
    (96 South. 272)
    No. 22040.
    HELD v. GOLDSMITH.
    (March 14, 1919.
    On Rehearing, April 2, 1923.)
    
      (Syllabus by Editorial Staff.)
    
    1. War <@=>10(2) — Suspends relations between citizens of two countries and prevents prosecution of action by enemy aliens.
    By international law, war suspends relations between citizens of the two countries and precludes prosecution of action by enemy alien against citizens of country in which the claims arise, except in some instances to maintain the status quo, especially in view of Trading with the Enemy Act, § 7b (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 3115%d).
    2. War <@=>10 (2) — Prosecution of action by alien enemy who recovered judgment from which defendant appealed before declaration of war suspended.
    Action by alien enemy who recovered judgment from which defendant appealed before declaration of war was within the prohibition of Trading with the Enemy Act, § 7b (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 3115%d), against prosecution of suits or actions, and not within the, exception with respect to suits against enemies.
    3. War <@=>10 (2) — Action by alien enemy could not be prosecuted for benefit of Alien Property Custodian.
    An action by an alien enemy could not be allowed to continue during the pendency of the war and the proceeds of any judgment obtained turned over to the Alien Property Custodian.
    
      On Rehearing.
    4. War <®=»I0( I) — German citizen (Contracting to ship rice by British steamship held discharged upon outbreak of war.
    Contract by German citizen to sell rice to neutral and ship it by British steamship became impossible of performance upon outbreak of war between Germany and England, and seller was discharged if shipment by the particular vessel was essential element.
    5. Sales <©=>! 72 — Seiler discharged when shipment by particular steamer designated in contract between merchants was impossible.
    Where contract for sale of rice and shipment by particular steamer was between merchants, seller was entitled to stand on the contract as written without showing any reason for the stipulation, and was discharged when shipment by the particular steamer was rendered impossible by outbreak of war.
    Appeal from Civil District Court, Parish of Orle.ans; George H. Théard, Judge.
    Action by A. Held against Ralph Goldsmith. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Alfred D. Danziger, of New Orleans (George A. Dreyfous and Percival H. Stern, both of New Orleans, of counsel), for appellant.
    Terriberry, Rice & Young, of New Orleans, for appellee.
   DAWKINS, J.

Defendant, appellant, against whom judgment was rendered in the lower court in favor of plaintiff for the sum of $2,500, files in this court a motion for an indefinite postponement of this case, on the •ground that the plaintiff is an alien enemy residing in Germany.

Counsel for plaintiff admit in their brief opposing the postponement that plaintiff is an alien enemy, but suggest that the case should proceed to final judgment, and, in event of a recovery by him, that this court direct the payment of any sum so recovered into the registry of the lower court to be by it turned over to the federal Custodian of Alien Property.

This suit- was filed and decided by the lower court before a state of war between Germany and the United States was declared, and subsequent to the lodging of the appeal the war broke out.

It is a universal rule of international law that a .state of war suspends all relations between the citizens of the countries so engaged, and precludes the prosecution of any action on the part of enemy aliens against the citizens of the country in which such claims may arise, except in some instances where the enemy is allowed to defend for the purpose of maintaining the status quo of property rights until the end of the war.

“Enemy creditors cannot prosecute their claims subsequent to the commencement of hostilities, as the rule is universal and peremptory that they are totally incapable of sustaining any action in-the tribunals of the other belligerent. Absolute suspension of the right to sue and prohibition to exercise it exist during war, by the law of nations, but the restoration of peace removes the disability and opens the doors of the courts.” Caperton v. Bowyer, 14 Wall. 236, 20 L. Ed. 882.

See, also, Taylor’s International Public Law (1901) p. 459, § 461, and page 463, § 465; Wilson on International Law, pp. 270-272; Small’s Adm’r v. Lumpkin’s Executrix, 28 Grat. (Va.) 832 ; The Prize Cases, 2 Black, 671, 17 L. Ed. 459 ; Society for the Propagation of the Gospel v. Wheeler, Fed. Cas. No. 13,156 ; Woolsey’s Int. Law, p. 193, § 123 ; Cyc. vol. 40, p. 328 ; Kent’s Com. vol. 1, p. 75.

