of the goods to the ship there is no lien on the ship for resulting damages.

In The Bird of Paradise, 5 Wall. 545, 563 (18 L. Ed. 662), Mr. Justice Clifford, writing for the Supreme Court said: "That the lien for freight commences as soon as the goods are delivered into the control of the master, or certainly as soon as they are put on board."

In Bulkley v. Naumkeag Steam Cotton Co., 24 How. 386, 16 L. Ed. 599, it was laid down that the lien of the shipper attaches when the goods are delivered to the master or his agent to be transported by the ship. The court said: "There is no necessary physical connection between the cargo and the ship, as a foundation upon which to rest this liability" (the shipper's lien).

The rule is stated as follows: "The shipowner becomes responsible as a carrier for all goods which have been delivered to him, or to his authorized servants, for the purpose of being carried. It is not necessary that they should have actually got on board. Thus, delivery to the mate on the quay, alongside of which the vessel is lying, is sufficient." Carver on Carriage by Sea (5th Ed.) § 68, p. 88.

ee.

After the goods are delivered into the custody of the master and are received on board, the failure of the ship to break ground may defeat the ship's lien for freight, but it does not defeat the shipper's lien for the safe transportation of his goods. In The Tornado, 108 U. S. 342, 2 S. Ct. 746, 27 L. Ed. 747, a contract of affreightment was made for the transportation of bales of cotton from New Orleans to Liverpool, and 5,008 had been put on board the ship, 164 were on the levee, and 23 had not reached the levWhile the ship was moored at the wharf, and before she had broken ground for the voyage, she was found to be on fire. Water was pumped into her, but she filled with water and sank to the bottom of the river. While she was still in that condition she was libeled. The court held that on this state of facts the contract of affreightment was thereby dissolved; that the ship had no claim to freight money, the principle being that, if a ship does not begin her voyage at all, does not break ground, no freight can be payable. The case was decided on the rule that, where the stipulations of a contract are interdependent, a defendant cannot be sued for the nonperformance of stipulations on his part which were dependent on conditions which the plaintiff has not performed. Mr. Justice Blatchford, speaking for the court, said:

"The shipowner was entitled to freight only for carrying the cargo and delivering it at Liverpool, with the implied covenant that this particular vessel was to take it on board and enter on the voyage. Before that event occurred this vessel was substantially put out of existence by no fault of the shipper, and he had and could have no benefit from the contract. He had a right, therefore, to treat the contract as rescinded, so far as any liability for freight was concerned."

In the case at bar the ship, while loaded with the goods, never broke ground and started on her voyage to the Far East, although physically capable of doing it, under the charter, which as we have seen, she had the right to withdraw from the service of the charterers, because of the default in making payment on May 9th. But this case is distinguishable from the case of The Tornado. That case arose between the parties to the charter. In this case the libelants are not parties to the charter, but the question is as to the liability of the ship to the shippers on the bills of lading which constitute the contract between the ship and the shippers, and the only default under the contract is that of the ship itself. The default of the charterer released the shipowner on its contract with the charterer, but it did not release the ship from the contracts made by the master with the shippers when he signed the bills of lading.

[24, 25] This brings us to the question of damages. The District Judge held that the amount of the damages due to the loss of market should be measured by the difference between the market value of the goods at the time the ship should have arrived at her respective unloading ports in China and Japan, had she sailed after completing her loading, and the time when she ought to have sailed, and the market value of the same goods in New York when they were delivered back to the shippers. This, in our opinion, was error. The market value in New York at the time the goods were returned to the shippers would have been material, if the goods had not been forwarded to their destination by other vessels.

The value of the goods at the port of shipment is only to be taken into consideration in case the goods could not be forwarded to the port of their destination either because they could not have been disposed of on their arrival there because of want of markets, or because there was a lack of other means of transportation.

In the case at bar, no such difficulties existed and the shippers actually forwarded

their goods to their destination and received therefor the prices at that time prevailing. It was the duty of the shippers to mitigate the damages as much as possible, and this they undertook to do by sending the goods forward by other means. It does not appear in this record what the difference is in the price actually received on the arrival of the goods so forwarded, and the amount which would have been received had the goods gone forward on the Capitaine Faure, had she actually made the voyage as contemplated.

In The Oregon, 55 F. 666, 673, 5 C. C. A. 229, 235, decided in the Circuit Court of Appeals for the Sixth Circuit in 1893, Chief Justice Taft, then Circuit Judge, writing for the court, said: "But it is a general rule that it is the duty of one party to a contract which has been broken by the other to use reasonable diligence to reduce the damages arising from the breach. If, therefore, in cases of freight contracts, the carrier refuses to perform, it is the duty of the shipper, if he can reasonably expect thereby to reduce his loss, to seek other means of transportation, and perform the contract himself."

