[233]

[234]

have been fully transferred to and vested in the | as he should make during the term of service.
new corporation. The bill then alleges a refusal Whatever license resulted to the Missouri
by Hewitt to assign the patent to the plaintiffs, corporation, from the facts of the case, to use
and that he claims to hold it adversely to them. the invention, was one confined to that corpo-
The prayer of the bill is for a decree directing ration, and not assignable by it. Troy I. & N.
the defendant to make an assignment of the Factory v. Corning, 14 How. 193, 216 [55 U. S.
patent, or of such interest as he may have bk. 14, L. ed. 383, 393]; Oliver v. Rumford
therein, and of all his rights thereunder, to the Chem. Works, 109 U. S. 75, 82 [Bk. 27, L. ed.
Hapgood Plow Company, assignee of Hapgood 862, 864]. The Missouri corporation was dis-
& Company, or to the trustees of Hapgood & solved. Its stockholders organized a new cor-
Company, in trust for the Hapgood Plow Com-poration under the laws of Illinois, which may
pany, vesting the title to the patent, or to the naturally have succeeded to the business of the
defendant's rights thereunder, in the Hapgood prior corporation, but the express averment of
Plow Company, or in said trustees in trust for the bill is that it took by assignment the rights
that corporation; and that he be enjoined and it claims in this suit. Those rights, so far as
restrained from maintaining any action at law any title to the invention or patent is concerned,
or in equity for any infringement of the patent never existed in the assignor. As to any implied
by Hapgood & Company, or for the use by that license to the assignor, it could not pass to the
corporation of any of the devices or improve- assignee.
ments covered by the patent.

The decision of the circuit court (11 Biss. 184) was placed on the grounds (1) that Hewitt was not expressly required, by his contract, to exercise his inventive faculties for the benefit of his employer, and there was nothing in the bill from which it could be fairly inferred that he was required or expected to do so; (2) that whatever right the employer had to the invention by the terms of Hewitt's contract of employment was a naked license to make and sell the patented improvement as a part of its business, which right, if it existed was a mere personal one, and not transferable, and was extinguished with the dissolution of the corporation.

We are of opinion that the views taken of the case by the circuit court were correct. There is nothing set forth in the bill, as to any agreement between the corporation and Hewitt, that the former was to have the title to his inventions or to any patent that he might obtain for them. The utmost that can be made out of the allegations is that the corporation was to have a license or right to use the inventions in making plows. It is not averred that anything passed between the parties as to a patent. We are not referred to any case which sustains the

As to so much of the prayer of the bill as
asks that Hewitt be enjoined from maintaining
any action at law or in equity for any alleged
infringement of the patent by the prior corpor-
ation, or for its use of any of the devices or im-
provements covered by the patent, which is all
there is left of the prayer of the bill, any suit
to be brought would not be a suit against the
corporation, for it is dissolved; and could not
be a suit in equity against its trustees, for they
are not alleged to be using the invention. It
could only be a suit at law against the trustees
or the stockholders of the old corporation, for
infringement by it while it existed. The theory
of the bill is that there is a perfect defense to
such a suit. In such a case a court of equity,
certainly a Circuit Court of the United States,
will not interfere to enjoin even a pending suit
at law, much less the bringing of one in the
future. Grand Chute v. Winegar, 15 Wall. 373
[82 U. S. bk. 21, L. ed. 174]; 1 High, Injunc-
tions, §§ 89-93, and cases there cited.
Decree affirmed.
True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. 8.

view, that, on such facts as are alleged in the MARY E. FREEMAN ET AL., Piffs. in Err.,

bill, the title to the invention or to a patent for
it passed. In McClurg v. Kingsland, 1 How.
202 [42 U. S. bk. 11, L. ed. 102], the facts
were in some respects like those in the present
case, but the decision only went to the point
that the facts justified the presumption of a
license to the employer to use the invention, as
a defense by him to a suit for the infringement
of the patent taken out by the employé.

The circuit court cases referred to do not
support the plaintiff's suit. In Continental
Windmill Co. v. Empire Windmill Co. 8
Blatchf. 295, there was an agreement that the
employé should receive $500 for any patent-
able improvement he might make. In Whiting
v. Graves, 3 Bann. & Ard. 222, it was held
that an employment to invent machinery for
use in a particular factory would operate as a
license to the employer to use the machinery
invented, but would not confer on the employer
any legal title to the invention or to a patent
for it. In Wilkins v. Spafford, 3 Bann. & Ard.
274, the contract was that the employer should
have the exclusive benefit of the inventive fac-
ulties of the employé and of such inventions

BENJAMIN ALDERSON ET AL.

(See S. C. Reporter's ed. 185-190.)

Jurisdiction of state courts in actions against
nonresidents, limited-action to recover un-
divided interest in land, and for a partition,
personal-distinction between actions in rem
and in personam-costs.

1. A state court cannot determine the validity of
any demand against a nonresident, in the absence
yond such as may be satisfied by property of the
of personal service, or his personal appearance, be-
defendant within its jurisdiction.
ident may be satisfied out of the property within
2. While the costs of an action against a nonres-
the jurisdiction of the court, no personal liability
for them can be created against him.

3. An action to recover an undivided interest in
personal; and a judgment against a nonresident
real property and to obtain a partition thereof is
defendant for costs does not warrant a sale of his
property.

[No. 36.]

Argued and submitted Nov. 2, 1886. Decided
Nov. 29, 1886.

[185]

IN ERROR to the Circuit Court of the United the alleged consideration of $178. Two of the
States for the Northern District of Texas. defendants disclaimed having any interest.
Affirmed.
The other defendants, including Freeman, so
far as their title is disclosed by the transcript,
claimed under the sheriff's deed.

Statement of the case by Mr. Justice Field: This was an action of trespass to try the title to certain land in Texas. It is the form in use to recover possession of real property in that State.

On the trial, the defendants, to show title out of the plaintiffs, offered in evidence the judgment for the costs, the execution issued thereon, and the sheriff's deed; to the introducThe plaintiffs claimed the land under a deed tion of which the plaintiffs objected, on the to their grantor, executed by the sheriff of Mc- ground that the judgment for costs was a Lennan County, in that State, upon a sale un-judgment in personam and not in rem, and was der an execution issued on a judgment in a rendered against the defendant, who was a state court for costs, rendered against one Hen- nonresident of the State, withont his appearry Alderson, then owner of the property, but ance in the action or personal service of citation now deceased. upon him, but upon a citation by publication only, and therefore constituted no basis of title in the purchaser under the execution.

The defendants asserted title to the land as heirs of Alderson, contending that the judgment under which the alleged sale was made was void, because it was rendered against him without personal service of citation, or his appearance in the action.

The material facts of the case as disclosed by the record are briefly these: On the 16th of July, 1855, a tract of land comprising one third of a league was patented by Texas to Alderson, who had been a soldier in its army. One undivided half of this tract was claimed by D. C. Freeman and G. R. Freeman, and they brought an action against him for their inter

est.

The court sustained the objection and excluded the documents from the jury; and the defendants excepted to the ruling. No other evidence of title being produced by the defendants, a verdict was found for the plaintiffs, and judgment in their favor was entered thereon; to review which the case is brought to this court on a writ of error.

Mr. M. F. Morris, for plaintiffs in error. Messrs. L. W. Goodrich and E. H. Graham, for defendants in error.

Mr. Justice Field delivered the opinion of the court:

by operation of law it is liable. The court ac-
quires jurisdiction over the property in such
cases by its seizure, and of the subsequent pro-
ceedings by public citation to the world, of
which the owner is at liberty to avail himself
by appearing as a claimant in the case.

The pleadings in that action are not set forth in the transcript, but, from the record of the judgment therein which was produced, we are informed that the defendant was a nonresi- Actions in rem, strictly considered, are prodent of the State, and that the citation to him was ceedings against property alone, treated as remade by publication. There was no personal sponsible for the claims asserted by the libelservice upon him, nor did he appear in the ac-ants or plaintiffs. The property itself is in such 186] tion. The judgment, which was rendered on actions the defendant, and except in cases the first of October, 1858, was of a threefold arising during war, for its hostile charactercharacter. It first adjudged that the plaintiffs its forfeiture or sale is sought for the wrong, recover one undivided half of the described in the commission of which it has been the intract. It then appointed commissioners to parti-strument, or for debts or obligations for which tion and divide the tract, and set apart, by metes and bounds, one half thereof, according to quantity and quality, to the plaintiffs; and to make their report at the following term of the court. And, finally, it ordered that the plaintiffs have judgment against the defendant for all costs in the case, but stayed execution until There is, however, a large class of cases the report of the commissioners should be re- which are not strictly actions in rem, but are turned and adopted and a final decree entered. frequently spoken of as actions quasi in rem, At the following term the commissioners because, though brought against persons, they made a report showing that they had divided only seek to subject certain property of those the tract into two equal parcels. The report persons to the discharge of the claims asserted. was confirmed, and on the 31st of March, Such are actions in which property of nonresi1859, the court adjudged that the title to one dents is attached and held for the discharge of of these parcels was devested from Alder- debts due by them to citizens of the State, and son and vested in the plaintiffs, the two Free-actions for the enforcement of mortgages and mans, and that they recover all costs in that other liens. Indeed, all proceedings having behalf against him, which were $61.45, and for their sole object the sale or other disposithat execution issue therefor. Execution therefor was issued to the sheriff of McLennan County on the 30th of May directing him to make the amount out of "the goods, chattels, lands and tenements" of the defendant. It was levied on the other half of the divided tract, which remained the defendant's property. On the 5th of July, 1859, this half was sold by the sheriff to one James E. Head for $66.79, being the costs mentioned and his fees for the levy and for his deed, which was executed to the purchaser. In September following, Head onveyed the premises to D. C. Freeman for 119 U. S. U. S.. Book 30.

24

[187]

tion of the property of the defendant, to satisfy
the demands of the plaintiff, are in a general [188]
way thus designated. But they differ, among
other things, from actions which are strictly in
rem, in that the interest of the defendant is
alone sought to be affected, that citation to
him is required, and that judgment therein is
only conclusive between the parties.

The State has jurisdiction over property
within its limits owned by nonresidents, and
may, therefore, subject it to the payment of de-
mands against them of its own citizens. It is
only in virtue of its jurisdiction over the prop-

378

erty, as we said on a former occasion, that its | have been duly made and proven in court."
tribunals can inquire into the nonresident's ob- Id. p. 318 [932].
ligations to its own citizens; and the inquiry can To this statement of the law may be added
then proceed only so far as may be necessary what, indeed, is a conclusion from the doctrine
for the disposition of the property. If the non- that whilst the costs of an action may properly
resident possesses no property in the State, be satisfied out of the property attached, or oth-
there is nothing upon which its tribunals can erwise brought under the control of the court,
act. Pennoyer v. Neff, 95 U. S. 723 [Bk. 24, no personal liability for them can be created
L. ed. 569]. They cannot determine the valid against the absent or nonresident defendant;
ity of any demand beyond that which is satis- the power of the court being limited, as we
fied by the property. For any further adjudi- have already said, to the disposition of the prop-
cation the defendant must be personally served|erty, which is alone within its jurisdiction.
with citation or voluntarily appear in the action.
The laws of the State have no operation outside
of its territory, except so far as may be allowed
by comity; its tribunals cannot send their cita-
tion beyond its limits and require parties there
domiciled to respond to proceedings against
them; and publication of citation within the
State cannot create any greater obligation upon
them to appear. Id. p. 727 [570]. So, neces-
sarily, such tribunals can have no jurisdiction
to pass upon the obligations of nonresidents,
except to the extent and for the purpose men-
tioned.

This doctrine is clearly stated in Cooper v.
Reynolds, 10 Wall. 308 [77 U. S. bk. 19, L. ed.
931], where it became necessary to declare the
effect of a personal action against an absent
party without the jurisdiction of the court, and
not served with process or voluntarily appear-
ing in the action, and whose property was at-
tached, and sought to be subjected to the pay-
ment of the demand of the resident plaintiff.
After stating the general purpose of the action
and the inability to serve process upon the de-
fendant, and the provision of law for attaching
his property in such cases, the court, speaking
[189] by Mr. Justice Miller, said: "If the defendant
appears, the cause becomes mainly a suit in
personam, with the added incident that the
property attached remains liable, under the
control of the court, to answer to any demand
which may be established against the defend-
ant by the final judgment of the court. But
if there is no appearance of the defendant, and
no service of process on him, the case becomes
in its essential nature a proceeding in rem, the
only effect of which is to subject the property
attached to the payment of the demand which
the court may find to be due to the plaintiff.
That such is the nature of this proceeding in
this latter class of cases is clearly evinced by
two well established propositions: First, the
judgment of the court, though in form a per-
sonal judgment against the defendant, has no
effect beyond the property attached in that
suit. No general execution can be issued for
any balance unpaid after the attached property
is exhausted. No suit can be maintained on
such a judgment in the same court, or in any
other; nor can it be used as evidence in any
other proceeding not affecting the attached
property; nor could the costs in that proceed-
ing be collected of defendant out of any other
property than that attached in the suit.
ond, the court, in such a suit, cannot proceed
unless the officer finds some property of de-
fendant on which to levy the writ of attach-
ment. A return that none can be found is the
end of the case, and deprives the court of fur-
ther jurisdiction, though the publication may

