grant that motion, and the defendant excepted to such refusal; and that he also excepted to the decision and finding of the court in favor of the plaintiffs. The opinion of the district judge is reported in 28 Fed. Rep. 607. It states that the only defense was that the bond was not given voluntarily, and that the office was not one created or authorized by statute; that, as Howgate was not bound, as an officer of the army, to accept the appointment of property and disbursing officer in the signal corps and to give the bond, his assignment to duty, in the order of July 25, 1876, must be deemed to have been an assignment upon his own application, or upon his acquiescence; that a failure to give a bond could not have subjected him to discipline or loss of rank in the army; that the bond must, therefore, be deemed to have been given voluntarily by him and his sureties; and that, the office and the duties assigned to the officer, and covered by the bond, being duly authorized by law, the defendant was liable. In May, 1887, the defendant sued out a writ of error from the circuit court of the United States for the southern district of New York, to review the judgment. The case was decided by Judge WALLACE, in that court, in November, 1887, and his opinion is reported in 32 Fed. Rep. 890. He held that the bond was a voluntary one; that, although it should be assumed that Howgate was not an officer, and did not hold an office, while the bond was in force, still the bond must be treated as a contract to secure the United States against loss from the unfaithfulness of an emplove in the signal service, who was about to be intrusted with public money in the course of his employment; and that the defendant was liable on the bond. The judgment of the district court was afirmed, with costs, and afterwards a motion for a reargument was denied. The defendant then sued out a writ of error from this court to review the judgment of the circuit court, and the case has been argued here on the merits.

But a preliminary question arises, which, though not alluded to in the brief of either party, must be taken notice of by this court. The case was not tried in the district court by a jury or on an agreed statement of facts. The court "heard the testimony of the witnesses." The stipulation which was put in evidence extended only to two specific matters. The important fact relied upon in the opinions of both the district judge and the circuit judge, that the bond was given voluntarily, is found as a fact by the district court. The bill of exceptions states that the defendant moved the court to direct a verdict for him, on the ground that, as a matter of law, no action could be maintained by the United States upon the bond proved. It is strongly argued in the brief for the plaintiff in error here that the bond was not a voluntary one, because Howgate was placed under the orders of the chief signal officer, and, in effect, ordered to give a bond, and would have been liable to a court-martial if he had refused to obey his superior officer. The finding by the district court of the fact that the

bond was given voluntarily may have depended upon the "testimony of the witnesses," referred to in the findings, as may also the statement in the findings that Howgate voluntarily accepted his assignment to duty as property and disbursing officer. The question as to the liability of the defendant arises on the bill of ex. ceptions, because it arises out of the refusal to grant the motion to direct a verdict for the defendant, which must be considered as a motion to find for the defendant. There was no statute in existence which provided for the trial in the district court by the court without a jury. It is provided by section 566 of the Revised Statutes that "the trial of issues of fact in the district courts in all causes except cases in equity and cases of admiralty and maritime jurisdiction, and except as otherwise provided in proceeding in bankruptcy, shall be by jury." The provision for waiving a jury, in section 649 of the Revised Statutes, applies only to the circuit court, as does also a special provision of section 700, in regard to the review by this court of a case tried in the circuit court by the court without a jury. There are no similar provisions in regard to trials without a jury in the district courts to those found in sections 649 and 700 in respect to circuit courts. It is true that in the district court, in a suit otherwise triable by a jury, the parties may, by stipulation, waive a jury, and agree on a statement of facts, and submit the case to the court thereon for its decision as to the law. Henderson's Distilled Spirits, 14 Wall. 44, 53. That might have been done also in the circuit court, without any statute to that effect. Campbell v. Boyreau, 21 How. 223, 226, 227. This, however, is not the finding of issues of fact by the court upon the evidence. The provisions of sections 649 and 700 relate wholly to such finding, and not at all to the action of the court upon an agreed statement of facts. In the present case the circuit court could not properly consider any of the matters raised by the bill of exceptions; nor can this court do so. All that the circuit court could do was to affirm the judgment of the district court, and all that this court can do is to affirm the judgment of the circuit court. The circuit court had jurisdiction by its writ of error, and this court has jurisdiction in the present case. * The authority* given to the circuit court by section 633 of the Revised Statutes is merely to re-exam. ine the final judgments of a district court in civil actions. The same authority was given to this court in respect to judgments of the circuit court before the act of March 3, 1865, (13 St. 501, § 4,) the provisions of which are now embodied in sections 649 and 700 of the Revised Statutes. The extent of that authority was settled by the case of Campbell v. Boyreau, before cited. That was a suit at law in a circuit court. The whole case having been submitted to the court upon the trial, and a jury having been expressly waived by agreement of parties, evidence was offered on both sides. The court found the facts, and then decided the questions of law arising upon such facts, and gave judgment for the plaintiff. The defendants sued ont a

