and William C. Cannon; (3) by Messrs. William D. Guthrie, Lewis R. Conklin, Isidor Kresel, and Bernard Hershkopf.

MR. JUSTICE HOLMES delivered the opinion of the Court.

These are cross petitions based upon a suit brought against the Alien Property Custodian by Guinness and others, doing business under the firm name of Ladenburg, Thalmann & Co., in New York. The facts are not in dispute. A German firm, Joerger and others doing business under the name of Delbrück, Schickler & Co., was indebted to the American firm under an account stated on December 31, 1916, for 1079.35 marks, subject to a setoff of $35.35. The debt was not paid when the war between Germany and the United States began, April 6, 1917. The Alien Property Custodian had taken property of the German firm of a value greater than the debt and the American firm brought this suit in equity to recover what was due to it, as provided by the Trading with the Enemy Act of October 6, 1917, c. 106, § 9; 40 Stat. 411, 419, amended by the Act of June 5, 1920, c. 241; 41 Stat. 977. The only questions raised and argued here are whether interest is to be allowed for the time covered by the war, from April 6, 1917, to July 14, 1919, and at what date the value of the mark is to be estimated in dollars in order to fix the amount of the decree. The District Court held that interest was suspended during the war, 291 Fed. Rep. 768, and that the value of the mark at the time when the debt should have been paid was the proper measure. (This value is fixed as 1712 cents.) 291 Fed. Rep. 769. The decree was affirmed by the Circuit Court of Appeals. 299 Fed. Rep. 538. The Alien Property Custodian in the interest of the German debtors seeks to reverse the latter ruling, in No. 80, and the American firm seeks to reverse the former ruling, in No. 81.

We take up the second question first as the principles that govern it have some bearing upon the matter of interest also. We are of opinion that the Courts below were right in holding that the plaintiffs were entitled to recover the value in dollars that the mark had when the account was stated. The debt was due to an American creditor and was to be paid in the United States. When the contract was broken by a failure to pay, the American firm had a claim here, not for the debt, but, at its option, for damages in dollars. It no longer could be compelled to accept marks. It had a right to say to the debtors "You are too late to perform what you have promised, and we want the dollars to which we have a right by the law here in force. Gould v. Banks, 8 Wend. 562, 567. The event has come to pass upon which your liability becomes absolute as fixed by law." Globe Refining Co. v. Landa Cotton Oil Co., 190 U. S. 540, 543. There is no doubt that this rule prevails in actions for a tort, Preston v. Prather, 137 U. S. 604, and in actions for the failure to deliver merchandise. Hopkins v. Lee, 6 Wheat. 109. The principle is the same in a contract for the payment of marks. The loss for which the plaintiff is entitled to be indemnified is "the loss of what the contractor would have had if the contract had been performed," Chicago, Milwaukee & St. Paul Ry. Co. v. McCaull-Dinsmore Co., 253 U. S. 97, 100; it happens at the moment when the contract is broken, just as it does when a tort is committed, and the plaintiff's claim is for the amount of that loss valued in money at that time. The inconveniences and speculations that would be the result of a different rule have been pointed out in arguments and decisions, and on the other hand the momentary interest of the country of the forum may be in favor of taking the date of the judgment, but the conclusion to which we come seems to us to flow from fundamental theory and not to need other support. It is in accord with the decisions of several State Courts

and Circuit Courts of Appeals as well as of the English House of Lords. Hoppe v. Russo-Asiatic Bank, 235 N. Y. 37. Katcher v. American Express Co., 94 N. J. L. 165, 171. Simonoff v. Granite City National Bank, 279 Ill. 248, 255. Wichita Mill & Electric Co. v. Naamlooze &c. Industrie, 3 Fed. (2d) 931; S. S. Celia v. S. S. Volturno [1921] 2 A. C. 544.

