by the first, that is to have made a channel of a certain depth, does not impress us. The first contract was for certain work for a certain object, but limited and subject to change as the appropriations might require. The second was for the same on the same plans and specifications, the only difference being in the parties, the price, and the liberty given to the second contractor to dump in deep water, which diminished the cost. In the first contract the Government reserved an absolute right of choice in this regard. Whether the object of the contract was attained is immaterial, so long as the work done towards it was work that the first contractor had agreed to perform.

As little need be said in answer to the argument that there was no enforcible contract for want of certainty and mutuality. The power to change details reserved by the United States did not make the contract any the worse, and there were full provisions for ascertaining a change in compensation where any such change was proper. There was nothing warranting an enlargement of the plan beyond the channel of Beaufort River, or the purpose indicated. The contract estimated the amount of material to be removed, and as there were different prices per yard for earth and rock, this amount was expressly made subject to the appropriations, as without expression would have been implied. See Rev. Stat., § 3733. There was some suggestion at the bar that the contract was not signed by the United States. The answer does not deny it, but by implication admits it. The contract says that it is made by the United States by E. O. Matthews, Chief of the Bureau of Yards and Docks, and it is signed by E. O. Matthews, Chief of the Bureau of Yards and Docks, which is enough. The matter does not seem to us to need discussion at greater length.

Judgment of Circuit Court of Appeals reversed.
Judgment of Circuit Court affirmed.

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Argument for Petitioner.

CUBA RAILROAD COMPANY v. CROSBY.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.

No. 124. Argued December 18, 1911.-Decided January 9, 1912.

In dealing with rudimentary contracts, or torts made or committed abroad, courts may assume a liability to exist if nothing to the contrary appears, but they cannot assume that the rights and liabilities are fixed and measured in the same manner in foreign countries as they are in this.

With rare exceptions, the liabilities of parties to each other are fixed by the law of the territorial jurisdiction within which the wrong is done and the parties are at the time of doing it.

The extension of hospitality of our courts to foreign suitors must not be made a cover for injustice to defendants of whom they may be able to lay hold.

There is no general presumption that the law of Cuba as inherited from Spain and as since modified is the same as the common law. While as between two common-law countries the common law may be presumed to be the same in one as in the other, a statute of one would not be presumed to be the statute of the other.

A trial court of the United States cannot presume that the same obligation rests upon an employer in Cuba as in this country to repair defects in machinery called to his attention, or in case of failure to repair to be deprived of the fellow-servants defense. Such a rule of law, if existent in a foreign jurisdiction, must be proved.

170 Fed. Rep. 369; 95 C. C. A. 539, reversed.

THE facts are stated in the opinion.

Mr. Howard Mansfield for petitioner:

The courts of the United States should not take cognizance of an alleged cause of action for a foreign tort where the rights of the parties under the foreign law cannot be certainly and definitely ascertained, and where

222 U.S.

Argument for Petitioner.

the foreign tribunal is equally available to both parties. Slater v. Mexican National R. R. Co., 194 U. S. 120, 129.

The rule is that the lex loci delicti determines whether or not there is a cause of action. Machado v. Fontes (1897), L. R. 2 Q. B. 231; Phillips v. Eyre (1876), L. R. 6 Q. B. 1; Coyne v. Southern Pac. Co. (1907), 155 Fed. Rep. 683; Minor's Conflict of Laws, § 202; Dicey on the Conflict of Laws; Moore's Notes, 659, 667; Cooley on Torts, 3d ed., 900; Mexican Central Ry. Co. v. Chantry, 136 Fed. Rep. 316; Mexican Ceni. Ry. Co. v. Eckman, 205 U. S. 538.

The last two cases dispose of the dictum in Scott v. Lord Seymour, 1 H. & C. 219, relied on by the Circuit Court, and by the majority of the Circuit Court of Appeals.

Federal courts will not take cognizance of a common tort which arose in a civil law jurisdiction, unless the acts complained of gave rise to an obligation in the jurisdiction where the alleged cause of action arose.

There can be no presumption that the common law extends to Cuba.

In the case of a country not settled by England or English colonists there is no presumption that the common law prevails there or that rights given by the common law exist in such country; and our courts must take judicial notice that Cuba was not settled by England or her colonists, but that it formed part of the Spanish possessions and that the civil law obtains there, and that that law is wholly statutory. Davison v. Gibson, 56 Fed. Rep. 443; Savage v. O'Neil, 44 N. Y. 298; Aslanian v. Dostumian, 174 Massachusetts, 328; Mex. Cent. Ry. Co., Ltd., v. Chantry, 136 Fed. Rep. 316.

There can be no presumption, nor any ruling in the absence of pleading or proof, that the act alleged gave rise to a cause of action in the foreign country. Evey v. Mexican Cent. R. R. Co., 81 Fed. Rep. 294; Slater v. Mexican Natl. R. R. Co., 194 U. S. 120; Stewart v. Baltimore &

222 U.S.

Argument for Petitioner.

