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ting out intervening claims. In no case is it allowed force where the party insisting upon it is endeavoring to secure an unconscionable result.” The contract between these parties, whether called a grant or an assignment, did not transfer to the defendants the title or any present interest in the patents. The plaintiff had no title or interest to dispose of. Patent rights and the title thereto are intangible, and can be transferred only by an instrument in writing executed by the owner. The defendants, as the finding shows, were given possession of nothing under the contract, and in no way derived benefit from it. They constructed no devices un. der the patents. To apply the doctrine of relation to the extent insisted upon would be palpably and grossly unjust. It has often been and may well be invoked against one who has had the possession and enjoyed the advantages of possession of property under the grant of one who had not, but afterwards acquired, title, but it may not be invoked for the purpose of creating liability against one who has not had and by no possibility can receive a corresponding benefit, which can be regarded as affording a substantial consideration, within the meaning of the contract or grant, for the liability sought to be enforced. The following authorities have been cited, but none of them support the present contention: Rawle, Cov. § 252; Cole v. Raymond, 9 Gray, 217; Cornell v. Jackson, 3 Cush. 506; Marsh v. Scott, 125 Ill. 114, 16 N. E. 863; King v. Gilson, 32 Ill. 348; Cotton v. Ward, 3 T. B. Mon. 305; Reese v. Smith, 12 Mo. 344.

Whether the evidence justified the finding that the contract was delivered conditionally we do not consider. To show the competency of the evidence, reference has been made to Burke v. Dulaney, 153 U. S. 228, 14 Sup. Ct. 816, 38 L. Ed. 698.

The fact that the contract, after passing out of the possession of the officers of the plaintiff, was materially altered, and in its final shape was never countersigned and approved, as required by its terms, is admitted; but, to quote the brief: "The plaintiff maintains that this provision for the countersigning and approving was left in the contract by merest.negligence; that it was nullified by a later clause in the contract; that it is inconsistent with the conduct of the parties, and was never intended to be observed by either of them." There is no such inconsistency between the two clauses referred to as to justify the contention that one was nullified by the other. But for the alteration afterwards made, the original signing of the contract by the officers of the corporation would perhaps have been enough, but in its final shape the contract was never signed by or for the plaintiff, nor "countersigned and approved," as required, and, if there was good reason for disregarding the explicit provision on the subject, it was outside of the instrument itself, and the plaintiff should have proved it. As origi. nally prepared and signed by the officers of the corporation, the contract was in terms “subject to the approval of George Taylor," but that did not clothe him with power to make an essentially different or new contract, which should be binding, though not "countersigned and approved.” Whether the provision for countersigning and approval was left in the agreement by negligence, and whether it is inconsistent with the conduct of the parties and was never intended to be observed, are questions of fact, which, if originally open to inquiry, are concluded by the finding. The judgment below is affirmed.

(100 Fed. 595.)
(Circuit Court of Appeals, Eighth Circuit. February 23, 1900.)

No. 1,304.

As to the issues of fact submitted to a jury on the trial of a cause in

the circuit court, the verdict of the jury is conclusive on appeal. 2. SALES-CONSTRUCTION OF CONTRACT-NONPERFORMANCE BY VENDOR-REM


A contract for the sale of 5,000,000 starch cartons provided that, if the vendee should "receive some that are not up to sample herewith attached," he should return them to the vendor, who would replace them. The vendor's first shipment was one of 54,000, which the vendee wholly rejected as not according to sample, and upon the vendor declaring that they were according to the contract, and that he would not take them back, the vendee put them in storage, subject to the vendor's orders, and canceled the contract. Held, that the word "some," as used in the contract, meant a small or inconsiderable number, and that the court properly instructed the jury, in an action by the vendor for a breach of the contract, that, if the number of defective cartons went so far beyond what was properly within the commonly accepted meaning of the term "some,”

it was not the duty of the defendant to return them for replacement. 8. SAME-EVIDENCE.

Witnesses who worked in defendant's starch factory, and were familiar with the construction and use of starch cartons, were properly permitted to compare the cartons shipped by the plaintiff with the sample attached to the contract, and point out to the jury the differences and various alleged defects in plaintiff's cartons. Whether the cartons had undergone a change for the worse while in storage, so that they could not fairly be compared, was a question of fact to be determined by the

jury under the evidence. In Error to the Circuit Court of the United States for the Southern District of Iowa.

