shipment to defendant until this embargo was lifted. It is alleged, further, that chestnut wood was the only wood which was contemplated to be furnished by the contract unless small quantities of the other varieties had been found in the course of cutting the chestnut; that, in consequence of this em bargo, it became impossible for plaintiff to perform the contract. It is also alleged that, after the execution of the contract and at the time of the laying of the embargo, a great slump in the value of the wood had occurred, and that if plaintiff had been permitted to perform the contract, which he alleges he was financially and otherwise fully prepared to do, he would have derived a profit of some $61,000, which sum he claims he is entitled to recover by reason of defendant's repudiation of the contract.

The cause was properly removed to the Circuit Court of the United States for the Western District of North Carolina, where answer was made by defendant in effect denying the repudiation of the contract, charging the embargo to have been only temporary, setting forth the reasons therefor, and alleging that it was lifted 28 days after it was laid. A trial was had. Four issues were agreed to be submitted: First, whether the contract had been executed; second, whether defendant committed a breach of it; third, whether at the time of its breach the plaintiff was able, ready, and willing to perform it; and, fourth, what damage plaintiff would be entitled to recover. After all the evidence was presented, the court below, on motion of defendant, directed a nonsuit to be entered. To this action of the court this writ of error has been sued out by plaintiff.

F. S. Kirkpatrick and James H. Merrimon (Kirkpatrick & Howard and Pless & Winborne, on the brief), for plaintiff in error.

Louis M. Bourne (Davidson, Bourne & Parker and Allen T. Morrison, on the brief), for defendant in error.

Before GOFF and PRITCHARD, Circuit Judges, and DAYTON, District Judge.

DAYTON, District Judge (after stating the facts as above). In our judgment the controversy in this case, under the pleadings, narrows itself to a single question of law and fact. It is undisputed that the plaintiff in error had a five-year contract to deliver to defendant in error cordwood within fixed minimum and maximum limits each year for prices increasing in amount from year to year; that he was to commence delivery July, 1908, but, at the request of the defendant company, without objection postponed the beginning of delivery until October 1, 1908; that about October 14th he went from his contract work in Virginia to the defendant's place of business at Canton, N. C., to see Oma Carr, the manager of the defendant's wood and extract departments, in regard to this contract and the delivery of this wood; that he found that, by reason of the overstocking and congestion of the company's woodyards, it had sought and obtained from the railroad company the promulgation of a temporary embargo upon delivery to it of chestnut wood; that, not finding Carr, on the next day he sent Garst back with a letter to him in which he stated:

"I'm again ready to commence shipments & urge you not to delay the performance of this contract longer, having already lost nearly 4 months of best weather. Kindly answer this by Mr. Jack Garst as I will be here this P. M."

Garst saw Carr, who explained the condition of the company's yards to which had been shipped 1,200 cars of wood in September and 1,100 in October, and the reason for the embargo, and sent back to plaintiff a reply to his letter, as follows:

"Suggest that in view of short time until roads get bad, and our difficulties here in being able to handle incoming shipments regularly, you wait until spring before opening your territory. As an alternative, suggest that you look over S. & W. territory for hemlock to work this winter. Can fix this so that you can get $6.00 on cars at Marion."

Plaintiff made no reply to this, but went immediately to two stations of the railroad company and asked for cars to be placed for the purpose of shipping chestnut wood to defendant at Canton. At one of these places he was informed by the railroad agent that his request could not be granted because of the embargo. At the other the agent, not having received notice of the embargo, informed him that the car would be placed for him when he had wood there with which to load it. Plaintiff then informed this agent of the embargo, and indicated his purpose was to "test the matter." He in fact had made no preparation to cut and haul any wood, owned no timber in the territory to which his contract limited him from which to cut and haul it, and had made no effort to buy any such wood from others. The embargo declared October 1st was lifted on October 28th following. Plaintiff on October 26th, 12 days after his arrival from Virginia at Canton, instituted this suit for the purpose of recovering $61,000 damages for the alleged breach on the part of defendant of the contract. The sole question is whether the action of the defendant under the circumstances constituted in law a repudiation of the contract in its entirety. We think not. In support of this conclusion we cite Sitterding v. Grizzard, 114 N. C. 108, 19 S. E. 92; May v. Getty, 140 N. C. 310, 53 S. E. 75; Redding v. Vogt, 140 N. C. 562, 568, 53 S. E. 337; Dingley v. Oler, 117 U. S. 490, 6 Sup. Ct. 850, 29 L. Ed. 984; Smoot's Case, 15 Wall. 36, 21 L. Ed. 107; Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953.

