(dissenting). I regret that I cannot concur in the. result reached by the majority of the court. I think it so perverts the Trading with the Enemy Act as to make it unnecessarily harmful to American citizens and probably ultimately advantageous to Germans.
At the outset it should be held dearly in mind that the case before us does not involve the right of the Custodian to seize the property in question. It involves only his right to retain it^or, as the case now stands, to retake a portion of it after accounting by the plaintiff. This anomalous and somewhat confusing situation--of a right to seize what may not be lawfully retained- — arises oih of the necessities of 'war. It is expressly contemplated by the act. Compare Central Trust Co. v. Garvan, 254 U. S. 554, 566, 41 Sup. Ct. 214, 65 L. Ed 403, where, for the purposes of immediate possession, the determination of the Custodian was held conclusive, “whether right or wrong.” In some cases, including the opinion of the court below, are expressions *36as to the Custodian’s right to seize, when what is really meant is the Custodian’s right to retain. It is solely with the right to retain, or condemn as alien enemy property, that this case is concerned. The seizure by the Custodian neither made, destroyed, nor affected any rights now in question.
In the view I take of this case, the salient facts are within narrow scope. Many of the details set forth in the majority opinion seem to me to have no bearing on the real case.
In 1916, Reis & Co. was a partnership made up of one American and two (or three) Germans. A part of the assets were in America, under the direct control of the American .partner, the rest in Europe. Dissatisfied with the business relations, the American partner, through an agent indicated in 1916 to the German partners a tentative desire to dissolve the partnership and to liquidate without a detailed accounting ; he talcing all the American assets, and they all the German assets.
On February 7, 1917, after the breach of diplomatic relations, and while communication with Germany was impossible, the German partners executed a document, set forth in full in the majority opinion, intended to be an agreement in contemplation of war, for the dissolution and liquidation (both)' of the partnership affairs — to take effect contemporaneously with the outbreak of war — on exactly the terms indicated by the American partner a year before. At that time, as the District Court found, the American assets were, so far as the Germans knew, not far from the American partner’s proportion of the total American and European assets. This document was signed by the American partner’s brother, purporting to act as “absence trustee” under a court appointment. It was to take effect, not after, but eo instanti with, war. This distinction is important, and seems to be overlooked by the majority. It purports to release the American assets from all claims of the Germans, while asserting for them full title in all the European assets, and the Germans thereupon appropriated to their own use all the European assets in such fashion, as to make it probably impossible thereafter to state an account with..even approximate accuracy.
The decision here, as in the court below, goes upon the theory that the agreement of dissolution and liquidation was void; that it had no effect upon the rights of the German partners to an ultimate accounting for the American assets; that, therefore, the plaintiff must now accoúnt for “enemy property” in the American assets.
I cannot accept that theory. I think that agreement was consonant with our public policy — indeed, in aid of. it. By it the parties simply agreed to the dissolution which the law would have made, if the parties had not.
They also agreed to an instant liquidation, in specie — now claimed to be advantageous to the American partner. I cannot understand how our public policy can be impaired by anagreement giving an American citizen his share in full, or even overflowing, measure. Such an agreement certainly lends no aid to the public enemy; it is very helpful to our- own citizen.
*37See the pungent opinion of Halsbury, L. C., in Jansen v. Dreifontein Mines Co., [1902] A. C. 484, 489 et seq.
See the case of Hugh Stevenson, etc., v. Aktiengesellschaft, [1918] A. C. 239; same case in the court below, [1917] 1 K. B. 842. In the seven opinions of the Lords and Lord Justices dealing with the results of the outbreak of war on such a partnership, most aspects of the questions now involved are expressly or impliedly dealt with.
■ Consider the situation that the outbreak of the war would have left the partners in, without any agreement: Under American law, the partnership would have been dissolved;. the American partner would hold the American assets as his own up to the amount of his interest, and no more. The ultimate right of the Germans to a full accounting would, unless the United States decided to confiscate, be simply suspended during the war. Under German law the partnership was not dissolved. The Germans were, nevertheless, as this record shows, in danger of having their business seized by the German government, because of alleged American interests in it. Under such circumstances,u the interests of the .parties drove them to exactly the course that the law required: .A severance of their business'relations, advantageous, at least during0the war, to the nationals of both countries. There was only one way they could sever. Communication was impossible; they guessed, or roughly estimated, the amount of assets, and divided the assets, American and European, on national lines, in specie. It happened, as the government contends, that the American got the better of the bargain. But, if he had got the worst of the bargain, he would, in this country, be remediless. In that event he could keep as his own the American assets, and, now that the war is ended, resort to litigation in Germany for the balance due.
Otherwise put: The agreement, if bad, is bad solely because the American assets happened to equal or exceed the American partner’s share in a liquidation made strictly in accordance with the partnership articles.
