and by-laws as to the said municipal assembly may seem meet for the good rule and government of the city, and to carry out the purposes and provisions of this act or of other laws relating to the said city, and may provide for the enforcement of the same by such fines, penalties, forfeitures and impris onment as may by ordinance or by-law be prescribed."

It is urged by the defendant that if the ordinances of the city of New York quoted and referred to change the common-law rule of liability so as to make the bailor responsible for the acts of the bailee, or so as to modify the facts necessary to constitute the relation of master and servant, they are inconsistent with the laws of the state of New York, and null and void. Assuming it to be true that no ordinance can be established inconsistent with the statute of the state duly enacted and applicable to the city of New York, it is also true that the provisions of the charter in question have no reference to the common-law rules prevailing in the state. Swift v. Tyson, 16 Pet. 1, 18, 19, 10 L. Ed. 865; B. & O. R. Rd. v. Baugh, 149 U. S. 371, 13 Sup. Ct. 914, 37 L. Ed. 772; 18 Am. & Eng. Encyclo. of Law, 569, and notes. Such words used in such a connection refer to the statutes of the state, the expressed will of the Legislature made known by express enactments, and not to the common law. The legislative will expressed in a statute for the government of the city of New York cannot be thwarted by a municipal ordinance inconsistent therewith. But no reason is apparent why, under this power conferred upon the legislative assembly of the city of New York, it should not be at liberty to change the common-law rules of liability when exercising its power to regulate traffic, etc., in the public streets, and control cabmen and hackmen transporting passengers therein for hire. These are regulations, etc., made in the legitimate exercise of the police power. The legislative branch of the government may delegate its powers to municipal corporations created by it, which corporations are merely instrumentalities of the state for the better administration of the government in matters of local concern. It has been held by the Supreme Court of the United States, following this rule, that, where municipal corporations are created, the legislative branch of the government may delegate to such corporation the power of taxation, which power belongs exclusively to the legislative branch of the government. U. S. v. New Orleans, 98 U. S. 381, 25 L. Ed. 225. See, also, 20 Am. & Eng. Encyc. Law, 1139. So long as the statutes of the state of New York do not specify what facts must exist in order to constitute the relation of master and servant, it must be competent for the legislative assembly of the city of New York to provide what facts are essential to constitute that relation between the owner of hackney cabs and the drivers thereof, when such owner and driver take out licenses under such ordinances for the purpose of using and driving cabs in such city for the transportation of passengers therein. This is clearly so, so far as fixing and imposing liability for the acts of the driver are concerned. This matter is not regulated by any statute of the state, and is left to the city, as a matter of local self-government, where conditions are such that a rule different from that prevailing in the remainder of the state may well be necessary. The common-law rule

prevails because the legislature has not seen fit to provide a different one by statute.

But quite independent of this question, this court is of the opinion that in this case the defendant, as has been stated already, by affirmative acts and conduct held this driver out to the public as his agent and servant in driving and using this cab for the purposes mentioned, and that, so far as the plaintiff is concerned, he is estopped from denying that he is responsible for the acts of such driver, or that he was his servant. The defendant selected this driver, placed his licensed cab in his hands, drawn by a horse owned by the defendant, and delivered to and placed upon such driver the badge issued by the city, and which was to be worn by the driver of that cab, and by a driver who was to represent the defendant, and for whom the owner of the cab was to be responsible. The defendant recognized the validity of these ordinances, and acted under them, and availed himself of their privileges and benefits, and held himself out to the public as the owner and operator of a cab doing business under and pursuant to those ordinances, and cannot escape the liability imposed thereby, so far as passengers and the public are concerned, especially as to a person injured by his horse and cab while upon the streets under a license granted pursuant to such ordinances, and managed by a driver upon whom he had placed a badge of authority, which said to such injured person, "This driver represents the owner of the cab, and for the acts of the driver such owner is responsible." See Bigelow on Estoppel, P. 582.

All persons using the streets are presumed to have known these ordinances, and to have acted in pursuance thereof.

The motion to set aside the verdict and enter a nonsuit is denied.

RICHARD et al. v. HOLMAN et al.

(District Court, D. Maryland. June 11, 1903.)