The denial of interest for the time covered by the war seems to us wrong. The cause of action had accrued before the war began, Young v. Godbe, 15 Wall. 562, and after it had accrued the question was no longer one of excuse for not performing a contract, but of the continuance of a liability for damages that had become fixed. The obligation of a contract is subject to implied exceptions, but when a liability is incurred by wrong or default it is absolute. Interest is due as one of its incidentals, and inability to pay it no more excuses from that than it does from the principal amount. Of course while the damages remain unpaid, interest during one time is as necessary as interest during another to effect the indemnification to which the delinquent is held by the law. There are indications that local and momentary interests have led to a diversity of decisions, but here again what we regard as principle has prevailed in later days, Miller v. Robertson, 266 U. S. 243; Hugh Stevenson & Sons, Ltd. v. Aktiengesellschaft für Cartonnagen-Industrie, [1918] A. C. 239, 245; s. c. [1917] 1 K. B. 842, 850. The case of Brown v. Hiatts, 15 Wall. 177, although criticized in the last cited decision, is consistent on its facts with the principle adopted here, since war existed at the time when the cause of action otherwise would have accrued, and it very possibly might be held that war excuses the performance of a contract although it does not impair or diminish a liability already fixed by law. Our decision makes it unnecessary to consider arguments drawn from

Syllabus.

269 U.S.

the Treaty with Germany and the Trading with the

Enemy Act.

No. 80, decree affirmed.

No. 81, decree reversed as to interest.

MR. JUSTICE STONE took no part in this case.

ENRIQUE DEL POZO Y MARCOS ET AL. v. WILSON CYPRESS COMPANY.

APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.

No. 184. Motion submitted October 5, 1925.-Decided November 16, 1925.

1. An appeal from a decree of the Circuit Court of Appeals entered prior to the Jurisdictional Act of February 13, 1925, was not affected by that Act. P. 87.

2. Under Jud. Code §§ 128, 241, a decree of the Circuit Court of Appeals in a case not of a class defined by § 128 as final in that court was reviewable by appeal to this Court if involving $1000, exclusive of costs. Id.

3. Upon a motion to affirm, questions determined on a former appeal of the case, after a full hearing followed by denial of a petition for rehearing, and which were so determined by reaffirming and applying earlier decisions which covered the questions-can not reasonably be regarded as debatable. P. 88.

4. On the former appeal in this case (236 U. S. 635) this Court held, in substance:

(a) The purpose of the Act of May 23, 1828, c. 70, 4 Stat. 284, in confirming the land grant in controversy, was not to create a new right, but to recognize, in fulfilment of treaty obligations, a right conferred by Spain while the land was under her dominion;

(b) As the grant contained a less acreage than a league square, the confirmation by that Act was subject only to a needed survey giving precision to the boundaries of the grant;

(c) When the survey was made, and received the approval of the Surveyor General in 1851, the confirmation was complete and the land was thenceforth effectively separated from the public domain and subject to the taxing power of the State;

(d) The survey did not require the special approval of the Commissioner of the General Land Office; for under the law and practice of that period the approval of the Surveyor General sufficed;

(e) The patent, issued in 1895, was in the nature of a convenient muniment or record of the confirmation already effected by the Act of 1828 and the approved survey, rather than a conveyance speaking from the date of its issue. P. 86.

5. As the record shows that the original plat was approved in 1851, and the patent recites that the description of the land in the patent was taken from the approved field notes of the original survey, a mention in the patent of a descriptive plat and notes "authenticated and approved" by the Surveyor General shortly before its date, obviously refers to a plat and notes made from the approved survey of 1851 to provide a suitable description for the patent, authentication and approval of which by the then Surveyor General amounted to no more than a certificate that they were accurately taken from the earlier survey as shown on the records of his office. P. 88.

6. A claimant under a Spanish grant whose claim was confirmed by an Act of Congress and approved survey was not obliged by the Act of March 3, 1807, c. 46, 2 Stat. 445, to abstain from acts of proprietorship until subsequent issue of a patent. P. 89. 7. When title so passed by confirmation and approved survey, the doctrines of laches and adverse possession became applicable against the claimant; also a local statute of limitations which did not begin to run as to lands derived from the United States, "until the passage of the title " from the Government. P. 89.

8. Concurrent findings of fact of two federal courts below, having substantial support in the evidence, and sustaining defenses of adverse possession and laches, are accepted by this Court. P. 89. 299 Fed. 261, affirmed.

APPEAL from a decree of the Circuit Court of Appeals, which affirmed a decree of the District Court dismissing on the merits a suit brought by the appellants to quiet title to a confirmed land grant in Florida. The decision now reported was made on a motion to affirm the decree appealed from; an alternative motion to dismiss the appeal being overruled. Upon a former appeal, taken by the Cypress Company, this Court reversed a decree which had been rendered in favor of the plaintiffs. See 236 U. S. 635.