writ of error from this court. There were In the record bills of exceptions which showed exceptions by the defendants to the admissibility of evidence, and exceptions to the construction and legal effect which the court gave to certain instruments in writing. But this court held that, in the mode of proceeding which the parties had seen proper to adopt, none of the questions, whether of fact or of law, decided by the circuit court, could be re-examined by this court upon a writ of error. The opinion of this court, delivered by Chief Justice TANEY, cited, to that effect, Guild v. Frontin, 18 How. 135; Suydam v. Williamson, 20 How. 427, 432; and Kelsey v. Forsyth, 21 How. 85,-and said: "The finding of issues of fact by the court upon the evidence is altogether unknown to a common-law court, and cannot be recognized as a judicial act. Such questions are exclusively within the province of the jury; and if, by agreement of parties, the questions of fact in dispute are submitted for decision to the judge upon the evidence, he does not exercise judicial authority in deciding, but acts rather in the character of an arbitrator; and this court therefore cannot regard the facts so found as judicially determined in the court below, nor examine the questions of law as if those facts had been conclusively determined by a jury or settled by the admission of the parties. Nor can any exception be taken to an opinion of the court upon the admission or rejection of testimony, or upon any other question of law which may grow out of the evidence, unless a jury was actually impaneled, and the exception reserved while they were still at the bar. The statute which gives the exception in a trial at common law gives it only in such cases; and, as this court cannot regard the facts found by the judge as having been judicially determined in the court below, there are no facts before us upon which questions of law may legally and judicially have arisen in the inferior court, and no questions, therefore, open to our revision as an appellate tribunal. Consequently, as the circuit court had jurisdiction of the sub. ject-matter and the parties, and there is no question of law or fact open to our re-examination, its judgment must be pre. sumed to be right, and on that ground only affirmed." Various decisions in the circuit courts have followed and applied this ruling to writs of error from them to the district courts. U. S. v. Fifteen Hogsheads, 5 Blatchf. 106; Blair v. Allen, 3 Dill. 101; Wear v. Mayer, 2 McCrary, 172;1 Town of Lyons v. Bank, 19 Blatchf. 279, 8 Fed. Rep. 369; Doty v. Jewett, 22 Blatchf. 65, 19 Fed. Rep. 337. The same principles were applied by this court in Flanders v. Tweed, 9 Wall. 425; Kearney v. Case, 12 Wall. 275; Gilman v. Telegraph Co., 91 U. S. 603, 614; Supervisors v. Kennicott, 103 U. S. 554, 556; Bond v. Dustin, 112 U. S. 604, 606, 5 Sup. Ct. Rep. 296; Paine v. Railroad Co., 118 U.S. 152, 6 Sup. Ct. Rep. 1019; Andes v. Slauson, 130 U. S. 435. 438, 439, 9 Sup. Ct. Rep. 573; Glenn v. Fant, 134 U. S. 898, 400, 401, 10 Sup. Ct. Rep. 583. Without

16 Fed. Rep. 658.

considering any questions on the merits, the judgment of the circuit court is there fore affirmed. (141 U. S. 627) WILLCOX & GIBBS SEWING-MACH. Co. v.

EWING.

(November 16, 1891.)

APPOINTMENT OF AGENT-REVOCATION.