Ohio R. R. Co., 168 U. S. 445; Atchison &c. Ry. Co. v. Sowers, 213 U. S. 55; Am. Banana Co. v. United Fruit Co., 213 U. S. 347; Goodyear Tire & Rubber Co. v. Rubber Tire Wheel Co. (1908), 164 Fed. Rep. 869; Farrell v. Farrell, 142 App. Div. 605; McLeod v. Railroad Company, 58 Vermont, 727.

The plaintiff Crosby, having alleged a transitory action arising in a civil law country, but failing to plead or prove that the acts complained of gave rise to any obligatio, the judgments below were clearly erroneous. Mexican Cent. R. R. Co. v. Eckman, 205 U. S: 538; 156 Fed. Rep. 1023; Chouquette v. Mexican Cent. R. R. Co., 156 Fed. Rep. 1022; Slater v. Mex. Natl. R. R. Co., 194 U. S. 120.

Where the act complained of happened in a foreign jurisdiction and a right of action is alleged to have arisen therefrom, the law of the forum and the remedy of the forum must in some degree resemble the law of the wrong and its remedy. Northern Pacific R. R. Co. v. Babcock, 154 U. S. 190; Herrick v. Minn. & St. L. Ry. Co., 31 Minnesota, 11; Parrot v. Mexican Central Ry. Co., 207 Massachusetts, 184; Story on Conflict of Laws, 7th ed., § 637.

The precise presumptions requisite to sustain the judgments below have no proper legal basis. Andrecsik v. N. J. Tube Co., 73'N. J. Law, 664; District of Columbia v. McElligott, 117 U. S. 621.

The rule applied by the courts below that the plaintiff was relieved from the assumption of risk of injury due to the defective machinery after he had noticed the defect and received from the superintendent a promise to remedy the defect, is not applicable, since that rule can properly be applied only to cases where the servant is necessarily exposed to the dangers of that particular machinery. Roccia v. Black Diamond Mining Co., 121 Fed. Rep. 451 (1903); Showalter v. Fairbanks Co., 60 N. W. Rep. 257; Cincinnati &c. v. Robertson, 139 Fed. Rep. 519; Crookston Lumber Co. v. Boutin, 149 Fed. Rep. 680; Cooperage Co. v. Headrick, 159 Fed. Rep. 680.

Argument for Respondent.

222 U.S.

Mr. Benjamin M. Weinberg, with whom Mr. Edwin L. Kalish was on the brief, for respondent:

If the law of the State or country in which the injury occurred is opposed to the public policy of the State or country in which the action is brought, that law will not be followed. Scott v. Seymour, 1 H. & C. 219; Morisette v. Can. Pac. Ry. Co., 76 Vermont, 267; Walsh v. N. Y. & N. E. Ry. Co., 160 Massachusetts, 571; Whitford v. Panama R. R. Co., 25 N. Y. 465.

It was immaterial that the plaintiff failed to prove his right of recovery under the Cuban law, as the court will presume, until otherwise proven, that the law of the place where the injury was inflicted, if such injury is predicated on the invasion of a generally known right, is the same as that prevailing in the trial forum. Jones on Evidence, 2d ed., § 84; Whart. Conflict Laws, §§ 778, 1531; 13 Am. & Eng. Enc. Law, 2d ed. 1060; 9 Enc. Pl. and Pr. 543; Monroe v. Douglass, 5 N. Y. 447; Lloyd v. Guibert, L. R. 1 Q. B. 113, 129; Savage v. O'Neil, 44 N. Y. 298; Sokel v. People, 212 Illinois, 238; The Scotland, 105 U. S. 24. See also Brown v. Gracey, Dow. and Ry. N. P. 41; 16 Eng. Com. Law, 462n.; Linton v. Moorehead, 209 Pa. St. 646; Scott v. Lord Seymour, 1 H. & C. 219; The Halley, L. R. 2 P. C. 193; Whitford v. Panama R. R. Co., 25 N. Y. 465; Hynes v. McDermott, 82 N. Y. 41; Mackey v. Mexican Central R. R. Co., 78 N. Y. Supp. 966; Pratt v. Roman Catholic Orph. Asy., 20 App. Div. 352; S. C., affirmed, 166 N. Y. 592; Carpenter v. Grand Trunk R. R. Co., 72 Maine, 388; Woodrow v. O'Connor, 28 Vermont, 776; McLeod v. Conn. R. R. Co., 58 Vermont, 727; State v. Morrill, 68 Vermont, 60; Loaziza v. Superior Court, 85 California, 11; Wickersham v. Johnson, 104 California, 407; Chase v. Alliance Ins. Co., 9 Allen, 311; Aslanian v. Dostumian, 174 Massachusetts, 328; Mittenhal v. Mascagni, 183 Massachusetts, 19; Dainese v. Hale, 91 U. S. 13; Davison v. Gibson, 56 Fed. Rep. 443; Mexican Cent. R. R. Co.