
    TILDESLEY COAL COMPANY, Plaintiff in Error, v. MILL CREEK COLLIERY COMPANY, Defendant in Error.
    (Circuit Court of Appeals, Sixth Circuit.
    April 11, 1924.)
    No. 3972.
    In Error to the District Court of the United States for the Western Division of the Southern District of Ohio;
    Smith Hickenlooper, Judge. Walter K. Sibbald, of Cincinnati, Ohio (Buchwalter, Headley & Smith, of Cincinnati, Ohio, on the brief), for plaintiff in error.
    Erank E. Wood, of Cincinnati, Ohio (Edgar M. Powers, of Cincinnati, Ohio, on the brief), for defendant in error.
    Before DENISON, MACK, and DONAHUE, Circuit Judges.
   PER CURIAM.

The contract between the Mill Creek Colliery Company and the Leekie Coal Company is so clearly one of del credere sales agency, and not of purchase and sale, that no question in that respect was open for submission to the jury. Therefore the Mill Creek Company, and not the Leekie Company, was the vendor, and the proper, plaintiff in a suit on a contract for the sale of coal to the Tildesley Company. That the Leekie Company was in effect released as guarantor of this contract by the Mill Creek Company’s counter guaranty to it in order to obtain its consent to the sale; that payment by the Tildesley Company was to be, and in part was, made to the Leekie Company; that payment was made by the .Leekie Company to the Mill Creek' Company in the regular course of their business dealings; and that subsequently, on the Tildesley Company’s refusal to make further payments to the Leekie Company, the amount remaining unpaid to that company was charged back by it to the Mill Creek Company — do not alter the relation of the parties. Equally clear it is that the Tildesley Company’s letter of November 11, 1920, was no repudiation of its obligation to accept the coal, but was only a proposal to repudiate, which proposal was refused by the Mill Creek Company’s reply of November 15th. The judgment is affirmed.  