defendant in the Wildcat suit. The general rule is that the intervener is in the same situation, bound by the same orders, has the same right, and is subject to the same estoppels as though he had been a party from the commencement of the suit. French v. Gapen, 105 U. S. 509, 525, 26 L. Ed. 951; Rice v. Durham Water Co. (C. C.) 91 Fed. 433, 434.

When Jackson intervened he expressly declared in his answer and cross-bill that he submitted to all the orders, judgments, and proceedings theretofore had in the Wildcat suit as fully as though he had been a party defendant from the commencement of the suit. The order and contract of lease between the court and the Panther were a part of the proceedings theretofore had to which he submitted. Under these circumstances there is no persuasive reason why he, or his assignee, Swift, should be relieved from the general rule of equity practice, or from Jackson's express submission to the previous orders and proceedings in the Wildcat suit, while, on the other hand, equity and justice alike demand that they should not be so relieved, and the conclusion is that they are both estopped, by the order and agreement of the court and the intervention of Jackson, from applying any part of the three-fourths working interest, or of the proceeds thereof, thereby assured to the Panther free from the claims of the parties to the Wildcat suit to the payment of the rents reserved in Jackson's lease of November 13, 1913.

[3] Finally, it is insisted that the decree for the injunction should be reversed, because section 18 of the act of October 15, 1914, entitled "An act to supplement existing laws against unlawful restraints and monopolies, and for other purposes," provides:

"That, except as otherwise provided in section 16 of this act, no restraining order or interlocutory order of injunction shall issue, except upon the giving of security by the applicant in such sum as the court or judge may deem proper, conditioned upon the payment of such costs and damages as may be incurred or suffered by any party who may be found to have been wrongfully enjoined or restrained thereby." 38 Stat. 738, c. 323 (Comp. St. 1916, § 1243b).

And the court below ordered and issued its injunction without compelling the Panther to give any bond, although counsel for Mr. Swift moved the court to require it.

But the restraining order and injunction in this case were issued by the court below, in lieu of proceedings for contempt of that court, to prevent the impairment and defeat of the just exercise of its undoubted. jurisdiction to protect and enforce its lawful orders and to preserve the title made by it under them. The unlawful interference of Mr. Swift with the enforcement of the just orders and the preservation of the lawful titles made by the court below was a contempt of that court, and, if continued, might well have been punished as such. The issue of the injunction was but a milder method of protecting its jurisdiction, orders, and titles from unlawful impairment. There is nothing in section 18 to indicate, and, until that intention is clearly expressed, it cannot be presumed that the Congress intended thereby to limit or condition in any way the power of the federal court by means of its injunction, any more than by means of proceedings for contempt,

to preserve and protect its jurisdiction, acts or titles from unlawful impairment or destruction. Section 18, Act Oct. 15, 1914, is, like section 720 of the Revised Statutes, now section 265 of the Judicial Code, inapplicable to injunctions of the federal courts issued for this purpose. Moreover, Mr. Swift has sustained no loss or injury from the absence of the bond, for the condition of it would have been to pay such costs and damages as he would have suffered if he should be found to have been wrongfully enjoined or restrained, and he is found to have been rightfully enjoined and restrained. If now this court were to reverse the order and decree for the injunction, that act would be a futile one, for, in view of the opinions of the court below and of this court, the former would undoubtedly immediately issue another like injunction. The order and decree for the injunction are not reversible, because no bond was taken.

The conclusion which has been reached upon the merits of this case seems to demonstrate the fact that the court below unwittingly fell into an error in denying the motion of Swift for leave to intervene, to answer, to file a cross-bill, to plead and to prove in the Wildcat suit his claim under his lease, and there to recover his just share of the one-fourth interest secured to the receiver for the benefit of the parties in that case. As we have seen, he is estopped by Jackson's intervention in that case from enforcing his claim against the three-fourths interest the Panther has secured, and, as the Panther has no other property, and, as Swift claims to have succeeded to Saber Jackson's interest, he is entitled to Jackson's share of the one-fourth interest going to the receiver. As that one-fourth interest is within the exclusive jurisdiction of the court below in the Wildcat suit, and as Swift's only remedy to collect the rent reserved in the lease he holds is by an intervention in that suit, the court below cannot justly deny him the right to intervene, and to secure an adjudication of the merits of his claim therein, while at the same time it denies him, as it has in our opinion rightfully done, the right to enforce his claim outside that court by levy upon and application of the three-fourths interest going to the Panther to the payment of his claim.

