time.

the contract price applicable at that | Smelting Company were separate and independent corporations, and the circuit court of appeals held that the Smelting Company did not make the contract for the Mammoth Company. 286 Fed. 503, 509. The zinc product of the Mammoth mine is not specifically mentioned. The language is not definite, and, as that mine is at Kennett, one of the shipping points mentioned, the product might be deemed to be included, if under the control of the Smelting Company. Neither of the parties to this suit was a party to that contract, and parol evidence was given to show what ore was covered. Barreda v. Silsbee, 21 How. 146, 169, 16 L. ed. 86, 93; Central Coal & Coke Co v. George S. Good & Co. 57 C. C. A. 161, 120 Fed. 793, 798. It was shown that the Mammoth Company and the Smelting Company, while both subsidiary to the Mining Company, were wholly independent; that neither had control over the other, and that the Smelting Company did not control and had no authority to sell the product of the Mammoth mine. Appellants' contention is not supported by the facts.

The district court found that the seller attempted in good faith to carry out its part of the contract until it was stopped; that the claim that the seller broke the contract was without merit; that no objection to the deliveries was made on the ground of inequality, and that the breach was waived as to all ore accepted; that the buyers' refusal to accept the ore tendered in March was based solely on the vis major clause; and that there was no evidence that the seller did not ship in as nearly equal weekly quantities as possible. And the circuit court of appeals found that the Mammoth Company carried out its promises under the terms of the contract. No reason has been shown why the findings of the lower courts should be disturbed. Washington Securities Co. v. United States, 234 U. S. 76, 78, 58 L. ed. 1220, 1222, 34 Sup. Ct. Rep. 725. Our own examination of the evidence satisfies us that there is no merit in appellants' contention that there was a breach of the contract by the seller.

4. Appellants contend that the contract sued on was not enforceable because made in violation of an earlier agreement, dated June 10, 1914, selling the same ore.

[256] 5. Appellants insist that no more than nominal damages should have been awarded because, as they The Mammoth Mining Company, oper- say, the evidence showed no actual ating in Kennett, California, and the loss on resale. After Beer, SondUnited States Smelting Company, operat- heimer, & Company rejected the ore, ing in Salt Lake City, Utah, were sub- the Mammoth Company resold it to the sidiaries of the United States Smelting, United States Smelting Company. The Refining & Mining Company. The execu- amount of the judgment is based on tive officers and boards of directors of the difference between resale prices and the subsidiary companies and of the par- those fixed by the contract in suit. The ent company were substantially identical, purchaser smelted the ore and made a but each subsidiary had a [255] sepa- profit. The master found that the price rate general manager and operating obtained on resale represented the best staff. On June 10, 1914, the Smelt-price that the Mammoth Company could ing Company made a contract cover-obtain after energetic efforts in good ing the sale of certain ores to the faith to sell the ore on more favorable American Metal Company, and ap- terms. Appellants make no claim of bad pellants assert that it covered the same ore which was subsequently sold by the contract in suit. The product described in the earlier contract is "all the zinc sulphide crude ore, zinc sulphide concentrates, and zine sulphide middlings, shipped from Midvale, Utah, Kennett, California, or any other point by or under the control of the seller during the period of this agreement." Through some misapprehension, the lower courts considered the case as if the Mammoth Company were a subsidiary of the Smelting Company. This was more favorable to appellants than was warranted by the facts. Nevertheless, they declined to sustain appellants' contention. Both held that the Mammoth Company and the

faith. There was no dispute as to the evidentiary facts. The report of the master was confirmed by the trial court, and its ruling was sustained on appeal. It must be taken as established that the resale was made in good faith for the best obtainable price. Crawford v. Neal, 144 U. S. 585, 596, 36 L. ed. 552, 557, 12 Sup. Ct. Rep. 759. The Mammoth Company and the Smelting Company were separate entities. The intercorporate relations above referred to furnish no ground for charging against the Mammoth Company the profits made by the Smelting Company. It is obvious from the facts found that the latter could have obtained zinc ore in the market on as favorable terms. The Mammoth Company did not operate

ness.

