68, 71, 135 C. C. A. 636. We accept their interpretation that the plant was to be operated by them.

[2, 3] The specific ground on which verdict was directed seems to have been lack of proof that plaintiffs were damaged by the breach of the alleged contract. We think the direction sustainable on this ground. There is no claim of damages (except as involved in loss of profits), or of money expended on faith of the contract. The sole basis of plaintiffs' claimed right of recovery is loss of profits, by being denied the right to perform. While plaintiffs showed the value of the crushed slag, there was no evidence of the cost of crushing and marketing it, and it seems to be assumed that a considerable portion at least required such treatment to make it marketable. The proof of profits lost was speculative and conjectural. Plaintiffs' testimony, based on inquiries at Detroit, that there was a given profit per ton at that place in the handling and marketing of slag, was properly excluded; for not only was it secondhand information, but there was no showing that the profits derivable from treating and marketing the dumps in question bore sufficient relation to the profits said to be derivable from the uses to which the slag was put in Detroit. Unless, therefore, there was other evidence taking it out of the general rule, the failure to show cost of operation was fatal to recovery. Anvil Mining Co. v. Humble, 153 U. S. 540, 549, 14 Sup. Ct. 876, 38 L. Ed. 814; McCornick v. Mining Co. (C. C. A. 8) 185 Fed. 748, 751, 108 C. C. A. 86; Magnolia Co. v. Gale, 189 Mass. 124, 132–133, 75 N. E. 219; Bristol R. Co. v. Bullock, 101 Va. 652, 44 S. E. 892; Klingman v. Racine Co., 149 Iowa, 634, 128 N. W. 1109; Bartow v. Erie R. R. Co., 73 N. J. Law, 12, 62 Atl. 489. [4] One of the plaintiffs, however, upon cross-examination apparently designed to bring the case within the Ohio Uniform Sales Act, testified that "the value of that slag that we were to take away and in those piles would exceed the sum of $2,500"; and plaintiffs urge that this testimony is enough to support a verdict for at least $2,500 damages. We are unable to accept this view. It by no means follows that, because the slag was worth $2,500, plaintiffs were damaged in that amount by not getting it; for the contract was an entirety, and plaintiffs could not take away the slag, except by complying with the obligations imposed upon them, namely, the keeping of the slag out of defendant's way, not only during the demand for uncrushed slag, but during the entire year. In other words, plaintiffs had a duty to perform by way of payment for the slag; and the cost of performing that duty and making such payment does not appear.

[5, 6] Nor is the situation changed by the fact that defendant, during its subsequent operation, quoted "rough bank slag, uncrushed and unscreened," at the price of 30 cents per net ton delivered f. o. b. cars to either of three specified railroads; for the cost of such delivery does not appear, nor that there was a market at that price for untreated slag in the full amount which plaintiffs were required to take away. The failure to show the cost of plaintiffs' proposed operation, and the alleged loss of profits, is emphasized, and the correctness of the direction of verdict made especially apparent, by the indefinite and uncertain terms of the alleged contract, which render its validity extremely

doubtful, to say the least. It does not appear that the parties reached agreement on all essential features involved. For example: No provision was made for transporting the slag from the dumps to the proposed crusher and thence to the cars; defendant (for the purpose of its own operation) later put in a railroad track for the purpose first mentioned; and the petition alleges that defendant was to furnish plaintiffs, not only with the crushing plant and steam shovel, but also "locomotive and use of defendant's railroad." But, if such latter provision were to be assumed, it still remains that the method and terms on which defendant should furnish power, railroad and shipping facilities, and the extent of plaintiffs' specific rights in and control over defendant's land and equipment, do not appear to have been considered. Even were we to assume that plaintiffs were entitled to recover nominal damages, the judgment should not be reversed for failure to allow such recovery, in the absence of specific assignment or complaint on that ground. Lawrence v. Porter (C. C. A. 6) 63 Fed. 62, 68, 11 C. C. A. 27, 26 L. R. A. 167.