[4] In intervention there are two classes of cases—one class in which the intervention is not indispensable to the preservation or enforcement of the claim of the petitioner, and there the permission to intervene is discretionary with the court; another class in which the petitioner claims a lien upon or an interest in specific property in the exclusive jurisdiction and subject to the exclusive disposition of a court, and his interest therein can be established, preserved, or enforced in no other way than by the determination and action of that court. The petitioner, who has a claim of the latter class, has an absolute right to intervene in the proceeding in which the court holds the exclusive custody and dominion of the property, permission for him to intervene is not discretionary with the court, and he may review by appeal an order refusing that right. Western Union Telegraph Co. v. United States & Mexican Trust Co., 221 Fed. 545, 552, 137 C. C. A. 113, 120; Credits Commutation Co. v. United States, 177 U. S. 311, 317, 20 Sup. Ct. 636, 44 L. Ed. 782; Credits Commutation Co. v. United States, 91 Fed.

570, 573, 34 C. C. A. 12; United States Trust Co. v. Chicago Terminal Transfer R. R. Co., 188 Fed. 292, 296, 110 C. C. A. 270; Minot v. Mastin, 95 Fed. 734, 739, 37 C. C. A. 234, 239; United States v. Philips, 107 Fed. 824, 46 C. C. A. 660.

It may be that the order denying Swift leave to intervene may be reviewed as an intermediate order on an appeal from the final order of decree in the Wildcat suit by Jackson, who perhaps represents Swift's claim in that suit in his absence (Western Union Telegraph Co. v. United States & Mexican Trust Co., 221 Fed. 545, 551, 137 C. C. A. 113, 119); but it is desirable, in the interest of a speedy and conclusive disposition of the receiver's one-fourth interest and its proceeds, if it is not already too late, that Swift, if he still desires, should yet have an opportunity to prove and plead his claim and have an adjudication of it upon its merits in the Wildcat suit in the court below, before that court enters its final decree of distribution therein, and although the order denying his intervention is not reviewable on this appeal, the views of this court regarding his right to intervene have been expressed, in the hope that the court below may yet find a way to permit him so to do.

The injunctive order and decree was just and equitable, and it is affirmed.

RYAN v. OHMER.

(Circuit Court of Appeals, Second Circuit. May 31, 1917.)

No. 233.

1. EVIDENCE 441(1)-PAROL EVIDENCE-ORAL NEGOTIATIONS.

The execution of a written contract supersedes and merges all oral negotiations or stipulations concerning its ternis.

2. CONTRACTS

147(1)—CONSTRUCTION-INTENTION OF PARTIES.

The intent of the parties to a contract, as expressed in the writing signed by them, must govern in determining their rights as derived therefrom.

3. CONTRACTS

155-CONSTRUCTION-CONSTRUING IN FAVOR OF PROMISEE. The language of a contract must be interpreted in the sense in which the promisor knew, or had reason to know, that the promisee understood it. 4. CONTRACTS 148-CONSTRUCTION-PRIOR NEGOTIATIONS.

In case of doubt, all the negotiations between the parties may be considered in arriving at the true intent of the parties.

5. EVIDENCE 450(5)-PAROL EVIDENCE-AMBIGUITY.

A memorandum of an agreement between complainant and defendant that, if any order for shrapnel fuses was received by or through either of them "from Colonel M.," the profits should be divided as therein stated, was not so clear as to its meaning as to make it improper to admit evidence as to the circumstances out of which it arose. 6. BROKERS 49(1)-CONSTRUCTION OF CONTRACT.

Defendant solicited complainant's aid in financing an Ohio corporation, of which he was president, and complainant suggested the possibility of procuring contracts for war munitions. M. had a contract with the Russion government for 2,000,000 shrapnel shells, and had offered the contract to a Canadian corporation. One of the difficulties in the way of its acceptance was to find some one who could supply the necessary time For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

fuses, and M. promised the Canadian corporation's president to aid in finding contractors to furnish the necessary parts. In a search for a manufacturer he was introduced to complainant, who told him that he had a party who could furnish the fuses, and later brought him and defendant together. Subsequently defendant's Ohio corporation contracted with the Canadian corporation for the manufacture of the fuses. Pending the negotiations, complainant and defendant executed a memorandum of their agreement, providing for a division of profits on any order "received from Colonel M. by or through either of us." Held that, in the light of the circumstances, the language "from Colonel M." did not mean that the contract must be one with M., but one obtained through his instrumentality, while the words "by or through either of us" did not mean that the contract must be one under which defendant individually should agree to manufacture the fuses.

7. APPEAL AND ERROR 1011(1)-REVIEW-QUESTIONS OF FACT.

The finding of the District Court, on conflicting evidence warranting such finding, that the contract which defendant obtained for his com pany was obtained through M., within the meaning of his contract with complainant, would not be disturbed, when not clearly erroneous.

Appeal from the District Court of the United States for the Southern District of New York.

Suit by Thomas J. Ryan against Will I. Ohmer. From a decree for complainant, defendant appeals. Affirmed.

See, also, 233 Fed. 165.

