
    SMALL v. SPECHT.
    (Circuit Court of Appeals, Third Circuit.
    February 23, 1924.)
    No. 3046.
    In Error to the District Court of the United States for the Western District of Pennsylvania; Robert M. Gibson, Judge. ■
    Action at law by Louis N. Small against' Charles E. Specht. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    See, also, 297 Fed. 864.
    McKereher & Link, of New York City, and Calvert, Thompson & Wilson, of Pittsburgh, Pa., for plaintiff in error.
    John M. Freeman, of Pittsburgh, Pa., Percy Allen Rose, of Johnstown, Pa., and H. F. Stambaugh and Watson & Freeman, all of Pittsburgh, Pa., for defendant in error.
    Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
   WOOLLEY, Circuit Judge.

In consideration of services rendered or to be rendered by the plaintiff in making a sale of coal to the Framerican Industrial Development Corporation, the defendant by letter addressed to the plaintiff made the following promise:

“I agree to pay you 10 cts. per net ton for all coal you sell for me or for any coal I may sell to your people within the next 20 days.”

Although a like suit was brought for similar services, Guionnet v. Specht, 297 Fed. 864, we shall assume that the plaintiff rendered services which brought about the agreement between the Framerican Industrial Development Corporation and the defendant for the sale of 500,000 tons of coal, 297 Fed. 862, and the option between the same parties for the sale of 240.000 tons, Guionnet v. Specht (C. C. A.) 297 Fed. 871. Yet, as we have decided that the agreement was not consummated and therefore did not ripen into a contract of sale, and that the option, though given, was not exercised, it follows that the sales of coal for which alone the plaintiff would be entitled to commissions were never made. The status of the plaintiff’s claim differs in no material respect from that of the plaintiff in Guionnet v. Specht, supra, and therefore the judgment which the District Court entered for the defendant must be affirmed.

BUFFINGTON, Circuit Judge, took no part in the consideration or decision of this ease.  