1. A sewing-machine company agreed with one E. to appoint him "exclusive vendor," within a defined territory, of its machines, which it contracted to sell him at a specified discount, reserving the right to readjust the discount in case of a change in retail prices and cost of manufacture. E. was required to give his time, attention, and ability primarily to forwarding the interests of the company, and forbidden to deal in machines in any wise infringing on its own. He was also required to maintain the company's retail prices in all sales made by him. It was provided that, if for any reason the connection should be terminated, the company should have the right to repurchase such machines as it chose, at the same prices that it had sold them to E., and that "the appointment or agency" should not be transferable by E. without the written consent of the company. Held, that the effect of this agreement was to make E. agent for the sale of the company's machines in the territory specified.

2. There is nothing in the agreement to take it out of the rule that the company may at its pleas ure revoke the agency on reasonable notice to E., for a provision therein that "violation of the spirit of this agreement shall be sufficient cause for its abrogation" is not equivalent to a provision that it shall continue in force until it is revoked for sufficient cause.

In error to the circuit court of the United States for the eastern district of Pennsylvania. Reversed.

Action by Daniel S. Ewing against the Willcox & Gibbs Sewing-Machine Company for breach of contract. There was judgment for plaintiff on the verdict of a jury, and defendant brings error.

The facts of the case fully appear in the following statement by Mr. Justice HAR

LAN:

This writ of error brings up for review a judgment based upon a verdict for $15,000 as the damages which a jury found "were sustained by the defendant in error, Ewing, on account of an alleged breach of a written contract between him and the Willcox & Gibbs Sewing-Machine Company, the plaintiff in error, of date October 15, 1874. The case depends upon the construction of that contract.

On the 16th of May, 1867, the parties entered into a written agreement reciting that the company's "agency" for Philadelphia and vicinity had been conducted by Ewing, and that a settlement of accounts had been made whereby the assets of such agency had been transferred to him. In view of that settlement, and to secure the interests of both parties, it was agreed, for considerations mutually satisfactory, that the company should furnish Ewing such Willcox & Gibbs sewing-machines as he might order, at a discount of 40 per cent. from its list price, so long as the list remained unchanged, and $3 per machine in addition to that 40 per cent.; that whenever the price was changed due notice was to be given Ewing, and a discount made upon the basis of the then cost of a machine to the com

pany and its then retail price, which should bear the same proportion that the above discount and $3 per machine bore to such cost and retail price; and that parts of and attachments to the machines should be furnished at a discount of 40 per cent., and cabinet work, needles, and any attachments that cost the company more than 60 per cent. of their retail price, at net cost. In consideration of the premises Ewing agreed to continue the business then established in Philadelphia of the sale of these sewing-machines, and, in good faith, to devote his entire time and energy to its advancement and improvement, and to the increase of the sale of the machines, us fully and energetically as he had done the previous year; and so long as he faithfully did so, and in good faith kept at least the sum of $25,000 actively employed therein, the company “agreed to continue, and in equal good faith carry out, all the provisions" of the agreement.

The company agreed to convey to Ewing, by proper writing, the lease of the property in Philadelphia in which the business was then carried on, to be used for the purposes stated in the contract. In consideration of the premises, and so long as Ewing faithfully performed the agreement on his part, he was to have the exclusive sale of the Willcox & Gibbs sewing-machine, its attachments and parts, in certain defined portions of Pennsylvania, New Jersey, West Virginia, and Ohio; the company reserving the right to sell their machines and accessories at their retail prices only to go into such territory. It was also provided that" the agency, or, in other words, the interest in the Willcox & Gibbs sewing-machine business" conveyed to Ewing, was not to be sold or assigned by him without the company's consent, but such consent was to be given if the party was acceptable to it.

On the day of the execution of the above agreement the company gave this receipt: "Received from Danie! S. Ewing, of Philadelphia, twenty-five thousand three hundred and ninety-eight 48-100 dollars, which is the balance due this company from the Philadelphia office to the 15th inst., the payment of which by the said D. S. Ewing transfers to him all our interest in the stock, fixtures, book ac., etc., of said office."

