sel. In such circumstances the court had no power to approve it, unless this could be conferred by mere consent of counsel. This they could not do. Consent of parties cannot give jurisdiction to courts of the United States. Railway Co. v. Ramsey, 22 Wall. 322, 327. The policy of the law requires that litigation be terminated within a reasonable time, and not protracted at the mere option of the parties. See United States v. Mayer, 235 U. S. 55, 70. We think the better rule and the one supported by former opinions of this court requires that bills of exceptions shall be signed before the trial court loses jurisdiction of the cause by expiration of the term or such time thereafter as may have been duly prescribed." In the decision the court reaffirms the doctrine announced in Michigan Insurance Bank v. Eldred, 143 U. S. 293, 12 Sup. Ct. 450, 36 L. Ed. 162, and O'Connell v. United States, 253 U. S. 142, 40 Sup. Ct. 444, 64 L. Ed. 827. [3] The bill of exceptions having been stricken from the record, little is left for our consideration. The contention of plaintiff in error that the Harrison Anti-Narcotic Act is unconstitutional is without merit. The constitutionality of the act is no longer an open question. United States v. Jim Fuey Moy, 241 U. S. 394, 36 Sup. Ct. 658, 60 L. Ed. 1061, Ann. Cas. 1917D, 854; United States v. Doremus, 249 U. S. 86, 39 Sup. Ct. 214, 63 L. Ed. 493; United States v. Wong Sing, 260 U. S. 18, 43 Sup. Ct. 7, 67 L. Ed. [4] Although not raised in the court below, it is argued in this court that neither of the counts of the indictment charged a public offense. Each count of the indictment fairly informed plaintiff in error of the nature of the charge against him, and stated the elements of the offense with sufficient particularity to enable him to plead his conviction in bar of any subsequent prosecution for the same offense. This is sufficient. New York Central R. R. v. United States, 212 U. S. 481, 29 Sup. Ct. 304, 53 L. Ed. 613. Judgment affirmed. CLARKE CONST. CO. et al. v. UNITED STATES, for Use of WILLIAM F. (Circuit Court of Appeals, Seventh Circuit. May 25, 1923.) 1. Damages 45—Expenses held element of damages for breach of contract. Under a counterclaim for damages for breach of contract by plaintiff as subcontractor to furnish the mill work for a government building, which provided that it should be furnished at such times as to prevent delay in the work, where there was evidence of delays in violation of the contract, claims for foreman's wages during such delays, interest on money retained by the government, loss of return insurance premiums, increased labor cost, etc., are not for profits, but are legitimate items of damages. 2. Damages 177-Testimony as to increased labor cost held admissible. On the question of increased labor cost of installing mill work in a building because of delay in furnishing it, testimony of the previously estimated cost and the actual cost is admissible. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (290 F.) 3. Contracts 324(1)-Remedy given for breach held not exclusive. A provision in a contract giving one party the right to cancel it in case of breach held not an exclusive remedy, and not to preclude recovery of damages for breach. In Error to the District Court of the United States for the Eastern District of Illinois. Action at law by the United States, for the Use of the William F. Johnson Lumber Company, against the Clarke Construction Company and another. Judgment for plaintiff, and defendants bring error. Reversed. Charles Troup, of Danville, Ill., for plaintiffs in error. Walter T. Gunn, of Danville, Ill., for defendant in error. Before ALSCHULER, EVANS, and PAGE, Circuit Judges. PAGE, Circuit Judge. Defendant in error the lumber company (here called plaintiff), contracted with plaintiff in error, the construction company (here called defendant), to furnish defendant mill work for the Hoopeston post office. Defendant, to a suit for a balance claimed to be due under the contract, pleaded the general issue, and, under the Illinois statute, notice of set-off of damages for a breach of contract. Defendant stipulated amount due plaintiff, without prejudice to the right of set-off. At the close of defendant's evidence to establish the set-off, the court directed a verdict for plaintiff. To justify the court's instruction, plaintiff urges that there was not shown: (1) Any breach; (2) any recoverable damages; (3) that the contract provided the sole remedy for any breach. [1] 1. By section 3 of the contract, plaintiff agreed "to complete the several portions and the whole of the work herein sublet in such manner and at such times as to prevent delay, inconvenience or loss." There was uncontradicted evidence of numerous delays that showed a breach and presented a jury question. [2] 2. Damages claimed, under notice filed with the general issue, were foreman's wages, interest