after the bond was obtained any more than before." The Act of February 5, 1903 (32 Stat. 797), denied the discharge where a person obtained property on credit; the amendment of June 25, 1910, enlarges the provision to "money or property," but does not change the relation or status of the parties. The bond, not being property, is not made money by the amendment, supra. The demurrer is sustained. son Co. v. United States, 266 U. S. 438, 45 S. Ct. 153, 69 L. Ed. 369. The value asserted by this document to exist in petitioner's railway is made up of a number of items, to the propriety of several of which items petitioner excepted within the time specified by law, but by silence it acquiesced in and it is said agreed to all the other items which went to make up the aggregate valuation declared by the Commission. Apparently some three years later, but while the petitioner's objections to tentative valuation were still pending, the Commis 'd 273 JJ 6 59, 71sion, by a document called an order, practi По 823.47 sup. 1·334 NEW YORK, O. & W. RY. CO. v. UNITED cally reopened the valuation proceeding in respect of items never objected to or excepted to by petitioner, and by similar order fixed dates for the taking of evidence apparently in support of changes the Commis (District Court, S. D. New York. May 31, sion desired to make in its own findings. 1926.) Commerce 92-Court held without jurisdicdiction to enjoin Interstate Commerce Commission from proceeding under so-called order practically reopening valuation proceedings; "any order" (Comp. St. § 993). Judicial Code, § 207 (Comp. St. § 993), giving District Court jurisdiction of suits to enjoin, annul, or suspend "any order" of Interstate Commerce Commission, does not include orders relating to practice or procedure of Commission, and gives court no jurisdiction of suit to enjoin Commission from proceeding under socalled order practically reopening valuation proceedings in respect to items not excepted to by railroad. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Any.] In Equity. Suit by the New York, Ontario & Western Railway Company against the United States, with the Interstate Commerce Commission as intervening defendant. On motion for preliminary injunction. Petition dismissed. 66 Thereupon petitioner brought this proceeding under Judicial Code, § 207 (Comp. St. § 993), giving jurisdiction to a court thus constituted to hear and determine cases brought to enjoin, set aside, annul, or suspend in whole or in part any order of the Interstate Commerce Commission." The substantial complaint here is that the conduct of the Commission is not only annoying, expensive, and oppressive, but unlawful, in that it erroneously construes that section of the statute which declares that tentative valuations of the property of common carriers shall be completed and notice thereof shall be given "by registered letter to the said carrier." And the Commission "shall allow thirty days in which to file a protest of the same with the Commission. If no protest is filed within thirty days said valuation shall become final as of the date thereof." The hereinabove recited conduct of the Commission practically interprets this statC. L. Andrus, of New York City, for pe- ute to mean that, if a carrier files a protest titioner. Blackburn Esterline, Asst. Sol. Gen., of Washington, D. C., for the United States. P. J. Farrell, of Washington, D. C., and Oliver E. Sweet, of Rapid City, S. D., for Interstate Commerce Commission. Before ROGERS and HOUGH, Circuit Judges, and BONDY, District Judge. PER CURIAM. The petitioner's railroad, like the property of other transportation companies, has been valued by the Interstate Commerce Commission, which duly filed the tentative valuation, a document sufficiently described in Delaware & Hud to one item within thirty days, the Commission is at liberty to reconsider all the rest of the items whenever it pleases, and this is said to be unlawful. We are of opinion that this is a serious question, but are compelled to the conclusion that we have no power at present to consider it. It is quite true that the petitioner here asserts a complete lack of lawful power in the Commission to make the order complained of. But that was exactly the case in United States v. Illinois Central, 244 U. S. 82, 37 S. Ct. 584, 61 L. Ed. 1007. Yet it was there held, on the authority of Procter v. United States, 225 U. S. 282, 32 S. Ct. 761, 56 L. Ed. 1091, that, although the statute 14 F. (2d) 851 says that suits may be brought to annul, etc., "any order of the Interstate Commerce Commission," that does not mean every order of the Commission, but only those mandates which compel "the doing or abstaining from doing of acts embraced by a previous affirmative command of the Commission." Therefore orders relating to practice or procedure could not be made the subject of suits like this one. man, to take the deserter's place, I accept the master's version that libelant approached him and told him that he knew a man who would come with a book that was satisfactory, and that the master told him he would see the man. The man came, and was satisfactory to the master; but there were seven Arabs in the engineers' department, besides the libelant, who were of a different tribe than the libelant and the man he had brought, and those men refused to work with the man libelant had brought, and said they could get a man of their own tribe, whereupon the master declined to ship the man brought by the libelant. From that time the libelant insisted on being paid off, although the matter had been taken before the British consul, who advised libelant to return to the ship, There has been no affirmative order of the Commission; there is merely a direction that evidence be taken tending to change a previous