wrote the plaintiffs urging an immediate preparation of the assignment, as they wished to have the matter entirely closed before commencing operations. The plaintiffs soon after mailed to the defendants an assignment of their right to use one machine under this patent. This assignment, as executed by the plaintiffs, contained a provision which imposed upon the defendants the payment of the royalty. On receiving the assignment, the defendants struck out this provision, and sent the assignment thus altered to the town clerk's office, where the plaintiffs found it some months later. The defendants did not inform the plaintiffs of what had been done with the assignment, nor notify them in any way of their dissatisfaction with its terms, but entered upon and continued in the possession and use of the property embraced in the lease.

The plaintiffs' contention that the assignment was necessary to give the defendants a right to use the machine cannot be sustained. The plaintiffs could transfer to others the right to use the machine if they themselves continued to pay the royalties. The mere fact that the patentee had a control of the machine, independent of the ownership of it, did not create a necessity for two instruments to effect a transfer of the plaintiffs' rights. The case must be considered upon the ground that an assignment was not really essential to the defendants; but the fact remains that the parties contracted and prepared their writings in the belief that such an instrument was essential. The facts before stated were found from evidence which the defendants objected to as tending to contradict the import of the lease. But the case presented affords ground for an inquiry other than that regarding the use of parol evidence to vary the terms of the writing. That question will become unimportant if it be held that the defendants assumed the payment of the royalties by becoming parties to this written assignment. They could subject themselves to this liability by a retention of the paper without notice of repudiation, if received under circumstances which imposed upon them the duty of taking action in regard to it. The evidence objected to was properly used to determine the circumstances under which the assignment was executed and delivered, and its connection with the lease.

It appears from the facts reported that both the lease and the assignment had their origin in the same agreement, and were executed as parts of one transaction. The assignment was not sent as presenting a further claim of the plaintiffs, but as a writing required by the original agreement of the parties. The form of the assignment did not call for an execution by the defendants, and the plaintiffs had no reason to look after the paper further. The defendants knew that the plaintiffs had sent it as a compliance with the agreement previously entered into. and that they supposed it to be in ac

cordance with the understanding. This did not permit its being treated as a mere proposal. The defendants could not hold it in silence without giving it effect as a part of the contract. Its retention without notice of dissent was sufficient to justify the plaintiffs in assuming that it was accepted in the terms in which it was executed. The execu tion of an assignment being required by the agreement, it cannot be said that the plaintiffs were bound to understand that the defendants were using the machine by virtue of their lease, and not under the assignment. The defendants must be held to have assumed the payment of the royalty by an acceptance of this assignment, unless it can be said that the undertaking was without consideration. But we think the view of the case above prescribed is decisive of this further question. A consideration for the defendants' undertaking is disclosed by the relation which the assignment sustains to the transaction. The parties entered into a certain arrangement, and agreed that that arrangement should be evidenced by two writings, of which this assignment is one. It is not the case of a subsequent agreement, for which an independent consideration must be found. The assignment was executed as a part of the transaction in which the lease was given, and the stipulations in both instruments are supported by the same consideration. It is not necessary to consider whether the assignment was of any value to the defendants. They believed it to be, and insisted that one should be given. Having stipulated for such a writing as one of the evidences of their understanding, and held it under circumstances which made their retention an acceptance of its terms, they cannot now say that they got everything by the other writing, and had no need of this. It is evident that failure to give force to this assignment as a part of the transaction would deprive the plaintiffs of a written stipulation without which there would have been no demise of the property; for, if the plaintiffs had not known that there was to be an assignment of the right to use this machine, they would have seen to it that the provisions pertaining to its use were embraced in the lease.

But the defendants insist that, if liable at all, their liability ceased when the plaintiffs became aware of their action in regard to the assignment. It appears that, in the controversy which followed the plaintiffs' discovery of the alteration of the assignment, the defendants made no offer to rescind, but insisted on keeping the property and using the machine. Without considering whether a different course on the part of the defendants could have affected the rights of the parties, it is certain that the position taken by them leaves no ground on which it can be claimed that the further use of the machine was on their terms. The payment of the royalty for the whole time must depend

upon the construction given by the court to the contracts in dispute.