The St. Louis Paper-Box Company, the plaintiff in error, is a Missouri corporation engaged in the business of manufacturing cartons. The J. C. Hubinger Bros. Company, the defendant in error, is an Iowa corporation engaged in the manufacture of starch, at Keokuk, in that state. The starch is put up for sale in cartons. The parties entered into the following contract:

"St. Louis, Mo., January 12, 1897. "J. C. Hubinger Brothers Company, Keokuk, Iowa—Gentlemen: We will furnish you with three (3) millions of large starch cartons and two (2) millions of the medium size, as per_signed samples herewith attached, at $1.65 and $1.33 per M., respectively. Printed in black and good red ink, as per signed samples, and on the same quality of stock as per samples. The color of stock to be as near the color of stock in samples as possible; that is, will be within the range of colors as per "color samples we herewith attach. These prices are f. o. b. St. Louis, Mo. We to have thirty days' notice before starting to ship. Delivery of the above quantity to be made in twelve months, or sooner, if you so desire, but not to exceed 700 M. cartons per month.

“Terms: Thirty days, or 2% off for cash in ten days from date of shipment. No charge for crating, packing, or cartage.

40 C.C.A.-37

"It is our intention to supply you with such goods that you will have no cause to complain of. In case, however, you should receive some that are not up to samples herewith attached, you to return same to us, and we will replace them. "Respectfully,

St. Louis Paper-Box Company,
"Per Oscar H. Vieths, Pres."

“Keokuk, Jan. "Accepted: J. C. Hubinger Bros. Co.,

"By J. C. Hubinger, Prest." The St. Louis Paper-Box Company brought suit in the court below against the J. C. Hubinger Bros. Company to recover damages for an alleged breach of this contract, averring in its complaint: “That, in compliance with said contract, and relying upon same, plaintiff did, at large expense and labor, undertake said work of supplying the boxes or cartons as by the terms and conditions of the contract required, and did manufacture under said contract, and in accordance with the terms thereof of the sale and purchase by de fendant, a large quantity of same, but the defendant, in utter disregard of its contract. and the terms and conditions thereof, refused to receive said boxes or cartons, and declined to pay for same, or carry out the terms of said contract, although plaintiff, in fulfillment of its contract, shipped large quantities to defendant under said contract.”

For answer the defendant alleged, in substance: That the plaintiff was the first to commit a breach of the contract. That the first shipment of cartons, numbering about 54,000, were not up to the sample. That the paper out of which they were made was inferior, and their construction so imperfect and defective as to render them worthless for starch cartons. That defendant at once notified the plaintiff of this fact by letter, of which the following is a copy:

"Keokuk, Iowa, April 24th, 1897. “St. Louis Paper-Box Co., St. Louis, Mo.—Gentlemen: We confirm our message of to-day, reading as follows: 'Boxes are not satisfactory. Countermand order.' We find, upon investigation, that the boxes you shipped us are not fit to use, and you had better send one of your men here at your own expense to look after the matter. We have neither the time nor money to waste on the goods you have sent us. It is very strange that your men should use such poor judgment in material and work as you have done on our boxes. The contract calls for first-class work and material, and, if you cannot stand up to the agreement, we do not want your boxes, or anything to do with your firm. Kindly investigate this matter, and oblige, "Yours truly,

J. C. Hubinger Bros. Co." That an agent of the plaintiff visited Keokuk, when the defendant offered to ship the worthless cartons back to the plaintiff, and let them be replaced by cartons such as the contract called for, but that the plaintiff claimed the cartons it had shipped in material and construction were such as the contract called for, and refused to take them back, and thereupon the defendant notified the plaintiff the cartons would be stored subject to its order, and that the contract was canceled. The jury found the issues in favor of the defendant, and there was judgment accordingly, whereupon the plaintiff sued out this writ of error.

Hiram J. Grover and A. J. McCrary, for plaintiff in error,
John E. Craig and James C. Davis, for defendant in error.

Before CALDWELL and THAYER, Circuit Judges, and ROGERS, District Judge.

CALDWELL, Circuit Judge, after stating the case as above, deliv. ered the opinion of the court.

The gravamen of the complaint was that the plaintiff, in compliance with the contract, manufactured a large quantity of cartons, and shipped them to the defendant, "but the defendant, in utter disregard of its contract and the terms and conditions thereof, refused to receive" them. The answer denied that the cartons complied with the contract, and averred that they “were absolutely worthless," and could not be used; and that the defendant offered to return them, and the plaintiff refused to receive them, whereupon the defendant notified the plaintiff they were in its storehouse, subject to the plaintiff's order. In a word, the plaintiff claimed the cartons shipped complied with the contract, and that the defendant was bound to retain and pay for thein. On the other hand, the defendant claimed they did not comply with the contract, and that it was not bound to retain and pay for them. This was the sharply-defined issue,—the storm center in the case. When the plaintiff insisted the cartons complied with the contract, and declared it would not receive them back, the defendant was justified, if they did not comply with the contract, in storing them as it did, subject to the plaintiff's order. The defendant was not required to ship the cartons back to the plaintiff in the face of its declaration that it would not receive them. Moreover, the contract did not require the defendant to return a shipment of boxes the whole or greater part of which were defective. And, if the plaintiff claimed the shipment of cartons complied with the contract, and a large part of them were defective, and fell below the contract standard, the defendant had a right to cancel the contract, and store the cartons subject to the plaintiff's order. When it was developed that there was an irreconcilable difference between the parties as to the quality of cartons called for by the contract, it would have been a vain thing for the plaintiff to make and ship cartons which the defendant would not receive. There was then nothing left for the parties to do but to appeal to a court for a judicial determination of the question whether the cartons shipped complied with the contract, and were such as the defendant ought to have received. Each party staked its case upon this issue, and the plaintiff lost. This, as well as all other issues of fact, are foreclosed by the verdict of the jury.