finding of the Commission itself; non constat that that finding will ever be changed. If it is, another question will arise. All we can say now is that under the cases cited the petitioner cannot presently complain. Let the petition be dismissed, without but libelant refused. costs. THE HAVENSIDE. Libelant claims he asked the master to pay him one-half of his wages. This is denied by the master, but even if the master is in error, and the libelant did at any time ask him for one-half of the wages due him, it was only after the libelant had deter (District Court, E. D. New York. August 9, mined to leave the ship, and, finding that 1926.) No. 8325. he could not get full pay, he was willing to take one-half pay. The intention of the libelant to desert the ship seems to be plainly established by the testimony of the libelant and his own witnesses, and therefore he is not entitled to prevail in this action. The Belgier (D. C.) 246 F. 966; The Tairoa (C. C. A.) 297 F. 449; The Pinna, 255 F. 642, 167 C. C. A. 18; The Italier, 257 F. 712, 168 C. C. A. 662; The Hougomont (C. C. A.) 272 F. 881; Vernon Hart et al. v. Schooner Nancy (D. C.) 11 F.(2d) 318, 1926 A. M. C. 491. The excuse for leaving the ship offered by the libelant, that he feared the other Peter Baumer, of New York City, for Arabs would murder him, seems to me to libelant. Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City, for claimant. CAMPBELL, District Judge. Libelant is seeking to recover the sum of $233.30 as wages. The Havenside is a British vessel. Libelant signed articles on her as a donkeyman, and was on board in that capacity when the vessel arrived in New York, on August 26, 1926. On August 29th the libelant asked for and received from the captain an advance of $20. While in the port of New York one of the firemen deserted, and, although there is a sharp conflict in the testimony as to whether the libelant volunteered to get a man, or the master directed the libelant to get a have been without foundation, because, while he was of a different tribe than the other seven Arabs who were on the ship, he had not had any trouble with them, notwithstanding the fact that he had sailed in the same ship with them on a previous voyage and for four months on this voyage, and while the Arabs of the crew objected to the new man, who would undoubtedly have been thrown into close contact with them as a fireman, the evidence does not convince me that they objected to the libelant, who as a donkeyman appears to have been in a position which did not bring him into such close association with the other Arabs. The libelant should have accepted the advice of the British consul before whom he brought the master of the ship, and re turned to the ship, which he refused to do, and thereafter, on the master's refusal to pay him off, the libelant took his effects and went ashore, whereupon the master recorded him in the log book as a deserter. Later a supplemental agreement fixed a definite price. Held, that such agreement was not avoidable for fraud, because seller did not advise buyer that it was then in negotiation with another company, which resulted later in a contract at a lower price. A decree may be entered, dismissing the 7. Interest 19(1)-Denial of liability on libel, without costs. 1. Sales 89-Memorandum signed by parties to contract for sale of coal held to modify original contract by fixing definite price. A contract by a railroad company for purchase of 150,000 tons of coal, with daily deliveries, provided that the price should be the same as was received by seller under contracts with other railroads. The contract did not become effective when intended because of a strike, and the parties later signed a further agreement that deliveries should then commence, and the coal should be "billed at the rate of $3.50 net ton." Held, that such agreement modified the original contract by fixing a defi nite price. 2. Sales 75. Contract for sale of coal, providing that seller should bill it to buyer at stated price, has the effect of fixing the price. 3. Words and phrases-"Bill.” "Bill," as a verb, as generally and customarily used in commercial transactions, is synonymous with "charge" or "invoice." [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Bill; Charge; Invoice.] 4. Sales 75-Shipment, acceptance, and payment for coal at price named in contract held practical construction of contract as to price. Where a contract for sale of coal for daily deliveries provided that it should be billed at a stated price, such billing, and acceptance and payment for shipments, for four months, was a practical construction of the contract, which precluded either party from claiming that such price was tentative only and subject to revision, 5. Sales 89-Agreement modifying contract held not without consideration. A subsequent memorandum, executed by the parties to a contract fixing definite price in lieu of provision of original contract, held not without consideration, when modifying original contract in several other respects to the advantage of the buyer. 6. Sales 38 (5)-Supplemental agreement for sale of coal held not invalid for fraud or deception, though seller did not inform buyer of certain facts. A contract for sale of coal to a railroad company provided that the price should be the same as received by seller from other railroads. contract does not make sums due by its terms unliquidated and not subject to interest. Where the amounts due under a contract of sale were fixed by its terms, buyer cannot avoid payment of interest on the ground that, because it denied liability, the claim was unliquidated. 