If Miller's offer and the acceptance by the board of directors did constitute a binding contract, yet the parties rescinded it by mutual consent, and the surrender of their mutual rights was sufficient consideration. But their rights must be determined exclusively by the formal agreement entered into upon the same day. Flegal v. Hoover, 156 Pa. 276, 27 A. 162; Dreifus, Block & Co. v. Salvage Co., 194 Pa. 475, 45 A. 370, 75 Am. St. Rep. 704.

The one valid subsisting contract between the parties is contained in the formal agreement of March 27, 1922. The prior agreement, if it existed, being merely executory, was discharged or rescinded by the new agreement.

[4] Coming now to the construction of the fourth paragraph, the contest is over the meaning of the language "that the said John G. Miller shall not, either directly or indirectly, as agent or employee engage in the pig iron business."

Construing the language with regard to the circumstances of the transaction, I cannot agree with the narrow construction placed upon the language by counsel for the defendant. The construction sought to be put upon it is based upon the contention that the words, "either directly or indirectly" qualify the following words "as agent or employee," and that therefore defendant was at liberty to engage as principal in the pig iron business, so long as he was not engaging as agent for or employee of another. This construction does not appear to me to be reasonable when it is considered that the evident purpose of the agreement is the protection of the plaintiff in purchasing Miller's stock against competition with it by Miller in the particular branch of their business with which Miller had been most closely identified, and in which he had obtained a prominent standing and recognition in the trade. As I read the language, therefore, the two qualifying clauses are each to be taken in connection with the predicate "engage in the pig iron business," and, as so construed, the language meant that Miller should not either directly or indirectly engage in the pig iron business or as agent or employee engage in the pig iron business.

[5] If, however, the defendant's contention is correct, he is not helped by this construction. He assisted in organizing, became a stockholder, and became president of a corporation, the purpose of which,

wise dispose of pig iron. As president of that corporation, he is its chief officer representing it in its business. He is thus engaged either directly or indirectly as its agent in carrying on the very business in which he agreed not to engage as such, and that he did it with the intent to use whatever prestige he had in obtaining business which might have been obtained by the plaintiff is entirely apparent. Any other conclusion would be a reflection upon his own intelligence.

The responsibility for the action of Don A. Marshall in leaving the employ of the plaintiff is not to be attributed to Miller, for Marshall was free to remain or quit; but an inference of the defendant's intent is irresistibly drawn from the fact that the new corporation immediately took Marshall into its employ, made him pig iron sales manager, and announced to the trade that he was formerly with Reed, Fears & Miller, Inc.

[6] It is contended on the part of the defendant that he has not taken any active interest in the pig iron end of the business of Miller, Carson & Co. and has not solicited orders for pig iron nor given any instructions for the solicitation of pig iron orders by either Carson or Marshall. It is shown however, that he was present at the regular meetings of the sales managers and salesmen when the pig iron business was discussed along with other branches of the business, and knowledge must be imputed to him that his standing and influence in the pig iron trade would be and was a valuable asset to Miller, Carson & Co., Inc., in influencing former customers of the plaintiff to deal with the new corporation to the injury of the plaintiff's business.

[7,8] The defendant attacks the jurisdiction of the court upon the ground that there is no evidence to show injury to the plaintiff to the extent of more than $3,000. The bill affirmatively alleged that the amount involved and in dispute exceeds $3,000, and prays for an injunction, an accounting, and for damages sustained by reason of the defendant's unlawful acts. The damages were not liquidated from the evidence produced as the court left the liquidation of damages open for further proof. The acts of the defendant in violation of his agreement, however, are continuing acts, and an injunction will operate as well to determine his liability for damages as to restrain him in the future. The value to the plaintiffs of an injunction may