The court also said: "Where one contracts with a carrier to transport ordinary merchandise, having a market value, from one point to another, the profit which both he and the carrier may reasonably expect him to make out of the transaction is the difference between the market value of the merchandise at the point of destination and the market value at the point of shipment, less the freight under the contract. The pecuniary difference between the shipper's condi-. tion with the contract performed and his condition if the merchandise is not shipped, but remains at the point of shipment, is this profit, which is therefore his legal damage."

And as to the measure of damages in this class of cases, see Dillenback v. The Rossend (D. C.) 30 F. 462; Farmers' Loan & Trust Co. v. Northern Pacific Railroad Co., 120 F. 873, 880, 57 C. C. A. 533, affirmed 195 U. S. 439, 25 S. Ct. 84, 49 L. Ed. 269; Luckenbach v. Grace (C. C. A.) 267 F. 676, certiorari denied 254 U. S. 644, 41 S. Ct. 14, 65 L. Ed. 454; The Tampico (C. C. A.) 286 F. 482, 486; Grace & Co. v. Luckenbach S. S. Co., Inc. (D. C.) 258 F. 49.

The libelants are entitled to a recovery against the steamship upon all the bills of lading issued to them or to their assignors, for cargo received on board the respondent Capitaine Faure, and the amount of the damages for the breach of contract should be such compensation as will restore the libelants to

the same pecuniary condition they would, have been in had the contract been performed.

In the case of the goods which were reshipped the amount of damages is the difference between the market value at destination, at the time they would have arrived in ordinary course on the Capitaine Faure, and the market value at destination at the time the goods were actually received at the designated port in ordinary course, plus the freight and the other necessary expenses incurred in connection with such reshipment.

In the several instances where cargo was not reshipped the measure of damage is the difference between the market value of the goods at the time the ship should have arrived at the ports of destination, if she had sailed after completing her loading, and the market value of the same goods at the ports of destination upon the arrival of the next available vessel.

The interlocutory decree must be modified accordingly. It is so ordered.

MCNEIL & HIGGINS CO. v. HOWELL et al. (Circuit Court of Appeals, Seventh Circuit. December 8, 1925. Rehearing Denied March 10, 1926.)

No. 3534.

1. Appeal and error 1064(1)—Erroneous instruction that breach of contract to purchase sugar occurred on particular date held not prejudicial, in view of evidence that, during all times in controversy price of sugar never exceeded price on that date, which evidence on motion of plaintiff in error was erroneously stricken.

Error in court's instruction that breach of contract to purchase sugar occurred on a particular date, whereas there was considerable evidence that it occurred on earlier date, held harmless, in view of evidence admitted and later stricken out on defendant's own motion to effect that at none of times involved was, market price for sugar greater than price realized in open market immediately after date of

breach of contract fixed in instruction. 2. Appeal and error

882(11)-Party may not complain of lack of evidence stricken out on his own motion.

A party cannot be heard to complain of lack of evidence stricken out on its own motion by trial court.

In Error to the District Court of the

United States for the Eastern Division of the Northern District of Illinois.

Action by Frederick H. Howell and others, doing business as B. H. Howell Sons &

Co., against the McNeil & Higgins Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

Charles Hudson, of Chicago, Ill., for plaintiff in error.

Albert Fink, of Chicago, Ill., for defendants in error.

evidence was made by counsel for defendant, and plaintiffs' counsel, in explanation of the purpose for offering the evidence said:

"Mr. McGlasson (defendant's manager) has stated certain things from which some hazy inference might be drawn, that it might be claimed the repudiation occurred in December, and our position is, if anybody could

ALSCHULER, Circuit Judge. Plaintiffs in the District Court, defendants in error here, recovered a judgment against defendant there for breach of contracts for the purchase of sugar. The contracts and other facts are set forth in same case in this court (285 F. 873), wherein there was reversal and remandment for new trial.

[1] That one car of the contracted sugar remained undelivered is scarcely to be doubted upon this record, and the asserted error of the court in its charge on that subject is without merit. It is likewise plain that it was the McNeil & Higgins Company, the defendant, who broke the contract by refusing to accept this car. The evidence bore largely on the question of the time of the breach. The only written evidence of defendant's breach is found in its letter of March 8, 1921, in substance asserting its right to refuse acceptance of the car. Considerable evidence was offered for defendant to the effect that twice in the previous December, and again in January, the defendant definitely stated to plaintiffs that the sugar in question would not be accepted, and the main question made by the record is upon the court's charge to the jury that the breach occurred on March 8.