The defendants insist, further, that the plaintiffs cannot recover because the machine leased and assigned to them is not the identical one covered by the license given the plaintiffs. We do not think the defendants can take advantage of this fact. No question regarding the right to use this particu lar machine under the license held by the plaintiffs has been raised by the owner of the patent. The defendants have been protected in the use of the machine by the plaintiffs' payment of the royalties for which recovery is claimed. Judgment affirmed.

CARRIERS-REFUSAL TO TRANSPORT FREIGHT-LIABILITY-TENnder.

The refusal of a carrier to transport coal for a certain firm does not, in the absence of actual tender of a definite amount for transportation, amount to a waiver of such tender, so as to subject the carrier to liability for loss of business caused by relying on such refusal. Taft, J., dissenting.

Exceptions from Caledonia county court; Tyler, Judge.

Case by Arthur Wilder, surviving partner, against the St. Johnsbury & Lake Champlain Railroad Company, for refusal to transport coal. Judgment for defendant. Affirmed.

W. P. Stafford, for plaintiff. S. C. Shurtleff, for defendant.

MUNSON, J. For four years prior to 1884, the plaintiff firm was engaged in selling coal at St. Johnsbury. Its supply was obtained in the state of New York, brought by boat to Maquam bay, and transferred thence over the defendant's road. In April, 1884, the plaintiff had a dispute with Jewett, the defendant's superintendent, about the defendant's liability for the cost of an elevator which the firm had erected on defendant's land. In the course of this dispute, Jewett declared that the company would not haul any more coal for the plaintiff firm. Upon a renewal of the controversy some days later, Jewett repeated this statement, and said, further, that the firm had got to go out of the coal business. The plaintiff then asked Jewett what he would do if they should bring a boat load of coal to the wharf at Maquam. Jewett replied that he should not take it nor transport it; that he should send the boat back into the lake; that they need not buy nor bring any more coal to be shipped, for the company would not carry it. Shortly after this, the defendant entered into a contract with a firm which had not

before been engaged in the sale of coal, by which it agreed to haul coal for this firm at the rebate before allowed the plaintiff's firm, and stipulated not to give a rebate to any one else except the Fairbanks Company. That company was also a party to the agreement, and bound itself not to sell coal for a specified time except to its own employés. The plaintiff learned of this agreement early in June of the same year, and soon after it was made. The controversy regarding the elevator and other matters in dispute between the parties were adjusted a few weeks after the conversation above recited. It does not appear that at the time of this adjustment any reference was made to what had been said in regard to further transportation. Neither party afterwards approached the other upon the subject. The firm treated Jewett's statement as final, and made no purchases for shipment by defendant's line. If it could have received its supply by that line, and been given the rebate allowed its competitor, it would have continued its business, and probably have sold as much that season as before. Finding that a competing business could not be carried on by bringing coal over the next cheapest route, it ordered but a small quantity, and disposed of this without profit. Before another season the firm was dissolved, by the death of the senior partner. The plaintiff contends that these facts show such a denial of his right to the facilities of transportation as gives him a cause of action against the defendant, and entitled him to recover the damages sustained in the loss of his business. It is insisted that Jewett's statement was a waiver of whatever tender for transportation might otherwise have been necessary, and that no further action on the plaintiff's part was required to fix the defendant's liability. The defendant does not now question but that, upon a tender of coal by the plaintiff, it would have been its duty to carry it; but it claims that it cannot be held to respond in damages for a refusal to transport except where there is an actual tender of the property.

Assuming that an actual tender can be dispensed with, and that the statement of Jewett was in terms sufficient for the purpose, it is still necessary to consider whether the circumstances in which it was made were such as to permit of its being given that effect. It is evident that the case we have is not the case that would have been presented if the conversation relied upon had related to some specific property then upon the line of the defendant's road, awaiting shipment or in transit over a connecting road, or even to some distinct proposal dependent upon the defendant's service. It is not necessary to consider what the plaintiff's rights would have been in either of the cases stated. The statement here was not made with reference to any specific property, nor even with reference to a definite proposal. At the time it was