This rule of international law is reinforced by the act of Congress of October 6, 1917, known as the “.Trading with the Enemy Act,” paragraph “b” of section 7 of which reads as follows:

“Nothing in this act shall be deemed to authorize the prosecution of any suit or action at law or in .equity in any court within the United States by any enemy or ally of enemy prior to the end of the war, except as provided in section 10 hereof: Provided, however, that an enemy or ally of an enemy licensed to do business under this act may prosecute and maintain any such suit or action so far as the same arises solely out of the business transacted within the United States under such license and so long as such license remains in full force and' effect: And provided further, that an enemy or ally of enemy may defend by counsel any suit in equity or action at law .which may be brought against him.” U. S. Comp. St.. 1918, U. S. Comp. St. Ann. Supp. 1919, § 3115% d.

Section 10 of the act referred to in the paragraph just quoted deals with patent rights, and it is not contended that this action has any such basis; nor does it grow out of any transaction under a license. These are the only exceptions to the prohibition against the prosecution of actions by enemy aliens in the courts of this country. While it is true that the defendant is the appellant in this case, plaintiff is, nevertheless, the party who is prosecuting-the action for a rboneyed judgment against defendant, and is not defending “any suit in equity or action at law * * * brought against him.” He therefore falls clearly within the prohibition of the statute and of the rule mentioned.

In support of the contention that the suit should be allowed to continue and the proceeds of whatever judgment may be obtained should be turned over to the Custodian of Alien Property, we are referred to the case of Birge-Forbes Co. v. Heye, 248 Fed. 636, 160 C. C. A. 536, decided by the United States Court of Appeals for the Fifth Circuit on February 11, 1918, That was undoubtedly the disposition made of the matter in that ease, but the authorities cited in support of that action, in our opinion, do not sustain it. The cases so cited were Owens v. Hanney, 9 Cranch, 180, 3 L. Ed. 697, and Plettenberg v. Kalmon (D. C.) 241 Fed. 605. However, an examination of Owens v. Hanney discloses that, while the status of the plaintiff as an alien enemy was urged as a reason for not affirming thej judgment against defendant, nothing whatever was said by Chief Justice Marshall on that point, and the judgment of the lower court was affirmed in an opinion of three lines. There is nothing in the case as reported to show that the plaintiff there was in truth and in fact an alien enemy, or that other considerations or exceptional circumstances did not render the law which we have cited above inapplicable. In the other case cited by the Court of Appeals, Plettenberg v. Kalmon, Judge Speer, sitting as a District Court in the Southern district of Georgia, made the identical disposition of that case which is sought in the motion filed by defendant here, as will be seen from the syllabus of the ease, which is supported by the body of the opinion, quoted as follows:

“A suit properly instituted in a federal' court by an alien against a citizen of the United States will not be dismissed because plaintiff subsequently becomes an alien enemy, by reason -of the declaration of war between the United States and the government of which he is a subject, but may be suspended on motion of defendant during the continuance of the war.”

For the reasons assigned, it is therefore ordered, adjudged, and decreed that the motion to postpone be, and the same is hereby, sustained, and this case is continued until the end of the war between the United States and Germany.

On Rehearing—Determination of the Merits.

ST. PAUL, J.

Plaintiff is a commercial firm composed of Carl August Held, a resident of Bremen, Germany, and Hanz Herzog, a resident of New York. They brought suit against defendant for a balance of $2,-500 due on an account, which is not disputed.

Defendant in reconvention claims $2,-000 damages for breach of contract’ to deliver 2,000 pockets of a certain rice at ?4 per pocket, and which defendant had to'replace with rice of as nearly as possible the same quality at $5 per pocket. The defense to this reconventional demand, which is the only matter at issue in this case, is that plaintiff was prevented from fulfilling its contract by forces beyond its control, to wit, the war between England and Germany, which was flagrant on August 12, 1914, when the rice was to be shipped.

The contract of sale, dated at New Orleans July 21, 1914, reads as follows:

“Sold to R. Goldsmith, New Orleans, 2,000 pockets, type 232, Bassein rice, price, $4 per 100 lbs., docks, New Orleans, duty paid. Shipment on Leyland Line Steamer Sylvanian, due to sail on August 12th. Terms, net cash, 10 days.” '

Bassein rice is grown in India and milled in Holland, and type No. 232 is the product of a particular mill for that year.

