able certainty. Uncertain and speculative profits, which might or might not have been realized, are not recoverable in such actions.25

Damage to Stock: Where live stock is injured, the measure of damages is the full market value of the stock at the time of loss.20 26 In this case a ditch company left an unguarded washout in its ditch, and plaintiff's cattle were driven into it by a snowstorm. The failure of defendant to guard the washout was held to have been the natural and proximate cause of the injury and not the snowstorm.

Where, however, plaintiff's cattle became lost by miring in defendant's ditch which defendant had negligently allowed to become enlarged, and plaintiff knew of such conditions when he turned his cattle onto the land through which the ditch of defendant ran, he took the risk of such injury and he could not recover of defendant for the loss of his cattle.27

JOHN E. ETHELL.

Glenwood Springs, Colorado.

(25) Crow v. San Joaquin & K. R. C. & I. Co., 130 Cal. 306, 62 Pac. 562.

(26) Big Goose, etc., Co. v. Morrow, 8 Wyo. 537, 59 Pac. 159, 80 Am. St. Rep. 23.

(27) Messenger v. Gordon, 15 Colo. App. 62, 62 Pac. 959.

are

Where, at the bottom of the first page of plaintiff's office stationery, upon which its proposal to manufacture heating apparatus for defendant was written, was printed in small type, "All prices are subject to change without notice, and all contracts and orders taken subject to the approval of the executive office at Hyde Park, Mass.," such provision, merely from its position upon the paper, was not incorporated in, and a part of, the proposal, rendering approval of the contract by plaintiff's home office a condition precedent to its binding effect.

SEABURY, J. This action is brought to recover damages for the breach of an alleged contract. The plaintiff and defendant are foreign corporations. The plaintiff is a designer and builder of heating and ventilating and drying apparatus. The 'defendant was en

gaged in building a factory for the manufacture and sale of motion picture films. On December 29, 1911, the plaintiff submitted to the defendant an elaborate "proposal and specifications," which had been prepared after consultation with a representative of the defendant for the performance by the plain. tiff of the work therein specified. The "proposal and specifications" was in the form of a letter addressed to the defendant, and stated that:

"Supplementing our quotation of December 6th, we beg to quote you upon the following apparatus," etc.

The letter was typewritten, and describes in detail the apparatus, and specifies the terms, price, and time of delivery. The specifications that are attached to the letter are printed, although the "dimensions and data" relating to the apparatus are supplemented by typewritten statements. The letter is signed "B. F. Sturtevant Company, by J. L. Williamson." Upon the letter is indorsed the following:

"Accepted:

The Fireproof Film Company. H. Kuhn, Vice-President and Treasurer, Date, December 30, 1911."

The plaintiff actually commenced work under this alleged contract on January 1, 1912. On January 5, 1912, the defendant sent a letter to the plaintiff, which was received several days later, stating that:

"The contract for fans that was signed by me was to be submitted to the board of directors for their approval. This is what I omitted to tell you. So please hold off with same until I send it on to St. Louis to our president and board of directors. I have no doubt that they will accept the same, but if not, I shall have to cancel the contract. Yours very truly, Fireproof Film Company, H. Kuhn, Treasurer."

Several letters passed between the parties, and on February 10, 1912, the defendant wrote to the plaintiff:

"We notify you herewith that we will have to cancel the contract for fans for the Fireproof Film Company."

In its answer interposed in this action the defendant denied that it entered into any contract with the plaintiff, and alleged:

"That on December 30, 1911, plaintiff and defendant's vice-president and treasurer executed a paper purporting to be a contract between the plaintiff and the defendant, which paper and alleged contract was executed by the vice-president and treasurer of the defendant without the express or implied authority of defendant, its board of directors, or its

building committee, and said paper and alleged contract was subject to approval by defendant, and plaintiff was so notified January 5, 1912, and said paper, purporting to be an alleged contract between the plaintiff and defendant, was finally disapproved and cancelled on February 10, 1912, by defendant, and never was in force and binding upon the defendant, .and never constituted a contract between the plaintiff and defendant."

