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adjustment of the situation which would have made any extension useless. Those negotiations were not in accord with any powers given by the contract, but were commendable efforts to arrive at a mutually satisfactory solution of the difficulty. Promptly upon their failure the buyer exercised its election to extend the contract. Under these circumstances it acted within the terms of the contract.

[4] (c) Proper Extension under Contract. The seller claims that the attempted extension of the contract was not of the character allowed by the contract, since it was entirely indefinite as to time. It is true that the buyer, in making its extension, did not designate any certain date for its termination. Respecting this power of extension, the contract could hardly be broader than it is. It does no more than set out the condition which authorizes the exercise of the right and the requirement that it be then exercised promptly.

Ordinarily, where time of contract performance is limited, a failure

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it shipped, and you have no right to refuse to follow the instructions as agreed in our exchange of telegrams."

Same date, another letter from buyer: “We are in receipt of your letter of the 10th.

Inasmuch as we have this wheat sold to go to Galveston for export, we would not be able to tender ladings showing destination at some other point, therefore, we would be unable to accept other ladings until some satisfactory arrangements could be made. We are willing to grant an indefinite extension of the contract until further notice. We, ourselves, have a great deal of wheat here still tied up on the tracks, which we wish to go to Galveston, and which we will be unable to ship until the embargo has been removed."

August 13th, wire from buyer: “Will cancel balance our Galveston contract 95¢ export. Answer by wire immediately.""

Same date letter from seller: “We are in receipt of your favor of the 11th and Dote fully what you have to say. Also your message this morning, stating that you will cancel balance of your wheat, your Galveston contract with us at 95€ esport. We also note that you understand that Chicago is bidding relatively no more. We did not answer by wire as your proposition is entirely out of line.

All of the other exporters of Chicago and Kansas City, as well as St. Louis, to whom we had wheat sold on Galveston terms, are now giving us either Kansas City or Chicago billing on this wheat. These billing orders are all on wheat which was to be shipped either during August or September. Our contract with you, however, expired August 1st. Our attorney advises us that contracts of this character cannot be extended by one party, without the consent of the other. It would be a different proposition if we did not have the wheat ready to deliver. By extending the time for us, you would cause us an injury, as we have this wheat on hand, and are compelled at this time to ship it some place in order to realize on it, as we are blocked up with wheat and need the money."

August 14th, letter froin buyer: “Yours of the 13th. We suggest that you get you another attorney. We have not canceled your contract and you are at liberty at all times, in case you could not hold the wheat longer, to suip it in accordance with our original instructions. We wired you on August 1st [Pd], asking you to please hold up the shipments for further instructions, on account of the congested conditions, but we have not canceled the contract, nor have we turned down any of your drafts. The buyer has the right to extend the time without the consent of the seller, although it is optional with the seller whether he accepts the extension or not, however, it is optional with the buyer, in case the contract has expired, to extend, buy in, or cancel. We have elected to extend the time and will thank you to make the shipments in accordance with the original instructions unless we agree to the contrary later."

to complete within the period is a finished breach, with its attendant damage liability. However, this contract provided that the buyer might elect to waive the breach and extend the time for performance. The position of the seller regarding this contention is based upon a misconception of the meaning of the contract. This is not a contract where performance must be upon a certain day. If it were, the seller might be correct in its contention. But this contract provided for delivery during any day of July after its execution. Any extension under the contract was intended by it to be of similar character. This contract, by “extension," means not the fixing of a definite future date upon which delivery must be made, but an additional period during every day of which the seller may make delivery. In no way can the seller be injured by an extension; nor by an indefinite extension, because every day of the extension is an additional opportunity, uncontrolled by the buyer, for it to perform its contract. The buyer does not have to grant any extension; it can claim the advantage of the breach caused by the seller. If it does extend, it can be for as short or as long a period as it may elect. If it chooses to set a definite date, that simply marks the end of the extension, and limits the time within which the seller must deliver. It is obvious that, if the delivery continues in default, the buyer would ultimately have to prescribe a definite date for terminating the extension. But there is no requirement in the terms of the contract, as expressed or as implied by law, to require such date to be determined at the time the extension is granted, and the seller may on any day terminate the extension by full performance.

In this case the buyer was eminently fair concerning this extension. More than once the seller expressed its willingness and desire to deliver as soon as the embargo would permit. In the midst of the embargo, when apparently neither party could estimate its duration, the buyer granted an indefinite extension until further notice at a time when it wanted the wheat as soon as it could get it. From that time on it stated the seller was “at liberty at all times” to deliver. In giving its “further notice” it was entirely reasonable. As soon as the embargo was lifted, and delivery made possible, the buyer repeatedly (from August 28th to September 2d) by wire requested delivery. Its requests were not even acknowledged. Finally, upon September 3d, it wired:

“Will extend your contract until September 15th, providing you wire us you will ship wheat. Otherwise please wire authority buy for your account. Must have definite understanding immediately.”

