HamiltoN, Judge,
delivered tbe following opinion:
1. There is no great dispute as to the facts of tbe case. Tbe difference is more as to tbe interpretation of tbe facts and construction to be placed upon tbe acts and letters of the parties. The evidence was allowed to take a large range, and technical objections to testimony -were not sustained. A verified bill may be used as an affidavit. Kankakee v. American Water Supply Co. 118 C. C. A. 195, 199 Fed. 757, 758. And the same is true of answers. Eebutting affidavits are not generally allowed. Benbow-Brammer Co. v. Simpson Mfg. Co. 132 Fed. 614. Allegations in the bill not denied in the answer are taken as admitted. Young v. Grundy, 6 Cranch, 51, 2 L. ed. 149. Documentary proof can be used. Schermehorn v. L’Espenasse, 2 Dall. 360, 1 L. ed. 415, Fed. Cas. No. 12,454. So much being discretionary in such matters, the court endeavors to get light from all- proper quarters. The plaintiff must [123]*123show that there is no doubt of the wrongful nature of the act, or that his own claims have been acquiesced in, or that injury to himself from a refusal will be very great and to the defendant very slight. Fosters, Fed. Pr. § 294. Upon a preliminary application, all that should as a general rule be required is a case of probable right and the probable danger to that right without the interference of the court, and its discretion should then be regulated by the balance of inconvenience or injury to the one party or the other. High, Inj. § 13; Indianapolis Gas Co. v. Indianapolis, 82 Fed. 245, 246. It is not necessary that there be all the evidence which would be needed to justify a permanent injunction upon final hearing, but it should be denied where the proofs are equally balanced. Foster, Fed. Pr. § 294.
2. This court will of course protect all parties litigating before it to the fullest extent of its jurisdiction. The fact that orders and decrees of the British government are involved makes no difference. That government has no power within the limits of the United States, and all property within those limits will be handled as the rights of the litigants seem to require. There may, of course, arise political questions which make it improper for a court to proceed, as political questions can be solved only by the political branch of the government, that is to say, the President and his advisers. This, however, is not such a case. The plaintiff, resident in Porto Bico, and who has since become an American citizen, ordered certain British goods through Spanish brokers here resident, of a British house in Dundee, Scotland. That house had a right, and no doubt it was its duty, to obey the regulations of the British government. That government could place any restrictions upon the delivery [124]*124of the goods that it saw proper, whether for purposes of prosecuting the present great war or otherwise. These regulations, would control up to the time that the property came within American jurisdiction, and then they would cease unless they had become a part of the contract of sale. This court will look at them only in that light, and see whether they have been incorporated into the contract now sought to be enforced. So far as the goods themselves are concerned, they are subject to the disposition of this court.
3. There is some difficulty getting at the exact contract, because the defendants seem to have been the agent of the Scotch sellers, and the plaintiff acted sometimes through an agent he had at San Juan, and sometimes conferred with the defendants in person at San Juan. There are two possible views of the result. In the first place, the plaintiff may have bought the goods outright and they have been shipped to San Juan as his property, in such case defendants acting as his agent; or they may have been shipped by the firm of Fullerton & Wilson at Dundee to defendants as their agents in San Juan, in which case the goods would still remain the property either of the Scotch sellers or of the defendants. If, under the first supposition, the goods came to San Juan as the property of the plaintiff, defendants would have no right to retain them, no> matter what the effect might be upon themselves. In the other-case the title never passed from the Scotch sellers to the plaintiff, and remains either the property of the Scotch firm or of' the defendants, subject to plaintiff’s complying with certain, conditions, which have not yet been complied with. Which theory do the facts justify ?
It seems to be admitted by the parties, and if not it is judi[125]*125■cially known by tbe court, that the British government during this war permits the sale of British goods only to persons approved by its agents, the so-called Textile Alliance; but it is not so far proved in this case what the regulations of this .alliance are or when they went into effect.