It ap

Upon the trial the defendant sought to defend upon the ground that Kuhn, its vicepresident and treasurer, was without authority to sign the contract. Satisfactory proof of Kuhn's authority to act for the defendant was presented, and the court submitted to the jury the question as to whether Kuhn was authorized to act for the defendant. pears from the letters quoted above and the allegations of the defendant's answer that the defendant disputed its liability upon the ground that Kuhn was not its authorized agent. Upon this appeal it still adheres to this contention, but the principal ground urged for the reversal of the judgment is that there was no contract between the parties, because at the bottom of the first page of the plaintiff's office stationery, upon which the proposal was written, appear the words:

"All agreements are contingent upon strikes. fire, accidents or delays beyond our control. All prices are subject to change without notice, and all contracts and orders taken are subject to the approval of the executive office at Hyde Park, Mass."

These sentences are printed in very small type, and the first typewritten numeral that indicates the page number is typewritten over this printed matter. The appellant claims that the proposal was given "subject to the approval of the executive office at Hyde Park, Mass.," and that, as there was no proof that this approval was given and communicated to it, there was no contract. It appears clearly that Williamson had authority to make the contract, and that his action in so doing was ratified by the executive office of the plaintiff at Hyde Park, Mass. The plaintiff actually commenced to perform the work, and continued working under the contract until it received the notice of the defendant that it had cancelled the contract. The point now earnest. ly insisted upon was not litigated upon the trial, and seems to be an afterthought that occurred to the defendant when it failed to defeat the plaintiff's claim on the ground that its vice-president and treasurer, Kuhn, was not authorized to make the contract in its be

half. The claim that is now urged rests entirely upon the contention that the clause "all contracts or orders taken are subject to the approval of the executive office at Hyde Park, Mass.," is to be deemed a part of the proposal. If this provision was a part of the proposal, there could be no proof of a contract in the absence of evidence that the order was approved, and that the defendant had been notified of that fact. In view of the manner in which this provision is printed upon the stationery of the plaintiff, it cannot be held, as a matter of law, that it was in corporated in and a part of the proposal. The language of the proposal is clear and explicit, and this provision, which is printed in small type, cannot be allowed to change, alter, or modify it, unless it was a part of the proposal. It was not incorporated in the body of the proposal or referred to in it. No sug gestion was made, either in the pleadings or the proof, that it was a part of the proposal. If an issue had been raised upon the trial whether it was a part of the proposal, that issue would have presented a question of fact to be determined by the jury. As no such question was raised upon the trial, and as it does not appear from an inspection of the proposal that this provision was a part of it, the defendant is not now in a position to secure the reversal of this judgment upon this ground. When an offer, proposal, or contract is expressed in clear and explicit terms, matter printed in small type at the top or bottom of the office stationery of the writer, where it is not easily seen, which is not in the body of the instrument or referred to therein, is not necessarily to be considered as a part of such offer, proposal, or contract. In Sturm v. Boker 150 U. S. 312, 327, 14 Sup. Ct. 99, 103, 37, L. Ed. 1093, it was said that:

"The contract being clearly expressed in writing, the printed billhead of the invoice can, upon no well-settled rule, control, modify, or alter it."

In Summers v. Hibbard & Co., 153 Ill. 102, 109, 38 N. E. 899, 901, 46 Am. St. Rep. 872, the court said:

"The printed words were not in the body of the letter or referred to therein. The fact that they were printed at the head of their letter heads would not have the effect of preventing appellants from entering into an unconditional contract of sale."

In Menz Lumber Company v. McNeely & Company, 58 Wash. 223, 229, 108 Pac. 621, 624, 28 L. R. A. (N. S.) 1007, it was said that:

"The printed matter on the letter heads was not referred to in either the order or the acceptance, and is not a part of the contract.

The construction contended for by the respondent would make that which is an absolute, unqualified acceptance upon its face a conditional one by reference to a letter head which was not referred to by either parties."

The other grounds upon which the appellant asks a reversal of the judgment are not such as to warrant discussion.

I advise that the judgment be affirmed, with costs.

