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and that Charles E. Cherry, an agent of the 109 N. E. 784; Hedrick v. D. M, Osborne & insurance company, negotiated the settle- Co., 99 Ind. 143–147. ment; that he procured from appellee a re The evidence is sufficient to warrant the lease as follows:

jury in finding that Cherry had authority to "Settlement in Full of Claim for Personal In- make settlement for both the insurance comjury.

pany and appellants. The release was es“I, William T. Richart, hereby admit and ac-ecuted to appellants, and was accepted, reknowledge that there has been paid to me in tained, and relied upon by them. Authorhand this day by Carter, Lee & Company the ity to make the settlement necessarily insum of three hundred and 00/100 dollars, in full cluded the power to agree upon the considersettlement, accord and satisfaction of any and all claims or demands of every description which ation appellee was to receive for executing I now have or may hereafter have against the the release. said Carter, Lee & Company on account of an

[8] Cherry being clothed with the apparaccident causing an injury to me on or about

ent authority to settle for appellants, if he August 21st, 1911,

exceeded his authority and appellee was not “William T. (X) Richart."

apprised of that fact, the loss, if any, would

fall on appellants rather than appellee. Before bringing this suit appellee filed a American Telephone & Telegraph Co. v. suit against appellants for damages for the Green, 164 Ind. 349–356, 73 N. E. 707, and injury to his hand, and the foregoing release authorities cited. It is not disputed that apwas set up as a defense to the action; that pellants accept, retain, and rely upon the reappellants had the same attorneys in both lease obtained by Cherry from appellee. In suits. The release was acknowledged before a case quite similar to the one at bar it has Cherry as notary public, and he testified that been decided that where an employer accepts the signature on the back of the release was such release he thereby elects to affirm the his; that he reported the settlement to Car- settlement as made, and cannot affirm the ter, Lee & Co., and told them Richart was part beneficial to him and reject the rest. asking for his job back.

Appellants do not dispute the fact of such Appellee testified that he went to appel de ion, but contend that it is bad law, and lants' mill and told Mr. Carter the insurance should not be followed. Having concluded company had seen him, and he had signed a that there is some evidence to warrant the release for $300, and was to take that amount jury in inferring that appellants authorized and get his job back, and Mr. Carter said, Cherry to make the settlement, the decision “Certainly you will”; that he told Carter in this case does not rest wholly upon the Cherry promised him his job back and Mr. foregoing proposition. We observe, however, Carter replied, "Your job will be all right.” that the Supreme Court denied à transfer

Appellant Lee testified that he talked with of the case, and this in effect makes it the Mr. Cherry about the settlement a day or so decision of that court as well as this. Amerbefore he went out to see Richart; that he ican Car & Foundry Co. v. Smock, 48 Ind. learned of the settlement a day or two after App. 359-362, 91 N. B. 749, 93 N. E. 78. See, it was made, but did not authorize Mr. Cher- also, Usher v. N. U., etc., Ry. Co., 76 App. ry to promise employment to appellee. Ap- Div. 422, 78 N. Y. Supp. 508; Id., 179 N. Y. pellee and several other witnesses testified 544, 71 N. E. 1141. in substance that Mr. Cherry promised appellee he was to have “the same job at the

(9, 10) The terms of the alleged employsame money" as soon as he was able to work valid and enforceable contract. By executing

ment were suficiently definite to make a and said he had authority from Carter, Lee the release appellee was not precluded from & Co. to make that arrangement; that appel- showing the actual consideration for which lee would not sign the release without as it was executed. Pennsylvania Co. v. Dolan, surance that he was to be employed by ap. 6 Ind. App. 109, 32 N. E. 802, 51 Am. St. pellants at the same wages as soon as he was able to work, and was to continue as long Rep. 289; American Car, etc., Co. v. Smock, as he was able to work, and that Cherry supra; Stewart v. Chicago, etc., Ry. Co., 141 agreed thereto. The evidence also tends to Ind. 55–59, 40 N. E. 67;. Cox v. B. & 0. S. W. show that just prior to his injury appellee Ry. Co., 180 Ind. 495-505, 103 N. E. 337, 50 was receiving 25 cents per hour and working L. R. A. (N. S.) 453. ten hours per day, and that his average