a smelter or use the ore in its own busi-, 6 Wall. 94, 99, 18 L. ed. 752, 753. One The smelting of the ore was sepa- who fails to perform his contract is justly rate and apart from the contract in suit, bound to make good all damages that acand the seller was not bound to smelt the crue naturally from the breach; and the ore or have it smelted and account for the other party is entitled to be put in as profits, if any, to the buyers. The good a position pecuniarily as he would amount of profits realized by the Smelt- have been by performance of the contract. ing Company was immaterial, and the Curtis v. Innerarity, 6 How. 146, 154, 12 buyers had no right to have it set off L. ed. 380, 383. One who has had the against the damages resulting from their use of money owing to another justly breach of the contract. may be required to pay interest from the 6. The district court allowed interest time the payment should have been from July 3, 1919; the circuit court of [258] made. Both in law and in appeals from June 29, 1916. Appellants equity, interest is allowed on money object on the ground that this is a suit due. Spalding v. Mason, 161 U. S. against the United States, and inter- 375, 396, 40 L. ed. 738, 746, 16 Sup. est is not allowable against it; [257] Ct. Rep. 592. Generally, interest is that, at common law, interest was not allowed upon unliquidated damnot recoverable, and the case was not a proper one for the exercise of chancery discretion; and that, if it was not an abuse of discretion to allow interest from the date when the war was practically ended, its allowance from June 29, 1916, was erroneous. In an attempt to commence an action in Utah against the buyers to recover damages resulting from their breach, the seller, on June 29, 1916, served a summons and complaint on the representatives of the buyers. On the facts found, which need not be repeated here, the circuit court of appeals (286 Fed. 511) rightly held the attempted service to amount to a demand, and that interest might be allowed from that date. See Goddard v. Foster, 17 Wall. 123, 143, 21 L. ed. 589, 595; Kaufman v. Tredway, 195 U. S. 271, 273, 49 L. ed. 190, 191, 25 Sup. Ct. Rep. 33; United States v. Poulson, 30 Fed. 231; Dwyer v. United States, 35 C. C. A. 488, 93 Fed. 616; Mather v. Stokely, 134 C. C. A. 442, 218 Fed. 764, 767.

While the suit, as held in Banco Mexicano De Commercio é Industria V. Deutsche Bank, 263 U. S. 591, 603, 68 L. ed. 465, 469, 44 Sup. Ct. Rep. 209 (affirming 53 App. D. C. 266, 289 Fed. 924), is one against the United States, the claim was not against it. No debt was alleged to be owing from it to the plaintiff. The rule of sovereign_immunity from liability for interest (Judicial Code, § 177; National Home v. Parrish, 229 U. S. 494, 57 L. ed. 1296, 33 Sup. Ct. Rep. 944; United States v. North American Co. 253 U. S. 330, 336, 64 L. ed. 935, 938, 40 Sup. Ct. Rep. 518; Seaboard Air Line R. Co. v. United States, 261 U. S. 299, 304, 67 L. ed. 664, 669, 43 Sup. Ct. Rep. 354) does not apply.

Compensation is a fundamental principle of damages, whether the action is in contract or in tort. Wicker v. Hoppock,

ages. Mowry v. Whitney, 14 Wall. 620, 653, 20 L. ed. 860, 866. But when neeessary, in order to arrive at fair compensation, the court, in the exercise of a sound discretion, may include interest or its equivalent as an element of damages. See Bernhard v. Rochester German Ins. Co. 79 Conn. 388, 397, 65 Atl. 134, 8 Ann. Cas. 298; Frazer v. Bigelow Carpet Co. 141 Mass. 126, 4 N. E. 620; Faber v. New York, 222 N. Y. 255, 262, 118 N. E. 609; De la Rama v. De la Rama, 241 U. S. 154, 159, 160, 60 L. ed. 932, 934, 36 Sup. Ct. Rep. 518, Ann. Cas. 1917C, 411; The Paquete Habana (United States v. The Paquete Habana) 189 U. S. 453, 467, 47 L. ed. 901, 904, 23 Sup. Ct. Rep. 593; Eddy v. Lafayette, 163 U. S. 456, 467, 41 L. ed. 225, 229, 16 Sup. Ct. Rep. 1083; Demotte v. Whybrow, 263 Fed. 366, 368.

In this case, at least, as early as June 29, 1916, the date of demand, the seller was entitled to have from the buyers the difference between the sum which it would have received prior to that date, if the buyers had kept their contract, and the amount it received on resale. Payment in 1924 or later, of that sum, is not full compensation. Cf. Seaboard Air Line R. Co. v. United States, supra, 306. All damages had accrued prior to the demand. There was nothing dependent on any future event. The elements necessary to a calculation of the amount the seller was then entitled to have to make it whole-namely, the quantities of ore produced, its metallic content, the prices to be paid by the buyers under the contract, and the amount realized on resale-were known or ascertainable. trance into the war was long subsequent to June 29, 1916, the date of the demand. General representatives, who had long been in charge of the business in this country of Beer, Sondheimer, & Company, remained here until after that

