consequence of the raising of the dam. Both deeds contained covenants of general warranty and guaranties of immunity from claims for damage resulting to other portions of the land from impounding the waters of the river. The defendant pleaded in bar of plaintiffs' action the purchase from A. M. Burdine of the right to pond water upon the land, and the warranties contained in his deeds of conveyance, claiming the right to have the tract of land partitioned and that portion affected by the ponded waters allotted as the share of A. M. Burdine.

The question as to the damage done to plaintiffs' interest in the land was submitted to a jury, who assessed said damage at $963. It was admitted of record that this amount did not equal the value of the two-thirds interest of A. M. Burdine in the land. It was also admitted that A. M. Burdine died intestate before the institution of the action, and that his interest in the land had descended to plaintiffs as his only heirs at law. Upon the verdict and admissions as above set forth, judgment was entered for defendant, and plaintiffs bring this writ of error.

[1,2] We think that the judgment of the District Court was correct. As the land inIvolved lies within the state of South Carolina, the rights of the parties with regard thereto are to be determined by the laws and decisions of that state, and these rights have been settled in a case "on all fours" with the case at bar. Charleston, C. & C. R. R. Co. v. Leech, 17 S. E. 994, 39 S. C. 446. In that case, as in this, there was a conveyance of an easement over land by a parent owning an undivided interest in said land as tenant in common with her children. In that case, as in this, the damages done to the land by the grantee of the easement amounted to less than the value of the interest of the tenant in common who made the conveyance. In that case, as in this, the parent died, and her interest in the land passed to her children as her only heirs at law. The court held, and we think properly, that the children must take the parent's interest burdened with the easement placed upon it, and that, since the value of such interest exceeded the damage done under the grant of the easement, the children were not entitled to maintain an action for damages.

[3] If A. M. Burdine had been living at the time of the trial, the defendant would have been entitled to have the land partitioned between him and his children, and his share therein allotted, so as to include the portion of the land overflowed and damaged, provid

ed this could have been done without injury to the interests of the other tenants in common. Railroad v. Leech, supra, 11 S. E. 631, 33 S. C. 181, 26 Am. St. Rep. 667; Young v. Edwards, 11 S. E. 1066, 33 S. C. 404, 10 L. R. A. 55, 26 Am. St. Rep. 689; Highland Park Mfg. Co. v. Steele (C. C. A. 4th Circuit) 235 F. 465, 149 C. C. A. 11. But A. M. Burdine having died, and plaintiffs having inherited from him his interest in the land, and it being admitted that this interest was of greater value than the damage done to the lands by the exercise of rights under the easement granted by him, there was no need for a partition to work out the rights of the parties.

Under these circumstances the plaintiffs are estopped from claiming the damages which they seek by reason of the warranties contained in the deeds executed by their father. 21 C. J. 1108, and cases cited. A learned discussion of the questions involved will be found in the opinion of the late Chief Justice McIver of South Carolina in Railroad v. Leech, 17 S. E. 994, 39 S. C. 446.

For the reasons stated, the judgment of the District Court is affirmed. Affirmed.

N. JACOBI HARDWARE CO., Inc., v. VIETOR et al.

(Circuit Court of Appeals, Fourth Circuit. January 12, 1926.)

No. 2415.

1. Sales 32-Contract for sale of rope held completed by correspondence, without regard to signing and return of formal written contract.

Where selling agents, at buyer's request, quoted price of rope, subject to mills' acceptance, buyer gave definite order for certain amount at such price, and agents wrote, notifying buyer of mills' acceptance before receipt of letter as to price guaranty, which letter of quotation stated would not be given, contract was complete without regard to signing and return of formal written contract by buyer. 2. Sales 89-Buyer's reference in letter to price guaranty could not affect contract already completed, in absence of assent by sell

er.

That buyer, when returning signed formal contract, referred in letter to price guaranty, not contained in order and at variance with contract established by correspondence, could not affect contract in absence of assent by seller.

