivered when the final Campbell, or either of them, or paid any payment agreed upon is made, and in event amount thereon; that by reason of the gross of default in payment the bank is authorized negligence of the telegraph company the mes- to deliver the shares of stock to Pitt and sage was not delivered to the bank until May Campbell, and all payments are to be forfeit2, 1907, between the hours of 8:30 and 9 a. m.; ed, and the rights of the parties to cease and that the bank had received the draft, and determine. We are of opinion that this is thereafter, on April 30, had paid over the far more than a mere option to purchase, amount thereof in gold coin to Pitt and terminable at the will of the purchaser upon 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 not make any further payments on the purchase price of said shares of stock, but abandoned the contract with Pitt and Campbell and forfeited and lost all moneys paid thereon. 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 *110 by the buyers' failure to *make the payments required; (2) the oral agreement for the transmission of the message was a binding *111 fault in payment. The findings de not show whether Pitt and Campbell took back the stock upon default of subsequent payments. There was no understanding that Pitt and 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 C. S. 323, 30 Sup. Ct. 528, 54 L. Ed. 782, 19 Ann. (40 Sup.Ct.) *113 ter*minable by the purchasers at their will. Stewart v. Griffith, supra. Cas. 639, is controlling upon this point. Intains 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 *112 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 opinion. Reversed. (253 U. S. 136) MECCANO, Limited, v. JOHN WANAMAKER, NEW YORK. (Argued Jan. 26 and 27, 1920. Decided May 17, *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. ORDER GRANTING TEMPORARY INJUNCTION RE- 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 trial court. 4. APPEAL AND ERROR ~954(1)—GRANT OR For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |