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It seems clear that the purpose of the act was that, among creditors proving their claims, one should not receive a greater proportionate share of the bankrupt estate than another. To make a distinction between a creditor who lends $5,000 upon one promissory note, and receives $2,500 in part payment thereof, and another creditor who lends the same sum on two promissory notes, and receives the same payment, is inequitable and unjust. The referee sees no reason to alter his decision disallowing the claim. Julius C. Levi, for trustee.

Lindsay & Harvey, for Chester National Bank.

J. B. MCPHERSON, District Judge. The reports of the learned referee are adopted as the opinion of the court, to which I may add the citation of Re Rogers Milling Co., 4 Am. Bankr. Rep. 540, 102 Fed. 687.

BOARD OF TRADE OF CITY OF CHICAGO v. CHRISTIE GRAIN & STOCK CO. et al.

(Circuit Court, W. D. Missouri. March 19, 1903.)

1 EXCHANGES CONTRACT FOR DISTRIBUTION OF QUOTATIONS — LEGALITY OF RESTRICTION?.

A contract between a board of trade, having a property right in the quotations made on its exchange, and a telegraph company, relating to the transmission and distribution of such quotations by the latter, is not in violation of the anti-trust act of 1890 (Act July 2, 1890, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), as in restraint of trade and commerce, because of a provision that the quotations shall only be furnished to persons who sign an agreement to the effect that they shall not be used in the conduct of a bucket shop.

In Equity. On final hearing.

For former opinion, see 116 Fed. 944.

HOOK, District Judge. The only question of consequence presented at the final hearing which was not fully argued at the preliminary hearing is whether the arrangement between the board of trade and the telegraph companies is violative of the provisions of the Sherman act (Act July 2, 1890, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]). This proposition may be roughly stated as follows: The board of trade, having a property right in its quotations, contracted with the telegraph companies for their transmission and distribution by the latter; such transmission and distribution to be confined to persons who would sign an application embodying an agreement to the effect. that the quotations should not be used in the conduct of an unlawful business, to wit, a bucket shop. Is such an arrangement an unlawful combination in restraint of trade and commerce, within the meaning of the act of July 2, 1890, popularly known as the "Sherman Anti-Trust Act"? I am of the opinion that it is not.

Let a final decree be prepared in conformity with the above, and the conclusions heretofore announced in this case.

PRESSED STEEL CAR CO. v. EASTERN RY. CO. OF MINNESOTA.
EASTERN RY. CO. OF MINNESOTA v. PRESSED STEEL CAR CO.
(Circuit Court of Appeals, Eighth Circuit. March 23, 1903.)
Nos. 1,802, 1,803.

1. CONSTRUCTION OF CONTRACTS-INTENTION OF PARTIES THE DESIDERATUM. The sole purpose of the construction of a contract is to ascertain and enforce the intention of the parties-the sense and meaning upon which their minds met when they made it--and when this is discovered it prevails over verbal inaccuracies, inapt expressions, and the dry words of the agreement.

2. SAME-INTENTION DEDUCED FROM ENTIRE AGREEMENT.

The intention of the parties must be deduced from the entire agreement, and not from any part or parts of it, because, where a contract has several stipulations, it is plain that the parties agreed that their intention was not expressed by any single part or stipulation of it, but by every part and provision in it, considered together, and so construed as to be consistent with every other part.

8. SAME.

Where the language of a contract is obscure or ambiguous, or its meaning is doubtful, so that it is susceptible of two constructions, that interpretation which evolves the more usual, reasonable, and probable contract should be adopted.

4. SAME-FACTS AND CONSTRUCTION IN THIS CASE.

A car company agreed to make and deliver 400 cars to a railway company on or before April 1, 1900, subject to delays from unavoidable contingencies, but that, if it failed to deliver the cars within "the time specified," it would forfeit and pay to the railway company, as liquidated damages, $5 per day for every car so delayed.

Held, "the time specified," in the damage clause, meant all the time specified for the delivery of the cars in the earlier part of the contract (that is to say, the time on or before April 1, 1900, plus the time during which the delivery might be delayed by the unavoidable contingencies), and the car company was not liable for the stipulated damages during that time.

5. SAME-LIQUidated DamagGES.

When it is certain that some damages will result from delay in the performance of a contract, when those damages are incapable of exact ascertainment, or are based upon matters that are to a considerable degree uncertain, and when the amount stipulated is not, on the face of the agreement, out of all proportion to the probable loss, a contract to pay a sum certain for each day, week, or other definite period of delay beyond the time fixed by the contract for its fulfillment is a valid and enforceable agreement for the measurement of the damages, and is not a contract for a penalty.

