could not violate the escrow contract. He was not a party to any other contract with the complainant. By the terms of the agreement of October 22, 1895, both parties. agreed to use their influence and energies to procure the grant of electricity as soon as possible. It does not appear that complainant made any affirmative move to secure this grant. It does appear that Pla did endeavor to secure it, but was unable to do so owing in part, no doubt, to the disturbed condition of the island of Cuba at the time in question. On the 24th of August, 1897, Pla wrote the complainant's president, Alexander, saying that he had been working to secure the change to electricity, had been unable to do so and was convinced that further effort was useless. The letter concludes as follows: "You will consider our agreement cancelled and this will serve to notify you." It is said that the statements of fact in this letter are not worthy of credit because of statements made by Pla and others to Alexander a year afterwards and testified to by him. This testimony was clearly hearsay even though it came out on cross-examination. But even though it be true that both parties wholly ignored their contract obligation to procure the right to use electricity it is not easy to perceive how the defendant is affected thereby. He was under no obligation to procure a grant of electricity for either Pla or the complainant. An examination of the record makes it quite evident that neither party regarded the concession of the October agreement as of great value until other parties with capital, energy and skill had organized the Havana trolley system and made it a success. Pla did not agree to assign his horse car line concession; he only agreed to assign the electrical concession if he got it. We cannot see that others, not parties to this agreement, were precluded from entering the field as competitors, even though they knew of the relations between Pla and complainant. If Pla has broken his contract he is liable in damages, but in order to make the defendant liable it must appear that he has violated some duty or obligation which he owed to the complainant. He may have been a "go-between"; his knowledge of the Spanish language made his services as an interpreter valuable, but he was not an agent or a trustee; he was not employed or paid by the complainant; he received no money for it; he incurred no obligation on its behalf. The transaction with defendant took place in 1895. Two years afterwards the contract was canceled by Pla and more than a year after the cancellation, December 16, 1898, the horse car concession was assigned to defendant. The complainant's theory seems to be that the defendant, while acting in a fiduciary relation to the complainant, took advantage of the knowledge thus obtained to prevent the complainant from obtaining the concession in order that he might procure it for himself. To state the proposition more plainly the defendant is charged with having combined with Pla to defraud the complainant of valuable rights. We do not pause to analyze the legal aspects of this contention for the reason that it cannot be sustained upon the facts; the evidence falls far short of proving a fraudulent con spiracy. The defendant did not act in his individual capacity until long after it was manifest that the grant of electricity under the contract of October, 1895, could not be obtained. The decree is affirmed. GLASGOW SHIPOWNERS' CO., Limited, v. BACON. (Circuit Court of Appeals, Second Circuit. June 9, 1905.) No. 228. 1. SHIPPING-CHARTER HIRE-FOUL BOTTOM RETArding Speed. The charterer of a vessel by a time charter is not entitled to a deduction from the charter hire because the vessel, owing to the foulness of her hull, failed to make the time he expected or that was made on a previous voyage, where he accepted her with knowledge that she had not been in dry dock for several months, during which time she had been employed in tropical waters, without any warranty as to speed, and where the clause in the printed charter for docking and cleaning was stricken out. [Ed. Note. For cases in point, see vol. 44, Cent. Dig. Shipping, §§ 156164, 449, 450.] To entitle a time charterer to recover damages because of the slow speed made by the vessel on the voyage, on the ground that it was due to the foul condition of her bottom, there must be evidence to show with some definiteness how much of the loss of speed was due to such cause, rather than to others which may have lengthened the voyage. Appeal from the District Court of the United States for the Southern District of New York. On appeal from decree entered by the District Court for the Southern District of New York in favor of the libelant for $1,449.95, the amount, with interest and costs, found to be due the owners of the steamship Nile on a time charter party to the respondent. The opinion below is reported in 132 Fed. 881. Charles S. Haight and John W. Griffin, for appellant. Before LACOMBE, TOWNSEND, and COXE, Circuit Judges. PER CURIAM. This action is to recover the balance due on a charter party. The