1. SHIPPING-BREACH OF CHARTER-DAMAGES RECOVERable,

The fact of a recharter by the original charterer of a vessel to carry a cargo of grain at a specified rate, which it does not appear was contemplated by the owners at the time of making the contract, and of which they had no notice or knowledge, cannot affect the measure of damages recoverable for their failure to deliver the vessel, so as to entitle the charterer to recover the profit he would have made on the recharter, where freights had declined prior to the time when the vessel was required to be tendered, and the market rate was then definitely less than the charter rate, so that under the established rule no substantial damages were recoverable.

2. ADMIRALTY JURISDICTION-MARITIME CONTRACTS.

Claims for commissions for obtaining a charter and for an attendance fee, stipulated for in the charter, are not maritime, nor within the admiralty jurisdiction.

In Admiralty. Suit to recover damages for breach of charter party. Robert H. Smith, for libelants.

Convers & Kirlin and Brown & Brune, for respondents.

12. Admiralty jurisdiction as to matters of contract, see notes to The Richard Winslow, 18 C. C. A. 347, and Boutin v. Rudd, 27 C. C. A. 530.

MORRIS, District Judge. The respondents were the owners of the British steamship Kestor, and by charter party dated August 9, 1897, chartered to the libelants a steamer, not named, guarantied of capacity of 13,500 quarters, 10 per cent., more or less, to carry a cargo of grain from Philadelphia, Baltimore, Norfolk, or Newport News, one port only, to certain ports of the United Kingdom, for orders, at 3s. 3d., or 3s. 6d., per quarter, according to the port to which ordered. Lay days not to commence before January 15, 1898, with option to charterers to cancel the charter if the steamer was not ready for cargo at loading port on or before February 15, 1898. It was stipulated that the name of the steamer to fulfill the charter was to be declared on or before January 1, 1898. On October 26, 1897, by cable from London, the steamship Kestor was declared. The respondents, because of delays in intermediate voyages in which they employed the Kestor, did not send her out to fulfill the charter, as by reason of the delays she would not have been able to reach the loading port by February 15th, the canceling date stipulated in the charter party. On January 20, 1898, the owners gave notice that she would not be able to catch her canceling date, and on February 1, 1898, they gave distinct notice that they would not send the steamer, and that the charterer might charter against them. On February 3d the libelants cabled that they insisted on fulfillment of the charter, and would only agree to cancel on payment of £200 and their commission on the charter.

It cannot be denied that freights fell between the date of the making of the charter and the date when the steamer should have been tendered. The market rate on February 15th was from three to six pence per quarter lower. The libelants, however, show that on November 20th they rechartered the steamer to the E. B. White Grain Company at an advance of one penny halfpenny per quarter, which would have yielded them about $409, besides their commission for effecting the original charter, agreed to be paid to them in the original charter, and an attendance fee.

Are the libelants entitled to recover as damages this loss on the recharter? There is nothing said in the charter party with regard to rechartering or assigning the charter. No notice of any kind was ever given to the owners of any intention of the charterers to recharter, and no notice was ever given that they had rechartered. If the libelants had not rechartered, the measure of damages would have been the difference between the charter rate and the market rate, and as the market rate was distinctly lower at the date for fulfillment of the contract the libelant could recover only nominal damages.

Does a recharter, which it does not appear was contemplated by the owners when they made the contract, and of which they never had notice or knowledge, change the rule with regard to the measure of damage? I do not think so. The general rule that the damage. is measured by the difference between the contract price and the market price at the breach of the contract, where there is an ascertainable market price, is a simple and fair rule, easily applied, and it

should not be disregarded except where it is plain that some other element of damage was within the contemplation of the parties making the contract, and that the contract was made with reference to it.

When there is no market price, then resort is, of necessity, had to other elements of loss; and where the contract is made with reference to specific purposes or circumstances, known at the time, a different rule may result from the probable and natural consequences of a breach. The market rate of payment for grain charters of a like character to the present one is as well fixed and ascertainable as the prices of grain and other merchandise, and there is no question but that at the time of the notice from the respondents that they would not send the Kestor and at the canceling day there was a substantial decline from the contract rate.