made, the plaintiff firm did not have any coal at Maquam for shipment; and it does not appear that the firm had ordered any coal sent to that point, nor that it was then the owner of any coal. It is evident that Jewett's statement, made under these circumstances, can be given effect only as a general refusal to do business for the plaintiff in the future, and that, if the plaintiff recovers, it must be upon the ground that a refusal of that character is sufficient to subject a carrier to liability. We think a refusal of further service, which is not referable to any particular property or definite requirement, cannot be given the effect of a waiver. The doctrine of tender and waiver of tender have application only to matters definite and certain. In cases where the rights of contracting parties depend upon a waiver of the tender of specific articles, the subject-matter of the waiver is ascertained by the contract. The common law permits a tender of money only in cases where the sum is certain, or capable of being made certain by mere computation. The matter involved here, beyond the fact that the plaintiff was engaged in the coal business, was in all its bearings prospective and indefinite. If we hold that the facts stated are sufficient to charge the defendant the same as if the property had been on hand for transportation, we give the plaintiff the benefit of a waiver of the tender of property, the amount of which was in no way ascertained, and which could not but be a matter of uncertainty to the plaintiff himself. We think a refusal of this character can be given the effect of a waiver only when the property which would have been tendered but for the refusal is in some manner definitely ascertained. The circumstances existing at the time of Jewett's statement did not justify the plaintiff in treating it as a waiver. It is not necessary to determine the exact conditions that would have entitled him to do so. Judgment affirmed.

TAFT, J. I dissent. I am unable to see what connection the dispute of the parties about the cost of an elevator has with the question in controversy. The plaintiffs were coal dealers at St. Johnsbury, and having been told by the superintendent of the defendant's road that the defendant would not ship any more coal for their firm, that it would not haul another ton, that they (the plaintiffs) had got to go out of the coal business, asked the superintendent what he should do if they brought a boat load of coal to the wharf at Maquam,-the terminus of the defendant's road. He "replied that he would not take nor transport it; that he would send the boat back into the lake; that the plaintiffs need not buy nor bring any more coal for the defendant to ship, for the defendant would not carry it." The only defense now insisted upon is that the coal was not actually tendered. This raises the question whether a carrier can waive the tender of property, and waive the purchase of it, by the coal

dealer. The logic of the majority opinion is that the carrier may waive the tender if the coal dealer, at the time, actually has the property. I infer no one having in mind the cases on that subject would deny this doctrine. In this case the plaintiffs were, in substance, told that they need not buy any coal; for, if they did, the defendant would not carry it. They were told, "You must go out of the coal business." The doctrine held in this case is this: A carrier cannot, as matter of law, waive a tender of property not then owned by the intended. shipper; cannot legally waive the purchase of property and its subsequent tender. We must bear in mind that the notice of the carrier was not to buy any more coal. This (buying the coal) the majority of the court say cannot be waived. Coal used in this state is from Pennsylvania. This is matter of common knowledge. A dealer who is told by a carrier that he need buy no coal, for he (the carrier) will not ship it, will do no business with him, must, in order to obtain his rights, buy his season's stock of 5,000 or 10,000 tons of coal, and then be informed that he must leave it at the mines, because, forsooth, a corporation tells him that he should not have relied upon what its manager told him. Concede, as the majority opinion states, that "the doctrines of tender and waiver of tender have application only to matters definite and certain," what difficulty is there in applying the doctrine in this case? It is incumbent upon the plaintiffs, to entitle them to recover, to make definite and certain to the triers the quantity of coal that they would have sent over the defendant's line in the season of 1884. Indeed, the plaintiffs have already made it definite and certain, by showing, to the satisfaction of the court below, that had it not been for the unjust discrimination, the illegal high-handed outrage of the defendant, they would have purchased as much coal in 1884 as in the season before. The old maxim is that that is certain which can be rendered certain. It is said that the amount of the property for the nontransportation of which the plaintiffs seek damages was a matter of uncertainty even to the plaintiffs themselves. True, concede that it was; they must make the amount certain and definite before a recovery. A miller sells a year's products of his flouring mill; the amount uncertain, of course. His water power may vary; his steam boiler explode. The amount may be 1,000 barrels, or it may be 2,000. After a month's performance, the vendee says: "I'll take no more flour. Make all you please. I'll none of it." Can the vender recover no damages because it is uncertain how much he would have made during the 11 remaining months, or must he continue to manufacture for that time, in order to determine the exact amount? Again, the court say that "the statement here was not made with reference to any specific property, nor with

in which assessments for special benefits shail be collected. A city ordinance authorized the collector to sell the property assessed for the opening or closing of a street, and to collect the assessment. Held, that the collector could sell property assessed under Acts 1892, c. 284, to collect the assessment.