6. TIME-COMPUTATION-SUNDAY EXCLUDED WHEN LAST DAY.

When the last day within which a deed is to be performed falls on Sunday, that day is excluded, and the act may be done on the succeeding day.

7. SAME-INTERVENING SUNDAYS INCLUDED.

In the computation of rents, interest, damages, or any other amounts, where a day, a week, a month, or any other definite period, is the agreed standard of measurement, every intervening Sunday, as well as every secular day, must be included and counted.

(Syllabus by the Court.)

15. See Damages, vol. 15, Cent. Dig. §§ 161, 167, 173.

121 F.-39

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

These writs of error have been sued out to review the trial of an action brought by the Pressed Steel Car Company, a corporation, against the Eastern Railway Company of Minnesota, another corporation, to recover the unpaid part of the purchase price of 400 steel hopper ore cars, which the car company had made and delivered to the railway company under this contract: "This agreement, made and entered into this 19th day of December, A. D. 1899, between the Pressed Steel Car Company of Pittsburgh, Pa., party of the first part, and the Eastern Railway Company of Minnesota, party of the second part,

"Witnesseth: that the party of the first part covenants and agrees to and with the party of the second part, to build for the party of the second part four hundred (400) steel hopper ore cars, to be delivered on or before April 1st, 1900, in accordance with the specifications, hereto attached and made a part hereof, and subject to the inspection of a representative of the party of the second part, and to deliver said cars on the tracks of either the P. C. C. & St. L. Ry. or P. & L. E. Railroad, or the P. F., W. & C. Ry. or P. & W. Ry., (our works) without cost to the party of the second part, except the purchase price hereinafter mentioned to be paid by the party of the second part. The delivery of these cars to be subject to delays in delivery of materials to be used in these cars, other than the first party's manufacture, and to strikes, fires, delay of carriers, or other unavoidable contingencies beyond the control of said first party. But it is agreed that in the event of the failure of the party of the first part to make and deliver the cars aforesaid within the time specified, then it shall forfeit and pay to the party of the second part as liquidated damages consequent upon such failure the sum of five dollars per day for each and every car so delayed after the said April 1st, 1900.

"In consideration whereof, the party of the second part covenants and agrees to accept said cars and to pay for the same the sum of eight hundred and seventy-five dollars ($875.00) each, to the party of the first part, such payments to be made in cash on delivery of each lot of one hundred cars.

"It is mutually understood and agreed, by and between the parties hereto that in case any future change or modification is made in said specifications, increasing or decreasing the cost of said cars, or any of them, the party of the first part will make the proper deduction from the above price for any such decreases, and the party of the second part will pay for any such increases.'

The plaintiff alleged that the amount of the purchase price remaining unpaid was $151,518.66 and interest. The answer of the defendant was that the plaintiff was so dilatory in delivering the cars that the damages for the delay which were stipulated in the contract amounted to more than the unpaid part of the price of the cars. None of the cars were delivered until May 29, 1900, and the delivery of the cars was not completed until June 28, 1900. The plaintiff alleged that this delay was caused by the unavoidable contingencies specified in the agreement. The court held that the plaintiff was liable for the stipulated damages for delays caused by these contingencies, as well as for delays caused by its own default or negligence, and instructed the jury that the defendant was entitled to damages to the amount of $5 per car for every secular day after April 2, 1900, that the delivery of the cars was delayed. The result was a judgment for the plaintiff for $29,186.26.

The car company complains of the trial because the court charged it with damages for delays in the delivery of the cars caused by the unavoidable contingencies, and the defendant is dissatisfied with the result because it was not allowed $5 per car per day for every Sunday as well as for every secular day that the delivery of the cars was delayed after April 1, 1900.

Jared How and Adrian H. Joline (John S. Ferguson, on the brief), for Pressed Steel Car Co.

W. E. Dodge (M. D. Grover, on the brief), for the Eastern Ry. Co. of Minnesota.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court.

