Foss-Schneider Brewing Company, evidenced by the following: "Cincinnati, isting, the details of which you knew, and I now look upon you for your In June or July, 1885, Burger sued Bullock & Co. for the commission on the sale of the other two cars under the Burger contract, and garnished money of Bullock & Co. in the hands of Foss-Schneider Brewing Company, and recovered before a magistrate a judgment, which was deducted by the Foss-Schneider Brewing Company from their payment to Bullock & Co. In September, Bullock & Co. asked the brewing company whether they needed any more rice. They replied that they did not. A similar request was made in October, to which a similar answer was given, and the same question and response occurred on November 7th. Upon November 10th Bullock & Co. sent a telegram to Mr. Douglass, who had been their attorney in the garnishee suit, as follows: "Shall we ship Foss-Schneider Brewing Company, or Burger?" To which Douglass, after seeing Overbeck, telegraphed: "Ship Foss-Schneider Brewing Company." Accordingly, on November 14th, Bullock & Co. shipped two car loads of rice to Foss-Schneider Brewing Company. On November 14, 1885, Bullock & Co. wrote as follows: "The Foss-Schneider Brewing Company: We take pleasure in handing you in this invoice and bill of lading for two car loads best broken rice, November 10th, cash, $2,411.44, less freight, as per order received through Mr. Louis Burger. Trust ing this lot will give the usual satisfaction, we remain." To which the brewing company responded by telegram of November 16th: "Bill lading two cars rice received. Will not accept same. Never ordered them through Burger." Thereupon, Bullock & Co. telegraphed their attorney, on the same day, as follows: "Foss & Schneider telegraph us they won't receive the two car loads shipped them. What shall we do?" To which their attorney responded, after seeing Mr. Overbeck: "Think can get Foss-Schneider to take rice, if they get four months' time. I advise acceptance." To the Foss-Schneider Brewing Company, Bullock & Co. telegraphed as follows, November 16, 1885: "You deducted from your remittance commission on these very two car loads just shipped. Our attorney, Howard Douglass, Cincinnati, telegraphed us to ship, and think Burger's attorney instructed shipment. Settle this matter with Burger, who ordered for you." November 21st, Bullock & Co., after repeating the correspondence by telegram, say: "We have been so very busy getting what rice we could off, as freight advanced 40 per cent. on the 18th, and yesterday the new rate of duty took ef fect, that is, 24 cents pound on the same size grain we shipped you,an advance of 185 per 100 pounds; the same duty as whole rice. We wanted to protect ourselves, and have shipped over seven thousand bags this week. We note that you say you never ordered this from Burger, and yet this is just what Burger brought his sham suit against us for, and you paid the money into court on the very two cars. Since your telegram, we have another one from Howard Douglass, who says he thinks you will take, if we give you four months' time, to which we replied that we were always willing to accommodate you; and if you would give us your four-months' note, adding interest from receipt of goods, we would accept it, and, as Burger was to have a good commission out of this, that you make him pay the interest that you add to the note." To which letter the brewing company responded on the 25th November: "Yours of the 21st received. Mr. Howard Douglass nor anybody else had any right to think that we would accept the rice if you gave us four months' time. None ever approached us on this subject, and consequently we never intimated anything of the kind. As already informed you, we will not accept the rice under any terms. Hoping that this unpleasantness will soon cease, we are, etc." * During this correspondence, the two car loads of rice shipped by Bullock & Co. reached Cincinnati, and were weighed for the defendant,-one car upon November 21, 1885, and the other November 28, 1885,-and the freight was paid by the defendant upon the same days. The rice was hauled to the defendant's brewery by the brewery wagons. The defendant's agents supposed that this rice was rice ordered and shipped from Kuntz & Co., of New York. The Kuntz rice arrived on the 5th of December, at which time the mistake was discovered. The rice of Bullock & Co. was stored in the brewery warehouse until the 2d of January, 1886, when Bullock & Co. wrote the brewing company the following: "Our invoice November 10th, $2,411.44, is now past due. Will you, on receipt of this, kindly send us exchange for the above amount, less freight? The freight bills, please send us. Should you want any extension of time, we would be very glad to accommodate you; you adding interest after thirty days, and sending us your note for such time as will suit. you." To which the defendant replied, January 4, 1885: "Yours of the 2nd inst. received. We beg you to understand that we do not owe you anything. The rice you shipped here we will not accept, and, if Mr. Louis Burger ordered same, you must look to him." To which Bullock & Co. replied, January 6th: "We have your favor of the 4th all noted. We are a little staggered at your remark that you do not owe us anything, and will not accept the rice we shipped you, when we know that you have accepted the rice, and had one car since November 21st, the other car