Under the date of October 15, 1874, the parties signed a memorandum, in which it was stipulated that a new agreement should be entered into between them containing certain specified terms, "the making of which it is hereby understood shall nullify all former contracts and agreements made prior" to that date. This writing closed with these words: "Above is substantially our mutual understanding of what the new contract is to be." On the same day the new contract-the one in suit-was reduced to writing and signed. It does not vary from the memorandum of the same date in any respect material to the present controversy. As the case depends upon the construction of the last agreement, it is given in full, as follows:

"This agreement, made and entered into

*630

this fifteenth day of October, one thousand eight hundred and seventy-four, by and between the Willcox and Gibbs Sewing-Machine Company, a corporation duly organized under the laws of the state of New York, of the first part, and Daniel S. Ewing, of the city of Philadelphia, Penn., of the second part, witnesseth: "The first party hereby appoints, subject to conditions hereinafter expressed, the second party its exclusive vendor for its sewing-machines, parts, and attachments, in and for the following-named territory, to-wit, the city of Philadelphia, Pa., and the adjacent country lying within a radius of ten miles from the city-hall of said city. The second party hereby accepts said appointment. The first party will sell for the present to second party its sewing-machines and parts thereof at 60 per cent. discount from its present New York retail price list, and its needles, attachments, silk, and cotton at its low. est wholesale rates. In the event of a change (the liberty to effect which is not herein intended to be restricted) in retail prices or of a general revision of discounts by first party, the second party is to he as favorably considered then in the readjusting and fixing of discount rates to him as is extended to him on present basis of prices. All bills owing from second to first party shall be paid in cash 30 days from date of same. The first party will not knowingly supply its goods at a discount to go within the limits of territory hereby assigned; but the first party reserves the right always to sell its sewingmachines, parts, and accessories, at full retail rates, to go anywhere. The established retail prices of first party are to be maintained for retail trade, and the sec. ond party is bound to sustain them, and will bind all subvendors or agents of his to sustain said established retail prices. Second party will be allowed to fill orders from any locality at full list rates, but trade must not be solicited by his connivance or consent in the territory of other agents, and discounts or any equivalent device therefor must not be allowed in any form on articles herein specified, permitted to go out of his own territory. Machines or parts, needles or attachments, counterfeiting, infringing, or in any degree trespassing upon ours, nor in any effect trading upon our name, must not be dealt in nor countenanced by second party, but it is hereby agreed that his time, attention, and abilities must primarily be devoted to the forwarding of the interest of the party of the first part. If, for any reason, at any time the connection hereby formed, shall cease, the first party shall have the right to buy back of its goods sold to sec-* ond party all such goods as first party may select, first party to pay therefor same prices as charged second party.

"Second party agrees to purchase from first party during the year 1875 at least $20,000, net, worth of machines, parts, and accessories, to be taken in equal monthly parts, and to be paid for as stated herein. Violation of the spirit of this agreement shall be sufficient cause for its abrogation. Permission is granted second party to trade in all former territory occupied

by him until such time as first party shall form other connections for occupying the territory not contained in that designated therein as belonging to second party.

"And it is agreed and understood that this appointment or agency is not salable or transferable by second party without obtaining the written consent of first party, but such consent is to be given providing the purchaser or other person is acceptable to said first party. First party consents to renew and extend second party's note of $10,000, maturing January 23-26, 1875, for one year from said date, without interest, upon consideration of this agreement alone. All contracts or agreements made prior to the date first written above are hereby nullified and satisfied."

Subsequently, February 15, 1877, Ewing executed the following receipt, which was indorsed on the contract: "Received, New York, Feb'y 15, 1877, the sum of four hundred and twenty 52-100 dollars, making the discount up to 55 per cent. on all goods received by me since the revision of discounts in August, 1875, same amount being in full for all claims or demands for arrears of discounts, allowances, or any other claims I may have up to date hereof. In consideration whereof I also now confirm the within contract, admitting the company's right to revise discounts or prices as in its judgment it may deem proper and just, in conformity with the within contract. D. S. EWING."