Sec

The pleadings in the case in which judgment was rendered for costs against Alderson are not before us. We have only the formal judgment, from which it should seem that the action was to recover an undivided interest in the property, and then to obtain a partition of it, and have that interest set apart in severalty to the plaintiffs-a sort of mixed action to try the title of the plaintiffs to the undivided half of the property, and to obtain a partition of that half. Such action, though dealing entirely with the realty, is not an action in rem in the strict sense of the term; it is an action against the parties named, and, though the recovery and partition of real estate are sought, that does not change its character as a personal action; the judgment therein binds only the parties in their relation to the property. The service of citation by publication may suffice for the exercise of the jurisdiction of the court over the property so far as to try the right to its possession, and to decree its partition; but it could not authorize the creation of any personal demand against the defendant, even for costs which could be satisfied out of his other property.

The judgment is for all the costs in the case, and no order is made that they be satisfied out of the property partitioned. Had satisfaction been thus ordered, no execution would have been necessary. The execution, also, is general in its direction, commanding the sheriff to make the costs out of any property of the defendant.

The judgment, as far as the costs are con-
cerned, must therefore be treated as a judg
ment in personam, and, for the reason stated, it
was without any binding obligation upon the de-
fendant; and the execution issued upon it did not
authorize the sale made, and, of course, not the
deed of the sheriff. Were the conclusion oth-
erwise, it would follow, as indeed it is claimed
here, that a joint owner of real property might
sue a nonresident cotenant for partition, and,
having had his own interest set apart to him-
self, proceed to sell out on execution the inter-
est of his cotenant for all the costs.

The judgment of the court below must be af-
firmed; and it is so ordered.
True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S

[190

448 (39 U. S. bk. 10, L. ed. 535); Johnston v.
Jones, 1 Black, 210 (66 U. S. bk. 17, L. ed. 117).

Mr. Justice Matthews delivered the opin- [153] ion of the court:

The plaintiff in error, who was plaintiff below, a citizen of Massachusetts, brought his ac

Attorney_may_testify for client-discretion as to tion at law in the Circuit Court of the United admission of testimony-practice.

States for the District of Colorado, against the
defendant in error, to recover for the value of serv-

1. The attorney of a party prosecuting or defend-ices alleged to have been performed by him for
ing in a civil action may testify on behalf of his
client.
2. It is error to reject testimony on an illegal
ground, when such refusal deprives the party of-
fering it of the exercise of the discretion of the
court as to its reception when offered.
8. It seems that testimony of an admission by the
defendant may be competent on rebuttal, especially
to discredit him as a witness by proof of a contra-
dictory statement made at another time and place.
[No. 628.]

the defendant, as a broker, in reference to the
sale of certain mining property in which the de-
fendant was interested. There was a general
denial by the answer of the defendant, and the
cause was submitted to a jury upon the issue
joined. The record shows that on the first
trial there was a verdict in favor of the plaintiff
for $5,000, which, on a motion for a new trial,
was set aside on payment of costs. Thereupon,
at a subsequent term, the cause came on again
for trial by jury, and there was a verdict for
IN ERROR to the Circuit Court of the United the defendant, and judgment rendered there-
States for the District of Colorado. Reon, to reverse which is the object of the pres-
versed.
ent writ of error.

Submitted Nov. 8, 1886. Decided Nov. 29, 1886.

Messrs. Amos Steck and M. B. Carpenter, for plaintiff in error:

A witness cannot be excluded merely because his testimony is to be given in behalf of his client.

Potter v. Inhab. of Ware, 1 Cush. 519; Chaffee v. Thomas, 7 Cow. 358; Newman v. Bradley, 1 Dall. 240 (1 U. S. bk. 1, L. ed. 118); Miles v. O'Hara, 1 Serg. & R. 32; Geisse v. Dobson, 3 Whart. 34; Slocum v. Newby, 1 Murph. 423; Reid v. Colcock, 1 Nott & McC. 592; Chadwick v. Upton, 3 Pick. 442; Jones v. Savage, 6 Wend. 658; Commonwealth v. Moore, 5 J. J. Marsh. 655; Brandigee v. Hale, 13 Johns. 125; Robinson v. Dauchy, 3 Barb. 20; Little v. McKeon, 1 Sandf. 607.

