opinion: ECKERT v. JACKSON.
  No. 218, Docket 22301.
  United States Court of Appeals Second Circuit.
  Argued May 7, 1952.
  Decided June 3, 1952.
  Walter T. Kohn, New York City (Weschler & Kohn and J. Charles Wesch-ler, New York City, on the brief), for plaintiff-appellant.
  Edward C. McLean, New York City (Debevoise, Plimpton & McLean and Daniel W. West, New York City, on the brief), for defendant-appellee.
  Before SWAN, CHASE, and CLARK, Circuit Judges.
  PER CURIAM.
  The district court denied recovery to plaintiff, suing as assignee of the stock brokerage firm of C. B. Richard & Co. on a contract made by them with defendant, because it found that the promisees were themselves first guilty of a substantial breach. The contract grew out of a securities trading account which defendant had had with the Richard firm and involved recognition by defendant of a resulting un-liquidated indebtedness of large amount, coupled with Richard & Co.’s agreement to seek repayment from three specified sources: a certain portion of defendant’s income above a stated minimum, one-third of a legacy he expected under his grandfather’s will, not to exceed $'50,000, and the securities in the trading account which gave rise to the obligation. Defendant by a unique provision was permitted to trade in this account for ten years, in order that he might have the opportunity to satisfy the debt fully from this source through judicious purchase, sale, and substitution of the collateral. Richard & Co. also had the privilege, before the ten years had expired, of taking over the collateral and selling it, thereby releasing defendant from his obligation to make payments from other sources. While defendant’s trading had had a considerable success, it had not fully liquidated the debt at the end of the ten-year period and this suit was brought to recover the $50,000 legacy. Defendant claims that before he received anything under the will Richard & Co. committed a substantial breach by refusing to honor his trading orders in the account, and the district court upheld this defense.
  We agree. Defendant’s promise to make available the portion of the legacy here sought was clearly dependent on his free opportunity to trade without frustration of that right by Richard & Co. Plaintiff claims that the right to substitute collateral was restricted by Richard & Co.’s privilege of limiting it to orders that the firm felt advisable. But, as the district court found, the only limitation specified by the contract was that the purchases and sales should not increase defendant’s indebtedness to the firm. To read in others would have nullified the plan and purpose of the agreement. Cases cited by plaintiff, such as Ridgely v. Taylor, 118 App.Div. 10, 103 N.Y.S. 262, and Wrenn v. Moskin, 226 App.Div. 563, 235 N.Y.S. 405, 235 App.Div. 309, 257 N.Y.S. 54, 236 App.Div. 226, 258 N.Y.S. 703, are too dissimilar to have any bearing upon our decision. They dealt with pools or joint ventures, participated in equally by the parties, and unlike the situation of the defendant here, who was alone building up an account against his debt, coupled with the added reserve of pledges from his income and prospective legacy. And, as the court found, he was acting in entire good faith, and without any unfairness to his creditors, in placing his orders.
  Hence the firm’s refusal to execute certain orders placed by defendant in the course of his trading constituted a breach of the contract. The fact that the orders took the form of “puts” and “calls,” rather than orders to buy and sell on the market, is immaterial, since this is certainly a traditional method of trading and thus contemplated in the original contract. Defendant was clearly justified in concluding from the firm’s several refusals that later orders would meet with similar action, thus significantly frustrating his opportunity to increase the value of the securities in the account. He was therefore entitled to treat the contract as at an end.
  In view of this conclusion we need not consider the other ground taken by the district court, namely, that Richard & Co.’s refusal to execute orders as to certain of the collateral effected a “taking over” of the entire collateral to release the defendant from obligation under the contract terms so providing. The district court did not reach the additional issue of the statute of limitations.
  Judgment affirmed.
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.