The parties coninued to act under the agreement of 1874 until the latter part of 1879. On the 10th day of October of the latter year the company notified Ewing of their purpose to abrogate their agreement at the expiration of 60 days from that date, saying: "In the mean time, the company will be ready and willing to take off your hands the store now occupied by you, and they will purchase, if you desire to sell, the fixtures contained in the store at a just valuation. They will also purchase all stock which you have on hand which has been obtained from the said company, in accordance with the terms of their contract. Should you be desirous of terminating the said agreement at an earlier period than the time herein designated, the company will join with you in an agreement for such earlier termination of the contract." In reply to this notice, Ewing wrote to the company: "I do not accept notice for the abrogation of the contract existing between us, for the reason that I deny your right thus, or by any arbitrary process, to determine said contract. Should you wish to open negotiations for the purchase of any thing, right, or privilege which I hold, that may be of value to you, I shall be pleased to receive communications bearing upon the subject."

At the trial of the present action, brought to recover damages for breach by the company of the contract of 1874, Ewing introduced the agreement of 1867, and gave evidence tending to show the value of the business in that and succeeding years, his faithful performance of the contract, and the damages he had sustained by reason of the alleged breach. |

To the introduction of that evidence the company objected, but the objection was overruled, and an exception taken. The defendant did not introduce any proof, but insisted at the trial, and insists here, that it appeared from the evidence that Ewing, prior to the abrogation of the contract, did not give his time and labor, primarily, for the benefit of its business in his hands.

Wayne MacVeagh and A. H. Wintersteen, for plaintiff in error. John G. Johnson, for defendant in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

The defense was based, in part, upon the broad ground that the contract of 1874 was revocable at the will of the company, or, at least, upon reasonable notice to Ewing; and, as by the uncontradicted evidence 60 days' notice was given of the purpose to abrogate it, that the law was for the company. The court refused to so charge the jury, and instructed them, in, substance, that the plaintiff was entitled to recover any damages sustained by reason of such abrogation, unless it was shown that he failed to devote his time, attention, and abilities, in good faith and primarily, to forwarding the company's interests as they were involved in the execution of the contract.

If this action was based upon the agree-· ment of 1867, there would be some ground for holding that the company was obliged, by that agreement, to continue Ewing as agent so long as he performed its stipula. tions. We are only concerned, however, with the agreement of 1874, which mate rially differs from that of 1867, and expressly provides that all prior contracts between the parties" are hereby nullified and satisfied." It is only for a breach of the contract of 1874 the plaintiff sues. Looking at all the provisions of the last agreement, it is clear that Ewing-although bound, while the contract was in force, to devote his time, attention, and abilities primarily to the interests of the company, within the territory allotted to himwas not compelled to continue in its service for any given number of years, at least after 1875, or indefinitely, but was at lib. erty after that year, if not before, upon reasonable notice, to surrender his position and quit its service, subject to the company's right to buy back such of its goods sold to him as it might select, and for the prices at which they were charged to him. He may have been entirely satisfied with the manner in which the company acted towards him, and yet may have preferred-it is immaterial for what reason-not to remain in its service after 1875, or to continue in the business of selling sewing machines. We specify the year 1875, because Ewing agreed to purchase, during that year, $20,000 of the company's machines. But he did not bind himself to purchase any given number during subsequent years. It would be a very hard interpretation of the contract to hold that he was bound by the agreement of 1874 to serve the company within the designated territory so long as it kept the contract,

and was satisfied with him as its agent. None of its provisions would justify such an interpretation.