It is not necessary upon application for a preliminary injunction, as in the case at bar, to prove the whole case. It is doubtless true that there are other matters yet to be shown in evidence here. The issue of an interlocutory injunction is never a matter of right, but rests in the sound discretion of the court. Foster, Fed. Pr. § 294. Looking at the matter as a case of probable right and prohable danger, it seems to be a fair conclusion from the evidence so far, not that the plaintiff was trying to get the defendants to deceive the British government by using defendants’ name, or that the defendants were doing so, but that the parties never contemplated what has developed to be the detailed regulations in regard to the Textile Alliance one way or the other. The contract, being with the defendants as agent, and therefore really between the plaintiff and Fullerton & Wilson, depends upon the sale note made out by or for Fullerton & Wilson, and shown to the plaintiff before any money was paid. This says that “execution of this order is subject to the British government permitting shipment,” but this was signed hy plaintiff and defendants later. The cable from the principals in Dundee was that the trade was “subject to the restrictions of the British government and any other restrictions of force majeure ” which is duly contained in the letter of defendants to plaintiff of that date. The facts do not seem to justify the conclusion that there was an out and out sale, subject at most to restrictions as to shipment being [126]*126permitted. Even if that view was correct, the shipment was not until June, and before that time all the points had developed in the caso. The parties may not have known the regulation as to delivery through the British consulate, but it cannot be said that the shipment was complete until either the goods arrived or the bill of lading was delivered, one or both. ' There would seem to be no point of time at which the plaintiff could have sued the defendants or their principals for possession of the goods.
It is argued that the goods must belong to the plaintiff because he gave the order, paid substantially all the price, and the goods came across the seas on that order. The payment, however, is not conclusive. The delivery of the check is-expressly said to be as security, and it is not said to be in payment. At most it would amount to a payment in advance subject to nonexecution of the sale due to causes over which the parties had no control.
This view of course is not conclusive.
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HamiltoN, Judge,
delivered tbe following opinion:
1. There is no great dispute as to the facts of tbe case. Tbe difference is more as to tbe interpretation of tbe facts and construction to be placed upon tbe acts and letters of the parties. The evidence was allowed to take a large range, and technical objections to testimony -were not sustained. A verified bill may be used as an affidavit. Kankakee v. American Water Supply Co. 118 C. C. A. 195, 199 Fed. 757, 758. And the same is true of answers. Eebutting affidavits are not generally allowed. Benbow-Brammer Co. v. Simpson Mfg. Co. 132 Fed. 614. Allegations in the bill not denied in the answer are taken as admitted. Young v. Grundy, 6 Cranch, 51, 2 L. ed. 149. Documentary proof can be used. Schermehorn v. L’Espenasse, 2 Dall. 360, 1 L. ed. 415, Fed. Cas. No. 12,454. So much being discretionary in such matters, the court endeavors to get light from all- proper quarters. The plaintiff must [123]*123show that there is no doubt of the wrongful nature of the act, or that his own claims have been acquiesced in, or that injury to himself from a refusal will be very great and to the defendant very slight. Fosters, Fed. Pr. § 294. Upon a preliminary application, all that should as a general rule be required is a case of probable right and the probable danger to that right without the interference of the court, and its discretion should then be regulated by the balance of inconvenience or injury to the one party or the other. High, Inj. § 13; Indianapolis Gas Co. v. Indianapolis, 82 Fed. 245, 246. It is not necessary that there be all the evidence which would be needed to justify a permanent injunction upon final hearing, but it should be denied where the proofs are equally balanced. Foster, Fed. Pr. § 294.
2. This court will of course protect all parties litigating before it to the fullest extent of its jurisdiction. The fact that orders and decrees of the British government are involved makes no difference. That government has no power within the limits of the United States, and all property within those limits will be handled as the rights of the litigants seem to require. There may, of course, arise political questions which make it improper for a court to proceed, as political questions can be solved only by the political branch of the government, that is to say, the President and his advisers. This, however, is not such a case. The plaintiff, resident in Porto Bico, and who has since become an American citizen, ordered certain British goods through Spanish brokers here resident, of a British house in Dundee, Scotland. That house had a right, and no doubt it was its duty, to obey the regulations of the British government. That government could place any restrictions upon the delivery [124]*124of the goods that it saw proper, whether for purposes of prosecuting the present great war or otherwise. These regulations, would control up to the time that the property came within American jurisdiction, and then they would cease unless they had become a part of the contract of sale. This court will look at them only in that light, and see whether they have been incorporated into the contract now sought to be enforced. So far as the goods themselves are concerned, they are subject to the disposition of this court.
