part agree to furnish Mrs. Fred J. Date, wife of the party of the second part, the sum of one hundred dollars in cash, and necessary provisions for the year 1900."

This agreement, standing by itself and unaided by evidence in explanation of its terms, is clearly an agreement of bargain and sale. By its terms Date agreed with Roberts, Finn, and Jilson that in consideration of money and supplies to be furnished to his wife, and all supplies and expenses necessary for his outfit in developing mines in Alaska for the year 1900, he would transfer to them a half interest in the mines that he then possessed in Alaska. It is not a partnership agreement nor a grub-stake contract. It does not require Date to do any work in developing the mines which he then possessed and of which he contracted to transfer a half interest, nor does he covenant to do so. It does not require him to do development work at all. It binds him to do nothing but to transfer the stipulated interest in the mines he then had. The reference to the development of mines is only for the purpose of defining the extent of the consideration which the other parties were to pay him. It is the same as if Date had figured up in dollars and cents the amount of expenses for himself and his wife which he found it necessary to incur for the mining season of 1900, in whatever work he might engage, and expressed it in a definite sum as the consideration for his transfer. This we think is the plain meaning of the agreement, and its interpretation requires no aid from the surrounding circumstances. only uncertainty is the quantum of the supplies that were to be furnished to Date, but this does not concern us on the appeal, for the reason that the supplies have all been furnished, and thereby the stipulated consideration has been paid. But if, indeed, the contract is to be interpreted in the light of the antecedent negotiations and the acts of the parties, it appears, without dispute, that the first proposition was an offer to Roberts from Date to sell a half interest in this property "for a year's provisions" for himself and wife. It is shown, also, that after the execution of the agreement Finn, Jilson, and Date went together from Seattle to Valdes, and thence started out to the mines which had been located by Date, and which were some 200 miles in the interior, taking with them an outfit of provisions for the mining season, and that it was understood that Finn and Jilson were to go to the mines and do one-half of the annual assessment work on the same for the year 1900. Date testified-and it is not contradicted by any witness-that each of the three, in so setting out, separately owned one-third of the provisions which they carried. He alleged in his answer and he testified that it was expressly understood that the other parties to the agreement were to have no interest in anything that he should stake. No witness denied that this was true, and the reply of the appellant did not controvert it. A part of the provisions which they expected to use was a certain amount cached the year before at Amez Rapids, which Date had in August, 1899, contracted to buy from the owner for $100. It was agreed that Roberts was to pay for this cache, and that Date was to have one half thereof, and Finn and Jilson the other half. They started out from Valdes about the 20th or 25th of March.

Very soon afterwards Jilson abandoned the enterprise, and took out his one-third of the provisions. Finn and Date proceeded to the neighborhood of the mines which had been located by the latter, and about April 15th spent one day in prospecting the same. About the last of April Finn separated from Date and went his way, taking with him his one-third of the provisions, leaving Date with his onethird, which he testified was his own individual property, and his testimony in this respect was not contradicted by Roberts or by any one. Date went upon his claims, worked two days thereon, shoveled and panned and made some little trenches, and thereafter daily prospected the same until about the middle of May. He sent word to Roberts that Finn and Jilson had abandoned the enterprise, and requested Roberts to send some one in to do his share of the assessment work on the claims. About the 1st of July, Date abandoned his camp near the location of his claims, and went elsewhere, and made the discoveries and locations which are the subject of the present controversy. In the light of the surrounding circumstances and the acts of the parties, therefore, it is clear that the provisions which Date received and the money furnished him and his wife were the consideration of his transfer of an interest in his mines, and that, while there was a tenancy in common of the mines, there was no partnership and no partnership property, and no partnership enterprise was contemplated.

Such being the purport of the agreement, it becomes unnecessary to consider the other questions in the case. The decree is affirmed.

ROSS, Circuit Judge. I concur in the judgment on the ground that the written contract of February 1, 1900, is too ambiguous, and the oral testimony too contradictory and uncertain, to justify a decree in favor of the appellants.

RIEDINGER v. DIAMOND MATCH CO. (Circuit Court of Appeals, Sixth Circuit.

No. 1,168.

June 16, 1903.)

1. LOGS AND LOGGING-IMPLIED CONTRACT-MERGER IN SUBSEQUENT EXPRESS CONTRACT.

Where defendant, operating a boom in a river, into which logs of various owners were driven, made an express contract with plaintiff to sort and saw his logs delivered in the jam above the boom with reasonable dispatch, a previous implied contract to sort and deliver such logs with reasonable dispatch as they came down the river, by reason of defendant's operation of the boom, was merged in the express contract. 2. SAME JUDGMENTS-RES JUDICATA.

