attending circumstances, might disclose indubitable evidences that they were mere wagers. The jury would be justified in such a case, without other evidence than that of the nature and circumstances of the transactions, in reaching and declaring such a conclusion.

Objection was made at the trial, by the plaintiff in error, to proof of the customs of the grain commission merchants operating through the corn and flour exchange, and exception was taken to its admission. They were also made the subject of a charge to the jury, to which exception was taken. That portion of the charge is as follows:

“(7) The testimony tends to show that a general custom obtained among grain commission merchants in Baltimore to the following effect: When one commisssion merchant, upon the order of a customer, sells to another commission merchant a quantity of grain for future delivery, and where it occurs that at some other time before the maturity of the contract the same commission merchant receives an order from another customer to purchase the same or a larger quantity of the same kind of grain for the same future delivery, and he executes this second order by making the purchase from the same commission merchant to whom he had made the sale in the other case, that then, in such case, the two commission merchants meet together and exchange or cancel the contracts as between themselves, adjusting the difference in the prices between the two contracts, and restoring any margins that may have 2 been put up, and that from that time forth the first commission merchant holds for the benefit of the customer for whom he sold the order or contract of the purchaser for whom he bought, so that the wheat of the selling customer may, when delivered, be turned in on the order or contract of the purchasing customer, and that the commission merchant is held responsible as guarantor to his customer. The evidence further tends to show a custom obtaining among commission merchants at Baltimore to the further effect that, though the second transaction may have been had with a different commission merchant from the one with which the first transaction was had, yet where it can be found that a series of contracts are in existence for the sale of like grain for like delivery, so that the seller owes the wheat to the buyer to whom he sold, and he to another, who owes like wheat for like delivery to the first commission merchant, that then, in such case, they settle by what they call a ring,'-that is, they all reciprocally surrender or cancel their contracts, adjust the price differences between themselves, and surrender all margins that had been put up; that in all such cases the commission merchant substi tutes the contract of another customer in place of that with the commission merchant whose contract has been canceled or surrendered, and that he guaranties to his customer the performance of the contract originally made on his behalf. I say to you, gentlemen, that these customs are founded in commercial convenience; that they are not in contravention of the law; and that they are valid."

The case which the plaintiffs below stated in their declaration was that, in pursuance of orders from the defendant's firm, they had sold to responsible purchasers the wheat mentioned for future delivery, and on failure of Irwin & Davis to forward the grain for delivery when due, upon instructions from them, the plaintiffs had purchased the necessary quantity and delivered the same, in performance of the contracts; the recovery sought being for the difference between what it cost them to purchase the grain delivered and the prices received on the contracts of sale. The proof was, except as to 40,000 bushels actually delivered, that the settlements, in pursuance of which these advances were made by the plaintiff below on account of Irwin & Davis, were *made according to the customs of the grain and flour exchange, which were admitted in evidence. The bill of exceptions states that "there was evidence tending to show that after the making of divers of the contracts for sale of wheat in the declaration mentioned, which were made to members of said corn and

flour exchange, the same were, before the expiration of the respective times therein named for the delivery of the wheat, settled and canceled as between the plaintiffs and the said respective parties with whom they had, in the first instance, contracted said sales by mutual surrender of contracts pursuant to the customs aforesaid; and that the orders of customers, in the fulfillment of which said canceled contracts had been made, were substituded by the plaintiffs in lieu of such canceled or surrendered contracts, and held in the lieu and stead thereof for the use and benefit of said Irwin & Davis, in accordance with the usages and customs aforesaid; the plaintiffs standing as guarantors to said Irwin & Davis that the respective parties so ordering the wheat would accept and pay for it on delivery, and that said Irwin & Davis should receive the full price at which the respective sales on their behalf had originally been made."

The question is, there being no evidence that Irwin & Davis had any knowledge of the existence of these customs, whether they were bound by them. The relation between the parties to this litigation was that of principal and agent; and the defendants in error, acting as brokers, in executing the orders to sell, undertook to obtain, and, as they allege in their declaration, did obtain, a responsible purchaser; so that the plaintiff in error would, upon the contract of sale against such purchaser when disclosed, have been entitled to maintain an action in case of default in his own name. Although the broker guarantied the sale, it was not a sale to himself; for, being agent to sell, he could not make himself the purchaser. The precise effect, therefore, of the custom proved, was that at the time of settlement, in anticipation of the maturity of the contracts, the brokers, by an arrangement among themselves, by a process of mutual cancellation, reduced the settlement to a payment of differences, exchanging* contracts, so as to substitute new purchasers and new sellers respectively for the balances. The question is not whether in a given case, without the assent, express or implied, of the principal, this change of his rights and obligations can be effected, (for that proposition is not doubtful,) but whether the fact of his transacting business through a member of the exchange, without other knowledge of the custom, makes it part of his contract with the broker.

