(98 Fed. 895.)

THE MARY ADELAIDE RANDALL.

(Circuit Court of Appeals, Second Circuit. December 7, 1899.)

No. 58.

SHIPPING CONSTRUCTION OF TIME CHARTER-TIME FOR DISCHARGING Cargo. A charter party for as many voyages between given ports as can be made between the date of the charter and a future date, and which contains stipulations for lay days in loading and discharging, for customary dispatch, and for the payment of wharfage by the charterer, is a time contract for as many voyages as can be performed within the time specified, including the necessary detention upon each voyage for loading and discharging cargo; and the vessel is not bound to enter upon a voyage which it is reasonably certain cannot be completed and the cargo discharged before the expiration of the charter limit.

Appeal from the District Court of the United States for the District of Connecticut.

For opinion in district court, see 93 Fed. 222.

Chas. C. Burlingham, for appellants.

Samuel Park, for appellee.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

WALLACE, Circuit Judge. The charter party, for a breach of which the action was brought, by its terms entitled the charterer to the use of the vessel "for as many voyages as the vessel can make from Fernandina, Florida, to New York between the date of this charter [November 8, 1897] and June 30, 1898." The vessel had completed four round voyages, and was in readiness May 18, 1898, to commence another; and the alleged breach was the refusal of the master to make another round voyage. The defense was that the vessel could not make another voyage and discharge her cargo within the charter period. The average time of the previous voyages (28) days), including discharge (15 days), was 433 days; and the proofs justify the conclusion that the vessel could not have completed another voyage, if, within the meaning of the contract, the voyage includes the discharge as well as the trip from port to port.

We agree with the court below that the charter party was a time contract, and that its meaning was to charter the vessel for as many voyages as could be performed within the time specified, including the necessary detention upon each voyage for loading and unloading. If this was not the intention, the parties would have stipulated for a specified number of voyages. They undoubtedly took into consideration the number of voyages that the vessel could probably complete between the date of the instrument and the ensuing 30th day of June, and this could not have been done without estimating the time to be consumed in loading and discharging.

The learned district judge points out in his opinion that the parties could not have used the term "voyage" in the strict sense, signifying the actual transit of the vessel from port to port, because the various stipulations of the contract providing for receiving mer

chandise on board during the voyage, for lay days in loading and discharging, for customary dispatch, and for the payment of wharfage by the charterers, indicate the contrary, and denote that the voyages meant are those in which receiving and discharging cargo and lying at the wharf are incidents. We concur in his observations.

The only adjudged case which seems to be in point is Poland v. Coal Co., 14 Blatchf. 519, Fed. Cas. No. 11,245. In that case the vessel was chartered "for a series of voyages," from and to certain ports, "from the 2nd day of May until the 1st day of November"; and the question was whether the charterer was bound to furnish her with a cargo in the latter part of October. The court (Chief Justice Waite), deciding that the charterer was not bound to furnish the cargo, said:

"The charter party being for 'a series of voyages,' the libelant could not be required to receive, or the respondent to furnish, a cargo under the charter, unless there was reasonable cause to believe that the voyage could be completed in the usual and ordinary way by November 1st. * * After allowing

the respondent such time as it was entitled to under the charter for loading the vessel, there was no reasonable probability that a voyage to Boston could be completed by November 1st."

The decree is affirmed, with costs.

(98 Fed. 897.)

J. C. HUBINGER CO. v. QUINCY HORSE-RAILWAY & CARRYING CO. (Circuit Court of Appeals, Seventh Circuit. January 2, 1900.)

No. 588.

CIRCUIT COURT OF APPEALS-JURISDICTION-CONSTITUTIONAL QUESTION.

A suit brought to have ordinances granting a franchise to construct and operate a street railroad annulled on the ground that they impair the obligation of a contract made by an act of the legislature and a prior ordinance, by which plaintiff claims to have been granted an exclusive franchise, and deprive plaintiff of property without due process of law, necessarily involves a constitutional question, and the circuit court of appeals is without jurisdiction of an appeal therein.1

Appeal from the Circuit Court of the United States for the Southern District of Illinois.

John E. Craig, for appellant.