3. There is some difficulty getting at the exact contract, because the defendants seem to have been the agent of the Scotch sellers, and the plaintiff acted sometimes through an agent he had at San Juan, and sometimes conferred with the defendants in person at San Juan. There are two possible views of the result. In the first place, the plaintiff may have bought the goods outright and they have been shipped to San Juan as his property, in such case defendants acting as his agent; or they may have been shipped by the firm of Fullerton & Wilson at Dundee to defendants as their agents in San Juan, in which case the goods would still remain the property either of the Scotch sellers or of the defendants. If, under the first supposition, the goods came to San Juan as the property of the plaintiff, defendants would have no right to retain them, no> matter what the effect might be upon themselves. In the other-case the title never passed from the Scotch sellers to the plaintiff, and remains either the property of the Scotch firm or of' the defendants, subject to plaintiff’s complying with certain, conditions, which have not yet been complied with. Which theory do the facts justify ?
It seems to be admitted by the parties, and if not it is judi[125]*125■cially known by tbe court, that the British government during this war permits the sale of British goods only to persons approved by its agents, the so-called Textile Alliance; but it is not so far proved in this case what the regulations of this .alliance are or when they went into effect.
It is not necessary upon application for a preliminary injunction, as in the case at bar, to prove the whole case. It is doubtless true that there are other matters yet to be shown in evidence here. The issue of an interlocutory injunction is never a matter of right, but rests in the sound discretion of the court. Foster, Fed. Pr. § 294. Looking at the matter as a case of probable right and prohable danger, it seems to be a fair conclusion from the evidence so far, not that the plaintiff was trying to get the defendants to deceive the British government by using defendants’ name, or that the defendants were doing so, but that the parties never contemplated what has developed to be the detailed regulations in regard to the Textile Alliance one way or the other. The contract, being with the defendants as agent, and therefore really between the plaintiff and Fullerton & Wilson, depends upon the sale note made out by or for Fullerton & Wilson, and shown to the plaintiff before any money was paid. This says that “execution of this order is subject to the British government permitting shipment,” but this was signed hy plaintiff and defendants later. The cable from the principals in Dundee was that the trade was “subject to the restrictions of the British government and any other restrictions of force majeure ” which is duly contained in the letter of defendants to plaintiff of that date. The facts do not seem to justify the conclusion that there was an out and out sale, subject at most to restrictions as to shipment being [126]*126permitted. Even if that view was correct, the shipment was not until June, and before that time all the points had developed in the caso. The parties may not have known the regulation as to delivery through the British consulate, but it cannot be said that the shipment was complete until either the goods arrived or the bill of lading was delivered, one or both. ' There would seem to be no point of time at which the plaintiff could have sued the defendants or their principals for possession of the goods.
It is argued that the goods must belong to the plaintiff because he gave the order, paid substantially all the price, and the goods came across the seas on that order. The payment, however, is not conclusive. The delivery of the check is-expressly said to be as security, and it is not said to be in payment. At most it would amount to a payment in advance subject to nonexecution of the sale due to causes over which the parties had no control.
This view of course is not conclusive. It is impossible to say what further evidence may be developed in the case and which may change the outlook; but as the matter stands it cannot be said that it is a case of probable right which is subject to probable danger, as it is expressed in Indianapolis Gas Co. v. Indianapolis, 82 Fed. 245, 246.
4. This, however, does not exhaust the case. While on the facts at present before the court it would seem that the plaintiff could not compel Fullerton & Wilson specifically to perform the contract because the contract was conditional upon plaintiff’s-being upon the approved list, still a question arises as between the plaintiff and the brokers who acted both for Fullerton & Wilson and for the plaintiff. As the matter stands now the: [127]*127jute bags are in tbe warehouse of the defendants, and if nothing is done they will be sold to the irreparable damage -of the plaintiff and to the financial advantage of the agents whom he employed and to whom he paid the money necessary to bring the goods here. If the contract of the plaintiff is at an end or never went into effect, this cannot be helped. Is this the fact? Fullerton & Wilson may be eliminated from consideration, for they make no claim to the goods, and have always been more than willing to fill the order if the plaintiff was in condition to receive the goods. The question is as between the plaintiff, who put up the money, whether in payment.or security, by virtue of which the goods were brought here, and the defendants, who brought them here under that order. The sale was conditional upon tire plaintiff’s getting on the approved list. When the goods arrived he was not on such list. There might be strong reason to hold that that ended the contract, and all that was needed was for the parties to be restored to their original condition; that is, the defendants should put the plaintiff back in possession of his money. This defendants offered to do, but they have never actually done it. It is idle to talk about a tender when the money is retained. Bouvier’s Law Dict. s. v. Tender. See also P. E. Code Civ. Proc. § 336. A tender for legal purposes consists in the payment of money into court after it has been as a matter of fact tendered in cash to the party in interest. There has been no tender in cash and no payment into court, but a letter stating that the money was held at the disposition of the plaintiff. The contract was therefore not technically at an end, and the acts of the parties show that it was not considered to be at an end. Its form was changed,' for the defendants on their own responsibility can[128]*128celed the original order and had the goods sent to themselves as owners, and not as agents; but the facts fairly indicate that the transaction was carried out with the plaintiff’s money, and after that time the defendants wrote and otherwise told the plaintiff that, if he got on the approved list, he could have the goods. In other words, while the form of the contract was changed, the substance was not; the plaintiff was still to have the goods upon a certain condition, which he claims is in process of realization.