But it is earnestly contended by the learned counsel for the plaintiff in error that the court erred in its interpretation of this clause of the contract, namely:

"It is our intention to supply you with such goods that you will have no cause to complain of. In case, however, you should receive some that are not up to samples herewith attached, you to return same to us, and we will replace them.”

The court told the jury that:

“This sentence obligates the defendant company to return to the plaintiff company such cartons, and it then becomes the plaintiff company's right and duty and obligation to replace them with other ones; that is, in case some of the goods sent are not up to the samples attached. It becomes necessary, then, to decide upon what is meant by the word 'some. Suppose every box or carton of the 54,000 which were delivered had been defective, would there be on the defendant the duty to return the entire shipment to plaintiff, that it might replace all of said shipment? Manifestly, if one, or merely a few, were defective, instead of the entire amount, or if there should be ten, or fifteen, or fifty defective, it would be the duty of the defendant to return them to the plaintiff, so that they might be replaced. But suppose, as is contended by the defendant, although denied by the plaintiff, that nearly all,

or by far the larger amount, of the 54,000 are defective, is the defendant bound to return them to the plaintiff? How far is this to be applied? As I understand the term 'some,' it does not mean all, or substantially all. If I have your permission to take some apples from a basket, you would not expect to learn that I had taken all, or substantially all, of them. I might take one out of the basket, and you would not ordinarily understand it to be some (yet it might be accepted as being some); but, if I were to take a half dozen, I certainly would have taken some. To what, in ordinary language, the term 'some' will apply or will not apply, and what its commonly accepted meaning is, I will not undertake to accurately define to you. You, gentlemen, are familiar with the language used in ordinary everyday life, and I can only say to you, in my judgment, that the word 'some,' as used in this case, does not mean all, or practically all, substantially all, but means a much lesser portion. I shall not undertake to define specifically the portion. If there were cartons—some cartons-not up to the samples as furnished by the plaintiff, it would be the duty of the defendant to return them to the plaintiff at St. Louis, and the duty then would be upon the plaintiff to replace them; but, if the number of defective cartons manifestly went so far beyond that it was not properly within the commonly accepted meaning of the term 'some, it was not the duty then of the defendant to return them for replacement, because that did not come within its obligation on that point."

The plaintiff preferred a request for the following instruction:

“Under that contract, plaintiff was to construct five million paper boxes, called 'cartons,' of a certain quality and size, at prices stipulated in the con tract. If there were any defects found, the contract required the defendant to return them to St. Louis, and plaintiff was required to replace them by cartons not defective."

Exception was taken to the giving of that part of the charge of the court above set out, and to the refusal of the court to charge as requested.

The word “some” in the connection in which it is used in this contract means a small or inconsiderable number. The definition of the word in the Century Dictionary is: "A certain indefinite or indeterminate quantity or part of; more or less; often so used as to denote a small quantity or deficiency.” It is in this latter sense that it is used in this contract. The definition in Worcester's Dictionary is: "Denoting a certain but indeterminate number of, more or less as to number;" and this definition is supported and illustrated by a text from the Book: “And when he sowed, some seeds fell by the way. side, and the fowls came and devoured them.” Matt. xiii. 4. As used in this contract, “some" must receive the same relative definition that the words "about” or “more or less" receive in commercial contracts where the engagement is to furnish “about” a given number or quantity of articles, or to furnish a given number or quantity of articles "more or less." It is well settled that the addition of the qualifying words "about," "more or less," and the like, in such contracts, "is only for the purpose of providing against accidental variations arising from slight and unimportant excesses or deficiencies in number, measure, or weight." Brawley v. U. S., 96 U. S. 168, 171, 172, 24 L. Ed. 622; Norrington v. Wright, 115 U. S. 188, 204, 6 Sup. Ct. 12, 29 L Ed. 366; U.S. v. Pine River Logging & Improvement Co., 61 U. S. App. 69, 80, 32 C. C. A. 406, 89 Fed. 907. In Norrington v. Wright, supra, the contract was for the shipment of iron "at the rate of about 1,000 tons per month, beginning February, 1880, but whole contract to be shipped before August 1, 1880," and the court said:

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