NOTE-Printed Matter on Letterheads as Affecting Offers or Acceptances.-There is rather scant treatment given to this subject in 2 Page on Contracts, § 600, and there do not appear to be many decided cases on the subject. Page says: "It does not necessarily follow from the fact that every word in a written contract must be considered in arriving at intention that every word written on the paper when the contract as executed is part thereof" and among the cases referred to is that of Sturm v. Baker, 150 U. S. 312, 327, 37 L. ed. 1093. It easily may be claimed that words printed on a billhead could not be intended to affect a question of the making of a contract, for a billhead is related to the carrying out of a consummated contract. As to words appearing on a letterhead used in the making of a contract the question becomes different.

In Summers v. Hibbard & Co., 153 Ill. 102, 38 N. E. 899, 46 Am. St. Rep. 572, the court does say that printed words on the letterhead constituted no part of the contract there considered, but as the court took pains to state under what circumstances of particularity the contract was first stated and in a subsequent letter restated, this language is rather referable to the case in hand than the statement of a general principle. Menz Lumber Co. v. McNeeley & Co., 58 Wash. 223, 108 Pac. 621, 28 L. R. A. (N. S.) 1007, may be looked upon very greatly as the Summers case which it quotes from and relies upon. It speaks of no reference being made to the printed words by either of the parties, though the language as showing an unqualified contract by the writing was used.

If the printed words on a letterhead are for general use and a contract is made in writing, there is a principle that it must be apparent that it is not to be modified by the printed words unless they are referred to. Lumber Works v. Ins. Co., 37 Minn. 300, 5 Am. St. Rep. 846. But this is merely a general principle and does not necessarily take away all effect of the printed words, as for example, as indicating the surroundings of entrance into a contract relation.

In Hardie-Tynes F. & M. Co. v. Allen Oil Mill. 84 Miss. 259, 36 So. 262, it is ruled that a general printed clause should be reconciled with the contract in writing, if it can be done : otherwise the part in writing must control.

In Yorston v. Brown, 178 Mass. 103, 59 N. E. 655, it was ruled, that defendant could look to the letterhead of plaintiff so as to show what was the meaning of an order addressed to him to publish his portrait. This case was distinguished from Sturm v. Baker, supra, in that there plaintiff was trying to add to the terms of his contract by a statement on his own billhead, while in the Yorston case the defendant was trying to hold plaintiff to what his printed order blank showed.

In Patch v. Smith, 94 N. Y. Supp. 692, 105 App. Div. 208, a memorandum of sale had written upon a printed blank "this order is subject to acceptance at the main office," the court said: "This memorandum was written upon the face of a printed blank prepared for and used by the defendant, when his customers ordered lumber from him, but which was not appropriate for use when he ordered from another."

On the whole, it seems fair to conclude that printed words on a letterhead are not to be deemed to affect an unequivocal contract unless there is some way of showing that the party relying thereon submits some competent proof that they formed or were understood to form a part of the contract entered into. Their office is intended to assist only in explaining an otherwise ambiguous contract. C.

HUMOR OF THE LAW.

The case was reached on the trial docket, and just as the judge took his seat one of the lawyers walked up to the opposing counsel and said to him: "You agreed to so and so." The latter replied: "I did not." Thereupon the first lawyer angrily assented in audible tones that his opponent was "a d- -n liar," and the latter shook his fist in the face of his accuser and said that he was "a d- -n scoundrel.” Here the court intervened and blandly said: "Now, gentlemen, since you have thoroughly identified each other to the court, you will please proceed with the case," and the case ran on thereafter like a ribbon.-Case Comment.

and

The technicalities of the law are often too finely drawn for the lay understanding. The following sounds like a burlesque, but it actually happened in an Ohio court.

At a term of the circuit court there, a horse case was on trial, and a well-known "horseman❞ was called as a witness.

"You saw this horse?" asked the defendant counsel.

"Yes, I"

"What did you do?"

"I just opened his mouth to find out how old he was, and I said to him, 'Old top, I guess you're pretty good yet.""

"Stop!" yelled the opposing counsel. "Your Honor, I object to any conversation carried on between the witness and the horse when the plaintiff was not present."

And the objection was sustained.-Case and Comment.

4. Arbitration and Award-Revocation.-Institution of suit by one of the parties to a submission to an oral arbitration before award operates as a revocation.-Bullock v. Mason, Ala., 69 So. 882.