3. Sales 22 (3)-Buyer, signing and forwarding copy of formal order, waived price guaranty as condition of acceptance of offer.

Buyer waived price guaranty as condition of acceptance of offer by signing and sending

In Error to the District Court of the United States for the Eastern District of North Carolina, at Wilmington; Isaac M. Meekins, Judge.

Action by Carl Vietor and others, partners trading as Frederick Vietor & Achelis, against the N. Jacobi Hardware Company, Inc. Judgment for plaintiffs, and defendant brings error. Affirmed.

This was an action to recover damages for breach of a contract of purchase. The plaintiff in error occupied the position of defendant in the court below, and the defendants in error the position of plaintiffs, and, for convenience, they will be so designated here. The District Court directed a verdict for plaintiffs on both the question of liability and the amount of damages, and, as the only exceptions of defendant relate to this action of the court, a somewhat detailed statement of the facts established by the evidence becomes necessary:

On

Plaintiffs were commission merchants, selling agents of mills, and also factors, guaranteeing orders, prices, and accounts. July 20, 1920, defendant wrote plaintiffs, asking for prices on rope manufactured by the Eagle and Phoenix mills, and stating that jobbers were out soliciting orders for fall shipment, price guaranteed. On July 22d plaintiffs acknowledged receipt of this letter, and promised to quote prices as soon as same were established for the coming season. On July 26th defendant again wrote plaintiffs, asking for prices on the rope, and

again calling attention to the fact that a number of factories were soliciting orders and giving prices with guaranties. On July 29th plaintiffs answered this letter, quoting white 5/16" to 5/8" rope at 522 cents per pound, put up in coils of 33/35 pounds per coil, with freight allowance of 50 cents per 100 pounds, and stating that mills would accept orders up to April 1st of the next year, but that they would not give a price guaranty. On August 4th defendant replied to this quotation as follows: "Please book us your quotation July 29th 500 coils Eagle and Phoenix white cotton rope 522 cents per pound, with freight allowance 50 cents per 100 pounds. Same to be shipped for April 1, 1921." This letter contained no reference to any price guaranty. On August 6th plaintiffs forwarded to defendant formal order, bearing date of August 6th, to be signed by defendant. Duplicate copies of this formal order were sent, one on a pink and the other on a green sheet of paper. Defendant was requested to sign and return the pink copy and to retain the green copy for its own files.

On August 10th, before receiving a reply to the letter of the 6th, plaintiffs again wrote defendant, stating that they had succeeded in having defendant's order accepted by the mills. This letter referred to the order as of the date of August 6th, and stated that it was subject to the conditions on the copy of the order. On August 10th, the same date of plaintiffs' letter last mentioned, defendant signed the green instead of the pink copy of order, and forwarded it to plaintiffs with a letter containing the following statement: "We understand that you guarantee us against any decline you may make on same." To this letter plaintiffs replied, under date of August 12th, acknowledging receipt of the "signed confirmation of order," and stating: "You mention in your letter that you understand we guarantee the price. We beg to state that we have never made a practice of guaranteeing prices on rope and do not do so now." Defendant made no reply to this letter, and did not attempt to revoke or cancel the order. On August 17th plaintiffs wrote defendant, calling attention to the fact that defendant had sent the green instead of the pink copy of the order, and asking that the pink copy be sent to complete plaintiffs' files, and on August 26th defendant signed and returned to plaintiffs the pink copy of the order, without exception or comment.