Seller ignoring this, the buyer on same date again wired:

"Account your failure to respond to our wires, will buy best advantage for your account wheat due us."

To which, same date, seller wired:

“We consider contract to ship additional wheat canceled will not agree to extension of contract will not authorize you to buy for our account we are under no obligation to take any further steps in the matter.”

Whereupon the buyer went into the market and bought grain, with the resulting loss here in suit.

[5] The extension was seasonably made, it was within the terms of the contract, it has been fairly acted upon by the buyer, the contract was breached by the seller on September 3d, and the measure of damage was of that date.

The judgment should be reversed and remanded, with instructions to enter judgment for plaintiff on the merits for $6,359.50 and interest thereon from the 3d day of September, 1914.

CITY OF OMAHA V. VENNER.

(Circuit Court of Appeals, Eighth Circuit. March 14, 1917.)

No. 4757.

1. APPEAL AND ERROR Eww1S4-JURISDICTION-ADEQUATE REMEDY AT LAW

WAIVER OF OBJECTION.

Where the subject-matter of a suit is within the jurisdiction of a court of equity, the objection that complaint had an adequate remedy at law will not be considered, when made for the first time in the appellate court.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. $8 1149,

1150, 1179–1183.) 2. MUNICIPAL CORPORATIONS Om921(1)—Bonds-SALE-RESCISSION-MISTAKE.

Complainant submitted a bid for an issue of bonds of the city of Omaha, which was accepted, and was based on a circular sent out by the city inviting bids, and containing a financial statement which, inter alia, gave the "valuation for assessment purposes 1912, estimated,” of the property in the city, at $164,167,720. Rev. St. Neb. 1913, 8 6300, provides that all property subject to taxation "shall be valued at its actual value, and shall be assessed at 20 per cent. of its actual value." The valuation given in the circular was the actual value as fixed under such statute, and the assessed valuation was one-fifth of that amount, but such fact was not stated and was not known to complainant. His bid was in the expectation of reselling the bonds to savings banks in New York and other Eastern states, by whose laws such bank were permitted to invest in bonds of municipalities whose net indebtedness should not exceed 7 per cent. of the valuation of their property for taxation. The indebtedness of Omaba was within such limit if the valuation given in the circular were taken, but largely exceeded it upon the assessed valuation. The attorney general of New York had ruled that in such cases the assessed valuation was to be taken. Held, that whatever construction should be placed on the statement of the circular or upon the statutes of the states limiting investnients by savings banks, they were sufficiently uncertain to entitle complainant to be relieved from his bid on the ground of mistake in supposing that the statement referred to assessed valuation.

(Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 1932, 1935.) Appeal from the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge.

In Equity. Suit by Clarence H. Venner, doing business as C. H. Venner & Co., against the City of Omaha. Decree for complainant, and defendant appeals. Affirmed.

The appellee brought this action against appellant to obtain a rescission and cancellation of a contract arising out of a bid by him

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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and the acceptance thereof by appellant for certan municipal renewal bonds, and to recover the sum of $5,000 earnest money deposited with the bid. The district court granted the relief prayed for and appellant appeals. The material facts as shown by the record are substantially as follows:

Appellee is a dealer in investment securities in the city of New York. Early in April, 1912, he learned of a proposed bond issue by appellant on receiving from it a circular dated at Omaha, Neb., March 28, 1912, and signed by Fred H. Cosgrove, city comptroller. The circular stated that sealed bids would be received by the city council of the city of Omaha up to 8 o'clock, p. m. of the 16th day of April, 1912, for the bonds described in the circular, viz. 600 bonds, of the denomination of $1,000 each; that bids must be accompanied by a certified check in the sum of $5,000, to be regarded as liquidated damages in case of failure on the part of the successful bidder to carry out his contract; that bids should be subject to bonds having been legally and regularly issued. The circular contained among other information, under the heading "Financial Data," the following: Bonded debt including these issues.

$ 6,120,000 00 Valuation for assessment purposes, 1912, estimated...... 164,167,720 00 Tax rate for all purposes 1912 per one thousand dollars...

12 96 Debt limitation 5 per cent. of valuation as above.

At the time appellee was considering the above proposal he had in his possession another circular signed by the city treasurer of appellant for the sale of bonds, dated July 15, 1911, which contained among other information, under the heading “Financial Data," the following: Assessed valuation

$151,331,701 00 Tax rate per one thousand dollars.

12 58 On April 13, 1912, by letter addressed to the city council of appellant, apnellee made an offer for all the bonds mentioned in the circular dated March 28, 1912, of 102.513 per cent., plus accrued interest, and accompanied the offer with a certified check for $5,000, payable to appellant in accordance with the requirement of the circular. Appellee relied upon the statements contained in the circular, and made his bid with reference to a sale of the bonds to savings banks in the states of New York, Massachusetts, New Hampshire, Vermont, and Rhode Island, which banks paid a higher price than that of the general bond market.