5. Assault and Battery-Reasonable Force.The right to use reasonable force to eject an intruder, without being guilty of assault, is not limited to one's dwelling house, but applies to any property of which he has lawful possession.-State v. Flanagan, W. Va., 86 S. E.

890.

6. Attorney and Client-Compromise.-Parties to litigation have right to compromise

without consent and over objection of attorneys.-St. Louis, I. M. & S. Ry. Co. v. Freeman, Ark., 179 S. W. 648.

motion to

7. Bankruptcy-Contempt.-On punish a bankrupt for contempt for disobeying a referee's order requiring him to restore funds to the estate, the bankrupt's denial that he had possession of the fund, or his inability to remember what had become of it, could not relieve him of punishment.-In re Stanny, U. S. D. C., 226 Fed. 517.

8. Corporation.-One who received payment of a debt owing to him by officers of a corporation by checks of the corporation immediately before its bankruptcy held to have such knowledge as to require him to return the money to the trustee as assets of the bankrupt estate. In re Rockaway Soda Water Mfg. Co., U. S. D. C., 226 Fed. 520.

9.

Insolvency.-To render the appointment of a receiver an act of bankruptcy, the defendant must have been insolvent, as insolvency is defined by the Bankruptcy Act.-Maplecroft Mills v. Childs, U. S. C. C. A., 226 Fed. 415. 10. Preference.-Preference to himself effected by president of insolvent lumber company within the four months preceding the filing of a petition in bankruptcy against the company held voidable by its trustee.-Cullen v. Veasey, Del., 95 Atl. 655.

11. Banks and Banking-Forgery.-Where a drawee bank pays a check on a forged indorsement, it may recover the amount paid from the one to whom payment is made, unless it paid in violation of notice from maker to an innocent holder.-National Bank of Commerce v. First Nat. Bank of Coweta, Okla., 152 Pac. 596. 12.

Bastards-Child as Evidence.-Exhibition of the child to the jury as evidence of paternity should, in the discretion of the court, be permitted, if it will promote the purpose of the proceeding.-State v. Browning, Kan., 152 Pac.

672.

13. Bills and Notes-Bona Fide Holder.Where a note was indorsed on the express agreement that it should be used by the indorser's son in acquiring a half interest in a business, and the payee was cognizant of the arrangement, a breach of the agreement will defeat action on the note.-Haas v. Commerce Trust Co., Ala., 69, So. 894.

14. Burden of Proof.-In an action by indorsees on notes, establishment of fraud held to cast burden on plaintiffs to show acquisition of notes before maturity in good faith for value, without notice of defect in title of indorser.-Wilson v. Lewis,. N. C., 86 S. E. 804.

15. Consideration.-Contract whereby he was released from all claims for seduction and all other claims by his fiancee held to be sufficient consideration for notes given to her by seducer.-Ford v. Engleman, Va., 86 S. E. 852.

16. Carriers of Goods-Bill of Lading.-Provisions of a bill of lading in an interstate shipment requiring written notice of damage and fixing a time less than that fixed by the Carmack amendment for commencement of action are deemed waived unless pleaded as defenses.

-Gilinsky v. Illinois Cent. R. Co., Neb., 154 N. W. 730.

17. Connecting Carrier.-The liability imposed on an interstate carrier by the Carmack amendment is limited to any loss or damage caused by the fault of it or a succeeding or connecting carrier, and they are relieved from the liability of insurers as it was at common law. Missouri, O. & G. Ry. Co. V. French, Okla., 152 Pac. 591.

18. Furnishing Cars.-A carrier must, on reasonable notice, furnish suitable cars for shipment when it can do so by reasonable diligence, fairness, and impartiality.-McNeer, Talbott & Johnson v. Chesapeake & O. Ry. Co., W. Va., 86 S. E. 887.

19.

Carriers of Live Stock-Notice.-Stipulation between common carrier and shipper of live stock, setting a time within which the shipper must give notice of injury to the stock as a condition to recovery, held unenforceable as unreasonable, where the notice period expired before the injury became evident.— Cincinnati, N. O. & T. P. Ry. Co. v. Cundiff, Ky., 179 S. W. 615.

