This was an action brought by the plaintiff in the consular court of Shanghai, China, to recover from the defendant the sum of $21,000 for breach of contract. The cause of action stated in the petition is as follows:

To this petition the defendant answered as follows:

The agreement referred to in the third paragraph of plaintiff’s petition, is as follows:

The evidence shows that on the 21st day of August, 1902, the plaintiff entered into the service described in the agreement as secretary of the board of commissioners of the Canton-Hankow Railway and secretary to the engineer in chief; that he performed the services to which he was assigned, and was paid his salary, as provided in the agreement, by the American China Development Company from August 1, 1902, up to June 1, 1904, having served for a period of one year and 10 months; that he continued in the employment until July 11, 1904, when he was notified by the acting engineer in chief that, “having ceased to be secretary to the board of commissioners or to the engineer in chief,” he was not to enter the office of the company in future. On July 11, 1904, the plaintiff brought suit in the consular court at Shanghai, China, for his services for the month of June, and recovered a judgment.

Upon the trial of the present case in the consular court a judgment was entered in favor of the plaintiff for $13,519. The case has been brought here both by appeal and by writ of error, under sections 4093 and 4096, Rev. St. U. S. [U. S. Comp. St. 1901, pp. 2771, 2772].

The appellant and plaintiff in error (the defendant in the consular *262 court) contends that the judgment in the consular court'is erroneous in the following assigned particulars: (1) In adjudging that the defendant company was bound by the contract, or that it employed plaintiff in any capacity. (2) In adjudging that the plaintiff was not estopped from maintaining this action by his former suit for his salary for the month of June, 1904. (3) In adjudging that the plaintiff was entitled to prospective damages. (4) In considering the injury to plaintiff’s character and the fees of his attorneys as elements of his damages. (5) The plaintiff testified on his own behalf. On cross-examination he was asked as to his duties as secretar}'- of the board of commissioners, the apparent object of the question being to ascertain what proportion of plaintiff’s work was done as secretary of the engineer in chief and what proportion as secretary to the board of commissioners. The consul overruled the question, and the action in not allowing the plaintiff to answer this question is assigned as error.

1. It appears from the record that on April 14, 1898, the Chinese, minister at Washington, having been designated and deputed by the director general of Imperial Chinese Railways for the purpose, entered into a written contract with the American Chinese Development Company of New Jersey, wherein the latter agreed to provide a loan, amounting to £4,000,000 sterling, or its equivalent in American dollars gold, or more, if necessary, for the construction of a railway line in China from the city of Hankow to the city of Canton upon the security of Imperial Chinese gold bonds, carrying interest at the rate of 5 per cent, per annum, such bonds to be a first mortgage upon the railway and its appurtenances. The bonds were to be delivered to and taken by the American China Development Company at 90 per cent, of their face value, the company to have the liberty of selling any or all of thé bonds to the public, the company bearing whatever loss and receiving whatever profit there might be in the sale. The company was also required by the contract to build and equip in accordance with the best modern system and operate a line of railway with all necessary-appurtenances from Hankow to Canton and from Canton to the sea, if such latter extension should be deemed advisable, and as a remuneration for superintendence and services the company was to receive as compensation 5 per cent, on the entire cost of construction, excepting land and earthworks. After completion of the line, or so much of the line as might be in working order, it was to be 'operated under officials appointed by the company, who were to be approved by the director general. It was further agreed that, after paying salaries and wages and other expenses for operating and maintaining the line and the interest on the loan, the company should receive 20 per cent, on the net profits, to be represented by and in the form of debentures, to an amount equal to one-fifth of the cost of the line, which debentures should be issued in form agreed to by the director general and the company at the same time as the first mortgage bonds provided for in the agreement. By a supplemental agreement between the Imperial Chinese Railway Administration, under imperial sanction, and the 'American China Development Company, dated July 13, 1900, it was *263 recited that a preliminary survey, as provided in the main agreement, liad been made, which had disclosed the fact that the work of construction would cost more than was contemplated, and that it was liberally estimated that a sum of $40,000,000 American gold would be required for building and equipping the railway. The American company was accordingly authorized to sell or hypothecate the bonds of such lines from time to time as money should be needed for the work, or as the money market would allow, and the provisions of the supplemental agreement were to be construed and treated as of the same purport and effect as a mortgage customarily executed and delivered in the "United States to a trustee for the purpose of securing loans to and bond issues upon railway properties. In article 6 of this supplemental agreement, it was provided as follows:

In accordance with the foregoing paragraph of the supplemental agreement, a board of commissioners of the Canton-Hankow Railway was organized at Shanghai, China, on August 21, 1902. The members of the board present were W. E. Gray, Chun Oiting, J. S. Eearon, and W. P. Boyd, plaintiff in this case. The object of the meeting, as stated by the chairman, was the organization of the board of commissioners of the Canton-Hankow Railway under the contract. In the minutes of the proceedings of the board on this occasion it is recited:

The contract has already been set out on 148 Fed. 260 . On January 10, 1903, William "Barclay Parsons, president of the American China Development Company, gave to Kenneth J. Kiugsford in New York City a letter of introduction to W. E. Gray, general manager and engineer in chief at Shanghai, China, informing the latter that Kings ford had been appointed controller of the American China Development Company. The letter contained the following paragraph:

On March 17, 1903, Mr. Parsons, as president of the company, wrote to W. E. Gray, as general manager and engineer in chief, concerning the contract entered into between the board of commissioners ánd W. P. Boyd August 21, 1902, employing the latter for a term of five years. This letter is as follows:

Mr. Gray showed this letter to Mr. Boyd, who testified that he told Mr. Gray that the American China Development Company was rather late in the day; that he had already resigned a government position and signed the contract with the company. Mr. Gray said that it wouldn’t make any difference, that the board had a perfect right to make the contract, and that he would write a letter to that effect. Mr. Gray accordingly wrote to the New York office under date of May 9, 1903, as follows:

Mr. Boyd continued to perform the duties mentioned in the contract, and was paid his regular monthly salary until May 2, 1904, when the board of commissioners received a telegram from the New York office, dated May 1, 1904, as follows:

In presenting this telegram to the board of commissioners Mr. Kingsford said:

On the 6th of June, 1904, Mr. Kingsford, acting agent and comptroller of the defendant, wrote to the plaintiff, referring to the notice which he gave the plaintiff on the 1st of May, stating that he had received telegraphic instructions from New York to discharge the *265 plaintiff, and that he wrote the letter to inform him that he now had another cable from the New York office stating that they considered the plaintiff discharged since April 30th. Mr. Kingsford further says in this letter:

To this letter the plaintiff replied on June 7th as follows:

On June 30, 1904, the board of commissioners adopted the following resolution:

It appears from this evidence that the Imperial Chinese government entered into an agreement with the American China Development Company for the construction and equipment of a line of railway from Hankow to Canton. The Chinese government was to issue bonds to the amount of $40,000,000, which were to be taken and sold by the American China Development Company, and with the proceeds-the company was to build, equip, and operate the road in accordance with the terms of the agreement. For the purpose of carrying this seller-'e into operation, a board for supervising the construction and operation of the railway was provided. This hoard was to be called the “Board of Commissioners.” It was to consist of five members. Two of the members were to be Chinese, who were to be selected and appointed by the director general of the Imperial Chinese Railway Administration. There were to be two foreign members besides the engineer in chief, who were to be selected and appointed by the American China Development Company. The salaries of these five members were to be fixed by the director general and the American China Development Company, and were to be paid from the general accounts of the railway. The hoard of commissioners, as a body, was, in effect, the agent of both the Chinese government and the American China Development Company in the construction and equipment of a line of railway from Hankow to Canton, and the members of the *266 board individually were appointed by, and represented the interests of, their respective principals. The plaintiff became a member of the board at the time of its organization, representing the interests of the American China Development Company. This is set forth in the proceedings of August 21, 1902, connected with the organization of the board, under paragraph 6 of the supplemental agreement. It is stated in the minutes of the proceedings that the American China Development Company advised that Fearon, Boyd, and Gray were the commissioners to represent its interests on the board. In addition to being a member of the board of commissioners, the plaintiff was employed by the commissioners on behalf of the Canton-Hankow Railway for the period of five years, dating from the 1st day of August, 1902, as secretary to the commissioners and secretary to the engineer in chief. This employment was manifestly in the interest of the American China Development Company, and was made by the commissioners as the agent of that company. It is true the name of the company was not mentioned as the contracting party in the agreement of August 21, 1902. The parties to that agreement were the “Board of Commissioners of the Canton-Hankow (Yueh Han) Railway, through its Chairman, Willis E. Gray, * * * and Mr. W. Porter Boyd.” The agreement, however, recites that it is “with the full approval of the director general of the Imperial Chinese Railway Administration, by and with the authority given them article six (6) of the contract between the Imperial Chinese government and the American China Development Company, dated April 14, 1898, and July 13, 1900.”