No case is cited by the majority of the court, or by counsel for the Custodian, in support of the proposition that such agreements in contemplation of war are contrary to public policy. There is no allegation by the Custodian that Mayer was to take a surplus on secret trust for the Germans. So far as this record shows, all Mayer has done throughout is to comply with all the demands of the Custodian and bring this suit — in which he was not even called as a witness. We must assume that, if the government could show that the liquidation was in any way intended for the benefit of alien enemies, it would have alleged and proved it. On this record, we are making rulings as applicable to Mayflower descendants as to naturalized Germans.
So far as the agreement of dissolution and liquidation in contemplation of war is concerned, the case is on all fours with Wilson v. Ragosine Co., [1915, K. B.] 113 L. T. N. S. 47, where a similar agreement as to dissolution and liquidation was made on August 3, 1914, the day before Great Britain declared war, and was sustained by the court. On the same point, see, also, Jansen v. Driefontein Mines Co., supra.
*38Judge Bingham in the District Court does not seem to have regarded an agreement advantageous to an American citizen as contrary to public policy. But he held it void because of failure to comply with the technical requirements of the German Code as to absence trustees.
In my view, the German Code has no application. I think the contract as to the American assets must, as all of us in both courts hold as to dissolution of the partnership by war, be construed under American law — the law of the place of performance. See Pritchard v. Norton, 106 U. S. 124, 1 Sup. Ct. 102, 27 L. Ed. 104; Hamlyn v. Talisker, 1894, A. C. 202. The authorities would warrant us in holding that plaintiff’s brother acted as agent of necessity. Buford v. Speed, 74 Ky. (9 Bush) 338; Mayer v. United States, 3 Ct. Cl. 249; United States v. Lapene, 17 Wall. 601, 21 L. Ed. 693; Williams v. Paine, 169 U. S. 55, 18 Sup. Ct. 279, 42 L. Ed. 658; Sheanon v. Insurance Co., 83 Wis. 507, 53 N. W. 878.
But if the plaintiff’s brother acted as previously unauthorized agent, go that his act may''require ratification by conduct or otherwise, I think there was such ratification, as the District Court found, by bringing this suit. . In this suit the court, not the plaintiff, caused notice to be given to the German partners. Eor an American citizen to bring a suit in the courts of his own country, alleging his contentment with a liquidation of his former partnership, made by his former partners, is not trading with the enemy. Jansen v. Driefontein Consol. Mines, supra. Notice having been given by the court to the Germans of Mayer’s acquiescence in what the Germans had done, I cannot see why Mayer is not now bound, precisely as though he had originally authorized his brother to act as his agent in that transaction. At any rate until he disaffirms, if he can disaffirm, the liquidation stands. He has not disaffirmed. How could Mayer disaffirm, when he could not legally communicate with the Germans? To have attempted disaffir-mation before peace was made might well have been held trading with the enemy. Was it his duty to disaffirm in this suit ?
The Germans, therefore, have and had at the time of the seizure no rights in the American assets. There was no “enemy property” within the meaning of the act. Only positive acts of disaffirmance by Mayer after full knowledge would reinstate the Germans in their original rights to a full accounting. The seizure neither created nor affected any rights now under consideration. It may, as the government contends, have been “analogous to an attachment” (Kohn v. Kohn, Inc. [D. C.] 264 Fed. 253) to make sure the property is “forthcoming if finally condemned,” but it “does no more” (Central Trust Co. v. Garvan, 254 U. S. 554, 569, 41 Sup. Ct. 214, 65 L. Ed. 403). The analogy is not complete, it may mislead. The seizure was not a right-creating proceeding'; it was merely a right-securing proceeding. What, if anything, the Germans had, the Custodian seized, and may retain until Congress otherwise provides. But the measure of the'Custodian’s right to hold is the extent of the Germans’ rights; and they had and have none as to the American assets. If, as is argued, the liquidation agreed to by the Germans, and made by them so far as they could make it, was advantageous to the American, can the Custodian *39compel the American citizen to disaffirm — for the ultimate benefit of our former enemies- — unless we abandon our traditional policy as to confiscation? Compare Kershaw v. Kelsey, 100 Mass. 561, 570, 97 Am. Dec. 124, 1 Am. Rep. 142, where there is a long and learned review of enemy trading law by Mr. Justice Gray. See, also, Brown v. United States, 8 Cranch, 110, 3 L. Ed. 502; Hanger v. Abbott, 6 Wall. 532, 537, 18 L. Ed. 939.
But, entirely apart from ratification by bringing this suit, the Germans were barred by what they signed and did. For present purposes it was not necessary that the contract of liquidation should be contemporaneously bilateral. In re Portuguese Mines, 45 Ch. Div. 16; Thompson v. Williams, 58 N. H. 248; Manchester Street Ry. Co. v. Williams, 71 N. H. 312, 320, 52 Atl. 461.
Whether we regard the transaction of February 7, 1917, as a waiver, a release, or an option to Mayer by the Germans, it is dear that until, after full knowledge of what had been done, Mayer had insisted on a full accounting, the Germans could maintain against him no bill for an accounting. What they signed and did ended their rights in the American assets, unless and until Mayer asserted continuing rights in the European assets.