But it is insisted that, if the contract was not wholly repudiated. the plaintiff was entitled to recover damages because of defendant's action in delaying its execution, in the deliveries for the first year, and this under the liberality allowed in North Carolina practice and pleading. We do not think so. The whole theory of plaintiff's case as set forth in his complaint was that the contract had been by the company wholly repudiated, and that it was thereby wholly terminated. The whole case was tried upon this theory. The issues to be submitted to the jury were agreed and settled, and no such issue as to whether plaintiff was entitled to damage by reason of delay in execution of the contract was asked to be submitted. Had plaintiff desired to raise an issue of this kind, the way was open for him to have done so by amending his complaint before or at any time before the issues were submitted to the jury. This he did not ask to do, but tried his case upon the sole theory that defendant's acts had wholly terminated the contract. Under such circumstances, he cannot come here and ask for a reversal because he was not allowed to recover in the court below something that he did not there seek to recover. It is true that the North Carolina practice is liberal, but we have no question but what it is in strict accord with this ruling; for in Moss v. Railroad Co., 122 N. C. 889, 29 S. E. 410, it is held:

"A complaint proceeding upon one theory will not authorize a recovery upon another and entirely different theory."

And it is further held in this case to be "a settled maxim of law that proof without allegation is as unavailable as allegation without proof." To the same effect is McCoy v. Railroad, 142 N. C. 383, 55 S. E. 270, and Conley v. Railroad, 109 N. C. 692, 14 S. E. 303.

In Sloan v. Hart, 150 N. C. 269, 63 S. E. 1037, 21 L. R. A. (N. S.) 239, it is said:

"Such specific damages as may have reasonably been within the contemplation of the parties are allowed in this class of cases, but they must be both pleaded and proven before the court can submit them to the consideration of the jury."

If plaintiff had a just cause of action based upon the theory of a partial breach of the contract and not an entire repudiation of it, about which we express no opinion, it is to be borne in mind that the action of the court below in directing a nonsuit does not estop him. under certain well-defined rules and limitations from asserting said right.

We therefore find no error in the judgment of the court below, and it will be affirmed.

VISCOUNT DE VALLE DA COSTA v. SOUTHERN PAC. CO.

(Circuit Court of Appeals, First Circuit. March 4, 1910.)

No. 840.

LIMITATION OF ACTIONS (§ 127*)-ACTION FOR WRONGFUL DEATH-LIMITATION-AMENDMENT OF DECLARATION.

The plaintiff in the Circuit Court brought suit against the defendant in the Circuit Court for the death of his intestate, which occurred during the voyage from New York to Galveston aboard a steamship operated by the defendant, which is a corporation created and existing under the statutes of Kentucky. In accordance with The Hamilton, 207 U. S. 398, 28 Sup. Ct. 133, 52 L. Ed. 264, the action for the death necessarily rested on the Kentucky statutes. The declaration as originally drawn was informal. A new declaration was substituted by amendment; but, as the original declaration contained every substantial fact necessary to create a case under the statutes referred to, although in an inartificial way, held, that Union Pacific Railway Company v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983, and Boston & Maine Railroad v. Hurd, 108 Fed. 116, 47 C. C. A. 615, 56 L. R. A. 193, so far as they related to the substitution of a statutory cause of action for a common-law cause of action, had no application to this case, and that the amendment here related back to the time of bringing suit.

[Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. § 543-547; Dec. Dig. § 127.*]

In Error to the Circuit Court of the United States for the District of Massachusetts.

Action by Viscount De Valle Da Costa, administrator, against the Southern Pacific Company. Judgment for defendant (160 Fed. 216), and plaintiff brings error. Reversed.

See, also, 167 Fed. 654.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Wendell P. Murray (Charles F. Smith, on the brief), for plaintiff in error.

William D. Turner (Reginald Foster and George Hoague, on the brief), for defendant in error.

Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.

