tional. The law is not sustained by the judgment of the court as an inspection law, which it purports to be. Perhaps it could not be under the doctrine announced and applied in Minnesota v. Barber, 136 U. S. 313, and Brimmer v. Rebman, 138 U. S. 78. I am therefore relieved from considering whether the law, because it is a mere cloak for exacting revenue from interstate commerce, is bad as an inspection law. The judgment of the court treats it as such, and it is sustained not as an inspection but as a revenue law. I do not dissent from such an interpretation of its effect. But, with unfeigned deference to the opinions of my brethren, I venture to think that the statute, as enforced in the case at bar, is bad as a taxing law. The case of American Steel & Wire Co. v. Speed, 192 U. S. 500, holds that articles before they have ceased to be the subjects of interstate commerce may still be reached by the taxing power of the State. Accordingly it was held that the property of a citizen of another State which had been brought into the State of Tennessee, placed in a warehouse for sale, and from there sold to persons within as well as without the State, was subject to a state tax. It was observed in the opinion in that case that the property had come to rest in the State and was enjoying the protection of its laws. But the case at bar, so far as it concerns the oil in tank No. 1, to which I confine my observations, is sharply distinguished from that case. The judgment here takes a step forward which I think ought not to be taken. The oil in that tank had been sold while in Pennsylvania and Ohio to purchasers in other States than Tennessee, before it started in the course of interstate transportation. It was shipped especially in pursuance of such sales. It was in Tennessee only momentarily ("a few days"), for the purpose of repacking and reshipping it, and for no other purpose whatever. The delay was to meet the exigencies of interstate commerce, which arose out of the nature of the transaction. It does not seem to me important, if such be the case, that it would begin the remainder of its interstate journey under a new contract of shipment. It would no more seem to be the subject of state taxation than

a drove of cattle, whose long interstate journey was interrupted, for humane reason, to give them a few days of rest and refreshment. With respect to this oil, no business whatever was done in the State except that which was required to conduct the transaction of interstate commerce begun in another State and to be completed in a third State. The single consideration that the property enjoys in Tennessee the protection of the laws of the State cannot be enough to justify state taxation. If that were so, all property in the course of interstate transportation would be subject to state tax in every State through which it should pass. I conclude that the oil in question was actually in the course of transportation between the States, was delayed in the State of Tennessee only for the purpose of conveniently continuing that transportation, and was, therefore, protected from state taxation by the commerce clause of the Constitution. Coe v. Errol, 116 U. S. 517, 525; Kelley v. Rhoads, 188 U. S. 1. Cases of taxation upon property before it has entered the channels of interstate transportation, or after the transportation has finally ended, seem to me to have no application. In the former class the property is taxable because it has not ceased to be a part of the mass of the property of the State, and in the latter class because it has come to rest as a part of the mass of the property of the State. Between those two points of time it is exempt from the taxing power of the State. In every case where the tax has been sustained there were facts present regarded as essential by the court, which are absent here. The property had either not began its interstate journey, as in Coe v. Erroll, ub. sup., and Diamond Match Company v. Ontonagon, 188 U. S. 82, or it had ended that journey and was held for sale in common with other property in the State, as in Brown v. Houston, 114 U. S. 622; Pittsburg Coal Company v. Bates, 156 U. S. 577, and American Steel & Wire Company v. Speed, ub. sup.

MR. JUSTICE HOLMES Concurs.

209 U.S.

Opinion of the Court.

DOTSON v. MILLIKEN.

ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF

COLUMBIA.

No. 48. Argued March 4, 5, 1908.-Decided March 23, 1908.

A broker employed to sell land subject to a requirement of the purchaser which the vendor declares will be complied with is entitled to his commissions if the sale falls through solely because the vendor's representations are inaccurate.

The fact that the particular portion of a tract of land for which a broker finds a purchaser in accordance with the vendor's offer cannot be identified does not defeat the broker's claim for commissions if the sale falls through entirely for other reasons for which the vendor was exclusively responsible.

27 App. D. C. 500, affirmed.

THE facts are stated in the opinion.