The grave question in this case is whether the Pressed Steel Car Company agreed to pay the railway company the liquidated damages stipulated in the contract during the time it was delayed in delivering its cars by the unavoidable contingencies named in the agreement, and that question must be determined by a fair construction of the contract. The purpose of a written agreement is to evidence the terms upon which the minds of the parties to it meet when they make it. Hence the true end of all contractual interpretation is to ascertain that intention, and when it is found it prevails over verbal inaccuracies, inapt expressions, and the dry words of the stipulations. The court should, as far as possible, put itself in the place of the parties when their minds met upon the terms of the agreement, and then, from a consideration of the writing itself, its purpose, and the circumstances which conditioned its making, endeavor to ascertain what they intended to agree to do--upon what sense or meaning of the terms they used their minds actually met. Accumulator Co. v. Dubuque St. Ry. Co., 64 Fed. 70, 74, 12 C. C. A. 37, 41, 42; City of Salt Lake v. Smith, 104 Fed. 457, 462, 43 C. C. A. 637, 643; Fitzgerald v. First National Bank, 52 C. C. A. 276, 284, 114 Fed. 474, 482.

The intention of the parties must be deduced from the entire agreement and from all its provisions considered together, because, where a contract has many stipulations, it is plain that the parties understood and agreed that their intention was not expressed by any single part or provision of their agreement, but by every part and stipulation, so construed as to be consistent with every other part and with the entire contract. Jacobs v. Spalding, 71 Wis. 177, 189, 36 N. W. 608; Boardman v. Reed, 6 Pet. 328, 8 L. Ed. 415; Canal Co. v. Hill, 15 Wall. 94, 21 L. Ed. 64; O'Brien v. Miller, 168 U. S. 287, 297, 18 Sup. Ct. 140, 42 L. Ed. 469.

Where the language of an agreement is contradictory, obscure, or ambiguous, or where its meaning is doubtful, so that the contract is fairly susceptible of two constructions, one of which makes it fair, customary, and such as prudent men would naturally execute, while the other makes it inequitable, unusual, or such as reasonable men would not be likely to enter into, the interpretation which makes it a rational and probable agreement must be preferred to that which makes it an unusual, unfair, or improbable contract. Coghlan v. Stetson (C. C.) 19 Fed. 727, 729; Jacobs v. Spalding, 71 Wis. 177, 186, 36 N. W. 608; Russell v. Allerton, 108 N. Y. 288, 292, 15 Ñ. E. 391.

Let us consider the agreement of these parties in the light of these familiar canons of interpretation. The stipulations of the contract

material to the determination of the question before us are that the car company undertook to deliver 400 cars to the railway company

"On or before April 1st, 1900, subject to delays in the delivery of materials to be used in these cars, other than the first party's manufacture, and to strikes, fires, delay of carriers, or other unavoidable contingencies beyond the control of said first party. But it is agreed that in the event of the failure of the party of the first part to make and deliver the cars aforesaid within the time specified, then it shall forfeit and pay to the party of the second part as liquidated damages consequent upon such failure the sum of five dollars per day for each and every car so delayed after the said April 1st, 1900."

The parties evidently contemplated and provided in this agreement for two classes of delays, those that might be caused by the unavoidable contingencies described in the contract, and those that might result from the default or negligence of the car company. For the purpose of reducing the agreement to its lowest terms and of facilitating the discussion, the former will be termed excusable, and the latter inexcusable, delays; the liquidated damages of $5 per day will be termed demurrage; and it will be assumed that there were both excusable and inexcusable delays in the performance of the contract. The agreement then becomes a contract by the car company to deliver the cars on or before April 1, 1900, subject to excusable delays, and to pay the railway company demurrage for a failure to deliver them within "the time specified"; and the question is, when was "the time specified," within which a failure to deliver subjected the car company to the liquidated damages? Was it the time between the date of the agreement and April 2, 1900, or was it the time between the date of the agreement and the expiration of the postponement of the time of delivery caused by the excusable delays? Counsel for the car company insist that it was the latter, because that, as they say, is the obvious meaning of the terms of the agreement, because the word "so," before "delayed," points in that direction, and because that interpretation makes the agreement equitable and reasonable, while the opposite construction renders it unconscionable and improbable. On the other hand, counsel for the railway company as earnestly contend that the former is the true construction, because, as they insist, that is the evident sense of the plain words of the contract, because when the agreement was made the railway company needed the cars for actual use in the transportation of ore as soon as April 1, 1900, when the season for using them opened, because every day's delay in their delivery entailed a great and irreparable loss upon the railway company, and while it was willing to bind itself to accept the cars after April 1, 1900, during the postponement of delivery by the excusable delays on the condition that the car company would contract to pay demurrage during that time, it would never have made the agreement without such a stipulation, because the word "but," which introduces the stipulation for demurrage and expresses antithesis, and the words "after the said April 1st, 1900," at the close of the damage clause, sustain this view, because it cannot be supposed that the parties contemplated a breach of the contract, and stipulated damages for such a breach, and be

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