defense is that the owner did not deliver the vessel in the condition required by the charter. It is alleged that her bottom was exceedingly foul, and that this condition greatly reduced her speed, and required the consumption of additional coal. The appellant insists that the loss thus occasioned, which he computes at $1,262.99, and which he has withheld, should be deducted from the amount stipulated in the charter. The question is a narrow one, and is fully discussed, and, we think, correctly decided, by the district judge. The decision should be affirmed, for reasons which may be stated as follows: First. The charter contained no guaranty of speed. If the charterer had insisted upon a fixed speed, it is a fair inference that the owners would have required a larger sum for the use of their vessel than £600 per month. They, at least, knew that the steamer had not been in a dry dock for nine months, and yet the attempt is made to construe the agreement as if they had expressly obligated themselves that the steamer should maintain the same rate of speed made on a previous voyage under differing conditions and immediately after coming off the dry dock. If the charterer deemed a speed guaranty essential, he should have insisted on it and paid for it. It is enough that he did neither. Second. The steamer was stanch, strong, and seaworthy in every particular. This is not denied, unless the accumulation of grass, shells, and barnacles on her bottom rendered her unseaworthy. Undoubtedly her bottom was foul, but this condition has been very much exaggerated; there were no six-inch barnacles formed there. The master of the Nile saw her on the dry dock at Shields after she had made the additional voyage under the charter in controversy, and he says that the "very largest" barnacle would not extend more than an inch, or an inch and a quarter, from the hull of the ship. The exact condition of the ship's bottom when she was accepted by the charterer is not known. That it was to some extent foul and dirty, and that this condition would tend to lessen her speed, is known, but this is all. Nothing has been proved which amounts to a breach of the agreement to deliver a steamer "tight, staunch, strong and in every way fitted for the service," and "maintain her in a thoroughly efficient state in hull and machinery." A ship may be all this and still, after returning from a voyage to tropical waters, may have grass and shells on her bot tom. Third. The charter is dated July 2, and the steamer was delivered under it July 24, 1903. At the time of the delivery the appellant knew all the facts regarding the condition of the Nile that were known to her master, for the latter informed him, saying that "he expected he would not be apt to make his usual speed as he had before, unless the ship would dock." The owners declined to dock her, and yet appellant accepted her. Before he signed the charter he was aware of facts which should have put him on his inquiry as to the ship's condition. There had been a previous charter of the Nile to appellant, which expired May 28, 1903. She was then immediately chartered to Thibeaud Bros., and on her return she was taken under the present charter. Under both of these charters she had been trading in southern waters-Cuba, Mexico, and the West Indies. She had not been in a dry dock during all this period, and the appellant knew it. If he did not know that such long cruising in tropical waters would produce the condition of which he now complains, he should have known it. The appellant's brief, referring to the steamer, says: "She had therefore been employed in tropical waters for eight or nine months prior to the charter in suit without docking-a period sufficient to render it certain that she must be foul." Fourth. The provision in the printed form for docking and cleaning the steamer was deleted. It is said that this is customary where the charter is for one voyage only, but, however this may be, the striking out of this clause must have called the attention of the appellant sharply to the subject, especially in view of the fact that in his previous charter the clause was retained. Is it not apparent that he made the agreement with full knowledge of the facts, and with no provision, express or implied, for the docking of the ship? Fifth. The contention that the foul bottom of the steamer occasioned damages to the extent of the amount withheld is based largely on conjecture. Some of the loss of speed can no doubt be attributed to this cause, but how much? The appellant's brief concedes that the amount retained was incorrect by $324. If the loss of speed can be attributed, even in part, to other causes; if the speed made on previous voyages, under conditions essentially different, forms an inaccurate basis of comparison; if the proof as to what extent the steamer's bottom was covered with grass and barnacles be vague and uncertain-is it not plain that the claim for damages. depends upon too many contingencies to be sustained? The decree is affirmed, with interest and costs. MEARNS v. CENTRAL R. R. OF NEW JERSEY. (Circuit Court of Appeals, Second Circuit. June 10, 1905.) No. 235. 