It seems to me that the Court's denial of certiorari in this case utterly ignores the parties' intent in executing a consent to a judgment and in their subsequent actions pursuant thereto.

Petitioner is a sugar refiner. It filed suit under § 20(11) of the Interstate Commerce Act, 24 Stat. 386, as amended, 49 U.S.C. § 20(11),1 against respondent, a common carrier by motor, for damage to a cargo of sugar respondent undertook to transport. Although respondent by its formal answer denied liability, the real issue in the litigation proved to be the amount for which respondent was liable. Petitioner-shipper took the position that, under Gore Products, Inc. v. Texas & N. O. R. Co., 34 So. 2d 418 (La.App.1948), the proper measure of damages was the profit lost by petitioner on the completed sale, or $7,529.28. Respondent-carrier, on the other hand, contended that the proper measure was the cost of reprocessing the sugar for resale to another customer, or $488.65.2 Respondent moved for partial summary judgment only on the issue of the quantum of damages. Over petitioner's objection, the United States District Court for the Eastern District of Louisiana granted that motion, leaving open, so far as that court was concerned, the issue of liability. The partial summary judgment, being interlocutory, of course was not then appealable. See 28 U.S.C. §§ 1291 and 1292.

After a pretrial conference, the parties by their counsel entered into a stipulation of facts, App. to Pet. for Cert. 29a, and submitted to the court a "Joint Motion for Approval of Consent Judgment." Id., at 32a.3 The District Court then entered its "Consent Judgment upon Joint Stipulation of Facts," id., at 26a, the final paragraph of which recited:

"This judgment is rendered in recognition of the reservation by the plaintiff of its right to prosecute an appeal in this action in connection with this judgment and in connection with the partial summary judgment rendered on March 14, 1979." Id., at 27a.

The smaller of the two sums was then paid to petitioner. It thereupon executed a satisfaction of judgment, id., at 34a, still reciting its reservation.4

Petitioner in due course appealed to the United States Court of Appeals for the Fifth Circuit. Both sides devoted their briefs in that court exclusively to the liability issue. The Court of Appeals, however, with a short per curiam opinion, held that, on the authority of another per curiam opinion, White & Yarborough v. Dailey, 228 F.2d 836 (CA5 1955), (the governing authority of which I seriously question), "the fact that both parties freely consented to the entry of a final judgment precludes an appeal from it." 607 F.2d 1100 (CA5 1979).

It seems to me to be clear that any consent on the part of petitioner did not reach the disputed difference between $7,529.28 and $488.65. To the extent that the Court of Appeals' holding rests on the suggestion in White & Yarborough v. Dailey, 228 F.2d, at 837, that an appeal will not lie when payment of the judgment has been accepted, that holding is inconsistent with United States v. Hougham, 364 U.S. 310, 81 S. Ct. 13, 5 L. Ed. 2d 8 (1960), where this Court said:

"It is a generally accepted rule of law that where a judgment is appealed on the ground that the damages awarded are inadequate, acceptance of payment of the amount of the unsatisfactory judgment does not, standing alone, amount to an accord and satisfaction of the entire claim." Id., at 312, 81 S. Ct. at 15.

Nor does the mere fact that the parties entered into a consent judgment preclude appeal. In Swift & Co. v. United States, 276 U.S. 311, 48 S. Ct. 311, 72 L. Ed. 587 (1928), it was observed:

"The decree sought to be vacated was entered with the defendants' consent. Under the English practice a consent decree could not be set aside by appeal or bill of review, except in case of clerical error. . . . In this Court a somewhat more liberal rule has prevailed. Decrees entered by consent have been reviewed upon appeal or bill of review where there was a claim of lack of actual consent to the decree as entered. . . ." Id., at 323-324, 48 S. Ct. at 313-314.

Here there is "a claim of lack of actual consent." See also Nashville, C. & St. L. R. Co. v. United States, 113 U.S. 261, 5 S. Ct. 460, 28 L. Ed. 971 (1885); Pacific R. Co. v. Ketchum, 101 U.S. 289, 25 L. Ed. 932 (1880).

The Court of Appeals' opinion also seems to me to be in some tension, if not outright conflict, on the point at issue, with diLeo v. Greenfield, 541 F.2d 949, 952 (CA2 1976); United States ex rel. H & § Industries, Inc. v. F. D. Rich Co., 525 F.2d 760, 764-765 (CA7 1975); and Gadsden v. Fripp, 330 F.2d 545, 548 (CA4 1964).

It may well be that upon review of the merits of the District Court's judgment, respondent will prevail. It seems to me, however, that petitioner is entitled to a ruling on the merits of its appeal to the Court of Appeals, and is not to be foreclosed by a strict concept of consent and acceptance in the face of facts that the asserted consent was specifically limited and that petitioner consistently and persistently disclaimed full settlement of the lawsuit. Indeed, until the case arrived here, respondent does not appear to have claimed otherwise.

The amount in contest is not large, but that fact in itself is no reason for this Court's lack of interest in a case where the principle is important. I would give serious consideration to a summary reversal of the judgment of the Court of Appeals. At the least, I would grant certiorari and set the case for argument.