HOLMES, Circuit Judge.
This is an action for an accounting under a contract that was made in Louisiana and was to be performed there. It involves a controversy between two national banks, but its correct decision upon all issues depends upon the law of Louisiana. For a statement of the case, including a verbatim quotation of the contract between the parties, see the opinions of the court below in Leslie v. Commercial National Bank, D.C., 28 F.Supp. 927, and Rawlings v. Commercial National Bank in Shreveport, D.C., 44 F.Supp. 5.
A final judgment for $509,114.49, with interest, in favor of appellee was entered on April 14, 1943, four years after suit was filed and nearly two years after the taking of oral testimony began. The new bank appealed from this judgment in its entirety.
Under the contract, the appellant assumed all of the obligations of the old bank, with two exceptions, and in consideration of such assumption the old bank transferred all of its assets to appellant to secure and indemnify it for the liabilities thus assumed. Thereupon, the old bank was immediately placed in liquidation, but it had no assets to administer except its right to the residue of the assets transferred to appellant after the latter had been paid an amount sufficient to indemnify it for the liability assumed. This should have rendered unnecessary the appointment of a receiver for the old bank.
Although the contract recited that the old bank had sold, conveyed, transferred, and delivered all of its assets of every kind to the new bank, including cash, the facts and circumstances surrounding the parties and their subsequent conduct show beyond cavil that the transaction was not a sale but a pledge.1 Under the Louisiana law, it was a pledge of a dual nature, known as the pawn and the antichresis.2
[236]*236 Under the contract, the two banks sustained toward each other the' relations of debtor and creditor, principal and guarantor, pledgor and pledgee, liquidator and cestui que trust; but the relation of debtor and creditor was only potential prior to the time that appellant earned fees, incurred expenses, paid some of the liabilities assumed, or lent money to the old bank, under the contract. The debts involved in this accounting arose out of the contract, and relate to fees, interest, expenses, profit on taxes, and money advanced by the new bank for the old in payment of the latter’s obligations. The relation between debtor and creditor or principal and guarantor is not necessarily one of trust and confidence, but that between pledgor and pledgee or liquidator and cestui que trust is inherently one of a fiduciary character.
The dominant officers of the new bank were the directors of the old, and they were doubly bound to treat the latter fairly. They were in control of the liquidating corporate agent that held in pawn and antichresis not only every tangible and intangible asset of the old bank, but a million-dollar note given for the sole purpose of keeping alive the million-dollar statutory liability of its stockholders if a balance of indebtedness of the old bank remained after all of its assets were exhausted.
As creditor, the appellant has the right to require payment of all money due it, but must prove what sums were advanced by it. In the absence of proof, the presumption is that the debts assumed were paid by the new bank as liquidator of the old, since the obligation of the new bank as guarantor was a collateral one, essentially in the alternative, to pay the debts if "the old bank’s liquidator did not pay them. As pledgee, both title and possession of the res were transferred to appellant, but its position cannot be described as simply that of a trustee, because it held the res primarily for its own benefit. As liquidator, it was the appellant’s duty to pay, to settle, gradually to adjust, and extinguish, all indebtedness of" the old bank. The duty of absolute fidelity to the trust estate rested upon appellant, and prohibited it from creating any unnecessary conflict of interests between itself and 'its trust. The liquidator may not take or retain personally any fruit or revenue derived from the use of the trust property.3
It was the appellant’s duty as pledgee and liquidator to pay taxes on the trust estate, and the amount so paid was properly charged to the old bank; but appellant had no right to deduct from the assessed value of its own capital stock the value of such real estate as was shown on its published statements, because if was npt the owner thereof within the meaning of the statute authorizing such deductions. The credit thus obtained by the new bank was a profit derived from the trust property as effectively as if it had been paid that much in cash. This was a profit'of $191,-778.55, which over a series of years was obtained by appellant from the use and possession of, and record title to, trust property. It clearly does not belong to the trustee or to its stockholders. What shall be done with it in an accounting between the trustee and the cestui que trust?
The authorities are unanimous that appellant may not profit from the trust estate, or permit any one else to do so, in any manner other than as provided in the contract. The only sources of profit to the new bank named in the contract were reasonable fees for services rendered the old bank and a stipulated interest on daily balances of' an account called Class B Assets. A saving of ad valorem taxes on its capital stock by appellant’s use of the trust estate does not fall within the ambit of either fees or interest, and was not within the contemplation of the parties at the time the contract was made. It is immaterial that appellant was acting as [237]*237agent of its shareholders in assessing its capital stock and that they were, or would he, the ultimate beneficiaries. The new bank made the assessment and paid the taxes on its own capital stock as it was required by law to do; it may or may not have debited its shareholders with the taxes paid or credited them with the profit obtained; the law does not regulate bookkeeping entries of this kind. We concur in the opinion of the court below that the items in controversy should have been credited to the cestui que trust, and refer to the authorities therein cited.4 These items should have been credited as of the respective dates on which the new bank paid the taxes on its capital stock.
