be held and which cannot be used for the measure of recovery for breach of the original contract.

The Government insists that the main purpose of the original contract was to secure the dredging of the channel and that the place of dumping the spoil was but incidental. The contract, however, does not so read. It specifically made the place of dumping the spoil an essential and particular term of the contract. It is not necessary to inquire into the reason which actuated the Government in making this requirement. It may be that it desired the spoil to be retained at a place outside of the channel and that such retention was a better way of doing the work than to deposit the spoil in deep water. It is enough to say that the contract, part of which we have heretofore set forth, specifically provided for dumping the spoil behind the bulkhead. As we have said, the engineer refused permission to dump the spoil at a place other than that designated in the specifications. This position of the engineer was warranted by the terms of the contract, for by paragraph 36 of the specifications the depositing of material and impounding it behind bulkheads as provided in the contract were made an essential part of the work to be done, and it is provided by specification 38 that material deposited otherwise than as specified will not be paid for, and by paragraph 39 that all dredged material was to be deposited within the area specified in paragraph 36, and by paragraph 53 that all material must be excavated and deposited under the supervision of the engineer officer in charge. It therefore follows that not only was Axman to dredge the channel as required by the contract, but he was to deposit the spoil as therein specified. Dredging the channel would not be enough to show performance of his contract, unless he complied with the other material requirement as to the deposit of the spoil. The new contract contained a different stipulation as to the dumping of the spoil. Upon the showing made in this case we think the change in the

place of dumping the spoil was very material, and could. not be made consistently with the terms of the agreement under which Axman undertook to perform the work or be liable as stipulated in paragraph 4.

Both sides refer to the case of United States v. McMullen, 222 U. S. 460. In that case a suit was brought upon a contract and bond, the contract providing for certain dredging. The contractor asked for leave to dump the spoil in deep water instead of on shore, which was at first refused, but afterwards granted. The contractor, however, failed to do the work and abandoned it. The Navy Department declared the contract void, and, after advertising, entered into a new contract. The defense principally made and treated of in the opinion of the court rested upon the alleged extension of time which it was contended worked a discharge of the surety. After disposing of that question in favor of the Government, this court said (p. 471):

"The objection that the second contractor does not appear to have completed the work intended to be accomplished by the first, that is to have made a channel of a certain depth, does not impress us. The first contract was for certain work for a certain object, but limited and subject to change as the appropriations might require. The second was for the same on the same plans and specifications, the only difference being in the parties, the price, and the liberty given to the second contractor to dump in deep water, which diminished the cost. In the first contract the Government reserved an absolute right of choice in this regard. Whether the object of the contract was attained is immaterial, so long as the work done towards it was work that the first contractor had agreed to perform."

We thus observe that in the McMullen Case it was found that the liberty given to the second contractor to dump in deep water did not change the contract, because in the

first contract the Government reserved an absolute right of choice in this regard. In the present case there was no such right of choice. The place of dumping spoil was made as we have said, a specific requirement of the contract. Under paragraph 6 such changes as are here involved must be agreed upon in writing by the contracting parties, the agreement setting forth clearly reasons for the change, giving quantity and prices, to take effect only upon the approval of the Secretary of War. Minor changes are provided for in paragraph 58 of the specifications, but clearly such an important change as this one has proven to be is not of that character.

In the McMullen Case, in treating of the right reserved in the first contract giving the Government an absolute choice of the dumping ground, it was concluded, "whether the object of the contract was attained is immaterial, so long as the work done towards it was work that the first contractor had agreed to perform." We are clearly of the opinion in this case that the work done under the second contract was not the work which the first contractor had agreed to perform. While it is true it accomplished the dredging of the channel in the same Bay, it did this with a disposition of the spoil not permitted under the first contract and in a material matter was different from the contract first entered upon.

We reach the conclusion that the Circuit Court of Appeals rightly decided this case, and its judgment is accordingly

Affirmed.

Argument for Plaintiff in Error.

234 U. S.

LOUISVILLE AND NASHVILLE RAILROAD COMPANY v. WOODFORD.

ERROR TO THE COURT OF APPEALS OF THE STATE OF KENTUCKY.