November 27th, and paid the freight on both cars November 25th. You have had this rice now, one car 46 days, the other car 40 days,-an average of 43 days. This should now be settled, and must confirm our letter January 2nd, requesting exchange for amount due us, or, if you want some longer time, your note adding interest after 30 days. The interest, and any difference in price, you must look to Mr. Burger for." To which the brewing company responded, January 9, 1886: "Yours of the 6th received. We again repeat that we do not owe you anything. You also do not know that we accepted the rice, for whoever informed you so knows nothing about it. The rice you shipped is stored, and we will not use one grain of it. When the proper time comes, we will prove how, in mistake, we paid freight on the rice you shipped after having notified the railroad company that we would not accept same, since, at the same time, there was a shipment of rice in the depot for us, which we had bought from some other house. Let this end all unnecessary correspondence." There was a long subsequent correspondence, which throws no light upon the case, except that it states the claims of the parties. Overbeck, the president of the brewing company, was ill, and not able to be present at the trial. By agreement, a statement of his was introduced as a deposition, in which he said: "On November 16, 1885, Bullock & Co. shipped us the two remaining cars rice countermanded with Burger Bros., whereupon, we telegraphed Bullock & Co. that we would not accept them, as we had never ordered them through Burger. On or about November 25th. two cars rice arrived in the depot here, at the same time together with two cars rice which we bought from Chas. Kuntz & Co., New York; and by mistake our secretary at the time, Mr. Chas. Klein, paid the freight on the two cars from Bullock & Co., instead of those from Chas. Kuntz & Co., and in that way the two cars from Bullock & Co. were taken into our house by mistake. But of all of this we notified Bullock & Co. at once by letter, stating the rice was stored at their expense, and that we refused acceptance of same." Mr. Bullock testified that the letter of January 9th, received on January 12th, was the first letter written them by the brewing company, in which they had been notified that the rice had been received under mistake. The market price of rice in Cincinnati from November, 1884, to November, 1885, was affected by the varying freights from New York to Cincinnati. There was a decline in the spring of 1885 of about $70 a car. There was an advance early in November back to the March and April rates of $60 or $70 a car, and a still further advance, later in the same month, of $50 or $60 a car. At the close of the evidence the court directed the jury to return a verdict for the plaintiffs, for the amount claimed in the petition, with interest. Dawson & Overbeck and Follett & Kelley, for plaintiff in error. Wilby & Wald, for defendants in error. Before BROWN, Circuit Justice, and TAFT and LURTON, Circuit Judges. TAFT, Circuit Judge, (after stating the facts.) The plea of the statutes of limitation was properly held bad. The argument on behalf of the defendant below was that, if the Burger contract was in force against the brewing company, that company had repudiated it early in the year 1885, so that Bullock & Co. might have brought an action for its breach in January or February of that year, more than six years before the filing of the petition. The fallacy of this argument is that the action is here for goods actually sold and delivered to the brewing company. Such an action accrued upon the delivery of the goods, and not before. It is true that, where a contracting party gives notice of his intention not to comply with the obligation of his contract, the other contracting party may accept this as an anticipatory breach of the contract, and sue for damages without waiting until the time mentioned for the completion and fulfillment of the contract by its terms; but, in order to enable the latter to sue on such an anticipatory breach, he must accept it as such, and consider the contract at an end. If he elects to consider the con FEDERAL REPORTER, vol. 59. tract still in force, he cannot recover thereafter without performing all the conditions of the contract by him to be performed. principles are well settled, and there are decisions by the supreme These court of the United States which leave no doubt upon the subject. Rolling-Mill v. Rhodes, 121 U. S. 255, 264, 7 Sup. Ct. 882; Dingley v. Oler, 117 U. S. 490, 6 Sup. Ct. 850; Smoot's Case, 15 Wall. 36; Johnstone v. Milling, 16 Q. B. Div. 467; Elsas v. Meyer, 21 Wkly. Cin. Law. Bul. 346; Leake, Cont. 872, and cases there cited. lock & Co. did not elect to treat the attempted cancellation by As BulBurger and the brewing company of the Burger contract as a repudiation of it, no right of action whatever accrued to Bullock & Co. until they had delivered the rice thereunder. The second and important question for our consideration is whether, on the undisputed facts of the case, there was in law an acceptance by the brewing company of the two car loads of rice, for the price of which recovery is sought. We have no difficulty in reaching the conclusion that the contract of November, 1884, made through Burger, had been abrogated by the subsequent conduct of the parties. Burger had notified Bullock & Co. in several letters in