Where the entire loss to plaintiff from the depreciation in value of certain logs resulted from a postponement of manufacture of the logs in consequence of defendant's breach of contract, and in a former action, in which plaintiff recovered judgment, the damages were charged to the delay in sawing the logs, such judgment was a bar to a subsequent action based on the theory of a breach of an implied contract by defendant, as the owner of a boom, to sort and deliver the logs below the boom with reasonable dispatch; such delay being included in the postponed manufacture of logs.

In Error to the Circuit Court of the United States for the Western District of Michigan.

F. O. Clark and Timothy E. Tarsney, for plaintiff in error.
Edwin Walker, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS, Circuit Judge. This was an action, on an implied. contract, to recover damages for the failure of the defendant below to run, sort, and deliver, with reasonable dispatch and care, certain logs driven by the plaintiff below down the Ontonagon river, in Michigan, whereby they became worm-eaten, sap-rotten, and discolored. The case is brought here to review the action of the trial judge directing the jury to return a verdict for the defendant on the ground that the same damages claimed in this action were sought to be recovered in a former suit between the same parties, in which the ruling and judgment of the court were adverse to the claim now made.

In his declaration the plaintiff below (now plaintiff in error) alleged that the Ontonagon river is a public, navigable river, upon which the plaintiff, in common with other citizens, had and has the right of free and unrestricted navigation, including the right of floatage of logs thereon; that the defendant on January 1, 1890, and for a period of eight years thereafter, "assumed control, management, and operation" of the river at a point about two miles above its mouth "for the purpose of booming all the logs placed in said river," and assumed to manage the river at the point of booming, and for a space of ten miles above said point, "for the purpose of running, driving, sluicing, and sorting" all the logs driven down the river by the plaintiff and others; that the plaintiff on January 1, 1893, and for four years thereafter, was engaged in the business of cutting, banking, running, and driving logs on the Ontonagon river, and procuring the manufacture of the same into lumber, in the transaction of which business it was necessary that the logs be run and driven through the space in the river controlled and operated by the defendant, and delivered at a point below; that the plaintiff, from time to time, in the spring, summer, and fall of 1894, to and including the summer and fall of 1898, delivered to the defendant "large quantities of pine saw logs, to wit, three million feet," within that portion of the stream controlled and operated by the defendant, "to be run, sorted, and delivered to the plaintiff by the said defendant with reasonable dispatch and care"; that the defendant received said logs, but did not run, sort, and deliver them with reasonable dispatch and care, but delayed the delivery to the plaintiff "into the booms as aforesaid" for an unreasonable space of time, by reason whereof damages resulted as follows:

"A large quantity of the logs of the said plaintiff, to wit, three million feet thereof, became sap-rotten, worm-eaten, discolored, and otherwise greatly injured and damaged, to wit, thirty-five per cent. in quantity, and twentyfive per cent. in value, became and were wholly lost to the said plaintiff, and a large quantity thereof, to wit, fifty per cent., became damaged and lessened in value, and the said logs, as a whole, were thereby greatly injured and

damaged by being and becoming worm-eaten, sap-rotten, and discolored by reason of the failure of the said defendant to deliver said logs with reasonable dispatch and care into the boom as aforesaid; and said plaintiff was prevented from floating, rafting, and manufacturing said logs into lumber, and selling the same, within the time in which said plaintiff could and would have otherwise done, had said logs been delivered to said plaintiff by said defendant with reasonable dispatch, and was so hindered until the value of the timber intended and designed to be manufactured therefrom had fallen in value two dollars per thousand feet since the time and times when the plaintiff could and would have obtained said logs, and manufactured the same into lumber, had the same been delivered by the said defendant in the booms as aforesaid with all reasonable dispatch, and that by reason thereof the said plaintiff has been damaged to a large amount, to wit, thirty thousand dollars."