The law of Vermont conditioned the right of sarings banks to purchase municipal bonds upon the fact that the municipality issuing the bonds did not have an indebtedness exceeding 7 per cent. of the last preceding valuation for the assessment of taxes.

The New Hampshire statute provided that the net indebtedness of the municipality issuing the bonds should not exceed 7 per cent. of the last preceding valuation of the property therein for taxation.

The Rhode Island statute provided that the net indebtedness of the municipality should not exceed 7 per cent. of the valuation of the taxable property therein for the assessment of taxes.

The Massachusetts statute provided that the net indebtedness of the municipality should not exceed 7 per cent. of the valuation of the taxable property therein, to be ascertained by the last preceding valuation of property therein for the assessment of taxes.

The New York statute provided that, if the indebtedness of the municipality should exceed 7 per cent. of the valuation for the purpose of taxation, its bonds and stocks should thereafter and until such indebtedness should be reduced to 7 per cent. of the valuation for the purposes of taxation, cease to be an authorized investment for the moneys of savings banks.

The bid of appellee was accepted by appellant April 17, 1912. On April 18, 1912, appellee was informed for the first time that the bonds of appellant as investments for the savings banks of New York had been decided invalid by the attorney general of that state. The attorney general had so decided

in December. 1911. Opinions of Attorneys General, New York, 1911, p. 686 Upon receiving this information, appellee wired Cosgrove, city comptroller or appellant: “We are informed that assessed valuation of Omaha is only onefifth of amount stated in city circulars upon which we relied in making bid. Please wire explanation." April 19, 1912, appellee received a telegram from Cosgrove reading as follows: "Assessment made on one-fifth actual valuation." On same day appellee wired Cosgrove as follows: "Wire us exact amount assessed valuation for this year, also for 1911." On April 20, 1912, appellee received from Cosgrove a night letter reading as follows: "Exact assessed valuation for 1911 is $30,376,213; for 1912, $31,779,681. Full valuation or as stated in circular; valuation for assessment purposes is five times above amount. Debt limit based upon full valuation."

On the same day appellee mailed the following letter to Cosgrove, comptrol. ler:

“New York, April 20, 1912. "Fred H. Cosgrove, Esq., Comptroller, City of Omaha, Nebraska.

Dear Sir: In reference to the $600,000 of city of Omaha bonds awarded to us, we telegraphed you on the 18th instant as follows: [Set out above.] We received your telegram on the 19th (dated the 18th), as follows: (Set out above.) As your telegram did not give us the necessary information, we wired you on the 19th as follows: [Set out above.] In answer to this last telegram we have received your telegram as follows: (Set out above.] In your circular dated March 28, 1912, inriting bids for the $600,000 of bonds, you stated, among other things, in reference to the financial condition of the city : Valuation for assessment purposes, 1912 (est'd.), $161,167,720.'

"This appearing to be an estimate, we inferred that the assessment rolls for 1912 had not been finally completed, and that the figures given were approximately correct. But to further assure ourselves with respect to the assessed valuation, we consulted our files, and found the circular dated July 15, 1911, signed Frank A. Furay, city treasurer, which invited proposals for $379,000 city of Omaha street improvement bonds. Among the other items set forth in said circular was, 'Assessed valuation, $151,331,701.'

"Construing the two circulars, we concluded that the assessed valuation for purposes of taxation for the year 1912 would show an increase of some $13,000,000 over the assessed valuation for 1911. It appears, however, from your telegram received to-day, that the exact assessed valuation for 1911 was only $30,376,213, and that for 1912 the exact assessed valuation is $31,779,681.

"The facts and figures above set forth raise a very interesting question. You are aware, as doubtless your predecessors have been, that the market for Omaha bonds, which has enabled the city to realize high prices for them, bas been confined largely to the savings banks of certain Eastern states, which, by the laws affecting them, are permitted to invest their funds in the bonds of certain cities whose net indebtedness does not exceed a certain percentage of the assessed valuation of property in such cities. In New York state the percentage is 7 per cent., and in the other states 5 per cent.

"We bid for these bonds upon the faith of the representations contained in the circulars above referred to, to wit: "'Assessed valuation for 1911...

$151,331,701 “ 'Estimated assessed valuation, 1912.

164,167,720 -for the purpose of selling them to savings banks of the several states which would be legally allowed to buy them, if either of said statements of assessed valuation for 1911 or 1912 had been correct.

"You can imagine, therefore, that we are now considerably surprised to learn that the figures given for 1911 and 1912 are five times the amount of the assessed valuation. Under this condition, is apparent that the bonds of the city of Omaha are no longer a legal investment for the banks in the states of New York, Maine, New Hampshire, Vermont, and Rhode Island, and we have just learned that the attorney general of the state of New York has so ruled in respect to this state.

"It is hardly necessary to call your attention to the fact that, with such a market closed to them, the bonds are not as valuable as they would otherwise

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