January of 1885 that the contract made through him had been canceled by the brewing company because the condition of that contract had been that the price named therein was the bottom price, whereas, but a few weeks subsequent, rice was sold by Bullock & Co. directly to the brewing company at five cents per hundred less. The right to cancel this contract was denied by Bullock & Co. in their correspondence with Burger. brewing company notified Bullock & Co. that it had countermanded But by letter of January 6th the and canceled all orders through Burger, to which, in the letter of January 10th, no answer was made by Bullock & Co. this, under the Burger contract of November, 1884, of the four cars, More than the first was to be delivered the first week in December, and the others were to follow when ordered, about two weeks apart. is quite clear in our minds that the brewing company insisted, and It Bullock & Co. acquiesced in the view, that the contract of December 20th, by which five cars of rice were sold with the option of 10 cars more at $2.80, was a substitute for so much of the contract through Burger as remained unperformed; and we feel quite certain that, had Burger not collected his commission through legal proceedings by garnishment from money of Bullock & Co. in the hands of the brewing company, Bullock & Co. would not have insisted upon delivering the other two cars under the Burger contract. Co. assumed that the surrender of Burger's commissions to him by Bullock & the brewing company had been with the acquiescence of the brewing company, though in the form of legal proceedings. Their position, evidently, was that the brewing company had recognized the existence of the Burger contract by paying Burger's commissions, and charging them to Bullock & Co. in Cincinnati who had charge of this garnishment proceedings, they Communicating with their lawyer were advised to ship the two carloads to the brewing company, which they did. Up to the time that the rice was received at Cincinnati, we are of the opinion that there was no obligation on the part of the brewing company to accept it. It is also clear that the company's receipt of the rice, and the storing it in its warehouse, were under a mistake. It is just as clear, however, that by the 5th of December, or earlier, the company knew that the rice had been taken into the company's warehouse, and was then stored there. These facts, it knew, would be communicated through the agents of the railroad company to Bullock & Co.; and, unexplained, they constituted a clear acceptance of the rice, rendering the brewing company liable for it, under the contract upon which Bullock & Co. claimed to have the right to deliver the rice, namely, the Burger contract of November, 1884, at the price of $2.85 per hundred. The company was under an obligation, if it did not intend to accept the rice, to notify Bullock & Co. of the mistake within a reasonable time. What was a reasonable time, under the circumstances? There was no excuse for delay. The facts were all known to the company. The company waited from December 5th until January 9th, when it wrote the letter, which did not reach Bullock & Co. until January 12th, in which Bullock & Co. were notified that the goods had been received under a mistake, and were held subject to their order. In the letter of January 4th the brewing company did not explain its acts, but simply asserted that it had not accepted the rice. For at least a month, then, it knowingly kept the rice in its storehouse without advising Bullock & Co. that it did not intend to receive and accept it, after it had acted with respect to the rice as only an owner could. It is true that the letter of November 25th, refusing to accept the rice, was written after one car load had been received in the storehouse; but it was written upon the same day upon which the freight was paid, and was written before the brewing company was aware that Bullock & Co.'s rice had been received. The brewing company had once before repudiated a contract, and then complied with it, so that its acceptance of the rice after its letter of November 25th was not surprising to Bullock & Co. The price of rice was fluctuat ing, and was affected by the change of freight rates between the seaboard and Cincinnati, and of this fact the brewing company had been advised by Bullock & Co. It was important, therefore, if the rice was to be rejected by the brewing company, that Bullock & Co. should know it at once. The brewing company could not lie by for a month, with the rice in its storehouse, after it apparently had accepted the rice, and then claim that the acceptance had been under a misapprehension of facts known to it for a month. It is well settled that receipt of goods will become an acceptance of them, if the right of rejection is not exercised within a reasonable time. Benj. Sales, (Corbin's Ed.) p. 916, § 1051, and cases cited. To the knowledge of the brewing company, the rice was delivered to it by Bullock & Co. under the claim of right to do so by virtue of the contract with Burger of November, 1884. Acceptance of it, therefore, or conduct equivalent to acceptance of it, implies, not only an agreement to pay for the rice, but to pay for it in accordance with the contract under which it was avowedly delivered. In Manufacturing Co. v. Hayes, (Pa. Sup.) 26 Atl. 6, a consignee took goods consigned to him out of the possession of the carrier, and |