20. Carriers of Passengers-Ejection.-Railroad employe summoned by special railway police officer without authority thereto to aid in ejecting and arresting a passenger held liable as a trespasser.-Cincinnati, N. O. & T. P. Ry. Co. v. Cundiff, Ky., 179 S. W. 615.

21. Negligence.-One not a common carrier, who voluntarily undertakes to transport another, is responsible for injury to the person transported resulting from negligence, whether the service was for compensation or was gratuitous.-Perkins V. Galloway, Ala., 69 So. 875.

22. Negligence per se.-A street car passenger held not negligent as a matter of law because, while the car is slowing down, he goes to the rear platform preparatory to alighting.-Helms v. Southwest Missouri R. Co., Kan., 152 Pac. 632.

25.

Common Carrier-Jitney.-A jitney being self-propelled, not a street car, operating between certain points at a certain fare, approximately five cents, and so held out, advertised, or announced, is a common carrier.City of Memphis v. State, Tenn., 179 S. W. 631. 26. Conspiracy-Overt Act.-The commission of conspiracy is not complete until one or more of the conspirators does some overt act or acts in execution or furtherance of the conspiracy, which acts may be innocent or crimInal. United States v. Rogers, U. S. D. C., 226 Fed. 512.

27. Contracts-Construction. The promisor's language is always to be understood in the sense in which he knew, or had reasonable cause to believe, the promisee understood it.McNeer, Talbott & Johnson v. Chesapeake & O. Ry. Co., W. Va., 86 S. E. 887.

28.- -Duress.-Duress will not avoid a contract, unless sufficient to overcome the will of a man of ordinary firmness and courage.-Ford v. Engleman, Va., 86 S. E. 852.

29. Rescission.-A contract procured by intentional concealment of material facts may be rescinded by the party deceived, and its enforcement prevented.-Linton v. Sheldon, Neb., 154 N. W. 724.

30.-Rescission.-Restoration is a condition precedent to the exercise of the right to re'scind a contract.-Consumers' Coal & Fuel Co. v. Yarbrough, Ala., 69 So. 897.

of an

31. Time of Essence.-In the case option, time is of the essence of the contract, unless the contract expressly provides otherwise.-Mitchell v. Probst, Okla., 152 Pac. 597. 32. Corporations-Amendment of Charter.Amendments to a corporation charter, not authorizing acts malum prohibitum or malum in se, are valid.-News-Register Co. v. Rockingham Pub. Co., Va., 86 S. E. 874.

cor

33. Collusion.-A creditor of a poration who has utilized his control over it to obtain a judgment collusive as against bondholders who have a prior lien cannot take advantage thereof.-Title Ins. & Trust Co. v. California Development Co., Cal., 152 Pac. 542.

34. De Facto.-Person executing obligation to corporation held not entitled to deny corporate existence or deny its power to contract, unless contract be expressly forbidden by law. -Yellow Chief Coal Co.'s Trustee v. Johnson, Ky., 179 S. W. 599.

35.- -Partnership.-There being nothing essentially illegal in the formation of a partnership by two corporations, its legality depends solely upon charter provisions authorizing the act.-News-Register Co. v. Rockingham Pub. Co., Va., 86 S. E. 874.

36.- -Power.-The power of a corporation to contract is restricted to the purposes for which it is created.-Gregg v. Little Rock Chamber of Commerce, Ark., 179 S. W. 658.

37. Transfer of Stock.-It is the duty of a corporation to make only those transfers of its stock which are authorized, and for a failure to perform such duty it is liable to the injured party in damages.-Nagel v. Ham, Yearsley & Ryrie, Wash., 152 Pac. 520.

38. Courts-Rule of Property.-A ruling by the California courts that partnership property must be applied to the payment of firm debts despite one partner's sale of his interest to the other held not a rule of property binding on the Federal court on subsequent insolvency of the firm.-Rapple v. Dutton, U. S. C. C. A., 226 Fed. 430.

89.-State Law.-The Federal courts will give effect to.a state statute concerning shares of stock in corporations.-Harris v. Egger, U. S. C. C. A., 226 Fed, 389.