The foregoing was all of the evidence bearing upon the actual making of the con

tract, but there was other evidence showing unequivocally that both parties considered the contract as having been made and as mutually binding upon them. On September 13th plaintiffs wrote, asking for specifications, and defendant replied under date of September 28th: "Regarding our order No. 5165, we bought same to be specified for by April 1, 1921. It is our intention to ship same direct to our trade as we receive orders. If this is not satisfactory, we must ask that you cancel." Plaintiffs replied to this, stating that it would be satisfactory for the goods to be ordered out by April 1st. On January 25, 1921, defendant wrote asking plaintiffs to cancel the order, which plaintiffs declined to do. On March 30, 1921, de fendant wrote, requesting that plaintiffs use their good offices with the mills to induce them to accept a reasonable compensation in lieu of compliance with the contract. On May 21st defendant again wrote plaintiffs, offering to pay compensation in lieu of taking the rope, and suggesting a payment of 5 to 10 cents per pound.

The evidence is undisputed that on April 1, 1921, the market price of rope of the kind described in the contract was 222 cents per pound. On that date the Eagle and Phoenix Mills charged plaintiffs for the rope at 522 cents per pound, and thereafter duly assigned to them their claim against defendant. Plaintiffs paid for the rope the price of 522 cents and after holding it for a year sold it at 222 cents. The court directed a verdict in favor of plaintiffs for the sum of $4,950, with interest from May 1, 1921; this being the difference between the contract price and the market price as of April 1, 1921, computed on 500 coils of rope of the minimum weight of 33 pounds per coil. E. K. Bryan, of Wilmington, N. C. (W. B. Campbell and Bryan & Campbell, all of Wilmington, N. C., on the brief), for plaintiff in error.

I. C. Wright, of Wilmington, N. C. (Chandler Bennitt, of New York City, and Wright & Stevens, of Wilmington, N. C., on the brief), for defendants in error.

Before WADDILL, ROSE, and PARKER, Circuit Judges.

PARKER, Circuit Judge (after stating the facts as above). [1] We think that the learned District Judge was clearly right in directing a verdict for plaintiffs, both as respects the question of liability of defendant and the amount of damages. As to the first question, defendant had requested an

offer from plaintiffs. Plaintiffs, in response to this request, had quoted prices subject to acceptance by the mills. Defendant unconditionally accepted the offer contained in this quotation, giving plaintiffs a definite order for a certain amount of rope at a definite price, specifying freight allowance and time of shipment. This completed the contract, subject to the condition that it be accepted by the mills. It was accepted by the mills, and plaintiffs wrote, notifying defendant of the acceptance, prior to their receipt of the letter in which defendant stated that its understanding was that the prices were guaranteed, an understanding directly in conflict with the express terms of the letter of quotation. This correspondence completed the contract between the parties, without regard to the signing and return of the formal written contract. Bell v. Lamborn (C. C. A. 4th Ct.) 2 F. (2d) 205; Billings v. Wilby, 96 S. E. 50, 175 N. C. 571; Wilkins v. Cotton Mills, 97 S. E. 151, 176 N. C. 72; Savannah Sugar Refining Corporation v. Sanders, 129 S. E. 607, 190 N. C. 203. [2] The fact that the defendant, when returning the signed formal contract, referred in its letter to an understanding on its part as to price guaranty not contained in the order as signed, and at variance with the terms of the contract as established by correspondence, cannot avail the defendant. This was not an attempt to specify different terms in the acceptance of an offer, which would amount to a rejection of the offer and a counter proposition. The offer had already been unconditionally accepted, and the terms of the contract had become fixed. It amounted at the most to a proposed alteration of the contract, made after unconditional acceptance, which could not affect the contract, in the absence of assent by the other party. Wilkins v. Cotton Mills, suPra; 6 R. C. L. 605; Turner v. McCor

mick, 49 S. E. 28, 56 W. Va. 161, 67 L. R. A. 853, 107 Am. St. Rep. 904.

As said by Justice Stacy in Rucker v. Sanders, 109 S. E. 857, 182 N. C. 607: “In order for this subsequently intended direction or suggestion to invalidate the acceptance, it should amount to a qualification or condition imposed as a part of the acceptance itself."

[3] The statement in the letter as to price guaranty could not operate as a rejection of the offer, because the offer had already been accepted, and for the further reason that it did not purport to be a condition of accept