[11,12] The other points raised by appellant relate to the denial of its claims for compensation and expenses in administering Class C assets and to the award of interest to appellee. The correct decision of the issues presented upon said claims for compensation, expenses, and the award of interest to appellee, depends upon the proper construction of the contract as amended, and involves the meanings of the words fee, interest, and expenses as used in paragraphs V and VI thereof. This necessitates a determination of the legal principles that should have governed the court below in the accounting, because interest and reasonable compensation are the only sources from which appellant is entitled to retain a profit under the contract.5 We must not confuse the words fee, interest, and expenses, as used in the contract. Each of these words has its distinct legal meaning; and the parties, by contract arid conduct, have clearly evidenced their intention to distinguish between the items from these three sources.
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HOLMES, Circuit Judge.
This is an action for an accounting under a contract that was made in Louisiana and was to be performed there. It involves a controversy between two national banks, but its correct decision upon all issues depends upon the law of Louisiana. For a statement of the case, including a verbatim quotation of the contract between the parties, see the opinions of the court below in Leslie v. Commercial National Bank, D.C., 28 F.Supp. 927, and Rawlings v. Commercial National Bank in Shreveport, D.C., 44 F.Supp. 5.
A final judgment for $509,114.49, with interest, in favor of appellee was entered on April 14, 1943, four years after suit was filed and nearly two years after the taking of oral testimony began. The new bank appealed from this judgment in its entirety.
Under the contract, the appellant assumed all of the obligations of the old bank, with two exceptions, and in consideration of such assumption the old bank transferred all of its assets to appellant to secure and indemnify it for the liabilities thus assumed. Thereupon, the old bank was immediately placed in liquidation, but it had no assets to administer except its right to the residue of the assets transferred to appellant after the latter had been paid an amount sufficient to indemnify it for the liability assumed. This should have rendered unnecessary the appointment of a receiver for the old bank.
Although the contract recited that the old bank had sold, conveyed, transferred, and delivered all of its assets of every kind to the new bank, including cash, the facts and circumstances surrounding the parties and their subsequent conduct show beyond cavil that the transaction was not a sale but a pledge.1 Under the Louisiana law, it was a pledge of a dual nature, known as the pawn and the antichresis.2
[236]*236 Under the contract, the two banks sustained toward each other the' relations of debtor and creditor, principal and guarantor, pledgor and pledgee, liquidator and cestui que trust; but the relation of debtor and creditor was only potential prior to the time that appellant earned fees, incurred expenses, paid some of the liabilities assumed, or lent money to the old bank, under the contract. The debts involved in this accounting arose out of the contract, and relate to fees, interest, expenses, profit on taxes, and money advanced by the new bank for the old in payment of the latter’s obligations. The relation between debtor and creditor or principal and guarantor is not necessarily one of trust and confidence, but that between pledgor and pledgee or liquidator and cestui que trust is inherently one of a fiduciary character.
The dominant officers of the new bank were the directors of the old, and they were doubly bound to treat the latter fairly. They were in control of the liquidating corporate agent that held in pawn and antichresis not only every tangible and intangible asset of the old bank, but a million-dollar note given for the sole purpose of keeping alive the million-dollar statutory liability of its stockholders if a balance of indebtedness of the old bank remained after all of its assets were exhausted.
As creditor, the appellant has the right to require payment of all money due it, but must prove what sums were advanced by it. In the absence of proof, the presumption is that the debts assumed were paid by the new bank as liquidator of the old, since the obligation of the new bank as guarantor was a collateral one, essentially in the alternative, to pay the debts if "the old bank’s liquidator did not pay them. As pledgee, both title and possession of the res were transferred to appellant, but its position cannot be described as simply that of a trustee, because it held the res primarily for its own benefit. As liquidator, it was the appellant’s duty to pay, to settle, gradually to adjust, and extinguish, all indebtedness of" the old bank. The duty of absolute fidelity to the trust estate rested upon appellant, and prohibited it from creating any unnecessary conflict of interests between itself and 'its trust. The liquidator may not take or retain personally any fruit or revenue derived from the use of the trust property.3
It was the appellant’s duty as pledgee and liquidator to pay taxes on the trust estate, and the amount so paid was properly charged to the old bank; but appellant had no right to deduct from the assessed value of its own capital stock the value of such real estate as was shown on its published statements, because if was npt the owner thereof within the meaning of the statute authorizing such deductions. The credit thus obtained by the new bank was a profit derived from the trust property as effectively as if it had been paid that much in cash. This was a profit'of $191,-778.55, which over a series of years was obtained by appellant from the use and possession of, and record title to, trust property. It clearly does not belong to the trustee or to its stockholders. What shall be done with it in an accounting between the trustee and the cestui que trust?