In the indicated state of the evidence thereon, it would seem that the charge upon this subject was erroneous, in that there was evidence tending to fix an earlier date as the time of breach, and, but for other conditions disclosed by the record, the judgment should be reversed. It appears that, after all the evidence on that subject had been adduced, the plaintiffs offered in rebuttal evidence to show that, at none of the prior times fixed by witnesses as date of the breach, was the market price of sugar in excess of 8 cents-the price realized in open market immediately after the March 8 letter. Objection to the

withstanding the letter of March 8 introduced in evidence, we want to show the price of sugar was just the same."

The witness answered that the price during all such time was not over 8 cents (the contract price was 22 cents). Defendant's counsel thereupon moved to strike out this evidence, which motion the court granted, and charged the jury to disregard it.

This evidence was not less competent than that of breach occurring at any time prior to March 8. It was competent to show the market price on any day whereon there was evidence of breach earlier than March 8. Had this evidence remained and been uncontradicted, it would plainly have shown that, whether defendant's breach occurred on March 8 or any one of the previous dates referred to in the evidence, the recoverable amount would have been not less, as the market price at none of these times was higher than it was on March 8. Under such state of facts no possible harm would have accrued to defendant through the charge that the breach was on March 8, and the error in so charging the jury, being harmless, it could not have affected the judgment.

[2] It was on defendant's motion that the evidence was stricken, and defendant cannot be heard to complain of error which, at its instance and inducement, the court committed. It cannot cause the evidence to be stricken, and then be heard to complain because of a lack of such evidence. In this state of the record it may be fairly inferred that at none of the times in question did the price exceed 8 cents, and that therefore the defendant was in no manner harmed by the erroneous charge fixing March 8 as the date of the breach.

We do not deem assignments which we have not discussed of sufficient moment to warrant special comment.

The judgment is affirmed.

MCMANUS et al. v. UNITED STATES.

(Circuit Court of Appeals, Fifth Circuit. January 4, 1926. Rehearing Denied January 29, 1926.)

No. 4671.

Post office 6-Plaintiffs held not entitled to recover rental value of premises used as post office, where they had defaulted under express contract by not paving street and grading alley in accordance with proposal.

Where proposal for lease of post office, submitted to Postmaster General, contemplated paving of street in front of building and reduction of grade in alley, which proposal was accepted by government and possession taken, held that such proposal and acceptance constituted an express contract between the parties, the plaintiffs could not recover rental value where they were in default, in that contemplated paving and grading had not been completed, and government, being ready and willing to execute lease and pay rent on compliance with proposal, was not in default.

In Error to the District Court of the United States for the Northern District of Texas; William H. Atwell, Judge.

Action by Mrs. Agnes McManus and George J. McManus against the United States. Judgment for the United States, and plaintiffs bring error. Affirmed.

R. B. Creager, of Brownsville, Tex., Geo. A. Hill, Jr., of Houston, Tex., Chas. F. O'Donnell, of Dallas, Tex., and T. M. Kennerly, of Houston, Tex. (Cockrell, McBride, O'Donnell & Hamilton, of Dallas, Tex., and Kennerly, Williams, Lee & Hill, of Houston, Tex., on the brief), for plaintiffs in error.

Henry Zweifel, U. S. Atty., and N. A. Dodge, Sp. Asst. U. S. Atty., both of Fort Worth, Tex. (Shelby S. Faulkner, Asst. U. S. Atty., of Washington, D. C., on the brief), for the United States.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge. In this case plaintiffs in error, hereafter referred to as plaintiffs, brought suit under the Tucker Act (24 Stat. 505), to recover of the United States for the use and possession of certain premises in the town of Ranger, Tex., used as a post office, for which it is alleged a rea

sonable rental would be $350 per month. The jury was waived, and the case submitted to the judge, who made special findings of fact and conclusions of law. There is no dispute as to the facts, and the assignments of error may be summarized as an objection to the entering of the judgment on the facts found.