The employment of the plaintiff was recognized and ratified by the president of the American China Development Company in his letter of January 10, 1903, to Willis E. Gray, general manager and engineer in chief, in which he says that it would be well for Mr. Kingsford to replace Mr. Boyd on the board of commissioners, but he also says that it will not be necessary for him to replace Mr. Boyd as secretary of the board of commissioners. The employment was also recognized by the president of the company in his letter of March 17, 1903, when he undertook to repudiate the contract providing for the employment of the plaintiff for a period of five years, and said that the board of commissioners had no authority to do any such thing. The objection to the contract was, however, stated to be that the secretary to the general manager holds what is a confidential position, and his tenure can only be as long as his chief. The president hoped that Mr. Boyd would continue with the company five years, or as long as he might desire to stay. The employment was also recognized and ratified by the company in accepting his services for a period of one year and 10 months, and paying his salary during that time, upon printed vouchers made out in form against the company. The company also recognized his employment in directing his discharge from the employment of the company on May 1, 1904, June 6, 1904, and June 30, 1904.

There can be no question, therefore, but that the plaintiff was employed by the defendant' during the time plaintiff continued in such *267 employment. He certainly was not employed by the Chinese government nor by the board of commissioners except as the agent of the American China Development Company. But, was the defendant bound by the agreement of August 21, 1902, to the employment of the plaintiff for the period of five years? That is the question.

The plaintiff was in the service of the United States government as shipping commissioner at Honolulu when he went to Shanghai and signed the agreement of August 21, 1902. After that contract was signed, and not before, he resigned his position as shipping commissioner. It will not be presumed that the plaintiff would be employed in such important positions, as that mentioned in the contract, or trusted with such confidential relations to defendant’s business and operations, without some one responsible for his engagement having knowledge of his ability, experience, and previous occupations. The agreement provided that he should be employed as secretary to the commissioners and secretary to the engineer in chief. He at once entered upon and performed the duties of these two positions. The agreement provided that he should be paid an annual salary of $6,000 in gold, to be paid in monthly installments. This salary was paid to him by the defendant for the period of one year and 10 months. The services performed and salary paid were certainly under the written contract, as there was no other, and if the contract wras not originally authorized by the defendant, these acts certainly constituted ratification. But the defendant claims to have repudiated the contract in March, 1903, more than six months after its execution, on ffie ground that One of the positions held by the plaintiff under the contract was a confidential one to another officer, and that his employment could only continue as long as it was agreeable to that officer. The plaintiff protested against this interpretation of the contract, and refused to accept it. Nevertheless, he ivas continued in the employment without further controversy for more than a year longer, performing the duties prescribed in the contract. He was then ordered discharged, not because the plaintiff had failed to perform his duties, or in any respect lacked qualifications for them, and not because his employment in a confidential position to another officer was not agreeable to that officer or to the commissioners, but the discharge was ordered because the company desired to reduce expenses. Manifestly, this was not a denial of the obligations of the contract. Moreover, there is not a particle of evidence in the record tending to showr that the plaintiff either entered into the employment of the defendant, or continued in such employment with any agreement or understanding that the tenure of his employment was dependent upon the expenses attending defendant’s operation. My conclusion is, therefore, that the defendant is bound by the contract as a principal, the contract having been executed by the board of commissioners as the agent of the defendant; but, if there is any question as to the authority of the board of commissioners to make this contract, it was afterward ratified by rhe acts of the defendant.

2. There is nothing in the record to sustain the claim of the defendant that the plaintiff is estopped from maintaining this action by *268 his former suit for his salary for the month of June, 1904. The suit is not pleaded, and there is no judgment in the record, but in the defendant’s answer it is alleged that the plaintiff was discharged by said board of commissioners on the 30th day of June, 1904, and had suffered no damage thereby.. In the report of the testimony taken upon the trial in this case on September 8, 1904, there is the following statement, referred to in the bill of exceptions:

In the testimony of the plaintiff, Boyd, given in the prior case, and by the agreement made evidence in this case, is the following:

In the opinion of the consular court there is this reference to this prior case:

If this reference to the prior suit in the opinion of the court and in the bill of exceptions be deemed sufficient to require this court to consider this specification in the appeal, it is sufficient to say that the former suit appears to have been for the salary of the plaintiff for services rendered during the month of June, 1904, under the contract of August 31, 1903. The present suit is for breach of that contract in, July, 1904. There is no estoppel in the prior suit prosecuted by the plaintiff for his salary for services rendered under a .contract as against the present suit brought for a subsequent breach of that contract.

3. The present suit appears to have been originally brought by the plaintiff to recover from the defendant the salary due plaintiff for his services during the month of July, 1904. The defendant denied liability upon such a cause of action, and maintained that plaintiff’s remedy, if any, was for damages for breach of contract. The plaintiff accordingly amended his petition, claiming damages for a breach of contract. To this amended petition no objection was made, and no objection was offered to the testimony introduced in support of the amended petition. Plaintiff testified in his own behalf upon the hearing as follows:

Without objection or exception to this testimony, no question would be presented to this court for review upon writ of error, and, while the case comes here on appeal, the statute makes the appeal subject to the rules, regulations, and restrictions prescribed in law for writs of error from district courts to circuit courts. Rev. St. § 4093 [U. S. Comp. St. 1901, p. 2771].