Appeal from circuit court of Baltimore city. Bill by Clementine Ulman, by her husband and next friend, Alfred J. Ulman, against the mayor and city council of Baltimore, and others, to enjoin the collection of special assessments. There was a decree for plaintiff, and defendants appeal. Reversed.

Argued before ROBINSON, C. J., and BRYAN, MCSHERRY, FOWLER, BRISCOE, BRISCOE, PAGE, and BOYD, JJ.

Wm. S. Bryan and Thos. G. Hanes, for appellants. M. R. Walter, for appellee.

BOYD, J. In the year of 1887 the authorities of the city of Baltimore graded, paved, and curbed North avenue between Pennsylvania avenue and the western city limits. This was done under what was known as "Ordinance No. 100 of 1886," passed under the supposed authority of Acts 1874, c. 218. In Ulman v. Mayor, etc., 72 Md. 587, 20 Atl. 141, and 21 Atl. 709, this court decided that the assessment levied on Mrs. Ulman's property under that ordinance was null and void, as it "made no provision for notice to and hearing of any proprietor whose land adjoined North avenue, upon the question, what proportion of the tax should be assessed upon his land," and hence was taking property without due process of law. The majority of the judges who sat were of the opinion that the case of Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. 921, was applicable, and, being a federal question, this court was bound by it, and hence felt constrained to overrule a number of cases which had been decided by this court. The legislature, at its first session after the decision of the Ulman Case, passed two acts-chapter 219 of the Acts of 1892, being amendatory of section 810 of article 4 of the Public Local Laws (which was a codification of the Acts of 1874, c. 218), and chapter 284 of the Acts of 1892authorizing the mayor and city council of Baltimore to levy special assessments, and to provide for the collection thereof, upon property binding on any street, etc., which had been graded, etc., and under any ordinance which provided for assessing the whole, and any portion of the cost of such work upon the property binding on such street, etc., and which assessments, for any cause, had not been fully collected. The mayor and city council passed an ordinance known as "No. 84 of 1893," which, after referring in the preamble to the passage of Ordinance No. 100 of 1886, what was done under it, the decision of this court declaring the assessment null and void, and to the passage of chapter 219 (claimed by the appellants to mean chapter 284) of the Acts of 1892, in substance, directed (1) the city commissioner to give 10

days' notice in two of the daily newspapers published in Baltimore that at the time and place mentioned he would ascertain and determine the amount of tax to be assessed upon all the property binding on North avenue, between Pennsylvania avenue and the western city limits, upon which the assessment levied under Ordinance No. 100 had not been paid, for the special benefits which had been derived by said property from the grading, etc., of said portion of North avenue; that after hearing all persons interested, who desired to be heard, he shall proceed to apportion among the different pieces of property binding on said portion of said North avenue, upon which the assessment levied under No. 100 was not paid, the total cost of the grading, etc., of said portion of North avenue, with interest thereon from the time the claim was paid by the city to the day he made such apportionment, less the amount paid by those who had paid under Ordinance No. 100, provided the tax assessed against any piece of property should not be more than the amount which the said property had been specially benefited by the grading, etc., of said portion of North avenue; that he might adjourn from time to time to give all parties an opportunity to be heard, and after the hearing he was required to make out a list of the property and the owners, together with the amount to be paid by each piece of property, and deliver a copy, with an explanatory plat, to the city register, and then provided that such taxes should be liens. (2) That the city register, within five days after the proceedings were left in his office, should notify all persons interested, by advertising once a week for two successive weeks in two of the daily newspapers in the city, that the said assessments and explanatory plats had been so placed in his office, and that the parties affected thereby were entitled to appeal to the Baltimore city court. (3) That the city commissioners should serve written or printed notices on each party so assessed or taxed, but that service of such notice should not be construed a prerequisite to the collection of the tax. (4) That any person dissatisfied with any assessment in which he was in any manner interested could appeal to the Baltimore city court, where the proceedings should be similar to those in the case of trials of street appeals, and the same right should be had to appeal to the court of appeals. (5) That within 10 days after the time limited for appeals, or after the decisions in case of appeal, the city register should turn over the lists to the city collector, who should proceed in all respects as he does in cases where persons or property are assessed for benefits for opening, closing, etc., any street, lane, or alley. The appellee filed a bill giving a history of the several acts of assembly and ordinances, alleging that the city collector was about to sell her property for the want of payment of the assessment alleged to have been made under Ordinance