[7-10] But, assuming that there was rational basis for ascertaining plaintiffs' alleged loss of profits, we think the direction of verdict was nevertheless proper. The slag dumps were either part of the real estate, or they were personalty. If part of the real estate, the agreement, not being in writing, was void under the statute of frauds (sections 8620 and 8621, O. G. C.), as a grant of or a contract for an interest in lands, tenements or hereditaments. If personalty, the contract was void under the Ohio Sales Act (section 8384, G. C.); for (as declared by section 8456) the term "goods" embraces "all chattels and personalty other than things in action or money" (Laundry Co. v. Whitmore, 92 Ohio St. 44, 52, 110 N. E. 518, Ann. Cas. 1917C, 988); the alleged contract was not one of manufacture by plaintiffs for defendant; the latter was not concerned with the crushing of the slag, except as means for getting it out of its way. Its agreement was essentially for the passing of title in payment for services, and the fact that payment was to be made in services, rather than in money, does not take the case out of the statute. Franklin v. Matoa Gold Mining Co. (C. C. A. 8) 158 Fed. 941, 943, 86 C. C. A. 145, 16 L. R. A. (N. S.) 381, 14 Ann. Cas. 302. The "dumps" were of the conceded value of $2,500. There was no note or memorandum in writing, and no earnest money or part payment; and, assuming that the identification of the goods amounted to their acceptance, under subsection 3 of section 8384 (Williston on Sales, § 76, p. 86), plaintiff did not "actually receive" them, and, under subsection 1, acceptance without actual receipt was futile. An essential. part of the entire contract being void, and plaintiffs having rendered no services under it, no recovery can be had for its breach. Snow Storm Mining Co. v. Johnson (Č. C. A. 9) 186 Fed. 745, 754, 108 C. 2. A. 615; Smith on Fraud, § 355.

These conclusions make it unnecessary to consider the other defenses urged, or the remaining assignments of error presented. The judgment of the District Court is affirmed.

HARPER TRANSP. CO. v. JOHNSON & HIGGINS.

(Circuit Court of Appeals, First Circuit. September 25, 1917.)

No. 1268.

1. FRAUDS, STATUTE OF 44(1)-CONTRACTS-PERFORMANCE WITHIN A YEAR, Plaintiff, a corporation engaged in the business of marine insurance brokerage, in 1911, placed the insurance on defendant's vessels covering their voyage from the Great Lakes to the seacoast, and also covering their operation on the coast. Plaintiff was personally liable for the premium on only some of the policies; defendant being directly liable to the insurers for other premiums. In November, 1911, premiums for that year not having been paid, plaintiff and defendant, after various nego tiations, agreed that plaintiff should have defendant's marine insurance business for the next two years, subject to defendant's approval of the rates at which the insurance should be written, and that plaintiff should forbear immediate suit for premiums paid by it, and should pay the underwriters, on defendant's account, the balance of the 1911 premiums. The agreement also provided that defendant should have an extension of credit until July, 1912, or thereabouts; payments being made at such times and in such amounts as defendants reasonably could, the whole indebtedness to be discharged by July, 1912. Held that, as the number of defendant's vessels might vary from time to time, and as plaintiff was to have the business of insuring such vessels subject to approval of rates, the contract was not one to be performed within a year. 2. FRAUDS, STATUTE OF 113-MEMORANDA-SUFFICIENCY,

Where the only memoranda of the terms of the contract were con tained in letters, which did not set forth the terms of the contract as to the extension of credit and did not provide for payment by the plaintif of the premiums on policies, where defendant was directly liable, the memoranda were not sufficient to take the case out of the New York statute of frauds, declaring that every agreement, promise, or under taking not to be performed in one year from the making thereof is void, unless it or some note or memorandum be in writing and subscribed by the party to be charged, or by his agent.

In Error to the District Court of the United States for the District of Massachusetts; James M. Morton, Jr., Judge.

Action by Johnson & Higgins against the Harper Transportation Company. There was a judgment (228 Fed. 730) for plaintiff, and defendant brings error. Reversed, with directions.

Robert E. Goodwin, of Boston, Mass. (Floyd G. Blair, George K Gardner, and Goodwin, Procter & Ballantine, all of Boston, Mass., on the brief), for plaintiff in error.

John G. Palfrey, of Boston, Mass. (Pierpont L. Stackpole and War ner, Stackpole & Bradlee, all of Boston, Mass., on the brief), for de fendant in error.

Before DODGE and BINGHAM, Circuit Judges, and ALDRICH, District Judge.