But the appellant seeks to avoid the absence of objections and exceptions to the testimony by urging the objection that the judgment was excessive, and made excessive by the consular court, taking into consideration the prospective damages which the plaintiff would suffer between the date of trial and the expiration of the contract. The amount sued for was $21,500. The plaintiff had recovered a judgment for his salary for the month of June, 1904. The trial was had on September 10, 1904. There was then due the plaintiff under the contract his salary for two months and 10 days, or $1,166. If the plaintiff had been permitted to continue to discharge his duties under the contract until the expiration of the term, his salary for the unexpired term would have amounted to $18,500. The judgment was for $13,519. It is evident that the court, in entering its judgment for the plaintiff, did take into consideration prospective damages. Was the judgment excessive by reason of that fact? Assuming, without admitting, that this question is open for consideration on this appeal, I think the law as now established by the authorities, upholds the judgment.

In Roehm v. Horst, 178 U. S. 1 , 20 Sup. Ct. 780, 44 L. Ed. 953 , the action was for breach of four certain contracts for the delivery of certain bales of hops. As to the first contract, the term to commence performance had arrived, and a shipment had been tendered and refused. The breach as to the other three contracts was the refusal to perform before the time for performance had arrived. The court, in deciding the case, reviewed the American and English, cases relating to the right of the injured party to recover prospective damages for the breach of an executory contract. The court held that the doctrine that there might be an anticipatory breach of an executory contract by an absolute refusal to perform it had become the settled law of England as applied to contracts for services, for marriage, and for the manufacture and sale of goods, and that the rule laid down in Hochster v. De la Tour, 2 El. & Bl. 678, was 'a reasonable and proper rule to be applied to the case before the court. That case was an action to recover prospective damages for the breach of a contract for employment, and its approval by the Supreme Court of the United States makes it applicable to the present case. The case is stated by the Supreme Court as follows:

In delivering the opinion of the court (Campbell, C. J., Coleridge, Erie, and Crompton, JJ.), Lord Campbell, after pointing out that at common law there were numerous cases in which an anticipatory act, such as an act rendering the contract impossible of performance, or disabling the party from performing it, would constitute a breach giving an immediate right of action, laid it down that a positive and unqualified refusal by one party to carry out the contract should be treated as belonging to the same category as such anticipatory acts, and said (page 690):

In a previous case (Pierce v. Tennessee Coal, etc., R. R. Co., 173 U. S. 1 , 19 Sup. Ct. 335, 43 L. Ed. 591 ) the Supreme Court of the United States had held that on discharge from a contract of employment the party discharged might elect to treat the contract as absolutely and finally broken, and in an action to recover the full value of the contract to him at the time of the breach include all that he would receive in the future as well as in the pasl, deducting any sum that he might have earned or that he might thereafter earn. Mr. Justice Gray, speaking for the court, said:

In the case of Rhoades v. Chesapeake & O. Ry. Co., 49 W. Va. 500 , 39 S. E. 209 , 55 L. R. A. 170, 87 Am. St. Rep. 826 , the same doctrine was declared by the Supreme Court of West Virginia with respect to a similar state of facts.

The appellant contends that the law of the last two cases is not applicable to the present case, for the reason that in both cases the employés had received permanent injuries in the service of the employers, and as compensation for such injuries the employers had entered into agreements with the employés to pay them wages and provide them with support. In such cases it is contended that the damages can he determined with some degree of certainty, presumably for the reason that it was not probable that they could obtain employment elsewhere, and the cost of support could be ascertained, while in the present case it is said the plaintiff’s damages will be un *272 certain, since he might obtain employment elsewhere, and even more remunerative than that from which he was discharged, and his support is not involved. But this is a question of evidence relating to the mitigation of damages, and—

4. It was not alleged in the petition that plaintiff had incurred any expense in employing an attorney to prosecute the action, nor was it alleged that he had suffered any damage to his character by reason of the discharge. The testimony relating to these matters was introduced without objection or exception, and, as there is no evidence that the court considered either as- elements of damages, they will not be deemed to have entered into the judgment.

5. The question asked the plaintiff on cross-examination as to his duties as secretary to the board of commissioners was so manifestly intended to call for irrelevant and immaterial testimony that the discussion of this specification appears to be unnecessary.

It follows from what has been said with respect to the several specifications set forth in the appeal that no error appears on the record, and the judgment of the lower court is therefore affirmed, with costs and interest.