The authorities are unanimous that appellant may not profit from the trust estate, or permit any one else to do so, in any manner other than as provided in the contract. The only sources of profit to the new bank named in the contract were reasonable fees for services rendered the old bank and a stipulated interest on daily balances of' an account called Class B Assets. A saving of ad valorem taxes on its capital stock by appellant’s use of the trust estate does not fall within the ambit of either fees or interest, and was not within the contemplation of the parties at the time the contract was made. It is immaterial that appellant was acting as [237]*237agent of its shareholders in assessing its capital stock and that they were, or would he, the ultimate beneficiaries. The new bank made the assessment and paid the taxes on its own capital stock as it was required by law to do; it may or may not have debited its shareholders with the taxes paid or credited them with the profit obtained; the law does not regulate bookkeeping entries of this kind. We concur in the opinion of the court below that the items in controversy should have been credited to the cestui que trust, and refer to the authorities therein cited.4 These items should have been credited as of the respective dates on which the new bank paid the taxes on its capital stock.
[11,12] The other points raised by appellant relate to the denial of its claims for compensation and expenses in administering Class C assets and to the award of interest to appellee. The correct decision of the issues presented upon said claims for compensation, expenses, and the award of interest to appellee, depends upon the proper construction of the contract as amended, and involves the meanings of the words fee, interest, and expenses as used in paragraphs V and VI thereof. This necessitates a determination of the legal principles that should have governed the court below in the accounting, because interest and reasonable compensation are the only sources from which appellant is entitled to retain a profit under the contract.5 We must not confuse the words fee, interest, and expenses, as used in the contract. Each of these words has its distinct legal meaning; and the parties, by contract arid conduct, have clearly evidenced their intention to distinguish between the items from these three sources. Therefore, we think the court below erred in denying appellant compensation for its services as liquidator on the ground that any additional charge above the interest collected was unjustified.6 It may be that appellant breached its contract and is not entitled to any compensation. The liquidator may have forfeited its compensation and become liable in damages ex contractu if it violated its fiduciary duty and thereby unnecessarily caused the appointment of a receiver; but each of these claims must be determined separately on its merits, not offset roughly one against another. The exaction of excessive interest is not necessarily corrected by the denial of a reasonable fee.
Interest is the compensation allowed by law or fixed by the parties to a contract for the use or detention of money.7 The word fee under the contract means a reward or recompense for services rendered by the bank or its officers. Expenses are allowed as an indemnification for money laid out or expended by the bank for the care, maintenance, or preservation of the trust property. No gain or profit upon expenses, except interest thereon, may be claimed by any fiduciary. Therefore, under paragraph V, appellant is entitled to no profit on salaries of its officers and employees, but only to reimbursement of a fair portion of reasonable salaries actually paid them for their services in collecting and administering Class C assets.
The stipulation for interest on daily balances of Class B assets is an anomalous one. This provision attempts to make it possible for the appellant to demand and charge interest on money borrowed from the new bank by the old at rates violative of the usury laws of Louisiana.8 It is [238]*238stated in the opinion of the court below that at the beginning of this contract the new bank collected interest at the rate of six per cent per annum on approximately three-fourths of assets of $9,043,810.99. This was about forty per cent per annum on the paid-in capital of the new bank, which in “less than nine years, * * * realized a profit of more than one hundred per cent upon its capital, in spite of the conditions just mentioned, mainly from the interest charged the old bank.”9
By the contract of December 3, 1932, the appellant assumed all of the liabilities of the old bank, but it does not appear when or how it paid these liabilities. The evidence does not show that the money to pay them was credited to the account of the old bank, or even that the new bank had it available. Appellant assumed the liabilities; but, so far as appears, it did not pay them except with funds of the old bank; it merely became guarantor of them. The old bank was not released, it remained primarily liable, and of course there was no novation. On the contrary, a million-dollar note was given as additional collateral security to keep alive the stockholders’ secondary liability for the very indebtedness that appellant had assumed. If the provision for interest at six per cent on Class B assets was intended to be a service charge, the amount claimed was exorbitant, and equity will not reform a contract in order to substitute an exorbitant charge for a usurious one. No reformation is asked, but the same end is sought by means of interpretation.
When the contract was made, it was contemplated by the parties that large sums of money would necessarily be advanced by appellant for account of the old bank, but no provision was made for interest to be charged on loans or advances; it was only provided in the contract that interest should be computed at the rate of six per cent per annum on daily balances of Class B assets. That all of this interest was intended as compensation for the use of money to be advanced is not only evidenced by the use of the word interest, instead of fee, commission, or compensation, but by the provision in Article V of the contract, as amended, that appellant should be allowed to charge a reasonable fee for administering Class C assets only, and that the cost of administering Class B assets should fall entirely on appellant.