The bankrupt mainly relies upon the case of Betz v. Maier, 12 Tex. Civ. App. 219, 33 S. W. 710, Court of Civil Appeals of Texas, for judicial, support of his contention here. In that case an iron safe which was used by an insurance agent to store his policies and other papers was held exempt from execution as a tool or appliance under this statute. However, since the decision in the case of Betz v. Maier, there have been a number of cases in which appellate courts of Texas, including the Supreme Court, have narrowed the construction placed upon this statute relating to exemptions. Under the later decisions of the appellate courts of Texas, a safe in which valuables are stored for safety cannot be said to be a tool or appliance in the sense that these terms are used in this statute. A tool or apparatus to belong to a trade or profession must be peculiarly essential to the use of said trade or profes

sion.

Judge Pleasants, speaking for the Court of Civil Appeals of Texas in Hammond et al. v. McFarland, 161 S. W. 47, holds that an ice box and refrigerator used by a butcher are not tools or apparatus belonging to his trade, and therefore cannot be exempt to the butcher under this statute. As Judge Pleasants in this opinion states the law as it obtains to-day by the construction of our appellate courts, I will quote at some length from his decision, as follows:

we

"Under the very liberal construction which the courts have generally given remedial statutes of this kind (vide Betz v. Maier, 12 Tex. Civ. App. 219, 33 S. W. 710, and cases cited in that case), would, if the question was an open one in this state, hold that the refrigerator or ice box in which appellee kept his meat, and which the evidence shows was necessary and essential to a proper conduct of the butcher's trade in this climate, was a tool or apparatus belonging to such trade; but we do not think a cash register under any proper construction of the statute could be called a tool or apparatus belonging to the trade of a butcher. Wallace v. Bartlett, 108 Mass. 52; Bequillard v. Bartlett, 19 Kan. 382, 27 Am. Rep. 120; McCord

"The question presented by this appeal has, we think, been settled by our Supreme Court in the case of Simmang v. Insurance Co., 102 Tex. 39, 112 S. W. 1044, 132 Am. St. Rep. 846. In that case the Supreme Court holds that a cash register and ice box or refrigerator used by a restaurant keeper in conducting his restaurant are not exempt from forced sale as tools or apparatus belonging to the trade of a restaurant keeper. It is conceded in the opinion in the case cited that the keeping of a restaurant is a trade in the purview of the statute, and the evidence showed that the articles named were used in carrying on said trade. We think it a matter of which the courts could take judicial notice that in this climate an ice box or refrigerator is not only useful and convenient but essentially necessary in conducting a restaurant. It is just as necessary and essential for a restaurant keeper to have an ice box in which to keep food he prepares for his customers, as it is for a butcher to have such a receptacle in which to keep the meats butchered or cut up by him. If an ice box is not a tool or apparatus belonging to the trade of a restaurant keeper, it is not one belonging to the trade of a butcher. This is just as true of a cash register."

As said by the attorney contesting the bankrupt's right to keep the iron safe, an iron safe is not necessary to the jewelry business; it is merely a convenience and is not peculiar to the jewelry trade. A place to store one's wares is not a tool or apparatus any more than a house is a tool or apparatus. The bankrupt's iron safe does not come within the meaning of "tools" of being a jeweler under the above decior "apparatus" as belonging to his trade sion of the Texas courts.

[2] As this court is controlled by the construction placed upon this statute by the controlling decisions of courts of last resort in Texas, I think the referee in bankruptcy in denying this iron safe to the bankrupt ruled correctly, and therefore the order made by the referee to have the trustee of the bankruptcy estate take and sell this iron safe is confirmed.

THE JETHOU. (District Court, D. Oregon. November 10, 1924.)

No. A-9304.

Shipping 84(3), 85 -Ship and contracting stevedore held liable for negligent injury to

seaman.

Injury to libelant operating a winch in loading a cargo of lumber, caused by the breaking of a gooseneck attached to a boom which allowed the boom to swing out and strike him, held due to negligence of the ship in permitting the gooseneck to become defective and unsafe and to the concurrent negligence of the contracting stevedore in using the ship's loading tackle to move cars on a siding, for which purpose it was not designed, and contrary to instructions of the ship's officers.