8. Interest 28-Where interest is awarded merely as damages for breach of a contract, the rate is governed by the law of the state where the court sits. Where interest is not specified in a contract, but is awarded merely as damages for its breach, the rate is governed by the law of the state where the court rendering judgment is located. At Law. Action by the George M. Jones Company against the Canadian National Railway Company and others. Trial to court, and judgment for plaintiff. Warren, Cady, Hill & Hamblen, of Detroit, Mich., and Tracy, Chapman & Welles, of Toledo, Ohio, for plaintiff. H. R. Martin and L. J. Carrigan, both of Detroit, Mich., for defendants. TUTTLE, District Judge. This is an action brought by the George M. Jones Company, an Ohio corporation, against certain railroad companies, constituting and known as the Grand Trunk Railway System (which will be hereinafter referred to as the defendant), to recover approximately $57,000 alleged to be due, for principal and interest, as the unpaid balance of the purchase price of approximately 150,000 tons of coal sold and delivered by plaintiff to the defendant under a written contract as later modified. A jury has been waived by the parties in the statutory manner, and the cause heard by the court without a jury. The material facts and ques tions involved are as follows: [1] On November 25, 1921, the parties entered into the following written contract for the sale of said coal: "Bought of the Geo. M. Jones Company, Toledo, Ohio: "Quantity. 150,000 tons, to be shipped at the rate of not less than ten cars daily after April 1, 1922. The shipment of this total tonnage is not to be affected by suspension of mining operations. "Kind and Grade. Hocking mine run from mines of the seller located on the H. V., T. & C. C. or Z. & W. Railways. Quality to 14 F. (2d) 852 be satisfactory to the Grand Trunk Railway wire if you will be in Montreal on that date." System. "Price. Per net ton of 2,000 lbs. f. o. b. cars mine. To be the same as paid the seller by other railroads on contract for mine run coal from the Hocking district at the time this contract becomes effective. September 28, 1922, Mr. Caye wired Mr. Thomas: "Yes, will be in Montreal Thursday this week." September 28 and 29, 1922, Mr. Thomas, representing plaintiff, and Mr. Caye and his assistant, George H. Jenkins, representing the defendant, conferred on this "Terms. Payment on or before the 25th subject at the offices of the defendant in Monof each month for all coal shipped during the treal, and as a result of that conference, and previous month. The buyer agrees to fur- at its conclusion, on September 29, the folnish Grand Trunk System cars for all ship- lowing communication was dictated by Mr. ments covered by this contract. Jenkins to his stenographer in his office, "Delivery. Approximate monthly ton- handed to Mr. Caye and read and signed by nage, 12,500 tons. him, and then handed to Mr. Thomas and read "Expiration. This contract expires when and signed by him; one copy being left with the 150,000 tons have been shipped. the defendant's officers and the other taken "Weights. Railroad weights at point of away by the plaintiff's representative: shipment to govern all settlements. "Prompt payment is of the essence of this contract; and if default shall be made by the buyer in the payment of any amount that may be due hereunder as the same falls due, this contract may be cancelled at the option of the seller. "The prices named in this contract are based on the present mining rate, and shall advance or decline as said mining rate shall advance or decline, during the life of this contract." From April 1, 1922, until the latter part of August, 1922, a general miners' strike was in progress, and no coal was shipped by the plaintiff to the defendant, or to any other railroad company during that period. No objection nor complaint was made by the defendant to this failure to make shipments, both parties recognizing and acquiescing in the impossibility of shipping in accordance with the terms of this contract. Immediately on the termination of the strike, and on August 29, 1922 (before there had been any other communications, acts, or conduct of either of the parties with respect to the performance or breach of the contract in question) the general purchasing agent of the defendant, George W. Caye, wired the plaintiff as follows: "What are your plans for shipping us coal agreed upon last November and what are your price views on same." On the same day the defendant answered this wire with the following telegram: "We are just getting our mines started. Expect to be able to advise you something definite about shipments not later than first of next week and will see you to discuss price a little later." September 25, 1922, the general sales manager of the plaintiff, H. D. Thomas, wired the general purchasing agent of the defendant as follows: "Would like appointment with you for Thursday to discuss contract. Please "Geo. M. Jones Coal Co., Toledo, OhioGentlemen: Referring to conversation with your Mr. H. D. Thomas in Montreal to-day, in regard to shipments to be made to apply on 150,000 ton contract of November 25, 1921, it is understood you will endeavor to commence shipments in the early part of next week at rate of about 15 cars per working day, using drop bottom equipment. "We will at once take up with our car service department at Chicago and see if they are in a position to commence delivering empties for the above, and will advise you shortly what they say. In the meantime, please make every effort to secure foreign shipments until our cars arrive at mines. "It is possible the 15-car arrangement referred to above may be altered up or down to meet our requirements, and if necessary to do this it is understood you will meet our wishes as far as practicable. "Cars should be consigned to our company at Gillen Yard, Mich., and routed over Shore Line from Toledo. "It is understood above