Test the question by assuming that peace had been made in September, 1917, before the Trading with the Enemy Act was passed, restoring to the Germans all their ante bellum rights in our courts and as to property in this country, and that they had then brought against Mayer a bill for a full accounting of all the partnership assets, American and European, that Mayer had pleaded the agreement of February 7, 1917, and their appropriation of all the European assets to their own use, and that he had seasonably, after knowledge, ratified such liquidation in specie; would any court have sustained the Germans’ bill for an accounting ?
Plainly, the majority opinion goes on the theory that there should be an accounting because, and only because; the liquidation made by the Germans was advantageous to the American. If the accounting to the expense of which we are to subject the American partner shows no surplus for the Germans, the Custodian takes nothing. Nor is there any provision to reimburse the American for expenses incurred in an accounting for the prospective benefit of our {former) enemies.
But the act was intended to cripple German enemies, not to harm American citizens. A construction so inconsistent with its manifest purpose should not be adopted, even if there were — as there is not— language even superficially capable of such meaning. Compare Trinity Church v. United States, 143 U. S. 457, 12 Sup. Ct. 511, 36 L. Ed. 226; and cases cited and reviewed. Douglas v. United States, 14 Ct. Cl. 1.
I repeat, the Custodian can now retain (or retake after an accounting) nothing that the Germans could not, assuming the war barriers removed, recover in a suit for an accounting.
Reverting again to the proposition that the government acquired by the seizure rights in the American assets that could not be cut off by the ratification — -the point where my views -diverge from Judge *40BINGHAM’S — as I read the opinion of the Supreme Court in Central Trust Co. v. Garvan, 254 U. S. 554, 569, 41 Sup. Ct. 214, 65 L. Ed. 403, the court there held that seizure created no rights, certainly no rights beneficial primarily or ultimately to enemies. Undoubtedly the Custodian, if he has seized property shown finally to belong to American citizens, may, having “all the powers of a common-law trustee,” sell it, remitting the owner to a claim for the proceeds. Damage from such proceeding is one of the risks the war imposed on our own citizens. But I find nothing in section 9, nor elsewhere in the act, indicating that seizure, either “with the strong hand” (254 U. S. 568, 41 Sup. Ct. 214, 65 L. Ed. 403) or by “resort to the courts,” transmutes citizen property into enemy property or otherwise broadens the power of final condemnation. The closing' sentences in the opinion of Mr. Justice Holmes in Central Trust Co. v. Garvan, supra, sustaining the right of the Custodian to maintain “purely possessory actions,” are:
“The present proceeding gives nothing hut the preliminary custody such as would have been gained by seizure. It attaches the property to make sure that it is forthcoming if finally condemned and does no more.”
Douglas v. United States, 14 Ct. Cl. 1, and Mayer v. United States, 3 Ct. Cl. 338, look the same way in favor of such construction of trading with the enemy acts as not to invalidate transactions beneficial to citizens unless actually lending aid to enemies. The views expressed by Mr. Justice Gray in Kershaw v. Kelsey, supra, on full review of the authorities, lend further support for my conclusions. In 100 Mass. 573, 97 Am. Dec. 124, 1 Am. Rep. 142, Mr. Justice Gray said:
“At this age of the world, when all the tendencies of the law of nations are to exempt individuals and private contracts from injury or restraint in consequence of war between their governments, we are not disposed to declare such contracts unlawful as have not been heretofore adjudged to be inconsistent with a State of war.”
In the majority opinion it is said:
“Mr. Strauss, one of the partners, testified that it was made for the purpose of preventing the confiscation of German .assets by Germany, and it is so obvious that, if valid, it would defeat the right of the United States as a belligerent to seize the interests of German partners in American assets, that this also would seem to have been its purpose.”
I do not so construe the record. The purposes as shown both by the evidence and by the agreement were to leave no American interest in German assets which might cause the German government to seize the business over there on the same theory upon which our government has proceeded against the business here.
Another Strauss, an expert on German law, testified that the German government wouid not object to the dissolution and liquidation agreement, “because German nationals would acquire additional property.” This seems to me the sound view. Nor would the agreement “defeat the rights of the United States as a belligerent to seize the interest of German partners as American assets,” except as ending business relations between Germans and Americans that ought to have been ended would lessen the occasions for sequestration. Seizure and (possible) subsequent confiscation are merely aids to the general policy *41of nonintercourse between enemies, and of furnishing a means of crippling and punishing enemies, not of injuring citizens.
The act was not intended to cause the accumulation in the Custodian’s hands of a huge conglomeration of properties largely of American ownership, or to prevent Germans and Americans from completely severing business relations on the outbreak of war, so that each set of nationals might be free from temptation for disloyal dealing with enemies. It was not intended to prevent Germans from releasing, if and when war should be declared, possibly valuable rights to Americans. The William Bagaley, 5 Wall. 377, 407, 408, 18 L. Ed. 583; The Anglo-Mexican, [1918] A. C. 422.
In my view, the agreement of February 7, 1917, is one that ought to be sustained, as directly in furtherance of public policy.