It appears that, at the May term, 1898, of the court below, the plaintiff had sued the defendant in tort to recover damages alleged to have been sustained by reason of the unlawful obstruction of the Ontonagon river by the defendant, whereby the same 3,000,000 feet of logs were wrongfully held back in the river, and became worm-eaten, sap-rotten, and discolored. That case was decided by the court below in favor of the defendant, and this court on December 4, 1900 (105 Fed. 567, 44 C. C. A. 606), affirmed the judgment; holding that, under the circumstances of the case which are detailed in the opinion, an action in tort would not lie. Subsequently the present suit was brought to recover upon an implied promise to run, sort, and deliver the plaintiff's logs with reasonable dispatch below the jam piers or booms maintained by the defendant. At the same time the plaintiff sued the defendant for unlawfully obstructing the Ontonagon river by maintaining jam piers or booms near the mouth thereof, he brought suit upon an alleged contract with the defendant to manufacture and saw the same 3,000,000 feet of logs, which he had cut during the years 1894 and 1895, and recovered judgment for $1,203.80, which was subsequently paid and discharged. It was this action the court below held operated as a bar to the maintenance of the present suit. It is therefore necessary to examine with some care what the plaintiff then claimed.

In the declaration in that action the plaintiff charged: That the defendant on July 10, 1895, at Ontonagon, Mich., entered into a contract with him to manufacture into lumber about 3,000,000 feet of pine saw logs, which he had cut upon lands near the Ontonagon river or its tributaries during the winter and spring of 1894 and 1895, and which had been banked for transportation by driving down these streams, to the mouth of the Ontonagon river, where the defendant had its sawmills located. That the defendant agreed it would manufacture the logs into lumber, and deliver them upon its docks ready for shipment, and would so manufacture them "as soon as they should come down the said streams upon the drives"; charging $3 a thousand feet, board measure, for lumber cut by circular saws, and $3.50 a thousand feet for lumber cut by band saws. That in accordance with this agreement, in July, 1896, or thereabouts, the defendant cut, manufactured into lumber, and delivered to the plaintiff, 900,000 feet of said logs, but subsequently neglected and refused to complete its contract and manufacture the balance of the logs into lumber at the stipulated price, but in June, 1897, demanded $5 a thousand feet for manufacturing the

balance of the logs into lumber, which the plaintiff refused to pay. That on account of such refusal the plaintiff was compelled to remove the logs out of the Ontonagon river and into the waters of Lake Superior, and to pay for towing them to the Nester Mill; paying for towing and sawing $4 per thousand feet. That the plaintiff was unable to procure the manufacture of the logs into lumber at the Nester Mill, or any other mill, earlier than 1897. That he had 1,250,000 feet of logs towed to the Nester Mill for sawing, but they only cut 900,000 feet of merchantable lumber; the difference being "the depreciation in the merchantable quality of the logs resulting from the delay in the manufacture of the same, caused by the neglect of the defendant to manufacture the said logs, as agreed, as above set forth, and by the obstruction of the drive of the said logs on the said Ontonagon river and its tributaries from the spring of 1895 to the spring of 1897"; that the value of the timber cut at the Nester Mill, when cut, was worth in the market $2 a thousand feet less than it would have been, had it been cut at the mill of the defendant, as agreed, and on that account the plaintiff suffered a damage of at least $1,800. The plaintiff also suffered a loss of the value of at least 200,000 feet of merchantable lumber on the logs taken to the Nester Mill "by the damage that had accrued to the logs on account of the delay in cutting, by becoming wormeaten, sap-rotten, and discolored." That the plaintiff has been unable to procure the cutting of the balance of the said 3,000,000 feet of logs, to wit, 1,250,00 feet, board measure, now remaining in the Ontonagon river, on account of the failure of the defendant to perform its contract, "whereby plaintiff has suffered much damage by the depreciation of the said logs by becoming worm-eaten, sap-rotten, and discolored." That the plaintiff has suffered damage by the delay in procuring the cutting of the logs into lumber through being deprived of the use of the money tied up in the logs since 1895, and being compelled to pay interest thereon, amounting to about $5,000. The entire damage was laid at $20,000.

It is to be observed that in each action the plaintiff sought to be made whole for the damage due to the worm-eaten, sap-rotten, and discolored condition of the logs when finally cut into lumber. Left too long in the water, their condition deteriorated, and as a result the logs cut into less lumber, and into lumber of inferior quality and value. In the former action the damage was charged to the delay in sawing the logs; in the present, to the delay in running, sorting, and delivering them. In the former, the plaintiff relied upon the express sawing contract; in the present, upon the implied booming contract. The trial judge held that, although the contracts relied on were different, the damage for which the plaintiff sought to be made whole was the same, and therefore the former action was a bar to the present suit. In determining whether he was correct, it is important to ascertain when the logs were delivered to the defendant under the sawing contract.

The declaration charged that the logs had been cut and banked. for driving in the winter and spring of 1894 and 1895; that the sawing contract was made July 10, 1895, and under it the defendant agreed to saw the logs "as soon as they should come down the said streams