J. F. Carrott, for appellee.

Before WOODS and JENKINS, Circuit Judges, and BUNN, District Judge.

WOODS, Circuit Judge. The motion to dismiss the appeal herein because this court lacks jurisdiction to entertain it must be sustained. Constitutional questions are involved, and under section 5 of the judiciary act of 1891 the right of appeal given to the supreme court is exclusive. The bill was brought by the appellee, the Quincy Horse

1 As to jurisdiction of circuit courts of appeals in general, see notes to Lau Ow Bew v. U. S., 1 C. C. A. 6; Emigration Co. v. Gallegos, 32 C. C. A. 475.

Railway & Carrying Company, alleging an "exclusive right and privilege to establish and operate upon and over the streets of the city of Quincy railways for carrying persons and things for the term of fifty years from the passage" of the act of February 11, 1865, by authority of which, and of certain ordinances of the city, the right was obtained; and also alleging the invalidity of a certain ordinance, No. 31, passed on the 7th day of April, 1898, and a later ordinance, No. 39, purporting to grant to the appellant, the J. C. Hubinger Company, "the right to establish and maintain an electric street railway over certain streets and avenues in the city of Quincy," on the constitutional grounds that the last-named ordinances, if enforced, would impair the obligation of the complainant's contract with the state and city, would violate the fourteenth amendment to the constitution of the United States by depriving the complainant of property without due process of law, and by denying to the complainant within the jurisdiction of Illinois the equal protection of the laws. The answer of the appellant denied that the rights and franchises acquired by the complainant were exclusive, or constituted property rights, within the meaning of the fourteenth amendment; and asserted the right of the city council of Quincy to grant to any other corporation the privilege of occupying any street of the city not already occupied by the complainant. By its decree the court adjudged the right of the complainant to be exclusive, as alleged, and the ordinances in favor of the appellant to be wholly null and void as against the appellee; and error is assigned upon each of these provisions of the decree.

The response of the appellant to the motion to dismiss is, in substance, this: The mere averment of it in the bill does not raise a constitutional question. The appellant did not take issue on that proposition, but simply denied that a constitutional question was raised. The decree shows that the court determined the question solely upon a construction of the act of February 11, 1865, in respect to the right of the complainant to claim within its grant all of the streets of the city, whether it had occupied them or not. No question involving the construction or application of the federal constitution was involved at any stage of the proceedings. The appellant never claimed that the legislature of the state had no power to pass an act giving the appellee an exclusive right to operate a horse railway on such streets as it used. No attempt was made in the case to argue that the federal constitution had any connection with the matter in controversy. The appellant asked and obtained the right to operate an electric street railway on streets not occupied by the appellee at the time of the application. The sole question in this respect was whether the word "railways," as used in the act of 1865, meant only horse railways, and did not prevent granting to the appellant the privilege of constructing and operating an electric railway on streets not occupied by the appellee. The court did not, in its decree, declare the ordinances in favor of the appellant null and void because they impaired contract rights, or were otherwise in violation of the federal constitution; and, granting that the legislature of the state had power to grant an exclusive franchise to the appellee for the op

39 C.C.A.-22

eration of a railway by any motive power it desired to employ, "it does not follow that a constitutional question is involved because another seeks (and obtains leave of the city council) to engage in the same business.”

It is sufficiently clear, on this argument alone, that a constitutional question was involved. The disputed point was not, what would be the effect of the constitution if found applicable? That was well enough understood without discussion. But the question was, was any provision of the constitution applicable? The court might have concluded, on consideration of the statute of the state and of the city ordinances alone, that the franchise of the appellee was in no manner infringed or impaired by the ordinances in favor of the appellant, and that conclusion would have disposed of the case without the necessity of express reference to the constitution of the United States; and yet that would have been a decision that the provisions of the constitution, the benefit of which the bill had invoked, had no application to the case. But, on the other hand, when, on consideration of the statute and ordinances, the court reached the conclusion that the franchise asserted by the appellant was inconsistent with that of the appellee, it was only by application of one or the other of the provisions mentioned of the federal constitution that the court could have declared null and void the ordinances in favor of the appellant. The appeal is therefore dismissed, at the costs of the ap pellant.