The attorney was offered as a witness to contradict the defendant. The evidence was offered to impeach the defendant. He could not be impeached until he had testified. The plaintiff could not tell beforehand that Hall would deny having told the attorney. The testimony was proper in rebuttal. It was not cumulative to the testimony of the plaintiff.

It appears from the bill of exceptions taken on the second trial that the plaintiff, to maintain the issue on his part, gave evidence tending to prove that the defendant, Hall, promised to pay him $5,000 for his services in assisting the defendant to make sale of certain mining property in which he was interested. The defendant, to maintain the issue on his part, gave evidence tending to prove that he never promised to pay the plaintiff any sum whatever. The defendant, while on the stand as a witness, on cross examination, testified that he never told anyone that he promised to pay the plaintiff the sum of $5,000, and further testified that he never told the attorney of the plaintiff, Mason B. Carpenter, that he promised to pay the plaintiff the sum of $5,000. The plaintiff in rebuttal offered as a witness the said attorney, Mason B. Carpenter, who was the sole attorney of plaintiff in conducting the trial of said cause, and who offered to testify that the defendant, Hall, had told him, the said Carpenter, that at a certain time and place he, the defendant, promised to pay the plaintiff, French, the sum

Fain v. Cornett, 25 Ga. 184; Yeaton v. Chap-of $5,000. man, 65 Me. 126.

Mr. Edward O. Wolcott, for defendant in error:

The court refused to allow the said Carpenter to be sworn as a witness for the plaintiff because he was acting as an attorney for the plaintiff in conducting the trial of the cause; to which ruling the counsel for the plaintiff excepted.

The reason for the refusal to listen to the testimony of the counsel as witness is not material. The plaintiff was not entitled to introduce this It further appears from the bill of exceptions evidence at this stage of the trial. It was a part that afterwards, upon a motion for a new trial, of his evidence in chief. This is apparent from the court said that the said Carpenter was in the nature of the issue tried. The action was fact competent to testify as a witness for the based upon a parol promise to pay. Evidence plaintiff, but that his testimony was not offered of the admission of the defendant that he had at the proper time; that the testimony of the made such promises was as much a part of witness Carpenter was receivable only in chief plaintiff's affirmative case as any other evidence and upon the plaintiff's opening, and not in rewhich might properly be given upon that sub- buttal; and that this being the second trial of ject. The court so held in deciding the motion the cause, the plaintiff was not surprised by the for a new trial. The question is fairly presented testimony of the defendant, Hall, and it was whether the discretion which is vested in the his duty to give in chief and in his opening all trial court, as to the order of proof and the con-evidence as to admissions by the defendant, as duct of the trial, may be reviewed by this court, well as other matters. For this reason the in the absence of any fact or circumstances tend-motion for a new trial was denied. ing to show either that this discretion was abused or its exercise refused.

Phil. & Tren. R. R. Co. v. Stimpson, 14 Pet.

The question for consideration is whether the court erred in its ruling in not permitting the examination of the plaintiff's attorney as a

[154]

[155]

[149]

witness on the plaintiff's behalf. It appears
from the bill of exceptions that no objection
was made to the examination of the witness by
the defendant; the refusal to allow him to be
sworn seems to have emanated from the court
sua sponte, on the ground that he was acting as
an attorney for the plaintiff in conducting the
trial of the cause. There is nothing in the
policy of the law, as there is no positive enact-
ment, which hinders the attorney of a party
prosecuting or defending in a civil action from
testifying at the call of his client. In some cases
it may be unseemly, especially if counsel is
in a position to comment on his own testimony,
and the practice, therefore, may very properly
be discouraged; but there are cases, also, in
which it may be quite important, if not neces-
sary, that the testimony should be admitted to
prevent injustice or to redress wrong. Such
seems, also, to have been the more deliberate
opinion of the circuit court in this case, as it
appears from the bill of exceptions that the re-
fusal to grant a new trial for the alleged error
in its ruling was justified, not on the ground
that the witness was incompetent, but that his
testimony was not offered at the proper time,
being receivable only in chief upon the plaint-
iff's opening, and not in rebuttaÎ.