The Sylvanian was a British ship and was scheduled to sail from Antwerp, in Belgium, on August 12, 1914, but, owing to the outbreak of war could not go to Antwerp, and sailed from London a ,few days later. Pretermitting the question whether or not, in the light of the circumstances, the contract contemplated a shipment from Antwerp, from which port the Sylvanian was scheduled to sail on August 12th, nevertheless the contract provides expressly that the shipment should be by the Sylvanian. .

But Held was a German citizen, and the Sylvanian a British ship, and, on well-settled principles of international law, Held could not ship by the Sylvanian.

“AH trading, negotiation, communication, and intercourse between the citizens of one of the belligerents and those of the other, without the permission of the government, are unlawful. No valid contract can be made, nor can any promise arise by implication of law, from any transaction with an enemy. Executory contracts with an alien enemy, or even with a neutral, if they cannot be performed except in the way of intercourse with the enemy, are dissolved by the declaration of war, which operates for that purpose with a force equivalent to an act of Congress.” 15 Ruling Case Law, 189.

Goldsmith, it is. true, was a neutral, but Held could hot perform his contract with Goldsmith, in so far as it concerned shipping .by the Sylvanian, except “in the way ‘of in-

tercourse with the enemy,” and accordingly, if shipping by that vessel was an essential element of the contract, then Held was discharged by the outbreak of war between England and Germany.

But this was a contract between merchants, a shipping contract, and expressly provided that the shipment should' be by the Sylvanian; and, whilst it may readily be seen that the ship is a matter of importance because of insurance, freight rates, seaworthiness, speed, regularity of sailing, and other considerations, nevertheless it is not important that the reasons for which a certain ship was stipulated should be given or should appear, and it suffices that such a stipulation should be made. , 11

As said by Lord Chancellor Cairns in Bowie v. Shand, 2 Appeal Cases (H. L.) 463:

“It does not appear to me to be a question for any court to consider whether that is a contract which bears upon the face of it some reason, some explanation, why it is made in that form, and why the stipulation is made that the shipment should be made during these particular months. It is a mercantile contract, and merchants are not in the habit of placing upon their contracts stipulations to which they do not attach some value and importance.”

And Lord Hatherley said (page 475):

“The view that I take of the contract, I confess, is this, that it is not the article rice only that is sold, but the thing that is sold is the article rice shipped in March or April, and the article rice shipped in February is not the article which has been purchased by the defendants.”

And Lord Blackburn said (page 480):

“It is argued, or tried to be argued, on one point, that it is enough that it was rice, and that it was immaterial when it was shipped. * * * But I think that is quite untenable. * * * If the description of the article tendered is different in any respect, it is not the article bargained for, and the other party is not bound to take it. I think in this case what the parties bargained for was rice, shipped at Madras or the coast of Madras. Equally good rice might have been shipped a little to the north or a little to the south, and probably equally good rice might have been shipped in February as w.as shipped in March, or equally as good rice might have been shipped in May as was shipped in April; and I dare say equally good rice might have been put aboard another ship as that which was put on board the Rajah of Cochin. But the parties have chosen, for reasons best known to themselves, to say: We bargain to take rice shipped in this particular region, at that particular time, on board that particular ship. And before defendant can be compelled to take anything in fulfillment of that contract, it must be shown not merely that it is equally good, but that it is the same article as they bargained for; otherwise they are not bound to take it.”

In the case before us one party agreed to sell, and the other to buy, rice to be shipped by the steamer' Sylvanian. The stipulation to ship by the Sylvanian was put into the contract for reasons best known to the parties who put it in. As merchants, they were not likely to have put it in unless they attached some value and importance to it; and they owed no explanation why they put it in, but are entitled to stand by the contract as deliberately expressed by them in writing.

We are therefore of opinion that plaintiff bound itself to ship by the Sylvanian, and by no other ship, and that, when it became impossible for it to ship by the Sylvanian on account of the outbreak of the war between England and Germany, plaintiff was discharged from fulfilling same.

Decree.

It is therefore ordered that the judgment appealed from be affirmed.  