[11] Appellants complain of the fifth and wages for many years had amounted to 25 thirteenth instructions given the jury, which cents per hour or more.

are as follows: (7) Facts need not be proven by direct and

"5. Where one holds a contract to perform positive evidence, and the court or jury try to permit the services to be performed, it is

service and the other party wrongfully refuseg ing the case may draw any reasonable in- the duty of the one who is to perform the servference of fact warranted by the evidence. ices to seek similar employment elsewhere, and If a fact may reasonably be inferred from thereby save himself harmless, if he is reasonthe facts and circumstances which the evi- ably able to do so. And so for a violation of

such a contract the measure of damages is the dence tends to establish it is sufficient on

wages stipulated for the full term, where the inappeal. Bronnenberg v. I. U. Traction Co., jured has been unable to secure other employ

114 N.E.-8


ment during the term. And where the injured | ly state the law applicable to the issues and party has been able to secure employment, then evidence of the case. the measure of damages is the diminution between the wages agreed to be paid under the

The case seems to have been fairly tried contract and the wages received under the new

on its merits, and a correct result reached. employment. So in this case if you find that the No intervening error has been pointed out contract existed between plaintiff and defend- which would warrant a reversal of the judg. ants as charged, and that defendants wrongfully

ment. violated it as charged, then under such circumstances it was the duty of plaintiff to seek oth

Judgment affirmed. er employment."

"13. If under the evidence and these instructions you find for plaintiff, it will then be your

(219 N. Y. 563) duty to determine and assess the damages, if

MCALEENAN MASSACHUSETTS any. In that connection you may consider, only

BONDING & INSURANCE CO. however, as may be shown by the evidence the following elements, viz. the kind of work at (Court of Appeals of New York. Oct. 24, 1916.) which he was engaged before and at the time of

INSURANCE C514 INDEMNITY INSURANCEhis alleged injury and the wages, if any, paid

FAILURE TO APPEAL-LIABILITY. him therefor. When, if at all, he has been able

Where verdict was recovered against the and willing, since his alleged injury, to perform holder of a policy of indemnity insurance for the work he was engaged in when injured, and the death of a person through an accident covwhat, if any, period of time since the alleged ered by the policy, and the insurer agreed to injury he has been unable to secure employment appeal from the judgment, and assured its polof the class at which he was engaged when in- icy holder that an appeal had been taken but jured. Also you may consider what, if any, without the latter's knowledge permitted the other employment he has had since his alleged time within which to take an appeal to expire injury, and the wages he has received therefor, without taking it, the policy holder had a if any.

And from a consideration of the ele- cause of action against the insurer. ments enumerated, only as may be shown by a

[Ed. Note.-For other cases, see Insurance, preponderance of the evidence, you may assess Cent. Dig. $ 1298; Dec. Dig. 514.] the recovery at such an amount as will fully compensate plaintiff for the damages, if any, he

Appeal from Supreme Court, Appellate Dihas sustained, as alleged in the complaint, but

vision, First Department. not to exceed the sum demanded therein."

Action by Joseph A. McAleenan against The instructions state the rule for the the Massachusetts Bonding & Insurance measure of damages in cases like the one Company. From so much of an order of the under consideration substantially as declared Appellate Division of the Supreme Court in the decisions of both this court and our (173 App. Div. 100, 159 N. Y. Supp. 401), Supreme Court. Pennsylvania Co. v. Dolan, which reversed an order of the Special supra, 6 Ind. App. 121, 32 N. E. 802, 51 Am. Term, in so far as it granted plaintiff judgSt. Rep. 289; Inland Steel Co. v. Harris, 49 ment on his first cause of action and grantInd. App. 157-163, 95 N. E. 271; Hinchcliffe ed defendant's motion for judgment in its v. Koontz, 121 Ind. 422-426, 23 N. E. 271, 16 favor, plaintiff appeals by permission, while Am. St. Rep. 403; Hamilton v. Love, 152 defendant appeals by permission from so Ind. 641-647, 53 N. E. 181, 54 N. E. 437, 71 much of the same order as affirmed so much Am. St. Rep. 384.