No. 531. Motion to dismiss submitted March 23, 1914.-Decided May 25, 1914.

In order that the denial of a Federal right may be the basis of reviewing the judgment of the state court, the claim of Federal right must be made in the state court in the manner required by the state practice, and unless there is an unwarranted resort to rules of practice by the state court to evade decision of the Federal question, this court will not review the judgment.

Raising the Federal claim of right on motion for new trial is not sufficient unless the court actually passes upon and denies the claim; and a decision by the appellate court that the Federal claim was not properly raised is not a denial of the Federal right but merely an enforcement of a rule of state practice.

Writ of error to review 152 Kentucky, 398, dismissed.

THE facts, which involve the jurisdiction of this court under § 237, Judicial Code, are stated in the opinion.

Mr. Robert B. Franklin and Mr. Robert C. Talbott, for defendants in error, in support of the motion.

Mr. Charles H. Moorman, Mr. Benjamin D. Warfield, Mr. Henry L. Stone and Mr. Robert A. Thornton, for plaintiff in error, in opposition to the motion:

By operation of law, the Carmack Amendment was written into the live-stock contract under which the shipment in this case was made, and that amendment repealed § 196, Ky. Const., as to such shipment. Adams Exp. Co. v. Croninger, 226 U. S. 491; Adams Exp. Co. v. Walker,

234 U. S.

Argument for Plaintiff in Error.

119 Kentucky, 121; C., B. & Q. Ry. Co. v. Miller, 226 U. S. 513; C., M. & St. P. Ry. Co. v. Solan, 169 U. S. 133; C., N. O. & T. P. Ry. Co. v. Dodd, 153 Kentucky, 845; Same v. Goode, 153 Kentucky, 247; S. C., 155 Kentucky, 153; Same v. Rankin, 153 Kentucky, 730; C., St. P. &c. Ry. Co. v. Laita, 226 U. S. 519; K. C. Sou. Ry. Co. v. Carl, 227 U. S. 639; M., K. & T. Ry. Co. v. Harriman, 227 U. S. 657; Penna. R. R. Co. v. Hughes, 191 U. S. 477; Southern Ex. Co. v. Fox, 131 Kentucky, 257.

The Court of Appeals of Kentucky erred in holding that the live-stock contract was not pleaded; in refusing to apply the Carmack Amendment; and in holding that the Kentucky law applied in the absence of express reliance upon the Federal law in plaintiff in error's pleadings. Adams Exp. Co. v. Croninger, 226 U. S. 491; M. C. R. Co. v. Vreeland, 227 U. S. 59; M., K. & T. Ry. Co. v. Wulf, 226 U. S. 570; St. L. & S. F. Ry. Co. v. Seale, 229 U. S. 156; Wells, Fargo Co. v. Neiman-Marcus Co., 227 U. S. 469.

This case does not fall under the third clause, but under the second clause, of § 709, Rev. Stat. Chapman v. Goodnow, 123 U. S. 540, 548; Columbia Water Co. v. C. E. St. Ry. Co., 172 U. S. 475, 488; Erie R. Co. v. Purdy, 185 U. S. 153; French v. Hopkins, 124 U. S. 524; Morrison v. Watson, 154 U. S. 111; McCulloch v. Maryland, 4 Wheat. 316; Second Employers' Liability Cases, 223 U. S. 1, 53, 54; Y. & M. V. R. Co. v. Adams, 180 U. S. 1.

There was no intentional relinquishment by plaintiff in error of a known right; therefore, there was no waiver amounting to an estoppel. 29 Am. & Eng. Encyc. Law (2d ed.), 1091, 1095; Cable v. U. S. Life Ins. Co., 111 Fed. Rep. 19, 31; Christianson v. Carleton, 69 Vermont, 91; First Nat. Bank v. Hartford Ins. Co., 45 Connecticut, 25, 44; Rice v. Fid. & Dep: Co., 103 Fed. Rep. 427, 435; Stackhouse v. Barnston, 10 Vesey, Jr. 466; Wells, Fargo Co. v. Neiman-Marcus Co., 227 U. S. 469.