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No. 303. Argued April 17, 1919.—Decided May 5, 1919.

In the interest of justice the court may decline to dismiss a case upon the ground that the writ of error and citation were not made returnable in time, where the irregularity had color of authority from the court below and one of its judges. P. 555.

An offer to sell real property, in the form of an option allowing three months in which to buy at a certain price, is not accepted by an offer to purchase at that price, conditioned to be paid on a date specified (beyond the three months) or "before and with delivery" of clear title.


The opportunity to accept a continuing offer is lost by making a counter offer. P. 556.

The court will not disturb a decision of the Supreme Court of the
Philippines on a local question of contract, unless clearly wrong.

THE case is stated in the opinion.

Mr. Joseph D. Sullivan, with whom Mr. T. T. Ansberry and Mr. Thos. D. Aitken were on the brief, for appellant and plaintiff in error.

Mr. Alex. Britton, with whom Mr. Evans Browne, Mr. H. W. Van Dyke and Mr. Charles C. Cohn were on the briefs, for appellees and defendants in error.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is a suit for the specific performance of an alleged contract to sell land. The court of first instance made a

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decree for the plaintiff, but the decree was reversed by the Supreme Court of the Philippine Islands and the defendants were absolved from the complaint. There is a motion to dismiss, on the ground that the writ of error and citation were not made returnable in time. But without going into particulars, as the appellant had color of authority from the court and a judge of that court, it appears to us that justice will be better served by dealing with the merits of the case. See Southern Pine Co. v. Ward, 208 U. S. 126, 137.

On the merits the only question is whether the alleged contract was made. The first material step was the following offer, dated December 4, 1911: "Mr. W. Borck, Real Estate Agent, Manila, P. I. Sir: In compliance with your request I herewith give you an option for three months to buy the property of Mr. Benito Legarda, known as the Nagtahan hacienda, situated in the district of Sampaloc, Manila, and consisting of about 1,993,000 square meters of land, for the price of its assessed government valuation. B. Valdes." There is no dispute that the assessed government valuation was 307,000 pesos, that Legarda owned the land and that Valdes had power to make the offer. On January 17, 1912, Borck wrote to Valdes: "In reference to our negotiations regarding" the property in question, "I offer to purchase said property for the sum of three hundred and seven thousand (307,000.00) pesos, Ph. C., cash, net to you, payable the first day of May, 1912, or before and with delivery of a torrens title free of all encumbrances as taxes and other debts." There was dispute about the admissibility of this letter and its being signed, but we see no occasion to disturb the opinion of the Supreme Court that it was a part of the transaction and was admissible. No answer was received, and on January 19 Borck wrote again, saying that he was ready to purchase the property at the price and that full payment would be made on or before

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March 3, provided all documents in connection with the hacienda were immediately placed at his disposal and found in good order. On January 23, Borck wrote again that he could improve the condition of payment and would pay ten days after the documents had been put at his disposal for inspection, &c., and finally, on February 28, wrote that the price was ready to be paid over and requesting notice when it was convenient to allow inspection of all papers. Before this last letter was written Valdes had indicated that he regarded compliance as an open question by saying in conversation that he wished to communicate with Mr. Legarda. Subsequently conveyance was refused.


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Hyde v. Wrench, 3
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The letter of January 17 plainly departed from the terms of the offer as to the time of payment and was, as it was expressed to be, a counter offer. In the language of a similar English case, "plaintiff made an offer of his and he thereby rejected the offer previously made by the defendant. It was not afterwards competent for him to revive the proposal of the defendant, by tendering an acceptance of it." Beavan, 334. Langdell, Cont., § 18. necessary to go into the discussion of the later communications, which led the Supreme Court to the conclusion that they also would not have been sufficient. The right to hold the defendant to the proposed terms by a word of assent was gone, and after that all that the plaintiff could do was to make an offer in his turn. It would need a very much stronger case than this to induce us to reverse the decision of the court below. Cardona v. Quiñones, 240 U. S. 83, 88.

Judgment affirmed.




No. 215. Argued March 11, 1919. Decided May 5, 1919.

Where a suit to enjoin the enforcement of an order of the Interstate Commerce Commission is based upon the ground that the order exceeded the statutory powers of the Commission and, hence, is void, the courts may entertain jurisdiction notwithstanding no attempt has been made by the plaintiff to obtain redress from the Commission itself. P. 562.

Where rates allowed by the Commission in a proceeding initiated by carriers for relief from the long and short haul clause were later increased as a result of orders made when the proceeding was reopened on the application of a state commission and a merchants association, held, that the new orders were to be regarded as resting upon the original petition of the carriers, so that, under the jurisdictional Act of October 22, 1913, a suit to enjoin their enforcement was properly brought in a judicial district where one of the carriers, a party defendant, had its residence. P. 563.

The clause in § 4 of the Commerce Act, as amended June 18, 1910, providing that when a railroad carrier shall, in competition with a water route, reduce rates between competitive points, it shall not be permitted to increase them unless, after hearing by the Commission, it shall be found that the proposed increase rests upon changed conditions other than elimination of water competition, has no application where the reduction was with the approval of the Commission, ordered after hearing, upon application by the carrier for relief from the long and short haul clause. P. 564.

Held, that, in this case, changed conditions "other than the elimination of water competition," were found by the Commission. P. 569. An order under § 4 of the act, granting relief from the long and short haul clause, is subject to future modification by the Commission without any application from the carrier. P. 570.


THE case is stated in the opinion.

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Mr. Joseph N. Teal, with whom Mr. William C. McCulloch, Mr. L. B. Stedman and Mr. W. E. Creed were on the brief, for appellant.

Mr. Assistant Attorney General Frierson for the United States.

Mr. Albert L. Hopkins, with whom Mr. P. J. Farrell was on the brief, for the Interstate Commerce Commission.

Mr. John F. Finerty, with whom Mr. E. C. Lindley, Mr. M. L. Countryman, Mr. Charles Donnelly, Mr. O. W. Dynes and Mr. A. C. Spencer were on the brief, for the appellee railroad companies.

MR. JUSTICE BRANDEIS delivered the opinion of the


The last paragraph of § 4 of the Act to Regulate Commerce, as amended by Act of June 18, 1910, c. 309, § 8, 36 Stat. 539, 547, declares that: "Whenever a carrier by railroad shall in competition with a water route or routes reduce the rates on the carriage of any species of freight to or from competitive points, it shall not be permitted to increase such rates unless after hearing by the Interstate Commerce Commission it shall be found that such proposed increase rests upon changed conditions other than the elimination of water competition."

On August 21, 1916, Skinner & Eddy Corporation brought this suit in the District Court of the United States for the District of Oregon to enjoin an increase in carload rates on iron and steel products from Pittsburgh to Seattle. The United States, the Commission, and sixteen railroads were joined as defendants. The bill charged that the action of the carriers in increasing

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