The law undoubtedly is that the court will not grant an injunction where the relief depends upon a contingency not yet determined. 22 Cyc. 755. The court can enforce only actual contracts. But there seems to be. good reason in this case to hold that the parties themselves made the condition of getting on the approved list a part of the contract itself, and did not •fix any time within which it should be done. This being so, it can hardly be said that time is of the essence of the contract, ■except what may be implied from bags necessary for a coffee crop, which is handled in the fall of the year. Cheney v. Libby, 134 U. S. 68, 33 L. ed. 818, 10 Sup. Ct. Rep. 498. There has been no notification by either principal or agent that the plaintiff must get on the approved list by a certain date or the contract is at an end. The general rule is that where no time is named a reasonable time will be implied. Minneapolis Gaslight Co. v. Kerr-Murray Mfg. Co. 122 U. S. 300, 30 L. ed. 1190, 7 Sup. Ct. Rep. 1187. Idas a reasonable time already elapsed in this case ?
This is not a case in which inter arma silent leges, but it is a case in which the usual means of enforcing law are subject to delay. It is in evidence that the plaintiff is now an Ameri[129]*129can citizen and is taking steps to baye bimself approved so far as necessary for the purposes of tbis pui'chase; aizd as between tbe governments of tbe United States and Great Britain it cannot be said that an interval of a few months is unreasonable, considering tbe multitude of other matters, military and otherwise, which have to be attended to. It is quite true that the defendants are entitled to consideration; but so far-as appeal’s they are not injured except as to storage charges, unless it should be held that they are not properly in possession of the money paid by the plaintiff and must hold that as a separate fund. This does not appear to be so, but likewise at most is only a matter of interest. It is not shown that the British regulations which are a part of this contract forbid the defendants from holding the goods subject to contracts; and moreover if they did there could be no sense in which the defendants personally could be said to hold the goods contrary to law if they are holding them under the order of court.
5. Many objections were made to evidence. They were generally overruled so as to get the facts, even when not deemed essential, before the court, for better understanding of the circumstances and of the conditions under which the parties were contracting. On examination it does not seem that there was any error in this. Even hearsay evidence may be received upon applications for preliminary injzinction. Casey v. Cincinnati Typographical Union, 12 L.R.A. 193, 45 Fed. 135, 141. In the case at bar, however, even eliminating all doubtful matters, the general result will not be affected. It does not seem necessary, therefore," to examine in detail the objections which were made, and the provisional rulings are now confirmed.
It would seem, therefore, that the’motion for preliminary [130]*130injunction should be granted to the extent' of requiring the defendants to hold the goods in question up to November 10, 1917, upon the plaintiff’s entering into bond to protect them against all damages from any source growing out of this transaction in the sum of $4,000. This would, amongst other things, cover the value of the goods, storage charges, and interest during the running of this injunction. But if the plaintiff does not by that date succeed in getting on the approved list or otherwise becoming a proper person to receive jute bags produced in the British Empire, the injunction will ipso facto be dissolved. This will probably, on the one hand, enable the plaintiff, if he becomes entitled, to receive the bags in time for the coffee crop; and, on the other hand, if the plaintiff: is not so entitled, will enable the defendants to sell the bags to someone else for the same crop.
It is so ordered.