The complainant is a citizen of the state of New York, residing in the Southern district in said state. The defendant is a citizen of the state of Ohio. The original complaint also made a party defendant the Recording & Computing Machines Company, a corporation organized under the laws of Ohio, afterwards referred to herein as the Ohio Company, and also the Canadian Car & Foundry Company, Limited, a corporation organized under the laws of the Dominion of Canada, afterwards referred to herein as the Canadian Company. The defendant is the president and a stockholder in the Ohio Company, which was engaged at the time of the negotiations between the parties in a business which had no relation to the manufacture of munitions of war or any parts thereof. Afterwards an amended complaint was filed against the defendant Ohmer alone.

The suit is brought for an accounting under a written agreement, signed by the parties and dated New York, February 20, 1915, which reads as fol lows: "This is a memorandum of an agreement or understanding that, if any order is received from Col. Mackie by or through either of us for shrapnel fuses within the next sixty (60) days, the personal or individual profits from the order or orders shall be divided as follows: Sixty per cent. to W. I. Ohmer. Forty per cent. to Thos. J. Ryan." The bill of complaint sets forth that in January, 1915, complainant and the defendant entered into a contract or arrangement by which they became joint adventurers in the manufacture of munitions of war or parts thereof, directly or indirectly, for governments at war in Europe; that the complainant's part in this business was to bring the defendant into touch with persons having contracts for such commodities to let, and defendant's part was to perform any contracts so obtained through the Ohio Company, or other instrumentality. It is alleged that pursuant to this arrangement complainant found a contract for time fuses for Russian shrapnel shells, and through his instrumentality the defendant was brought into touch with the persons having this contract to place, with the result that a contract for the manufacture of 2,000,000 shrapnel fuses was given to the Ohio Company by the Canadian Company. This contract, with certain modifications and supplements thereto, is now being performed by the Ohio Conpany, and the profits thereunder are accruing. When the negotiations between the Canadian Company and the Ohio Company were approaching consumma. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

tion, the complainant suggested to the defendant that some scheme or arrangement should be entered into for the ascertainment of the profits arising to defendant therefrom, and that some method be fixed for the distribution and division thereof between complainant and defendant in pursuance of their agreement of February 20th. Defendant denied the existence of any such arrangment.

Thereupon this suit was commenced, having for its objects (1) to establish the complainant's rights to a share of the profits arising from said contract: (2) to procure from defendant an accounting of the profits arising from said contract and the payment of complainant's 40 per cent. thereof to him; and (3) in aid of complainant's rights, such injunctive relief as might be necessary to make effective the affirmative relief sought. The District Court entered a decree adjudging that the allegations of the amended bill of complaint had been sustained by the proofs. The decree requires the defendant to account forthwith to complainant for all profits derived by him from the contract made between the Ohio and Canadian Companies, dated March 1, 1915, and any modifications thereof or additions thereto, whether the said profits were in the form of dividends upon the stock of the Ohio Company or increase in the value of his shares, and to account and pay over to complainant 40 per cent. of the profits derived by the defendant, in whatsoever form the same may be. It directs that said accounting shall proceed from time to time, as the profits may accrue, until the contract has been fully performed. It requires the defendant to use his control over his company for the purpose of having the profits ascertained as speedily as is practicable and upon such ascertainment paid and declared as dividends to stockholders of the company. It provides that, pending the completion of the contract of March 1, 1915, and the modifications and additions thereto, and a full and final accounting, the defendant is restrained and enjoined from causing or permitting the Ohio Company to divert or utilize any of the funds derived by that company by reason of the contract which may or should be declared as dividends; and the defendant is further enjoined from selling, transferring, or in any manner alienating or incumbering any of the shares of stock owned by him or for his benefit, or from alienating, transferring, or disposing of any part of the profits derived from the contract, unless and until the rights of the complainant in the profits have been ascertained and fully satisfied; and a special master is appointed, before whom the defendant is directed to make the accounting. From this decree the defendant has appealed.

Walter C. Noyes, of New York City (H. A. Toulmin and H. A. Toulmin, Jr., both of Dayton, Ohio, of counsel), for appellant. William A. Barber, of New York City, Peter S. Grosscup, of Chicago, Ill., and Joseph Diehl Fackenthal, of New York City, for appellee. Before WARD, ROGERS, and HOUGH, Circuit Judges.

ROGERS, Circuit Judge (after stating the facts as above). This suit is brought to obtain from the defendant the complainant's proportion of the profits realized from an order, alleged to have been obtained through Col. Mackie, for shrapnel fuses. The claim arises under the written memorandum signed on February 20, 1916, and which is hereinbefore set forth. The parties who signed the writing do not agree as to what it means. The defendant insists that the District Court has misinterpreted, misconstrued, and misapplied it; and we are now asked to review the whole of the interlocutory decree, not merely the part granting the injunction, and, if such review warrant, to direct that the bill be dismissed.

[1-4] The written memorandum the parties signed was the culmination of a series of negotiations and activities on their part. It will be admitted at the outset, for the law is well settled to that effect, that the

244 F.-3