coal will be billed to us at the rate of $3.50 net ton on cars at mines, and that shipments will be made from points on Hocking Valley, taking present rate of not exceeding $2.37 to Gillen Yard, Mich. "Quality of coal to be satisfactory to us. "If the foregoing is in accordance with your understanding, please acknowledge receipt by initialing one copy of this letter. "Yours truly, "Geo. W. Caye, Gen. Pur. Agent. "Accepted: The Geo. M. Jones Co., H. D. Thomas, Sept. 29, 1922." Beginning October 3, 1922, and continuing until the spring of 1923, plaintiff shipped to defendant slightly more than the quantity of coal required by this contract, all of which coal was accepted and used by defendant. During the same period plaintiff sent to de fendant invoices for all of this coal at the rate of $3.50 per ton, and defendant paid plaintiff at such rate for all of such coal, except about 14,000 tons, the invoices for which last-mentioned quantity were approved for payment by the defendant's fuel department, but rejected by its treasury department after the defendant had taken the position, early in 1923, that the $3.50 rate was not a definite, final price, but merely a tentative, temporary figure. At no time between April 1, 1922, and October 1, 1922, was there any contract in force between the plaintiff and any railroad company for the sale of coal, although on September 28 and 29, 1922, negotiations were pending between the plaintiff and the New York Central Railroad Company, which resulted in the making of such a contract between them on October 2, 1922, effective for a three-year period commencing September 10, 1922, at a price of $3 per ton. After September 29, 1922, the market price of coal declined over the period during which the plaintiff was making the shipments to the defendant already mentioned. On January 16, 1923, the plaintiff wrote to the defendant as follows: "As an inducement to you to extend your contract, and subject to prompt acceptance, we desire to submit the following proposition: If you will extend your contract for an annual tonnage of 150,000 tons per year for two years from April 1, 1923, when our present contract shipments should be completed, we will refund you 25 cents per ton on all shipments made under our present contract, or, if you prefer to extend the contract for a period of only one year for the above annual tonnage, we will refund you 25 cents per ton on the last 75,000 tons shipped under the present contract." On January 31, 1923, the general purchasing agent of the defendant wrote to the plaintiff as follows: "Will appreciate it if you will advise your views about final price to be paid for the coal shipped on order for 150,000 tons. You will recall original arrangement made November, 1921, did not fix a specific price; instead, the price was to correspond with that being paid by other railroads for their contract coal in your district. "When Mr. Thomas was here in September last, the billing price suggested at that time was $3.50, and which has been used ever since. It was not my understanding, however, that $3.50 was final price, and in agreeing to it for the time being felt fair adjustment could be made at a later date, when the situation became clearer than it was then. "Advices relative to our arrangement on above subject have been furnished by this office to our management, and in a little while it will be necessary to make a more specific report about the price feature. For this reason will appreciate your views at an early date." This appears to have been the first statement made by the defendant to the effect that the price referred to was not a definite, final price. Plaintiff did not acquiesce in this claim of the defendant, and after considerable correspondence between the parties plaintiff commenced this action to recover on the basis already stated, claiming that the communication of September 29, 1922, hereinbefore quoted, evidenced and expressed an agreement between the parties modifying the original contract of November 25, 1921, and definitely fixing a price of $3.50 per ton for the coal thereafter shipped to, and accepted by, the defendant under such contract as so modified. Plaintiff claims also interest on the unpaid balance and on deferred payments made after the time agreed on for monthly payments under the contract. Defendant urges four, contentions in its defense, as follows: (1) That the effect of the memorandum of September 29, 1922, was not to modify the original contract by fixing a definite final price of $3.50 per ton, but merely to provide a tentative, temporary price at which the coal should be shipped to the defendant pending a later readjustment of such price in accordance with the terms of the contract as originally executed; (2) that, if such memorandum be construed as providing for such a final price, there was no legal consideration for such a modification of the original contract, and such a modification, therefore, cannot be enforced; (3) that, if such memorandum be construed as evidencing such a modification, it was procured by the failure of plaintiff to disclose to the defendant, on September 29, 1922, the then pendency of its negotiations with the New York Central Railroad Company, which resulted, on October 2, 1922, in the closing of its contract with said railroad company for the sale to the latter of coal at the rate of $3 per ton; and (4) that, if the defendant be liable to the plaintiff for the balance claimed, the amount of such balance has been unliquidated; and that, therefore, plaintiff is not entitled to the interest which it claims thereon for the period prior to the entry of a judgment herein. These defenses and the questions thereby presented will be considered in the order named. [2, 3] 1. I cannot agree with the contention. |