If Ewing had the privilege, upon reasonable notice, of severing the connection between him and the company after 1875, upon what ground could a like privilege be denied the company if it desired to dispense with his services? He contends that his life, or the continuance of the company in business, was the shortest duration of the contract, consistently with its provisions, provided he did his duty. This position is untenable. His appointment was made and accepted subject to the conditions expressed in the agreement. No one of those conditions is to the effect that so long as he devoted his time, attention, and abilities to the company's business he should retain his position as its exclusive vendor, within the territory named, without regard to its wishes. If the parties intended that their relations should be of that character, it was easy to have so stipulated. The only part of the contract that gives color to the theory for which the plaintiff contends is the part declaring that a violation of the spirit of the agreement "shall be sufficient cause for its abrogation." This clause, it may be suggested, was entirely unnecessary if the parties retained the right to abrogate the contract after 1875 at pleasure, and implies that it could be abrogated only for sufficient cause, of which, in case of suit, the jury, under the guidance of the court as to the law, must judge in the light of all the circumstances. We cannot concur in this view. The clause referred to is not equivalent to a specific provision declaring, affirmatively, that the contract should continue in force for a given number of years or without a limit as to time, unless abrogated by one or the other party for sufficient cause. It was inserted by way of caution, to indicate that the par. ties were bound to observe equally the spirit and the letter of the agreement while it was in force.

There was some discussion at the bar as to whether Ewing was, strictly, an agent of the company. We think he was. He was none the less an agent because of his appointment as "exclusive vendor" of the defendant's machines within a particular territory, or because of the peculiar privileges granted to or the peculiar restrictions imposed upon him. One clause of the contract prohibits him from soliciting trade, directly or indirectly, in the territory “of other agents;" another, that he will bind "all subvendors or agents" to sustain the etablished retail prices of the company; and still another imposes restrictions upon the sale of his "appointment or agency. The agreement constituted him the sole agent of the company for the sale of its machines within a certain territory. It is true that the machines he undertook to sell were to be purchased by him from the company at a large discount. But he could not sell them by retail below the regular retail prices. This arrangement was the mode adopted to protect the company's interests, and to secure the plaintiff such compensation for his services as would induce him to devote his time, atten. v.12s.c.-7

tion, and abilities to the company's interests. He was still a mere agent to sell such machines as might be delivered to him under the contract. We perceive nothing in the agreement of 1874 to take the case out of the general rule that "the principal has a right to determine or revoke the authority given to his agent at his own mere pleasure; for, since the authority is conferred by his mere will, and is to be executed for his own benefit and his own purposes, the agent cannot insist upon acting when the principal has withdrawn his confidence, and no longer desires his aid." Story, Ag. §§ 462, 463. So far as the company's power of revocation is concerned, the case is not materially different from what it would be if the plaintiff had agreed to sell such machines as were delivered to him at the established retail prices, receiving, as compensation for his services, the difference between those prices and the amount he agreed to pay for them under the contract of 1874. In either case, his relation to the company would be one of agency, that could be terminated at its will or by renunciation upon his part, at least after 1875. Of course, the revocation by the principal of the agent's authority could not injuriously affect existing contracts made by the latter under the power originally conferred upon him.

For the reasons stated the court below erred in not instructing the jury, as requested, to return a verdict for the defendant.

The judgment is reversed, with directions to grant a new trial, and for further proceedings consistent with this opinion.

1. A steam-propeller was wrecked and abandoned to the underwriter as a total loss. The propeller was subsequently taken in tow by a wrecking master, together with her cargo and crew, but sank in about 22 hours, and one of the crew was drowned. Held, that the propeller was still a "vessel" at the time of sinking, within the meaning of the statute limiting the liability of the owner of the vessel.

2. An underwriter to whom a stranded vessel has been abandoned as a total loss is an "owner," within the meaning of such statute.

3. The statute applies to cases of personal injury and death as well as to cases of loss of or injury to property. Butler v. Steam Ship Co., 9 Sup. Ct. Rep. 612, 130 U. S. 527, followed.

4. The restriction of the statute limiting the liability to vessels not "used in rivers or inland navigation" does not apply to a vessel used on the Great Lakes. Moore v. Transportation Co., 24 How. 1, followed.

5. The "privity or knowledge" of a wrecking master employed by the agent of the underwriter is not the "privity or knowledge," of the owner, within the meaning of the statute limiting the liability so as to charge the owner with responsibility for the negligence of the wrecking mas ter beyond the value of the vessel.