1. FEDERAL COURTS-STATE DECISIONS-COMITY. Where an action against a carrier to recover damages for injuries to a passenger had been dismissed pursuant to the unanimous opinion of the highest state court, and the questions of negligence presented were not questions as to which the federal and state courts were at variance, comity required such decision to be followed by the federal courts in a subsequent action therein by the same parties for the same cause, though such opinion was not controlling authority. [Ed. Note. For cases in point, see vol. 13, Cent. Dig. Courts, §§ 950, 977-979. State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.] 2. CARRIERS-INJURIES TO PASSENGERS-INVITATION TO ALIGHT. Where the porter or guard of a passenger train called out, "Jersey City; last stop; all out"-and followed it by opening the vestibule door of the car, such statement and act did not constitute a positive assurance to passengers that the car had stopped, nor an invitation to passengers to alight before the car had in fact stopped. [Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 12241226.] 3. SAME-CONTRIBUTORY NEGLIGENCE. Where, after the porter of a railroad train had announced the last station and opened the vestibule door of the car, plaintiff, erroneously supposing that the train had stopped, stepped out into the vestibule, passed down the steps, and thence to the platform, while the train was moving, and was injured in so doing, he was guilty of contributory negligence, precluding a recovery. [Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 13911393.] In Error to the Circuit Court of the United States for the Southern District of New York. In the spring of 1895 the plaintiff commenced a suit in the Supreme Court of New York upon the same cause of action stated in the complaint herein, the venue being laid in New York county. At the trial, which occurred in May, 1897, the plaintiff was nonsuited. The plaintiff appealed to the Appellate Division for the First Department where the judgment was reversed and a new trial granted. The opinion is reported in 23 App. Div. 298, 48 N. Y. Supp. 366. The defendant thereupon appealed to the Court of Appeals of New York, where the judgment of reversal was reversed and the judgment of nonsuit was affirmed. The opinion of the Court of Appeals is reported in 163 N. Y. 108, 57 N. E. 292. A motion for a reargument was made and denied. 164 N. Y. 598, 58 N. E. 1089. After the final defeat of the plaintiff in the state courts he commenced this action in June, 1901, obtaining jurisdiction on the ground of the diverse citizenship of the parties. At the trial in the Circuit Court the judge directed a verdict for the defendant upon the opening of the plaintiff's counsel and the plaintiff sued out a writ of error to this court. The facts will be found in the opinions delivered in the state courts. Although the inferences and presumptions drawn from the facts differ somewhat in the two tribunals the statements are, in their essential features, alike and do not differ materially from the statement presented to the Circuit Court which lead to a dismissal of the complaint. Thomas P. Wickes, for plaintiff in error. Before WALLACE, TOWNSEND, and COXE, Circuit Judges. COXE, Circuit Judge (after stating the facts). The plaintiff selected his forum and was defeated there by the unanimous decision of the court of last resort. We should, therefore, be clearly convinced that the Court of Appeals has taken an erroneous view of the law before holding the action of the trial judge in following their decision, to be error. We do not deem it important to enter upon a minute analysis of the opinion of the state court for the reason that, even if the facts were stated there precisely as the plaintiff's counsel contends they should have been, the same result would inevitably have followed. That other learned judges of the state took a different view is of no moment here; their opinion is not law; so far as the state courts are concerned the law is irrevocably fixed by the judgment of the Court of Appeals. The questions of negligence presented are not questions where the federal and state courts are at variance, and although the opinion of the state court is not controlling upon us, every consideration based upon comity and the orderly administration of the law requires us to follow it in an action between the same parties and upon the same facts. Even in a case where we were not wholly in accord with the conclusions of the state court this would be true, but in the case at bar we are strongly inclined to the opinion that the case was properly disposed of there. The contention of the plaintiff is, in effect, that when the porter, or guard, made the statement "Jersey City; last stop; all out," and followed it by opening the vestibule door, it amounted to a positive assurance by the defendant that the car had stopped and was an "invitation" to the plaintiff to alight accompanied with a guarantee that he could do so with safety. It is argued that it was |