In Nickalls v. Merry, L. R. 7 H. L. 530, it was said by Lord CHELMSFORD, p. 543, that the contract “having been made between a broker and a jobber, members of the stock exchange, the usage of that body enters into, and to a certain extent determines and governs, the nature and effect of the contract." To what extent such a custom shall be allowed to operate, as between the broker and his principal, was very thoroughly considered and finally decided by the house of lords in the case of Robinson v. Mollett, L. R. 7 H. L. 802, after much division of opinion among the judges. The custom questioned in that case was one established in the London tallow trade, according to which brokers, when they received an order from a principal for the purchase of tallow, made a contract or contracts in their own names, without disclosing their principals, either for the specific quantity of tallow so ordered, or to include such order with others in a contract for the entire quantity, or in any quantities at their convenience, at the same time exchanging bought and sold notes with the selling brokers, and passing to their principals a bought note for the specific quantity ordered by them. When a broker so purchased in his own name, he was personally bound by the contract. On the usual settling days the brokers balanced between themselves the purchases and sales made, and made or received deliveries to or from their principals, as the case might be, or if their principals refused to accept or deliver, then they sold or bought against them, and charged them with the loss, if any; or if delivery was not required on either side, then any difference arising from a rise or fall in the market was paid by one to the other. It was held that this custom did not bind a principal giving an order to a broker to purchase for him, being igno

rant of its existence. It was admitted by Lord CHELMSFORD, p. 836, “that if* a person employs a broker to transact for him upon a market, with the usages of which the principal is unacquainted, he gives authority to the broker to make contracts upon the footing of such usages, provided they are such as regulate the mode of performing the contracts and do not change their intrinsic character;" and he added, "of course, if the appellant knew of the existence of the usage, and chose to employ the respondents without any restriction upon them, he might be taken to have authorized them to act for him in conformity to such usage. Mr. Justice BRETT, in his opinion, p. 816, points out very clearly that the custom, if allowed to prevail, would work a change in the relation between the broker and his principal, by permitting the agent to buy, to convert himself into a principal to sell. Mr. Baron CLEASBY, p. 828, said: "The vice of the usage set up in the present case cannot be appreciated by examining its parts separately. It must be looked at as a whole, and its vice consists, I apprehend, in this: that the broker is to make the contract of purchase for another whose interest as buyer is to have the advantage of every turn of the market; but if the broker may eventually have to provide the goods as principal, then it becomes his interest as seller that the price which he is to receive should have been as much in favor of the seller as the state of the market would admit. Thus the two positions are opposed." The principle of this decision seems to us to be incontrovertible, and applies in the present case. The ground of the action is that the defendants in error, at the request of Irwin & Davis, had made certain contracts for the sale and future delivery of grain; that these contracts were made in the name of the brokers, on which, therefore, they were personally liable, but in which Irwin & Davis were the principals; that the latter were bound to perform them, or to place in the hands of their brokers means of performance within the proper period, or to indemnify them against the consequences of non-performance;, that Irwin & Davis in all these particulars became in default, and the plaintiffs were required to perform out of their own means, which they did by purchas-* ing grain for delivery at the market price, or paying the difference between that and the contract price. The custom proved was offered to show this performance and consequent loss; and in doing so it disclosed that the brokers did not perform the original contracts of sale actually made, but delivered equal quantities of grain, or its market value, in fulfillment of contracts of purchase made by them for others, and which, by the process of mutual exchange authorized by this custom, had come into their hands for that purpose. This exchange and substitution, and payment of differences to effect it, working as it does a complete change in the nature of the seller's rights and obligations, cannot be made without his assent, and that assent can be implied only from knowledge of the custom which it is claimed authorizes it. The circuit court therefore erred in permitting proof of this custom, without evidence that the defendant below had knowledge of it, and in not instructing the jury to disregard it, if they were satisfied from the evidence that such knowledge had not been satisfactorily shown.

The judgment of the circuit court is therefore reversed, with directions to grant a new trial; and it is so ordered.

כו

(110 U. S. 633)

MITCHELL and another v. CLARK.

(March 3, 1884.)

1. FEDERAL STATUTE OF LIMITATIONS-WHEN BINDING ON STATE COURTS.

Where an act of congress authorizing the removal to the courts of the United States of any class of actions of which the United States might assume exclusive jurisdiction, prescribes in general terms the time within which such actions must be brought, the limitation binds the state courts as well as the federal courts. 2. CONSTITUTIONALITY OF STATUTE GIVING JURISDICTION TO FEDERAL COURTS-ACTS OF INDEMNITY.

Congress may lawfully give the courts of the United States exclusive or concurrent jurisdiction of all actions brought to enforce any liability incurred through obedience to the orders of governmental officers, where the defendant, if compelled to respond in damages, would be entitled to demand indemnity from the public treasury.

3. ACTS DONE UNDER MILITARY COMPULSION-PAYMENT OF RENT.

Where the property of the lessor of certain premises in St. Louis was confiscated while the city was under military law, and the lessee was compelled to pay the rent as such to the public use, held that, under the acts of congress, the lessee could not be required to pay the rent again to his lessor, and that any suit to test his liability must be brought within two years from the time when the right of action was alleged to have accrued.