of the order of the Special Term as granted [12] Appellants also contend that the in- plaintiff judgment on his second cause of acstructions on the measure of damages are tion; questions being certified. Order aferroneous because they did not direct the firmed, and questions answered. jury to deduct interest from the amount al Appeal by plaintiff, by permission, from lowed for wages to be earned in the future. so much of an order of the Appellate DiviThe authorities do not generally take into sion of the Supreme Court in the First judiaccount the question of interest in stating cial department, entered June 21, 1916, which the rule for the measure of damages. But if reversed an order of Special Term in so correct in their contention, which we do not far as it granted plaintiff judgment on the decide, appellants have not shown reversible first cause of action and granted defendant's error. The instructions state the rule cor

motion for judgment in its favor. Appeal rectly in general terms, and if appellant de- by defendant, by permission, from so much sired a more specific instruction as to the of the same order as affirmed so much of items that should be deducted in arriving an order of Special Term as granted plainat the amount of the verdict, it was their tion The action was brought on a policy

tiff judgment on the second cause of acduty to have tendered a proper instruction

of indemnity insurance. As his first cause on the subject, and, failing to do so, cannot of action, plaintiff seeks to recover an amount be heard to complain of those given. Malott paid by him to satisfy a judgment for damv. Shimer, 153 Ind. 35–42, 54 N. E. 101, 74 ages for death of a person through an acciAm. St. Rep. 278; National Fire Co. v. Smith, dent covered by the policy. For a second 55 Ind. App. 124-145, 99 N. E. 829; McAfee cause of action plaintiff alleges that, a verv. Montgomery, 21 Ind. App. 196–203, 51 N. dict having been recovered against him for. E. 957. The instructions given, when con- the damages aforesaid, the defendant agreed sidered in their entirety, fairly and accurate to appeal from the judgment and assured

plaintiff that an appeal had been taken, but |4. CARRIERS C 88-PLACE OF DELIVERY. without the knowledge of plaintiff permitted Feb. 4. 1887, 88 2, 3, 17; Act Feb. 19, 1903;

Under the Interstate Commerce Acts (Act the time within which to take an appeal to Act June 29, 1906) and the New York Public expire without taking said appeal, and de Service Commissions Law, $$ 31, 32, where a mands judgment for the negligence of the manufaoturing company's plant covered 180 defendant in respect thereto.

acres and contained an elaborate system of

tracks operated by several engines directed by The following questions were certified:

a plant master of transportation, so complicat"(1) Are the facts alleged as a first cause of ed" that distribution of cars of freight to the action in the complaint herein sufficient to con- company's various mills and storehouses thereon stitute a cause of action against the defendant? by the carrier was impracticable, a carrier was

“(2) Are the facts alleged as a second cause not bound to distribute, along such intermural of action in the complaint herein sufficient to track system, cars of freight to the company, constitute a cause of action against the defend- nor to make allowance to the company for its ant?"

performance of such services, but delivery to Herbert C. Smyth and John Purdon, both the general storage tracks at the plant was suf

ficient; such delivery being both reasonable of New York City, for plaintiff. Clayton J. and customary at other similar plants. Heermance, of New York City, for defend (Ed. Note.-For other cases, see Carriers, ant.

Cent. Dig. 88 280-28942, 319-321; Dec. Dig.

Om 88.] PER CURIAM. Order affirmed, without 5. CARRIERS C 88%PLACE OF DELIVERY. costs; first question certified answered in Nor could the manufacturer recover in quanthe negative; second question answered in tum meruit for such services in distributing cars

of freight for the carrier throughout its plant, the affirmative; no opinion.

whether they were performed before or after

New York Public Service Commissions Law, $$ HISCOCK, CHASE, CUDDEBACK, HO- 31, 32, went into effect, since the work was no GAN, CARDOZO, and POUND, JJ., concur. part of the task of carriage. WILLARD BARTLETT, C. J., absent.

(Ed. Note.-For other cases, see _Carriers, Cent. Dig. 88 280-28942, 319–321; Dec. Dig.

m88.] (219 N. Y. 227) NEW YORK CENT. & H, R. R. CO. V.

Appeal from Supreme Court, Appellate GENERAL ELECTRIC CO.