Our en

event. At all times, until it was taken at the same time, between the same over under the act, they had money and points, on the same commodity, deproperty of that firm more than sufficient pendent upon the invoice under which to make good the seller's damages. It it is shipped, and that the courts below would be unjust and inconsistent with erred in making the deduction. But we the remedial purposes of § 9 to hold that think that the question whether rates that the seized enemy property cannot [259] might be so produced would be unlawful be held for the full amount of was not involved in the case. The ore the seller's loss, and that, to the covered by the original contract was not extent of interest during the period shipped from Kennett to Bartlesville and of the war, compensation must be Altoona at the same time, nor would it denied. The proposition that the enemy have been if there had been no breach; defendants, as a matter of law, are and it was not shown that any other zine entitled to be relieved from interest ore was so moved. If different rates had during the war, cannot be sustained. Cf. been exacted for contemporaneous transWard v. Smith, 7 Wall. 447, 452, 19 L. portation of ore to the same destination, ed. 207, 210; Connecticut v. Pennsyl- or its equivalent, a question between the vania, Pet. C. C. 496, Fed. Cas. No. carrier and shipper might have arisen. 3,104; Yeaton v. Berney, 62 Ill. 61, 63; But, on the facts of this case, no such Gates v. Union Bank, 12 Heisk. 325, 330. question was involved. The cost of transThe allowance of interest made by the portation on the resale was less than it circuit court of appeals was just and is would have been if the buyers had acsustained. cepted all the ore. Both courts so found. The seller was not entitled to charge against the buyer anything on account of the expense of resale in excess of the amount it paid. It was not entitled to be put in a better position by the recovery than if the buyers had fully performed the contract. Plaintiff's appeal is without merit.

7. The seller agreed to deliver the ore free on board cars at the buyers' smelting works at Bartlesville, Oklahoma, or at such other works as the buyers might designate, and any difference of freight charges between the point of shipment and other smelting works so designated, as against those to Bartlesville, should be for the account of the buyers. The ore which was rejected by the buyers and resold was shipped to Altoona, Kansas. The freight rates were graduated on the basis of "actual value" of the ore shipped, and were the same from Kennett, California, to Altoona, as to Bartlesville. The rates on the shipments to Bartlesville were based on the prices fixed by the contract in suit; and those on shipments made to Altoona on the resale prices. The charges for the transportation of ore resold were $42,201.50 less than they would have been if based on prices fixed by the original contract. The master reported that, if the ore had been shipped under the contract, the carrier, for the lack of any other available standard, would have based its rates on the contract prices. And he excluded from the amount fixed as damages the excess over the charges actually paid. His report was adopted by the trial court, and its decision was affirmed by the circuit court of appeals. The plaintiff, [260] on his appeal, contends that, under the Interstate Commerce Act, there cannot be two freight rates in effect

2 Restrictions on intercourse between citizens of this country and citizens of Ger

Decree affirmed.

FERRIES COMPANY. Appt.,

V.

UNITED STATES OF AMERICA. (See S. C. Reporter's ed. 260–264.) Landlord and tenant provision for appraisal at termination of lease effect of prices.

erty is leased for a term of years, the propUnder a contract by which ferry property turned over to be taken at a valuation, and on return also to be valued, and lessor or lessee to pay the other the difference between the valuations as it may be over or under the original one, respectively, if the property is subsequently turned over to the Federal government for operation, at which time the lease is terminated and the appraisal made, the lessee is not entitled to the benefit of war prices prevailing when the government takes possession, but the valuation at termination should be by prewar values.

[No. 46.]

Argued October 8, 1924. Decided November 17, 1924.

many were removed by War Trade Regula- APPEAL by claimant from a judgtion No. 814, July 20, 1919. See Ward v. ment of the Court of Claims denySmith, 7 Wall. 447, 452, 19 L. ed. 207, 210. ing a portion of its demand for the

value of leased property returned by it
to the lessor. Affirmed.

See same case below, 57 Ct. Cl. 616.
The facts are stated in the opinion.

1916A, 341; Monidah Trust v. Arctic Constr. Co. 264 Fed. 303; Omaha v. Omaha Water Co. 218 U. S. 180, 192, 54 L. ed. 991, 997, 48 L.R.A.(N.S.) 1084, Co. v. Pennsylvania, 232 U. S. 531, 547, 30 Sup. Ct. Rep. 615; Plymouth Coal 58 L. ed. 713, 720, 34 Sup. Ct. Rep. 359.

Mr. W. R. L. Taylor argued the cause, and, with Messrs. Hugh C. Davis and Hugh W. Davis, filed a brief for appellant: Appellant's claim was founded on ex-ion of the court: press contract with the United States.

Whitney v. Wyman, 101 U. S. 392, 25 L. ed. 1050; Sun Printing & Pub. Asso. v. Moore, 183 U. S. 647, 46 L. ed. 371, 22 Sup. Ct. Rep. 240.