Mr. R. Burnham Moffat and Mr. A. S. Worthington, for plaintiff in error.

Mr. J. J. Darlington for defendant in error.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is an action for a commission of $2.50 an acre on 10,000 acres of coal land belonging to the defendant, the plaintiff in error, for which, although not sold, the defendant in error, the plaintiff, says that he furnished a purchaser, satisfying the terms of the understanding on which he was employed. The errors alleged and now insisted upon are the giving of an instruction requested by the plaintiff and refusing one asked by the defendant. To explain them it will be necessary to give a summary of the evidence, or part of it.

Relations between the parties were opened by a letter from the defendant, written on April 24, 1902, at the request of a

friend of the plaintiff's, enclosing circulars concerning 124,000 acres of coal land in Kentucky. The letter said: "We have arranged with R. R. Companies to build a branch into it and develop the lands," and the circulars also stated that the owners had an understanding with the railroads near the land, by which they were to build branch into the land as soon as the owners were ready to open up mines, etc., with more of the same sort. On April 30 the parties met and the plaintiff, Milliken, told the defendant, Dotson, that he knew the land, and, as was the truth, that the important thing was about the railroad, whether there was any way to get the property to market. Dotson replied that he had an arrangement with Spencer, President of the Southern Railway, to build a road in there at once, that at that time they had their surveyors in there and were locating a line of road, etc. Thereupon it was arranged that Dotson would give $2.50 an acre for every acre Milliken could sell at $20, and that Milliken was to go to work for a purchaser, which Milliken accordingly did.

After a letter on May 2, giving an account of a first interview and an answer dwelling on the great increase of value that would come from the building of railroads at once through the property, Milliken wrote on May 7, saying that he was writing to the two roads to know if they would "build the road in there, as soon as we are ready to begin the development of the property," and that the prospective purchasers "want to know positively about the railroad being built in there, if they go into it." The plaintiff seems to have written as his letter stated, but he testified that an assurance from Dotson would have been satisfactory and was satisfactory when it came. On May 8, to meet the purchasers' doubts, he telegraphed to Dotson: "See Spencer and write me to-night how much development he will require before building road into property," etc. On the same day Dotson replied: "I have already discussed fully with Mr. Spencer the point and am glad to say that Mr. Spencer is willing to build the road into the property without placing any requirements on the property holders

to put in certain sized plants, or any number of coke ovens," with further details. This seemed at the time to satisfy the purchasers. On May 12 Milliken wrote to Dotson that if his coal would make as good coke as the Stonega coal and the Southern would build a branch line into the property, the parties would put their capital in; that it was for Dotson to "substantiate these two points, which I believe you will do;" that he had a letter from Mr. H. Smith, the President of the Louisville and Nashville, declining to build a branch line, but that if Dotson had Spencer safely committed to him they did not care for Smith's road. On the same day Dotson wrote to Spencer, asking for a letter to show, which Spencer answered the next day, declining until he had more definite knowledge and obligation as to improvement, and professing to repeat what he had said, viz., that if the property of the amount previously named should be put into such shape as to warrant the construction of a railroad they would take up and consider favorably a plan. This is thought by the plaintiff to contradict the statements that Dotson had made to him. Spencer testified that there never was any agreement, or more than what just has been stated from his letter, and Dotson's answer, written May 16, confirms the testimony by the absence of any tone of surprise.

ceptive

Dotson testified that he showed Spencer's letter to Milliken. Milliken testified the contrary, and his case was that, having no notice of the correspondence, he was going ahead under Dotson's letter of May 8. On May 29 Dotson wrote as to samples of, al, adding that he understood the Southern Railway Complan ad secured their right of way with one or two exhad that he hoped Spencer would call his men out and keep it or agre "until we get our tracts rounded up." On June oal lands, a rote to Dotson, communicating a very favorabl2.50 for each coal, and saying: "I may wire you by the Chaser at and fones you to come up here to close the deal [fortly thereafter, nai y asked me in particular this afternoon h2, he further represe,, uld be built into this land from Middlesailway Company was VOL. CCIX-16

tim