Division, Third Department. (Court of Appeals of New York. Nov. 3, 1916.) River Railroad Company against the Gen


eral Electric Company. From a judgment Under the Interstate Commerce Acts (Act of the Appellate Division (167 App. Div. Feb. 4, 1887, c. 104, 24 Stat. 379, 88_2, 3, 17726, 153 N. Y. Supp. 478), reversing a judg. (U. S. Comp. St. 1913, 88 8564, 8505, 8586]; ment of the Trial Term (83 Misc. Rep. 529, Act Feb. 19, 1903, c. 708, 32 Stat. 847; Act June 29, 1906, c. 3591, 34 Stat. 584) and New 146 N. Y. Supp. 322), for plaintiff, and grantYork Public Service Commissions Law [Laws ing judgment absolute on a counterclaim, 1907, c. 429) $$ 31, 32, prohibiting rebates, a plaintiff appeals. Reversed. carrier may make reasonable allowance for necessáry services of the consignee in completing Lewis E. Carr, of Albany, for appellant. delivery, since "transportation" includes deliv- Richmond D. Moot, of Schenectady, for reегу.

spondent. (Ed. Note. For other cases, see Carriers, Cent. Dig. 8 84; Dec. Dig. Om32(2). For other definitions, see Words and Phrases,

CARDOZO, J. The complaint is for First and Second Series, Transportation.] freight charges of $618.53. The answer is a 2. CARRIERS OW32(2)---PREFERENCES AND D18- counterclaim for $114,880.73. The counterCRIMINAȚIONS—"REBATE."

claim, dismissed at the Trial Term, was Under the Interstate Commerce Acts (Act Feb. 4, 1887, $$ 2, 3, 17; Act Feb. 19, 1903; sustained by the Appellate Division.. InterAct June 29, 1906) and New York Public Serv- est charges brought the judgment in favor ice Commissions Law, 88 31, 32, an allowance of the defendant to $168,701.12. The facts for services, rendered by the consignee after not in controversy. The defendant delivery has been made and transportation is completed, is an unlawful "rebate" and prefer- switched cars within its plant under an

agreement that the service would be com[Ed. Note. -For other cases, see Carriers, pensated by an allowance from the pubCent. Dig. $ 84; Dec. Dig. 32(2).

lished rates. The validity of that agreeFor other definitions, see Words and Phrases, ment is the question to be determined. First and Second Series, Rebate.] 3. CARRIERS 32(2)

In 1887 the defendant, General Electric TRANSPORTATION PLACE OF DELIVERY—"SPOTTING”_"INDUS- Company, acquired a plant in the city of TRIAL SPUR."

Schenectady. There were 11 acres of land The practice of hauling cars to point along and two buildings. The plant was close to an industrial spur convenient to shipper or con- the tracks of two railroads, the Delaware & signor is known as “spotting," and is commonly and fairly regarded as part of the work Hudson, and the plaintiff, the New York of carriage, "industrial spurs," within the Central Railroad. siding ran from the switching limits designated by the carrier, being tracks of the Delaware & Hudson into the regarded for many purposes as an extension of the terminals.

plant and between the two buildings. In[Ed. Note.—For other cases, see Carriers, bound and outbound freight transported Cent. Dig. $ 84; Dec. Dig. 32(2).]

over the plaintiff's road was carried over



For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes


the siding. The Delaware & Hudson | leave it. The movement of these cars would charged the defendant for this service $1 be impossible without a co-ordinated system. per car, and the defendant, upon making the The plant is accordingly divided into secpayment, was reimbursed by the plaintiff. tions, and to each a separate engine is asThose conditions continued till 1892. The signed. To do the work safely and expediplaintiff then laid a spur track of its own, tiously, these engines must be in constant use. and freight to and from the plant was trans- In that way cars are moved from the platported over the spur without extra cost to forms as soon as loaded or unloaded, transthe defendant. In placing the cars within ferred to the storage tracks, and made to give the plant to be loaded and unloaded, the way to other cars which promptly take their plaintiff had the benefit of a steam locomo- places. Thus the men are kept at work tive acquired by the defendant in 1891 for every hour of the day, and waste of labor is use between its buildings. The defendant avoided. There is constant activity, day and insisted that for this service it was entitled night. The cars on the storage tracks must to some allowance. Writing to the plaintiff be sorted, distributed to their proper buildin March, 1894, it said:

ings, shunted, switched, loaded, unloaded, "The ground upon which we make claim for and returned. Other cars must distribute this allowance is that by the maintenance of raw material and partly manufactured prodour freightyards at Schenectady, we relieve you ucts among the appropriate shops and mills of the necessity of increasing your terminal facilities here, and, moreover, we maintain a and storehouses in the vast system. To do switching engine of our own, thereby relieving this with safety and with order, the move you of considerable extra labor which is cus- ment of all cars upon the interlacing lines tomary for railroad companies to perform for consignees. In addition to this also, we load within the plant must be subject to a sinand unload all of our own freight, so that prac- gle supervision. There is therefore a transtically you do not have to bear the ordinary ex- portation master, who is one of the defendpenses of a terminal on business delivered to ant's employés. The finding, well supported

by the evidence, is that: The plaintiff yielded to this claim.


"The successful and economical prosecution of agreement was made for an allowance of 1 the business of the defendant requires that all cent per 100 pounds (or 20 cents per ton) such internal movements of cars, whether stan"on all incoming and outgoing business, to ard or narrow gaugę, in and about its plant,

should be under the direction and control of the cover cost of switching and loading and un- defendant." loading the freight." This agreement was modified in 1904 by excluding enumerated

As early as 1903 the plaintiff had some commodities, and otherwise has remained misgiving about the legality of the deduction unchanged. Since 1904 the plaintiff has from its rates. It wrote in April, 1903, that transported its cars to and from agreed the arrangement must be a tentative one storage tracks which are within the de- and subject to readjustment on notice—“this fendant's yard. Two of the tracks are

on account of the fact that we are now conknown as eq pment and two as interchange fronted by the Elkins Bill, under the provitracks. The incoming cars are taken by the sions of which we are not exactly clear as defendant from these storage tracks, dis- to what can or cannot be done.” In 1905 tributed among its buildings and unloaded. the plaintiff was indicted in the United The outgoing cars are brought to the stor- States District Court for the Northern Disage tracks by like agencies. At those tracks trict of New York on the ground that the the plaintiff's services end for freight deliv- allowance was an unlawful rebate. Two ered and begin for freight received.

juries disagreed, and the indictment was fiIt is the work thus done by the defendant nally dismissed. After the finding of the for which compensation is demanded. The indictment the plaintiff gave notice to the plant which began in 1887 with 11 acres and defendant in November, 1903, that it would 2 buildings, now overs 180 acres, contains make no further payments, and none have 140 buildings, and employs 15,000 men. since been made. Soon afterwards Congress Within this area, the defendant has laid 12 passed the act of June 29, 1906, commonly miles of standard gauge tracks. They run known as the Hepburn Act, which provides: along the sides of the plant and between the "If the owner of property transported under buildings. Six standard gauge electric en- ice connected with such transportation, or fur

this act directly or indirectly renders any servgines are used by the defendant in moving nishes any instrumentality nsed therein, the cars upon these tracks, five by day and one charge and allowance therefor shall be no more by night. At times seven engines have been than is just and reasonable, and the Commisused. There are also 7 miles of narrow determine what is a reasonable charge as the

sion may, after hearing on a complaint, * gauge track, and 19 motors, employed in maximum to be paid by the carrier or carriers shifting material be en the storehouses, for the services so rendered or for the use of shops, and mills. All these tracks, the stand- the instrumentality so furnished, and fix the

same by appropriate order, which order shall ard and the narrow gauge alike, cross one have the same force and effect and be enforced another at many points within the plant. in like manner as the orders above provided for Freight is loaded and unloaded at not less under this section." than 18 separate buildings. About 100 cars Under this section of the act the defendant