on money retained by the government, loss of return insurance premiums by delayed cancellation, additional labor cost, additional office expense, interest, and depreciation in equipment. That losses of such a character do not represent profits, and are not speculative, as claimed, is apparent. Items, many of them identical in kind with those here claimed, were allowed in Modern Steel Structural Co. v. English Const. Co., 129 Wis. 31, 108 N. W. 70. See 9 Corpus Juris, p. 791, par. 133, and note. It is urged, as against the additional labor cost, that it was not established, because the witness said he "arrived at it by taking into consideration what the mill work actually cost him to install it, and what he estimated it would cost to install it." That method is unobjectionable. Guerini Stone Co. v. Carlin, 240 U. S. 264, 280, 36 Sup. Ct. 300, 60 L. Ed. 636, and cases cited. [3] 3. The urge that the following clause, part of section 3, viz.: For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 290 F.-13 "Upon failure to do as above the contractors may after five days' written notice terminate this agreement or relet the work, at the least terms offered, at the expense of the subcontractor," provides an exclusive remedy, is without merit. Section 7 reads. "All loss sustained by the contractors by reason of the subcontractor's disregard or violation of these agreements shall be paid by the subcontractors and nothing herein shall be construed as releasing the subcontractors from full liability for all damages sustained by reason of such failure." See United States v. U. S. Fidelity Co., 236 U. S. 512, 526, 35 Sup. Ct. 298, 59 L. Ed. 696; 9 Corpus Juris, p. 812, par. 151. The evidence above quoted, together with much other evidence in the record, was sufficient to require that the questions be submitted to the jury. The judgment is reversed. E. L. WELCH CO. v. BLAKSTAD et al. (Circuit Court of Appeals, Eighth Circuit. May 7, 1923.) No. 6168. 1. Bankruptcy 81 (4)-Petition held to allege general assignment. An involuntary petition, alleging that alleged bankrupt had transferred all its property to trustees for its creditors, held to sufficiently allege a general assignment for benefit of creditors as an act of bankruptcy. 2. Bankruptcy 89(1)-Adjudication of bankruptcy held not error, where answer was sham or admission. Where, in involuntary bankruptcy proceedings, petitioner alleged a general assignment for benefit of creditors, which was conclusively shown by affidavit, answer of the bankrupt, denying the general assignment for benefit of creditors, would be treated either as admitting the execution of the instrument or as sham, and in either event petitioners would be entitled to order of adjudication of bankruptcy. Appeal from the District Court of the United States for the District of Minnesota; Wilbur F. Booth, Judge. Bankruptcy proceedings by A. C. Blakstad and others against the E. L. Welch Company, alleged bankrupt. From an order adjudging the company a bankrupt, it appeals. Affirmed. Harris Richardson, of St. Paul, Minn., for appellant. Earl H. Miller, of St. Paul, Minn. (Dobner & Miller, of St. Paul, Minn., on the brief), for appellees. Before KENYON, Circuit Judge, and JOHNSON, District Judge. JOHNSON, District Judge. This is an appeal from an order adjudging appellant a bankrupt. The act of bankruptcy upon which appellant was adjudged a bankrupt was that it had made a general assignment for the benefit of its creditors. [1] The objection that the petition does not sufficiently allege the commission of the act of bankruptcy upon which appellant was adjudged a bankrupt must be overruled. It is alleged in the petition that For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (290 F.) appellant had transferred all of its property to trustees for its creditors, and, as said by the court below, in the absence of a motion to make more definite and certain, the petition must be held in legal effect to allege a general assignment by appellant for the benefit of its creditors. [2] The objection that the court erred in entering the order of adjudication, notwithstanding appellant had an answer on file, must be overruled. The order was made upon the motion of appellees (1) to strike out the answer of appellant as sham; (2) that appellant be adjudged a bankrupt, "as if no answer had ever been filed herein." It was shown by affidavits that appellant, five days before the filing of the petition, had executed an instrument, which was a general assignment for the benefit of creditors, as defined by this court in Courtenay Co. v. Finch, Van Slyke & McConville, 194 Fed. 368, 114 C. C. A. 328. The trial court charitably assumed that appellant had not intended to deny that it had executed the instrument, and construed appellant's answer as admitting its execution. The court thereupon denied the motion to strike the answer as sham, and treated