In Admiralty. Suit by Albert Rutherford against the steamship Jethou. Wilh. Wilhelmsen, claimant, and the Oregon & Ocean Corporation, impleaded. Decree for libelant against respondents jointly.

to spot some eight or nine of the cars, in order to have them convenient for hoisting the lumber therefrom for stowage in the ship.

There were five sets of gear, including the winches for operating the same, on the vessel, four of which were being used for loading. Libelant was in charge of winch No. 4.

According to Smith, the walking boss, he had directed that the four gears be attached to different sections of the line of cars, with the view of moving the cars for spotting. None had been attached, except the gear of No. 5 winch, which had been made fast to the rear car, and the winchman directed to take up the slack of the fall. But in doing this, it is obvious that the winchman did more; he exerted a considerable strain on the fall, otherwise the gooseneck would not have parted. The boom, with the gooseneck

Wood, Montague & Matthiessen, of Portland, Or., for claimant and petitioner.

Bronaugh & Bronaugh and F. C. McDougal, all of Portland, Or., for respondent to petitioner.

WOLVERTON, District Judge. This is a libel to recover damages for personal injuries alleged to have been sustained because of the negligent acts of the Jethou. The Oregon & Ocean Corporation was later brought in, and it is charged by the Jethou that the injuries to libelant, whatever they were, are attributable to its negligent acts, and not to any suffered or committed by the Jethou.

A gooseneck attached to one of the booms broke, which allowed the boom to swing out, so that it struck libelant on his hip and body, causing the injuries of which he complains. The breaking of the gooseneck is attributed to the negligence of the ship in allowing it to become defective and unfit for use with safety to the workmen.

The ship claims that the Oregon & Ocean Corporation was negligent in attempting to move nine cars then on the railroad tracks by use of the ship's gear, and especially after having been warned by the ship's officers not to use the same for that purpose.

The Oregon & Ocean Corporation, at the time of the accident, was under contract with the Jethou for loading her with lumber, and was engaged in the performance of its contract.

The lumber was being loaded from freight cars located on side tracks of the Southern Pacific Company on the dock alongside of the ship. It became necessary

long while for the different uses to which it was put, and had not given way until this juncture.

There is much dispute as to whether the longshoremen were attempting to move the cars on the track at the time. The master asserts very confidently that they were. The chief officer was not sure that the cars were coupled, but he says they had the wire on the after car, and were shoving all the rest ahead of it. Olsen, the chief engineer, testifies that the winch was running fast, and then came with a jerk; that it "was running fast, and it jumped." The testimony of Martin Jensen, the second officer, is to the same effect-that the pull was put on with a jerk. This he heard. He could hear the winch running fast, and then a crack when the boom came down.

The stevedores had been warned before

this, by the ship's officers, not to use the gear for moving the cars. They deny that they had such warning, but in this they are manifestly mistaken. Only the day before a boom had carried away by the breaking of a gooseneck, while lifting heavy timber, and the officers were apprised that the longshoremen were moving cars on the siding with the gear, one and two cars at a time, and directed them not to use it for lifting such heavy lumber, and likewise not to use it for moving the cars. At the same time the chief officer advised them that there was a windlass on the forecastle and a winch on the poop, which they could use with a wire, a snatch-block and hook to attach the appliance to the cars, and that the ship had steam available for use of the anchor windlass if

they wanted to use it that way. The ship's officers are so clear, and so apparently fair in their evidence, with respect to having previously given the warning not to use the gear for moving the cars, that I am constrained to believe them against the contra proofs of the longshoremen. The gear was calculated or supposed to lift three tons, and was compound in the winch at the time. While it is not unusual to use the loading gear for moving cars on sidings, it is clear that it is not designed for that purpose, and so to use it is to subject it many times to a strain it is not calculated to sustain. Nor should the longshoremen have attempted so to use the gear, in the instant case, contrary to the warning and admonition of the ship's officers.