BINGHAM, Circuit Judge. This is a writ of error from a judg ment of the United States District Court of Massachusetts, entered in

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favor of Johnson & Higgins in an action brought by them against the Harper Transportation Company for breach of contract. The plaintiffs are a New Jersey corporation doing business in New York as marine insurance brokers. The defendants are a Maine corporation, with offices in New York and Boston, and operate a fleet of steamers and barges in the coastwise trade. They are lessees, not owners, of the vessels; the legal title to the same being held by the Philadelphia Trust, Safe Deposit & Insurance Company. Their fleet was built on the Great Lakes, and completed during the summer and fall of 1911; it consisted originally of four steamships and seven barges. In 1911 the plaintiffs placed the insurance on the defendants' vessels covering their voyages from the Great Lakes to the seacoast, and also covering their operation on the coast. The policies covering the voyages were known as voyage or trip policies, and those covering their operations on the coast as annual policies. The trip policies expired on the completion of the voyages, and the annual policies at various dates, beginning August 21, 1912, and ending some time in November, 1912. Some of the 1911 insurance was placed abroad, and the plaintiffs were liable for the premiums on such policies, and were also liable for the premiums on the policies which they had procured to be written by the Atlantic Mutual Insurance Company of New York. As to the premiums on the balance of the policies, the defendants were directly responsible to the underwriters. The plaintiffs received their compensation for placing the insurance from the underwriters; it being a certain percentage of the premiums.

In November, 1911, the premiums on the 1911 policies had not been paid, and the plaintiffs were pressing for payment and threatening suit. After various interviews and much correspondence had taken place, about an extension of credit as to premiums overdue and the placing of the insurance for the years 1912 and 1913, it was found by the court below that the parties, within a few days after January 12, 1912, entered into a contract whereby it was agreed that the plaintiffs should have the defendants' marine insurance business for the next two years, subject to the latter's approval of the rates for which the insurance should be written; that the plaintiffs should forbear immediate suit and pressure, should pay the underwriters on the defendants' account the balance of the 1911 premiums, and should grant the defendants an extension of credit to July 1, 1912, or thereabouts; that the defendants should make payments on their 1911 premium account at such times and in such amounts as they reasonably could from the receipts of their business; and that the account should be paid in full by July 1, 1912, or thereabouts. It was also found and ruled that the contract for placing the insurance for the years 1912 and 1913 was an entire contract; that the defendants, by placing the insurance for 1912 with another broker and refusing to permit the plaintiffs to place it, were guilty of a breach of contract going to the essence; that the plaintiffs were not in default; that the contract was not by its terms to be performed within one year, and was within the statute of frauds, but that it was sufficiently evidenced by writings to take it out of the statute.

Various errors are assigned, but we do not deem it necessary to

consider them all, if the contract was not to be performed within a year, and the writings did not sufficiently evidence the contract which the court found the parties entered into.

[1] It does not seem to us that the court erred in ruling that the contract was not one to be performed within a year. By its terms the plaintiffs acquired the right to place the insurance on the fleet through the years 1912 and 1913, provided it procured a rate agreeable to the defendants; and the defendants bound themselves to accept the plaintiffs' services on those terms. The contract did not relate simply to renewals of the 1911 and of the 1912 insurance as the fleet was constituted at the time of making the contract, but obligated them to procure insurance on the defendants' fleet, whether it was made larger or smaller, at any time within the two years. Until that period had expired, it could not be determined whether the plaintiffs would or would not have to render further service under the contract; for the defendants might increase or reduce the number of their vessels, or might desire to increase their insurance, or otherwise change any of their outstanding policies, during the specified period. If it would have been possible for the plaintiffs to have placed the renewals of the 1912 insurance within a year from the making of the contract, it would not have been possible for them to have rendered all the service within that period which they contracted to perform.

[2] No question is raised but that the contract is governed by the law of the state of New York, and that, under the statute of frauds of that state:

"Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking: (1) By its terms is not to be performed within one year from the making thereof." Laws N. Y. 1897, vol. 1, p. 510.

And, as we are of the opinion that the contract, by its terms, is not one to be performed within one year from the making thereof, the question remains whether it was evidenced by some note or memorandum in writing sufficient to take it out of the statute.

In Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310, 110 N. E. 619, the Court of Appeals for that state, in the year 1915, in consider ing a similar question involving the interpretation of its statute of frauds, said:

"In order to satisfy the requirements of the statute of frauds, the written note or memorandum must include all the terms of the completed contract which the parties made. It is not sufficient that the note or memorandum may express the terms of a contract. It is essential that it should completely evidence the contract which the parties made. If, instead of proving the existence of that contract, it establishes that there was in fact no contract, or evidences a contract in terms and conditions different from that which the parties entered into, it fails to comply with the statute."

It is therefore necessary, in considering this question, to keep in mind the terms of the contract which the court found the parties actually made, in order to ascertain whether the writings upon which