appellees' motion as a motion for judgment on the pleadings, and entered judgment accordingly. Appellant now claims that its answer should not be construed as admitting the general assignment for the benefit of its creditors; that, with the answer on file denying the general assignment for the benefit of creditors, it was entitled to a jury trial (a jury trial was demanded in the answer). Based upon these premises, appellant says the order of adjudication was necessarily erroneous. If it be admitted that the answer denied the making of the general assignment, the admission would not help appellant. Treated as a denial of the making of the general assignment for the benefit of creditors, the answer was sham, and should have been stricken out, at least in respect to this act of bankruptcy. If the answer did not deny the execution of the general assignment, the order of adjudication was properly entered. If the answer did deny the execution of the general assignment, it was sham, and should have been stricken out, and an order of adjudication entered. Petitioners were in any event entitled to the order adjudicating appellant a bankrupt. The order is affirmed. Costs to appellees. Patents AMERICAN FOUNDRY EQUIPMENT CO. v. WADSWORTH. (Circuit Court of Appeals, Sixth Circuit. June 7, 1923.) No. 3888. 327-Interlocutory decree does not render questions of validity and infringement res judicata, as affecting another suit; "final decree." An interlocutory decree of a District Court, finding a patent valid and infringed, is not a final adjudication, which renders such questions res judicata as between the parties in a suit in another jurisdiction. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Appeal from the District Court of the United States for the Northern District of Ohio; D. C. Westenhaver, Judge. Suit in equity by the American Foundry Equipment Company against Howard L. Wadsworth. From an order dismissing its supplemental bill, complainant appeals. Affirmed. Jesse B. Fay and Horace B. Fay, both of Cleveland, Ohio, for appellant. A. Miller Belfield, of Chicago, Ill., and Hull, Brock & West, of Cleveland, Ohio, for appellee. Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges. PER CURIAM. Paintiff brought this suit in the District Court below for infringement of United States patent to Stockham, No. 823,710, June 19, 1906, and for injunction and accounting. Plaintiff had previously brought suit in the United States District Court for the Eastern District of Wisconsin, against the L. J. Mueller & Son Company, for infringement of the same patent, in which suit defendant in the instant suit intervened and took over the exclusive direction and control of the entire defense. In the Wisconsin suit an interlocutory decree was entered, finding two claims of the patent valid and infringed, and ordering the usual injunction and accounting for profits and damages. Defendant is admittedly bound by that decree as fully as if actually defendant of record. An appeal from the decree of the Wisconsin court was taken to the Circuit Court of Appeals for the Seventh Circuit, was perfected, and is still pending in that court. 292 Fed.-The appeal before us is from an order of the District Court below, dismissing the supplemental bill filed in the instant cause by plaintiff, under leave therefor, by the court below, in which the decree in the Wisconsin case is set up as an adjudication of the controversy in the instant case. This appeal presents the sole question whether the decree of the District Court for the Eastern District of Wisconsin is a final decree, and so res judicata as between the parties to the instant suit. We think the decree of the District Court is plainly not a final decree. Should it be affirmed by the Circuit Court of Appeals, it would thereby become the decree of that court, and would be final so far as action by the District Court is concerned; that is to say, the District Court would thereafter be powerless to modify the decree, except as permitted by the Circuit Court of Appeals. Eastern Cherokees v. United States, 225 U. S. 572, 582, 32 Sup. Ct. 707, 56 L. Ed. 1212; Hart Steel Co. v. Railroad Supply Co., 244. U. S. 294, 297, 298, 37 Sup. Ct. 506, 61 L. Ed. 1148; National Brake Co. v. Christensen, 254 U. S. 425, 429 et seq., 41 Sup. Ct. 154, 65 L. Ed. 341; Bissell Co. v. Goshen Co. (C. C. A. 6) 72 Fed. 545, 560; Raydure v. Lindley (C. C. A. 6) 268 Fed. 338, 340. But the decree of the District Court, when pronounced, was not final, but was merely interlocutory, and that court still had power to change it previous to final determination subsequent to the accounting. McGourkey v. Railway Co., 146 U. S. 536, 545, 13 Sup. Ct. 170, 36 L. Ed. 1079; Merriam Co. v. Saalfield Co., 241 U. S. 22, 24 et seq., 36 Sup. Ct. 477, 60 L. Ed. 868; Simmons v. Grier, 258 U. S. 82, 89, 42 Sup. Ct. 196, 66 L. Ed. 475; Bissell Co. v. Goshen Co., su |