As it respects the gooseneck that gave way, there can be no question that it was in grievously bad order. It was the pin that broke. The shoulder had worn away to such extent that it permitted a much heavier strain on the pin than if in good order. The pin had evidently been cracked previously, and the break showed evidence of crystallization. The appliance had evidently been poorly cared for, as it was badly rusted, and probably had at no time been greased or oiled, so as to obviate the wear.

I conclude, therefore: First, that the ship was negligent in operating the gear with the defective gooseneck; second, that the stevedore, the Oregon & Ocean Corporation, was negligent in failing to obey the warning of the officer not to use the gear for moving cars on the siding, and in so using it; and, third, that there was a concurrent liability as it respects the Jethou and the Oregon & Ocean Corporation for the injuries sustained by libelant.

The libelant was bruised about the hip, his back was weakened somewhat for the time, and his nervous system was somewhat impaired; but in no way was there permanent impairment to his health or ability to earn a livelihood. He was able to go to work again in about two months after the injury, and lost some time subsequently because thereof. Two and one-half months will fully

cover his loss of time.

I allow for the injury, pain, and suffering, etc., $1,000; for loss of time, 22 months, at $175 per month, $437.50; and for physician's services, $125-total, $1,562.50.

Libelant will have a decree for the amount against the Jethou and the Oregon & Ocean Corporation jointly, and for his costs and disbursements.

459.

CRAIL v. ILLINOIS CENT. R. CO. (District Court, D. Minnesota, Fourth Division. October 18, 1924.)

I. Carriers 135-Measure of damages for portion of shipment lost in transit stated.

Where portion of shipment is lost in transit, measure of damages is value of deficiency at time and place at which it should have been delivered, with interest, less transportation charges, if they have not been paid. 2. Carriers 135-Measure of damages for

coal lost in transit stated.

Where portion of car of coal shipped to coal dealer was lost in transit, consignee's measure of damages was value of lost coal in car at place of delivery, and not market price at which coal could be replaced, parties not contemplating replacement by purchase on market. 3. Carriers 131-Special damages for loss of goods in transit must be specially pleaded and proved.

Special damages sustained by consignee by foss in transit of portion of shipment must be specially pleaded and proved.

4. Damages 23-Liability of party defaultIng in performance of contract stated.

Party defaulting in performance of contract is liable for such damages as usually or naturally result from breach, and for such unusual or special damages as fairly might be anticipat

ed by parties at time contract was made.

At Law. Action by G. I. Crail, doing business as the P. McCoy Fuel Company, against the Illinois Central Railroad Company. Judgment for plaintiff.

Stanley B. Houck, of Minneapolis, Minn., for plaintiff.

Brown & Guesmer and Edwin C. Brown, all of Minneapolis, Minn., for defendant.

George A. Kingsley, of Minneapolis, Minn., and William G. Graves, of St. Paul, Minn., amici curiæ.

CANT, District Judge. The amount immediately involved in this action is small. The action itself is said to be important, because the claim of plaintiff is one of a very numerous class.

In September, 1922, defendant engaged to transport a certain carload of coal, weighing 88,700 pounds, from a point in the state of Illinois to Minneapolis, Minn. Before its arrival at Minneapolis, plaintiff became the rival in plaintiff's yard at Minneapolis, the owner and consignee of the coal. On arplace of delivery, it was found that 5,500

pounds of the coal had been lost in transit. At that time the value of the coal in question in carload lots at Minneapolis was $5.75 per ton, plus freight. The retail price of the same coal at Minneapolis was $9.70 per ton, plus freight. It was not possible to go into the market at Minneapolis and purchase 5,500 pounds, and no more, of the same grade of coal, with which to replace that which had been lost, at less than $9.70