4. PLEADING-DEGREE OF PRECISION REQUIRED.

A plea clearly indicating the substance and scope of the military order relied upon as a defense is not defective because it omits to set out the order in terms.

In Error to the Supreme Court of the State of Missouri.

Geo. P. Strong, for plaintiff in error.

Geo. F. Edmunds, for defendant in error.

MILLER, J. This is a writ of error to the supreme court of Missouri. The plaintiff below sued the plaintiffs in error for rent due on a lease of two storehouses in St. Louis for the months of August, September, and October, 1862, at the rate of $583.33 per month. The defendants answered with four pleas, as follows:

"And now come said defendants, by leave of court, and for amended answer to plaintiff's petition, admit the execution of said lease and the occupancy of said premises under and by virtue of the same as alleged in said petition; and defendants say that after the making of said lease, to-wit, on or about the first day of May, A. D. 1861, certain evil-disposed and wicked persons in the state of Missouri, and in other of the United States, did raise an insurrection and rebellion against the lawful government of the United States, and did seek by force and arms to overthrow said government, and for this purpose did raise a large force of arined men, and did incite and carry on a civil war with said government of the United States; that during all the year 1862, and for a long time prior and subsequent thereto, civil war prevailed throughout the state of Missouri, where said premises were located, and where defendants and plaintiff resided: that in order to suppress said insurrection and rebellion, and maintain the lawful authority of the government of the United States, said government was compelled to raise, and did raise, equip, and put into the field in said state of Missouri, where said war was raging, a large army, and did place said state of Missouri and the city of St. Louis, where said premises were located and defendants resided, under military law; and the said city and county of St. Louis were under military law, and under the military control of J. M. Schofield, a major-general of the army of the United States, as the military commander of the district of Missouri, which embraced the entire state of Missouri aforesaid; that by reason of said civil war the courts of said state of Missouri were suspended, and unable to perform their ordinary functions and administer the law of the land, except as they were protected and allowed to

do so by the said military authorities thus in control of said state; that in order to prosecute said civil war on behalf of the government of the United States, and put down and suppress said insurrection and rebellion, and overpower the insurgents and rebels, and protect the loyal citizens of the said state of Missouri, it became and was necessary for the military authorities in control of said state of Missouri, as aforesaid, to take, seize, and appropriate to the public use the private property of the citizens of Missouri; and the said military authorities who were in lawful command and control in said state, by order of said Schofield, then the lawful commanding general in said state, did seize and appropriate to the public use in suppressing said rebellion the private property of divers citizens of said state, and among other things did levy upon, seize, and appropriate to such public use the property, credits, and effects of said plaintiff, especially the rents due and owing from defendants under and by virtue of said lease of defendants in their hands for said months of August, September, and October, 1862; and the said defendants were compelled by the overpowering military force then in lawful control of said state to pay, and did pay long before the commencement of this suit, to-wit, on or about the twenty-fourth day of November, 1862, the said rents for said months of August, September, and October, 1862, and every part thereof, to said military authorities, for and on account and as the property and effects of said plaintiff so seized and appropriated to the public use as aforesaid; that said seizure and appropriation were necessary means for carrrying on said war for the suppression of said insurrection and rebellion, and for the defense and protection of the loyal citizens of Missouri. Wherefore defendants say that plaintiff ought not to have or maintain his aforesaid action against them, and they pray judgment, etc.

And for a further defense defendants say that the said rents reserved in said lease, and due and owing for said months of August, September, and October, 1862, were seized in the hands of defendants, and appropriated as the property of plaintiff for public use in the city of St. Louis, while said city was under military law, under the authority, or color of authority, exercised by said Gen. Schofield, who was then and there duly vested with the military command of said city by the president of the United States and under his authority, and said payment was made by defendants for and on account of plaintiff, as aforesaid, under said authority; and defendants plead and set up as a defense to this action the act of congress entitled 'An act relating to habeas corpus, and regulating judicial proceedings in certain cases,' approved March 3, 1863, and say that by reason thereof, and of the payment aforesaid, plaintiff ought not to have and to maintain this action, and they pray judgment, etc.

"And for a further defense, defendants say that they paid the said rent for and on account of said plaintiff, in the manner and for the purposes in their first plea herein before stated, after the first day of January, 1861, by and in pursuance of orders received by them from the said Gen. J. M. Schofield, who was vested with military authority by the said government of the United States to make said order, and to seize and to apply to the public use the said property and effects and credits of said plaintiff; and defendants plead in bar of said action the fourth section of article eleven of the constitution of the state of Missouri, and pray judgment, etc.

"And for a further defense to said action, defendants say that the cause of action in plaintiff's petition alleged, if any such does or ever did exist, arose out of certain acts done,-that is to say, out of or from an alleged failure or omission to pay the rent reserved in said lease for the months of August, September, and October, A. D. 1862, to the said plaintiff, and from a payment thereof made for and on account of plaintiff by defendants to the provostmarshal of said district of Missouri, for the public use, under and by virtue of the order and command of Gen. J. M. Schofield, who was then in military com