state Commerce Commission. It set out the, and the platforms of its mills is work that rendition of service in switching and moving the plaintiff was bound to do as a part of cars about its plant, alleged that these serv- transportation. To put it in another form, ices were a part of the carrier's work of the question is, Where does transportation transportation, and asked the Commission to begin and end? The published tariffs to fix its compensation. On June 29, 1908, the Schenectady establish switching limits exCommission dismissed the petition. General tending from Sandbank to Carmen and Stony Electric Co. v. N. Y. C. & H. R. R. R. Co., 14 Lane. Delivery within those limits is paid Interst. Com. R. 237. The ruling was that for when rates are collected to Schenectady, the service rendered by the petitioner, the Since the limits embrace the defendant's present defendant, was not part of the trans- plant, there is no dispute that delivery at the portation undertaken by the carrier. Its plant is covered by the rate. The difficult instrumentalities were characterized as plant thing is to ascertain when delivery at the facilities. In this action, begun in 1910, the plant is made. defendant has litigated anew the matters [3] In the nature of things no inflexible for. in controversy before the Commission in mula can furnish a solution of that problem. 1908. It does not claim compensation for the The limits of place within which delivery is movement of material along the narrow due will vary with varying conditions. Mitchgauge system. It concedes this to be a plantell Coal & Coke Co. v. Penn. R. R. Co., 230 facility. It insists, however, that an allow-U. S. 247, 263, 33 Sup. Ct. 916, 57 L. Ed. 1472. ance must be made for the movement of cars All that we can safely say is that there must from the storage tracks to points within the be such a delivery as is customary and reaplant where they are loaded or unloaded, sonable. There was a time, before the days and for their subsequent return. There is a of railroads, when a carrier by land was exfinding that 72 per cent. of the total car move pected to make delivery at the consignee's ments within the plant are necessary for that home or place of business. That was because purpose. Other operations, even the he could go there with his wagons. Fenner standard gauge tracks, are excluded from v. Buffalo & State Line R. R. Co., 44 N. Y. the claim. That the charge of 1 cent per 505, 510, 4 Am. Rep. 709. With the days of 100 pounds is reasonable in amount is not railroads, delivery came to be expected at disputed. The sole question is whether any freighthouses or other terminals. They are charge is lawful. The trial judge in a care still the place of delivery where the factories ful opinion followed the ruling of the Inter- and warehouses of shippers and consignees state Commerce Commission, and held that do not connect with the tracks. In our own the allowance was in effect an unlawful re- time, however, private sidings have become bate. The Appellate Division reversed, and common, and freight is carried over them gave judgment on the counterclalm.

between the railroad and the plant. Such [1, 2] Transportation includes delivery. carriage is commonly a part of the work of Under the plaintiff's published tariffs it does transportation. Vincent v. Chicago & Alton not include the work of loading and unload Co., 49 Ill. 33; Coe v. L. & N. R. R. Co. (C. ing. Official Classification, 38, Interstate C.) 3 Fed. 775. In most cases the distances Commerce Commission. But whatever is are short, and the carrier's burden remains essential in order to complete delivery, the substantially the same whether the cars are carrier must do. That is what it is paid for left upon the siding close to the main tracks when it collects its regular rates. If it fails or hauled along the siding until they reach to make delivery, and the consignee through the plant. In such circumstances it may be its own instrumentalities completes the work, said with reason that delivery at the plant an allowance is due. Interstate Commerce méans delivery at the platform for loading Commission v. Dieffenbaugh, 222 U. S. 42, 32 and unloading. The practice of hauling cars Sup. Ct. 22, 56 L. Ed. 83; United States v. to points along the spur convenient to shipB. & 0. R. R. Co., 231 U. S. 274, 293, 34 Sup. per or consignee is known as "spotting,” and Ct. 75, 58 L. Ed. 218. But no allowance is is commonly and fairly regarded as part of due for service rendered by the consignee the work of carriage. after delivery has been made and transporta [4] The plaintiff has not withheld from tion is at an end. An allowance in such cir- | the defendant the services incidental to carcumstances would constitute an unlawful re- riage between the railroad and the plant. It bate. That is true of interstate shipments has hauled the cars from the main line to under the laws of Congress. Act to Regulate storage tracks within the limits of the deCommerce (Feb. 4, 1887) 24 Stat. L. 379, 88 fendant's yard. Those storage tracks cor2, 3, 17; Act of Feb. 19, 1903, 32 Stat. L. 847; respond to the spurs or sidings on which the Act of June 29, 1906, 34 Stat. L. 584. It is practice of "spotting” had its origin. But true of intrastate shipments under the laws the defendant asks us to say that hauling the of New York, Public Service Commissions cars to the storage tracks is not complete Law (Laws 1907, c. 429) 88 31, 32.

delivery. It insists that the plaintiff must The decisive question must therefore be haul them farther over an intricate system whether the switching done by the defendant of interlacing tracks and distribute them within its plant between the storage tracks / among the mills and warehouses. One build

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