On Eehearing.
WADDILL, Circuit Judge.This ease, in wMeh there was a decision rendered on the 5th day of February, 1924, is now before, the court upon application for rehearing filed- by both parties. The facts and history of the case are fully set forth in the opinion already filed, and need but little elaboration.
Briefly, on the 7th of July, 1917, plaintiff in error contracted with the Eiehmond, Fredericksburg So Potomac Eailroad Company to supply for the period of three years all of its fuel coal, he to buy at Ms own expense and on Ms own credit, and to deliver such coal to the railroad at eost and a commission of 5 per cent. The coal wás furnished under the contract to the railroad until December 28, 1917, and the plaintiff in error paid therefor. On that day the railroad, under an act'of Congress, was taken over by the President of the United States through the Director General of Eailroads. Thereafter, until the 4th of June, 1918, coal was delivered and paid for under orders of the Director General upon the contract terms. On the 5th of June, 1918, the Director General notified plaintiff in error that the contract would not be further recognized by Mm, and that, unless the coal could be delivered at the regular price without commissions, some other arrangement would have to be made to supply the same. . On the same day, plaintiff in error protested against the injustice done Mm in the attempted annulment of the contract, saying: “I will purchase coal for you as suggested in your telegram, without prejudice to my rights under the contract.” The Director General, though repudiating the contract, nevertheless continued a.fter 1 June 4, 1918, to receive coal thereunder, paying only the cost priee and expenses, without the 5 per cent, commission or other compensation until January 1, 1919. On that day, plaintiff in error agreed with the Director General to deliver coal until the end of the federal control, receiving therefor *29the cost price of the coal, and expenses of purchasing, and $200 per month during that period. Plaintiff in error, in making the latter agreement, expressly reserved his lights under the original contract, and the new agreement provided that if he should establish his right to the commission, the amount found to ho due him should be credited with the expenses and the $200 per month paid him.
The rehearing asked for challenges the correctness of this court’s decision, reversing the action of the lower court and granting a new trial as against the Director General, and it is as to the propriety of this ruling that we have to pass. This court at that time said that the decisive question for determination was “whether under all the circumstances the Director General by acting under the contract and receiving its benefits for five months, should be considered to have adopted it. If the Director General gave notice within a reasonable time of his election to reject the contract, the plaintiff cannot recover. If, on the other hand, the Director General received the benefits and made payments under the contract for a longer time than was reasonably necessary for an intelligent election, then he should be held to have adopted it,” and this issue should have been submitted and passed upon.
The reference in the opinion to a jury was an inadvertence, as there was no question but that the case was regularly tried by the court without a jury, and the terms and conditions under which it was tried. The facts were comparatively simple, and in the main undisputed; and the ease was submitted to the judge upon an agreed statement of faets, together with the testimony of two witnesses, taken pursuant to agreement, relating to matters not the subject of serious controversy.
The rule controlling this court upon a writ of error to the judgment of the District Court in cases submitted without the intervention of a jury, and especially upon an agreement as to the facts, as here, is well settled under the decision of this court in the case of Dexter & Carpenter v. Davis, 281 P. 385, 25 A. L. R. 1173, to which, and the cases therein cited, special reference is made. To the same effect will bo found Dunsmuir v. Scott (C. C. A. 9th Cir.) 217 F. 200, 133 C. C. A. 194. Under these authorities, the question of whether or not at the close of a trial there is substantial evidence to sustain a finding in favor of one of the parties to the action, is a question of law which arises in the progress of a trial; and where the trial is before a jury, that question is reviewable on exceptions to the ruling, upon request for peremptory instructions for a verdict. Where the trial is before the court, it is reviewable upon a motion which presents that issue of law to the court for determination at or before the end of the trial.
In this ease, motions were duly submitted by the plaintiff in error at the conclusion of all the testimony, and during the progress of the trial, to wit, that the court would find and enter judgment in favor of the plaintiff against the defendants for the full sum sued for of $39,041.14, with interest until paid, and to render judgment accordingly, and that in any event the court would find and enter judgment in favor of the plaintiff in error for the sura of $13,853.40 as the lowest amount which the plaintiff was entitled to recover. The court overruled both motions, and plaintiff duly excepted.
This court, in the previous opinion, as shown from the above excerpt therefrom, based the plaintiff’s right to recover for any amount solely upon whether the Director General adopted the contract with the plaintiff in error, or within a reasonable time gave notice of his intention to reject the same.
We think, upon further consideration, that the court should go further, and that as to the coal furnished by plaintiff in error between the dates of June 4, 1918, and January 1, 1919, and for which recovery is asked of $13,853.40, based upon a quantum meruit for services rendered, that the right of recovery should not be dependent upon the reasonableness or unreasonableness of the time within which the Director General elected to repudiate the contract, or gave notice of his intention so to do. The amount due upon the basis of quantum meruit for that particular time, seems to be undisputed from the testimony, and therefore the court erred in refusing the second of plaintiff’s motions.
In reaching our conclusion as to the fight to recover on a quantum meruit for coal furnished during the period from June 4, 1918, to January 1, 1919, we are convinced that, under the circumstances under which the Director General received the coal from plaintiff in error, an implied contract arose on his part to pay what the service was justly worth, and we are not unmindful that the Director General did say he would repudiate the contract and not be bound thereby; but *30when he continued, to receive coál, knowing that the plaintiff in error was furnishing the same, with the declaration on his part that he did so reserving his right to demand compensation under the contract, he thereby incurred the liability insisted upon by plaintiff in error. To avoid this natural consequence, it was a simple matter to decline to receive the coal; and by accepting and using it, he obligated himself to make just compensation to the plaintiff' in error for his services in connection therewith. Dermott v. Jones, 2 Wall. 1, 8, 9, 17 L. Ed. 762; Clark v. United States, 95 U. S. 539, 24 L. Ed. 518; The Sappho (C. C. A. 4th Cir.) 94 F. 545, 550, 36 C. C. A. 395; Kaufman v. Raeder (C. C. A. 8th Cir.) 108 F. 171, 177, 178, 47 C. C. A. 278, 54 L. R. A. 247; Carpenter v. Smithey, 118 Va. 533, 88 S. E. 321; City of Norfolk v. Norfolk County, 120 Va. 356, 361, 91 S. E. 820; Williston on Contracts, vol. 2, § 843, and cases cited; 1 Chitty on Pleadings, 333; 2 R. C. L. § 5, pp. 745, 746.
The irresistible inference, from the Director General’s conduct in acepting and using the coal, is that it was to his interest to do so, and the testimony not only strongly tends to sustain this view, but that the Director General was otherwise without coal; Certainly it would be inequitable and unfair to allow plaintiff in error to render his service during the period in question for nothing. This would be the effect of allowing the Director General to accept and use the coal without paying what plaintiff’s services were reasonably worth.
' Our conclusion of this application for rehearing is that the judgment of the lower court should be reversed as to the Director General of Railroads, and a new trial awarded, for the reasons stated in this and the previous opinion filed herein.
Reversed.