PUTNAM, Circuit Judge. The plaintiff in error was the plaintiff in the Circuit Court, and it is convenient to speak of both parties as there arranged. This is an action of tort for an injury to the intestate, who was an employé of the defendant, and who was injured aboard a steamship operated by it on a voyage from New York to Galveston, followed by continued suffering and death six days later, of which the injury was the cause. The defendant was a corporation created and existing under the laws of the state of Kentucky, so that the law by which the case is governed is the law of Kentucky, in accordance with the decision in The Hamilton, 207 U. S. 398, 28 Sup. Ct. 133, 52 L. Ed. 264. The suit was commenced in the superior court of the state of Massachusetts by a writ which issued on the 21st day of November, 1906, subsequently removed to the Circuit Court of the United States for the District of Massachusetts. The Hamilton was decided after this suit was brought, namely, on December 23, 1907. There had, of course, been previous decisions looking in the same direction, but The Hamilton was the first that authoritatively determined, so far as the purposes of this suit are concerned, that the international rule with reference to the domicile of a vessel while on the high seas applies as between the various states of the Union. There were numerous subordinate rulings in the Circuit Court growing out of the changing aspects of the case, which will in part appear from what we may further say, as to which rulings we find no error.

The case before us turns on the application of the rule with regard to the provision for limitation found in a statute conferring a right of action, in connection with an amendment, as applied in Union Pacific Railway Company v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983, followed by us in April, 1901, in Boston & M. R. R. v. Hurd, 108 Fed. 116, 47 C. C. A. 615, 56 L. R. A. 193. The litigation in Union Pacific Railway Company v. Wyler arose in Missouri. The declaration there as originally drawn was strictly at common law. It was amended by substituting a cause of action arising under the statutes of Kansas. The consequent decision was that the introduction of such an amendment was the substitution of a new cause of action to such an extent, and of such a character, that the period of limitation was counted from the day of the amendment rather than from the day of commencing the suit. The case at bar, according to one proposition of the defendant, was at most a substitution of a cause of action arising under the statutes of Kentucky for a cause of action arising under the statutes of Massachusetts, or some other state than Kentucky; so that the plaintiff's case is not literally governed by Union Pacific Railway Company v. Wyler, where the substitution was that of a statutory cause of action for one arising at common law. Again, the plaintiff claims that the litigation in Union Pacific Railway Com

pany v. Wyler arose in Missouri, while in the present case the litigaton was initiated in Massachusetts, and that, although in the jurisdiction of the state of Missouri the amendment would be held to be one of an entirely new cause of action, it is otherwise in Massachusetts. If this proposition were correct, it might well be that the federal courts would be governed by the local practice, and that the question made here would not arise. In Boston & M. R. R. v. Hurd the litigation originated in the state of New Hampshire, and neither of these propositions was brought to our attention. We are able, however, to dispose of this appeal without reaching any definite conclusions on these particular points.

The substituted declaration contained three counts, one of which was admittedly and specifically based on the statutory laws of Kentucky. This was succeeded by a verdict in favor of the plaintiff. This also was succeeded by the fact that the defendant brought to the attention of the court the proposition that the statutory laws of Kentucky contained a conditional limitation of the same character as that noticed in Union Pacific Railway Company v. Wyler and Boston & M. R. R. v. Hurd, by virtue of which the right of action had already been lost at the time the amendment was allowed. The verdict was to a certain extent special, so that, on this being brought to the attention of the court, the court directed on the record as it stood a judgment for the defendant, applying to the case the rule of Union Pacific Railway Company v. Wyler, already cited. It is this latter ruling on which this appeal turns.

Yet the third count of the declaration as originally drawn stated every substantial fact necessary to create a case under the statutes of Kentucky. It described the intestate as a coal passer engaged in the defendant's employment aboard the steamship El Valle. It alleged that the defendant was a corporation existing under the laws of Kentucky; that it owned and employed the steamer named; that at the time of the alleged injury the steamer was on a voyage from New York to Galveston, and, therefore, on the high seas, as known to the court to be a geographical fact; that the intestate was scalded through the neglect of the defendant to provide him with a safe and suitable place in which to sleep, which amounted to a defect in the ways, works, and machinery connected with the business of the defendant, which had not been remedied in consequence of the defendant's negligence; that the machinery was defective in its piping and valves, permitting the improper and dangerous escape of live steam, all of which was through the fault of the defendant; that through the force of the live steam a pipe and valve burst, scalding the intestate, by reason of the defect and negligence described; that the intestate survived in intense pain and agony, and died from the scalding at the end of six days; that all the foregoing was in consequence of the negligence of the defendant, as already stated; and that the intestate left a widow. surviving him. This was sufficient to create a cause of action under the statutes of Kentucky. The substituted count under those statutes on which the verdict was rendered repeated that the corporation was organized under the laws of Kentucky, and that the steainer was controlled and managed by the defendant, who employed the plaintiff,