opinion: In re TRANSLUX MOVIES CORPORATION et al. KNECHTEL v. H. KELLY & CO.
  Nos. 7096, 7097.
  Circuit Court of Appeals, Sixth Circuit
  Nov. 11, 1935.
  W. W. Brashear, of Detroit, Mich. (Frederick B. Darden, of Detroit, Mich., on the brief), for Knechtel, Trustee.
  M. Hubert O’Brien, of Detroit, Mich., for H. Kelly & Co.
  Before MOORMAN, SIMONS, and ALLEN, Circuit Judges.
  MOORMAN, Circuit Judge.
  The appellee installed air-conditioning equipment in a building belonging to the Daylight Theaters Company. The installation was made under a written contract which provided that the appellee would furnish and install the equipment for $6,750, $4,500 of which was to be paid upon the completion of the installation, and the balance in six monthly installments commencing sixty days thereafter. Fifteen hundred dollars of the $4,500 was paid after the equipment was installed, and upon the later adjudication of the theaters company as a bankrupt the appellee filed a petition to reclaim the equipment, alleging that it was the owner and entitled to possession of it. After hearing proofs, the referee dismissed the petition. Upon review on a certificate of the evidence, the trial court found that the written contract had been modified by a parol agreement for the retention of title to the equipment in the seller, and entered an order granting the reclamation.
  The written contract was executed for the appellee by Byrnes, its Detroit manager, and for the theaters company by Joyce, its president. Both testified at the hearing before the referee. Neither claimed that anything was incorporated into or left out of the contract by fraud or mistake. Byrnes testified that he objected to signing it because it contained no title-retaining clause, but when assured that “there was $4,500 in the bank waiting for us” when the installation was substantially completed, “I figured that I could take a gamble on the balance, which was something like $2,250, or whatever it was,” and did not insist upon inserting the clause into the contract. He was corroborated as to his objection to signing the contract and the promise of a prompt payment of the $4,500 by Tolton, another employee of the appellee.
  The finding of the court was based on the testimony of Byrnes and Tolton to the effect that after the theaters company had failed to pay the $4,500 upon the completion of the installation, they called upon Joyce and inquired what protection the appellee had in case the theaters company failed, to which Joyce replied: “You have got the same protection as though you had a title-retaining contract.” Byrnes said that Joyce assured them twice during the conversation that the equipment “belonged to us and would continue to belong to us * * * just the same as if * * * the title-retaining clause was included in our contract.” Joyce denied making these statements. We assume for the purpose of decision that he made them, but we are nevertheless of opinion that there was no modification of the original contract of sale. At that time the title to the equipment was in the theaters company, and it cannot be held that statements such as it is said Joyce made had the effect of transferring it back to the appellee. There was no ambiguity in the contract. Its language was clear. Nothing was done or said to indicate a purpose to abrogate it or to amend it by making it a title-retaining contract; certainly nothing was done to pass the title back to the vendor. The statement of Joyce was at most merely a statement of his view of the legal effect of the written contract about which the appellee’s representatives knew as much as he. Mutual Life Insurance Co. v. Phinney, 178 U. S. 327, 342, 20 S. Ct. 906, 44 L. Ed. 1088. Moreover, there v/as no evidence to show that the appellee acted on the statement or assented to it. It was not a promise, but if it be assumed that it was, there is nothing in the record to show that it was accepted or that there was a consideration for it. It is true, of course, that at the time a substantial part of the promised initial payment was overdue, and also that forbearance to sue on an overdue indebtedness may constitute a consideration for a new promise or for an additional obligation. There is nothing in the record, though, to show that there was either an express or an implied agreement to refrain from bringing suit on the indebtedness. The consideration for the installation was a promise on the part of the theaters company to pay a stipulated sum. When the appellee performed its part of the contract, the obligation of the theaters company to pay this sum matured. This obligation the appellee had the right to enforce according to its terms, but it could not create a new obligation or acquire new rights under the contract without a supporting consideration (sections 2461, 2464, Page on Contracts), and even if Joyce’s statement may be regarded as a promise to retransfer title to the appellee, it is unenforceable because not supported by a consideration. In re Dubois’ Estate, 176 Mich. 407, 411, 142 N. W. 561. See, also, Empire State Surety Co. v. Hanson (C. C. A.) 184 F. 58; Brunswig Grain Co. v. Anchor Grain Co. (C. C. A.) 10 F(2d) 304, 306; Moss v. Aetna Life Ins. Co. (C. C. A. 6) 73 F(2d) 339.
  The order of the court granting the reclamation is reversed, and the petition dismissed
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.