There is no proof of what was actually done with regard to the cargo intended to have been shipped by the Kestor. The libelants' manager testified that they notified the E. B. White Grain Company, and testified in a general way that he made for them some sort of a substitution of grain room for the intended shipment, and that the libelants lost the profit of a penny and a half per quarter on the recharter which they would have made.

Proof was offered on behalf of the libelants to show that graincarrying steamships are usually of about 20,000 quarters capacity, and that steamers of about 13,500 quarters capacity, such as the Kestor, are not numerous, and that probably one could not have been obtained after February 1st and before February 15th. The sufficient answer to this, it seems to me, is that no effort was made to obtain such a steamer. It is further urged that, even if the libelants could have procured such a steamer, the E. B. White Grain Company could have refused to load any steamer other than the Kestor. That is true, but it is also true that they have claimed no loss.

So the sole question is whether the libelants, having suffered no loss except the expected profit of a penny and a half a quarter on the recharter, can recover notwithstanding the fact that when the breach occurred freights had declined about three pence per quarter. The profits which may be recovered must be such as may be reasonably presumed were within the intent and mutual understanding of both parties at the time the contract was entered into. Cincinnati Gas Co. v. Western Siemens Co., 152 U. S. 200-206, 14 Sup. Ct. 523, 38 L. Ed. 411.

This contract on the part of the owners of the steamship was an undertaking to furnish a steamship of a certain capacity to take on board from the charterers a cargo of grain at a certain date. There is nothing to show that the owners contemplated anything more, and it is not to be presumed that the profit which intermediately the charterers might contract to obtain upon a subletting of the cargo space was contemplated. I am of the opinion that the profit on rechartering cannot be recovered, under the circumstances of this case. The libelants have also sued to recover a commission of 5 per cent. stipulated on the charter party to be paid to them as a commission

and $50 for attendance fee. These are claims which are held not to be maritime and not of admiralty jurisdiction. Richard v. Ho garth (D. C.) 94 Fed. 684; The Ripon City, 102 Fed. 176, 42 C. C. A. 247; Munson v. Straits of Dover, 102 Fed. 926, 43 C. C. A. 57.

ROSS v. SAUNDERS.

(Circuit Court, D. Massachusetts. June 29, 1903.)

No. 1,484.

1. EQUITABLE LIEN-MONEY LOANED FOR USE OF PARTNERSHIP-Evidence CONSIDERED.

A complainant held, under the evidence, not entitled to an equitable lien on a liquor license owned by a bankrupt firm, as against the firm creditors for money claimed to have been loaned to one of the partners for the use of the partnership under a verbal agreement for such lien.

In Equity. Suit to enforce lien against trustee in bankruptcy. William Henri Irish, for complainant.

Calvin P. Sampson, for defendant.

HALE, District Judge. In this suit in equity the complainant seeks to enforce a lien upon a liquor license formerly belonging to the firm consisting of George W. Ross and Patrick J. Flemming. This firm became bankrupt, and their estate is now being administered in bankruptcy, the defendant being the trustee.

The complainant claims that in December, 1895, he loaned his father, George W. Ross, $6,000, and in order to secure the payment of this sum he caused the name of his mother, Eliza A. Ross, to be placed upon a liquor license used in the business of Ross & Flemming, with the verbal understanding that the name of his mother should be placed in said license, and in all renewals of it, for his protection, until the loan of $6,000 should be paid, the complainant himself declining to have anything to do with the liquor business, or to have his name used in connection with such business. He claims that there was an oral agreement that on default of payment of $6,000 the license should become his property; that by virtue of this agreement he is entitled to the proceeds of the sale of the license; and that the same did not pass to the trustee in bankruptcy. The mortgage of $6,000 has been partially paid, leaving only $2,500 and interest now due. A bond has been given to the trustee to be held in lieu of the license until the rights of all parties have been adjudicated by the court. The question is whether the court shall decree that the $2,500 and interest be paid to the complainant out of the proceeds of the sale of the license, or whether all of said proceeds shall be administered as a part of the estate in bankruptcy.

The defendant, as trustee of the bankrupt estate, claims that he is entitled to all the proceeds of the sale of the license, that the case does not show an actual loan made by the complainant to George W. Ross, and that no indebtedness ever existed to sustain a lien upon the license or its proceeds.

123 F.-47