(98 Fed. 900.)

CLEAVER et al. v. TAYLOR et al.1

(Circuit Court of Appeals, Fifth Circuit. January 9, 1900.)

No. 844.

SPECIFIC PERFORMANCE-CONTRACTS ENFORCEABLE-LACHES.

Complainants purchased certain lands, and received conveyances therefor, from commissioners appointed in a partition suit between the heirs of the deceased owner, and went into possession and made improvements thereon. Some 12 years later an action was brought against them by the heirs to recover the lands, pending which they made an agreement with the attorney and agent to purchase the lands from such heirs, and in consequence of such agreement a judgment was rendered for the plaintiffs in the action without contest. Complainants made a partial payment, which was accepted; but the conveyance made, which was not executed by the heirs themselves, did not give them a title upon which they could negotiate a loan, by which means it was understood that they were to procure the money to complete the payment. No better title was offered, and no further payment was made; but complainants continued in possession for eight years longer, when a writ of possession was issued on the judgment. to restrain the enforcement of which, and to compel a specific performance of the agreement of sale, complainants filed their bill in equity. Held, that having accepted and retained the payment made under the agreement made by their agent, and having sought to avail themselves of the benefit of the judgment permitted to be taken in reliance thereon, the defendants could not repudiate such agreement, which must be regarded as having been

1 Rehearing denied February 13, 1900.

partially performed, and of which complainants were entitled to the full performance, by such conveyance or decree as would vest them with title to the land on their payment of the purchase money; the delay having been as much through the laches of defendants as of complainants.

Appeal from the Circuit Court of the United States for the Northern District of Texas.

J. A. Martin and John G. Winter, for appellants.

Felix H. Robertson, for appellee.

Before PARDEE and SHELBY, Circuit Judges, and PARLANGE, District Judge.

PARDEE, Circuit Judge. This is a suit in equity instituted in November, 1897, by the appellants, A. W. Cleaver and T. L. Criswell, against Isaac Taylor et al., appellees, to enjoin the execution of a writ of possession issued out of the United States circuit court at Waco, Tex., at the instance of the appellees, upon a judgment at law entered in that court on the 15th day of April, 1889, in cause No. 393, styled, "John D. Taylor et al. v. W. B. McAlister et al." Under the writ mentioned, the appellees sought to oust the appellants from certain lands possessed by them,-200 acres by said Cleaver, and 331 acres by said Criswell,-which land the appellants claim under an agreement of sale with the appellees, which agreement they seek in their bill to enforce. The cause came on to be heard at the May term, 1899, on the bill, answer, and replication, and the evidence adduced thereunder; and there was a decree dismissing the complainants' bill, and dissolving an injunction theretofore granted.

It appears that in 1876 a certain grant or survey of land in Falls county, containing 1,476 acres, and designated upon the map of said county as the "Josiah Taylor League," was owned by the heirs of Isaac Taylor, all of whom resided in the state of Tennessee. In that year the said heirs instituted a suit in the chancery court of White county, in that state, for partition among themselves of the lands be longing to the estate of their ancestor, the said Isaac Taylor, among which lands was included the above-noted one-third league. In this chancery proceeding the court appointed two of the heirs, Isaac Taylor and John D. Taylor, special commissioners to sell the lands in Texas, including said one-third league, belonging to said estate. Shortly thereafter, in the same year, the said Isaac and John D. Taylor came to Texas, and, as such commissioners, sold several tracts of land out of said third league. Of the lands so sold, the complain- · ants, T. L. Criswell and A. W. Cleaver (appellants here), purchased, and by mesne conveyances acquired and went into possession of, the several tracts of land by them respectively claimed in this suit,Criswell, 331 acres; Cleaver, 200 acres. So stood the title, claim, and possession of the appellants when the Taylor heirs instituted their aforementioned ejectment suit against them in 1889 (No. 393), in which they recovered judgment April 15, 1889. It further appears that, after the aforementioned conveyances by John D. and Isaac Taylor, nothing was done concerning the lands involved in this suit until eight years afterwards, when the said Taylor heirs filed a suit