opinion: MOORE v. SCOTT STAMP & COIN CO., Inc.
  No. 41, Docket 21417.
  United States Court of Appeals Second Circuit.
  Argued Oct. 6, 1949.
  Decided Dec. 1, 1949.
  Miller, Bretzfelder & Boardman, New York City, for defendant, appellant and appellee; Bertram Boardman, New York City, of counsel.
  Thayer & Gilbert, New York City, for plaintiff, appellee and appellant; Phil E. Gilbert, Jr., and Harold A. Segall, New York City, of counsel.
  Before L. HAND, SWAN and CLARK, Circuit Judges.
  SWAN, Circuit Judge.
  These appeals bring up for review a judgment entered upon the verdict of a jury in an action to recover the agreed price of Chinese postage stamps purchased by the plaintiff in China at the defendant’s request and sent by registered mail addressed to the defendant. Federal jurisdiction rests on diversity of citizenship.
  The complaint, as originally filed, contained a single cause of action. It alleged that Scott Stamp & Coin Co., Inc., whom we shall call the buyer, requested the plaintiff, whom we shall call the seller, to obtain in China certain Chinese stamps and agreed to pay him the cost of the stamps, plus 10% for his services, plus postage; that the seller mailed the specified stamps to the buyer in February 1944; that after their arrival in New York in March 1944, the buyer refused to accept them, and is indebted therefor to the seller in the sum of $3,151.89. The defendant’s answer was a general denial. From correspondence introduced at the trial it appears that after the stamps arrived in New York they were held up by the customs officials who notified the buyer on March 28, 1944 that “These stamps will be held for the duration of the war, and may be claimed by you at that time.” Thereafter the buyer wrote to the seller’s agent on May 12, 1944: “As soon as the merchandise is released to us and in our possession, we shall make arrangement for its payment.” This letter was made the basis of a second count added to the complaint by amendment during the trial. This count further alleged that the stamps were released and made available to the buyer in September 1946, but the said sum of $3,151.89 has remained unpaid, although demanded by the seller. Both counts were submitted to the jury with instructions that if they found for the seller on either cause of action they must find for the buyer on the other. The jury brought in a verdict for the plaintiff on the second cause of action, and their silence as to the first was taken by the court as a verdict for the defendant on that count. Judgment was entered accordingly, and both parties have appealed. Upon the defendant’s appeal the errors assigned are denial of its motions to dismiss the complaint or direct a verdict and the refusal to give certain requested instructions. The plaintiff has taken a cross-appeal merely to protect his rights in case the judgment in his favor should be reversed. He contends that his motion for a directed verdict should have been granted.
  The seller’s shipment of the stamps in February 1944 was an acceptance of the buyer’s offer and created a unilateral contract which obligated the buyer to pay in accordance with the terms of the contract. Since all communications between the parties were by letters, we think that the meaning of the contract should have been determined by the court rather than the jury.If the correspondence prior to shipment of the stamps meant that the obligation of the buyer to pay became fixed when the stamps were shipped, a verdict should have been directed for the seller. On the other hand, if, as we believe, the contract should be interpreted to mean that the buyer’s obligation to pay was conditioned on receipt of the stamps by the buyer within a reasonable time after shipment, a verdict should have been directed for the buyer on the cause of action originally alleged.
  But such condition was modified by the letter of May 12th upon which the amendment of the complaint was based. The buyer then knew that the stamps would be held by the customs officials until the end of the war, unless someone could obtain an earlier release of them, and it expressly agreed to accept and pay for them at that time. The seller made unsuccessful efforts to obtain their earlier release. The buyer, as consignee of merchandise, made entry of it on March 2, 1944 but did nothing further to obtain possession of the stamps until it wrote to the Bureau of Customs in December 1948 in preparation for the trial of this action. The proof showed that the stamps were available for release to the buyer on September 3, 1946. By a letter of that date the Bureau of Customs so informed the seller, but there is no evidence that he passed on the information to the buyer. On September 11, 1946 the seller wrote demanding payment. The buyer’s reply on the 13th stated that it was no longer interested in getting the stamps as it had obtained large quantities from other sources. But this repudiation of the contract cannot aid the buyer, since there was uncontradicted testimony by Mr. Pollock of the Bureau of Customs that only the buyer, as consignee and importer of the stamps, could obtain their release from the Bureau. Hence the condition of the buyer’s promise to pay “as soon as the merchandise is released to us and in our possession” was a condition which could only be performed by it, and it cannot escape from its obligation by its own failure to perform the condition.
  The buyer erroneously argues that there was no consideration to support the promise of payment contained in its letter of May 12th. It has overlooked N. Y. Personal Property Law, McK.Consol.Laws, c. 41, § 33(2) which makes consideration unnecessary when a contract is modified by an agreement in writing.
  None of the refused instructions requires discussion. In our opinion the court should have directed a verdict on the second count. Since submission to the jury produced such a verdict, the judgment is affirmed.
  . See Williston, Contracts, 3rd Ed., § 616; Dwight v. Germania Rife Ins. Co., 103 N.Y. 341, 333, 8 N.E. 654, 57 Am. Rep. 729; Brady v. Cassidy, 104 N.Y. 147, 155, 10 N.E. 131.
  In the case at bar the jury was instructed that “it is your interpretation of those letters upon which you are to decide this ease.”
  . Williston, Contracts, 3rd Ed. §§ 677, 1293A; A.L.I. Restatement, Contracts, § 295.
  . “An agreement * * * to change or modify * * * any contract * * * shall not be invalid because of the absence of consideration, provided that the agreement * * * shall be in writing and signed by the party against whom it is sought to enforce the change, modification or discharge”. See Jaeger v. Canter, 13 N.Y.S.2d 414; Spector v. National Cellulose Corp., 181 Misc. 465, 48 N.Y.S.2d 234, affirmed 267 App.Div. 870, 47 N.Y.S.2d 311.
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.