Rosenberg

From a judgment for defendant in an action for damages for breach of contract brought under section 24 of the Judicial Code (28 USCA § 41), plaintiffs appeal.

Plaintiffs’ petition sets out three canses of action. The first alleges the making of a contract of date May 16, 1922, for the sale of 5,436 net tons of various classes of iron and steel at $14.55 per ton, and 1,240 gross tons of cast iron scrap at $10.75 per ton, to be delivered free at ship’s tackle, Balboa, Canal Bone; that defendant failed and refused to deliver 217 net tons of said iron and steel, to plaintiffs’ damage in the sum of $6,053.19. The second alleges payment to defendant by plaintiffs of the agreed price for 5,219 tons of iron and steel, and 1,240 gross tons of cast scrap iron, and that there was a shortage .in delivery of 200% tons of iron and steel, and 96,115 pounds of east scrap iron, to plaintiffs’ damage in the sum *839 of $3,429.45. The third cause of action is for an alleged shortage in delivery under a similar contract of date July 27, 1922, occasioning an overpayment of $906.11. Plaintiffs waive the sum of $388.76, and pray for judgment for $9,999, together with interest and costs.

Defendant by…

(dissenting). I dissent in respect of the conclusion reached by the majority on the first eause of action.

Of date February 23, 1922, the purchasing department of the Panama Canal, by direction of the Secretary of War, issued a circular letter inviting proposals for the purchase of a large amount of material, specifically inventoried and designated therein as “surplus iron and steel.” Attached to the inventory was a sheet entitled “General Conditions,” containing numerous paragraphs.

Responding to the invitation, appellants submitted a proposal to purchase certain of the material, which in due course was accepted, with the approval of the Secretary of War. Accordingly on May 16, 1922, a formal written contract, prepared by the department, in harmony with the advertisement and offer to purchase, was executed. After reciting the facts already stated, the contract set forth that the appellants, referred to as the contractor, agreed to purchase and accept delivery, f. a. s. Balboa, Canal Zone, pay for, and remove, in the manner prescribed, 5,436 net tons of iron and steel as described in an itemized list, consisting of 37 pages, attached to the contract, at the pnce of $14.55 per…