This reason might have applied if the object
of the testimony had been merely to prove an
admission on the part of the defendant, and the
offer had been rejected on that ground at the
time, although it would be a strict application
of the rule to require the plaintiff to assume in
advance that the defendant would deny as a wit-
ness the truth of the plaintiff's case. But aside
from that, the testimony seems to have been
competent in rebuttal as proof of a contra-
dictory statement made by the defendant at
another time and place, with a view to discred-
iting him as a witness. However that may be,
and admitting that the testimony offered was
strictly competent only in chief, nevertheless it
was a matter of discretion with the court at the
time of the trial whether the testimony should
be admitted when offered after the defendant
had testified. The plaintiff was entitled to the
exercise of that discretion on the part of the
court at that time, which in the present case he
was deprived of by the ruling of the court re-
jecting the offer of the testimony on another
and an illegal ground. We are of the opinion
that the court erred to the prejudice of the
plaintiff in this respect.

The judgment of the Circuit Court is therefore reversed and the cause remanded, with directions to grant a new trial.

1. An offer to sell imposes no obligation on either

party until accepted according to its terms.
2. A proposal to accept, or an acceptance, upon
terms varying from those offered, is a rejection of
the offer, and ends the negotiation, unless the offer
is renewed, or the proposed modification accepted.
3. An offer which has been rejected cannot be
revived by the tender of an acceptance of it.
4. The submission of a question of law to the jury
is no ground of exception if they decide it aright.
[No. 43.]

Argued and submitted Nov. 12, 1886. Decided

Nov. 29, 1886.

IN ERROR to the Circuit Court of the United

States for the Southern District of Ohio.
Affirmed.

Statement of the case by Mr. Justice Gray:
This was an action by a railroad corporation
established at Minneapolis in the State of Min-
nesota against a manufacturing corporation
established at Columbus in the State of Ohio.
The petition alleged that on December 19, 1879,
the parties made a contract by which the plaint-
iff agreed to buy of the defendant, and the de-
fendant sold to the plaintiff, two thousand tons
of iron rails of the weight of fifty pounds per
yard, at the price of $54 per ton gross, to be
delivered free on board cars at the defendant's
rolling mill in the month of March, 1880, and
to be paid for by the plaintiff in cash when so
delivered. The answer denied the making of
the contract. It was admitted at the trial that
the following letters and telegrams were sent at
their dates, and were received in due course by
the parties, through their agents:

December 5, 1879. Letter from plaintiff to defendant "Please quote me prices for 500 to 3,000 tons 50-lb. steel rails, and for 2,000 to 5,000 tons 50-lb. iron rails, March, 1880, delivery."

December 8, 1879. Letter from defendant to plaintiff: "Your favor of the 5th inst. at hand. We do not make steel rails. For iron rails, we will sell 2,000 to 5,000 tons of 50-lb. rails for fifty-four ($54.00) dollars per gross ton for spot cash, F. O. B. cars at our mill, March delivery, subject as follows: In case of strike among our workmen, destruction of or serious damage to our works by fire or the elements, or any causes of delay beyond our control, we shall not be held accountable in damages. If our offer is accepted, shall expect to be notified of same prior to Dec. 20, 1879."

December, 16, 1879. Telegram from plaintiff to defendant: "Please enter our order for twelve hundred tons rails, March delivery, as per your favor of the eighth. Please reply."

December 16, 1879. Letter from plaintiff to defendant: "Yours of the 8th came duly to hand. I telegraphed you to-day to enter our James H. McKenney, Clerk, Sup. Court, U. 8. order for twelve hundred (1200) tons 50-lb. iron

True copy. Test:

MINNEAPOLIS AND ST. LOUIS RAIL-
WAY COMPANY, Piff. in Err.,

v.

rails for next March delivery, at fifty-four dollars ($54.00) F. O. B. cars at your mill. Please send contract. Also please send me templet of your 50-lb. rail. Do you make splices? If so, give me prices for splices for this lot of iron.' December 18, 1879. Telegram from defend

COLUMBUS ROLLING MILL COMPANY. ant to plaintiff, received same day: "We can

(See S. C. Reporter's ed. 149-152.)

Sales-offer to sell-qualified acceptance, a re-
jection-subsequent tender of acceptance does
not revive offer-submission of question of law
to jury.

not book your order at present at that price.' December 19, 1879. Telegram from plaintiff to defendant: "Please enter an order for two thousand tons rails, as per your letter of the sixth. Please forward written contract. Reply." [The word "sixth" was admitted to be a mistake for "eighth."]

(15