Briefly stated, the facts found by the District Court are these: In December, 1919, George A. Parton and George J. McManus, and their respective wives, who were then the owners of the premises in question, submitted a proposal to the Postmaster Gereral to lease a part of the building to the United States for a period of 10 years, at a yearly rental of $12, in the expectation that the location of the post office would enhance the value of other property in the vicinity. This proposal was accepted by the government, and possession was taken of the premises with the consent of plaintiffs. Plaintiffs are now the sole owners of the premises, and entitled to the rights and subject to the liabilities arising from the contract. The proposal contemplated that Elm street, in front of the building, would be paved, and that the grade of an alley in the rear would be reduced to prevent overflow of the room by storm water. Elm street has not been paved, nor has the alley been reduced in grade, in consequence of which the room becomes overflowed in heavy rains, and it has not been put in proper condition, so that the lease could not be made as contemplated. No rent has been paid, but the government has been ready and willing at all times to execute the lease and pay the rent on compliance by plaintiff with the proposal made and accepted. There has been no waiver on the part of the government of the conditions of the proposal.

On these findings of fact, the District Court concluded that the proposal and acceptance constituted an express contract between the parties; that the plaintiffs had defaulted and are still in default on the contract; that there was no default on the part of the government; and that therefore plaintiffs are not entitled to recover anything at all. In these conclusions we concur.

Affirmed.

ÆTNA LIFE INS. CO. v. EDWARDS. (Circuit Court of Appeals, Fifth Circuit. January 2, 1926.)

No. 4655.

Master and servant 405 (6)-Evidence held to show employee had received all reasonable treatment, and that injury to sacroilliac joint was permanent (Texas Employers' Liability Act [Vernon's Ann. Civ. St. Supp. 1918, art. 5246-1 et seq.]).

Evidence, in action against insurer under Texas Employers' Liability Act (Vernon's Ann.

Civ. St. Supp. 1918, art. 5246-1 et seq.) held

to show that employee received all reasonable treatment, and that injury to sacroilliac joint was permanent.

In Error to the District Court of the. United States for the Northern District of Texas; James Clifton Wilson, Judge.

Action by J. A. Edwards against the Ætna Life Insurance Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

en to the form of the verdict, and judgment was entered on it in the sum of $5,637.77.

Error is assigned to the action of the court in submitting the question to the jury as to whether defendant in error was entitled to a lump sum verdict and to the entering of judgment on that verdict. It is doubtful that the errors assigned present anything for our consideration, considering the character of the case and the course of the trial, but we have nevertheless examined the evidence which is brought up in the record. From that it would appear that defendant in error was totally disabled at the date of trial, May 20, 1925, over a year after his injury; that he had several times submitted himself to examination and treatment in hospitals at the request of plaintiff in error; that he received only temporary relief, and was unable to stand the physical pain of the severe treatment that might possibly cure him. The testimony as to the permanency of his injury is conflicting, but there is direct testimony from at least one doctor to the effect that his in

Frank S. Roberts, of Breckenridge, Tex., for defendant in error.

the medical testimony is to the same effect. We think it is shown that defendant in error has done everything that could reason

FOSTER, Circuit Judge. This case was begun in a state court and removed to the District Court. The issues are very simple. It appears that defendant in error was employed by the Landreth Gasoline Company, which was a subscriber to the Texas Employers' Liability Act (Vernon's Ann. Civ. St. Supp. 1918, art. 5246-1 et seq.), and which carried a policy of insurance with the Etna Insurance Company, plaintiff in error. On March 12, 1924, defendant in error sustained an injury to the sacroilliac joint in the course of his employment. Under the terms of the policy he was entitled to receive $20 a week during his incapacity, not exceeding 401 weeks, and, in the event of his total permanent incapacity, he was entitled to a lump sum settlement under the policy.

Defendant in error brought his suit, claiming permanent total disability, and

ing treatment and endeavoring to have himself cured, and we concur in the finding of the jury that his injury is permanent. Affirmed.

MCGILL v. UNITED STATES. (Circuit Court of Appeals, Fifth Circuit. January 2, 1926.) No. 4563.

171-Vari

1. Indictment and information ance between allegation of prior offense and proof thereof in prosecution for third offense held not a fatal variance (National Prohibition Act [Comp. St. Ann. Supp. 1923, § 101384 et seq.]).

In prosecution for third violation of National Prohibition Act (Comp. St. Ann. Supp. 1923, offense on particular day, cause numbered 4468, § 101384 et seq.), indictment charging a prior

and proof that such case was numbered 4462, held not at such variance as to render erroneous entry of judgment on verdict.

No

under the policy is not denied. In fact, weekly payments had been regularly made. Evidence was taken before the jury. motion was made for a directed verdict. The judge charged the jury fully on the law of the case, and a special verdict was rendered for a lump sum settlement. No exception was tak

regularity consisting of variance between allegation and proof as to prior offense held cured by verdict (National Prohibition Act [Comp. St. Ann. Supp. 1923, § 101381⁄4 et seq.]).

Where prior offense against National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.) was alleged as cause No. 4468,