It is the function of a court of equity to set aside an appraisal or award where the appraisers or arbitrators have a mistaken view of the meaning of the language contained in the contract of submission.

Mr. Justice Butler delivered the opin

The city of Portsmouth and the county of Norfolk, Virginia, made a lease of the Norfolk ferries operating between Portsmouth, Norfolk, and Berkeley for a term to plaintiff's assignor. of ten years, beginning April 1, 1909, consisted of boats, their equipment, The properties wharves, and other property used for the operation of the ferries. All the property turned over to the lessee, except land, was taken by the lessee upon the inventory and valuation thereof made by a board of appraisers selected under a prior lease then about to expire. It was agreed that, at the termination of the lease, the property so accepted, including any boats which might be purchased or built by the lessee for the operation of the ferries, and [262] any improvements made by the lessee, should be inventoried and valued by a board of five disinterested persons. And it was Where appraisal or award is set aside, provided that if such valuation should a court of equity will proceed to re-be less than the value of the property form the same rather than return the turned over to the lessee by the lessors, matter for further procedure by ap- the lessee should pay the difference; but, praisers or arbitrators. if more, the lessors should pay the difference.

Swisher v. Dunn, 89 Kan. 412, 45 L.R.A. (N.S.) 810, 131 Pac. 571; Moore v. Luckess, 23 Gratt. 160; McLaurin V. McLauchlin, 131 C. C. A. 487, 215 Fed. 345; 5 C. J. 197, § 503; Chicago, M. & St. P. R. Co. v. Stewart, 19 Fed. 5; WillCox v. Consolidated Gas Co. 212 U. S. 52, 53 L. ed. 399, 48 L.R.A. (N.S.) 1134, 29 Sup. Ct. Rep. 192, 15 Ann. Cas. 1034; Petersburg Gas Co. v. Petersburg, 132 Va. 82, 20 A.L.R. 542, 110 S. E. 533.

William H. Low Estate Co. v. Lederer Realty Corp. 35 R. I. 352, 86 Atl. 881, Ann. Cas. 1916A, 341; Lowe v. Brown, 22 Ohio St. 463; Conger v. Ensler, 85 App. Div. 564, 83 N. Y. Supp. 419; Coons v. Coons, 95 Va. 434, 64 Am. St. Rep. 804, 28 S. E. 885; 1 Pom. Eq. Jur. § 236.

Special Assistant to the Attorney General Alfred A. Wheat argued the cause, and Special Assistant to the Attorney General George Ross Hull and Solicitor General Beck filed a brief for appellee:

The appraisement made by a majority of the appraisers was valid and binding upon the claimant.

Kihlberg v. United States, 97 U. S. 398, 24 L. ed. 1106; Sweeney v. United States, 109 U. S. 618, 27 L. ed. 1053, 3 Sup. Ct. Rep. 352; Martinsburg & P. R. Co. v. March, 114 U. S. 549, 29 L. ed. 255, 5 Sup. Ct. Rep. 1035; United States v. Mason & H. Co. 260 U. S. 323, 67 L. ed. 286, 43 Sup. Ct. Rep. 128; William H. Low Estate Co. v. Lederer Realty Corp. 35 R. I. 358, 86 Atl. 881, Ann. Cas.

Under date of October 8, 1918, the lessors, the plaintiff, and the United States (acting by the Bureau of Industrial Housing and Transportation of the ment by which the United States took Department of Labor), made an agreeover the operation of the ferries. It was provided that the lease should terminate at the time of the turning over of the properties to the Bureau, and that "the appraisal provided for in

said lease shall take place as of the time that the ferries shall be taken over by the Bureau instead of at the regular termination of the said lease, as therein provided, and said appraisal shall be made in the same manner as if the said lease had regularly terminated at the date that the said ferries are taken over by the Bureau ." It was agreed that if, as a result of the appraisal, plaintiff was found to be entitled to any money from the lessors, it should be paid by the Bureau and charged to lessors; and that, if the lessors were found to be entitled to any money from

basis of the appraisal made under the agreement with the United States, but, on the contrary, it assailed that valuation as null and void. The only ground of attack relied on in this court was that the appraisers misconstrued and misapplied the agreement. But, as above indicated, we hold there was no misinterpretation. The facts found are not sufficient to entitle the plaintiff to have the award set aside, or to any reThe lief in a court of equity. Therefore, purpose of the two appraisals provided the jurisdiction of the Court of Claims for in the lease one at the beginning to grant equitable relief need not be conand the other at the end of the term-sidered.

was to find the changes which had oc- Judgment affirmed.