The contracting parties well knew the meaning of the words employed by them; each was a banking corporation; and no one knew better than they the meaning of the word interest or the words interest on daily balances at the rate of six per cent per annum. No one knows better than bankers the difference between an interest charge and a service charge. In fixing interest charges, the parties specified the exact rate; all other charges were to be reasonable; but interest on daily balances of Class B assets was to be calculated with mathematical certainty without regard to reasonableness; and appellant even invoked the banker’s customary short year of 360 days, which only applies in figuring interest charged as compensation for the use or detention of money. The original contract provided that' the new bank was entitled to a reasonable fee for its services in administering Class B assets in addition to interest at the rate of six per cent per annum on daily balances of said assets. When paragraph V was amended, the ordinary meaning of the word interest was not changed but was fortified by the provision that the cost of administering Class B assets should be borne entirely by the new bank.
Usury is alleged in the pleadings of appellee; the appellant does not claim to be exempt under its charter from the operation of the usury laws of Louisiana. There is no presumption that a bank is exempt from such laws. There is no magic in banking that quells the law of usury. The usurious effect of this transaction was the same as if a man borrowed only one hundred dollars and the bank took his note for a thousand dollars and collected interest on the note at the rate of six per cent per annum. If the provision were not usurious in attempting to authorize the exaction of interest on assets, it should not be enforced in a court of equity for the following reasons:
Where the directors of a failing bank form a new bank and in effect pledge to themselves every asset of the old bank, a court of equity should scrutinize the contract with great care and strike down every oppressive and overreaching provision. This is true even though the stockholders ratified the contract, because the parties were not on an equal footing and the directors occupied a position of trust and confidence. The old shareholders were given the option to take stock in the new bank; [239]*239but for many of them doubtless this was impossible, as very few availed themselves of the option. The contract should have been drawn so as to treat both groups fairly. The directors had the advantage of an intimate knowledge of the old bank’s condition, which the ordinary stockholders did not have. A hard bargain driven by fiduciaries in such circumstances is presumed to be fraudulent and void. 25 C.J. 1118, 1119, 1120. The law of fiduciaries would be futile if it lacked the capacity to correct abuses arising out of the relation of trust and confidence existing between the directors of a corporation and its stockholders.
Because Class B assets were selected so as to equal the liabilities assumed when supplemented by Class A assets, it is suggested that the intention was to allow interest on liabilities assumed rather than on assets. This construction would not help appellant. The point is that the use of the words six per cent interest on daily balances ordinarily means, and was intended by these parties to mean, a charge for the use of money, which under the law must be figured upon the amount owing by the debtor to the creditor, not upon an arbitrary amount, even though stipulated, that would result in the collection of usury. In order to avoid the usury laws, appellant may not substitute some other word for interest as used in the contract. It is estopped to say that on December 3, 1932, under the guise of a so-called interest charge, it intended to collect six per cent (aggregating $1,311,346.64) on Class B assets for services as pledgee and liquidator in addition to interest, expenses, and a reasonable fee, plus a reasonable allowance for the salaries of its officers and employees. Reference is made by appellant to the fact that the total income realized upon the old bank’s assets came within $33,000 of equalling the six per cent interest charge of $1,311,346.64. Apparently the argument is that this circumstance would justify the interest charge if only it were called a fee; but this amounts to the contention that it is per se reasonable to award, as a fee for administering assets, one hundred per cent of the entire income from those assets.
This leaves no basis for the suggestion that the word fee, commission, or compensation should be substituted for the word interest in construing the contract in order to avoid the usurious effect of charging interest upon assets. If some other word had been used in the contract instead of interest, then without doubt a rate of interest on daily balances of loans and indebtedness would have been fixed in the contract. The context of the word employed, its usual and ordinary meaning, the circumstances surrounding the parties at the time, the exclusion of every other consideration,- — all evidence the intention of the parties that interest on Class B assets was to be a charge for the use or detention of money. The court has no more right to substitute the word fee or premium for interest than it would have to substitute corn for wheat in a contract dealing with commodities. This brings us to the claim that part of the interest charged upon assets was compensation for assuming the obligations of the old bank.
Appellant did not stipulate for and is not entitled to any fee, premium, or commission for assuming the obligations of the old bank. This was the consideration moving from appellant to the old bank for the good will of its business10 and the pledge of every asset it possessed. This was the only consideration that the old bank and its stockholders received under the contract. Fees, interest, and expenses for the new bank were repeatedly mentioned in the contract, but these items were subordinate to the great main considerations moving the parties to its execution: the old bank obtained an absolute guarantor of its obligations;11 the new bank obtained an established banking business with millions of deposits, and was given security for every debt it assumed. In addition, its organizers were permitted to withdraw deposits in cash from the old bank amounting to $730,000. A large part of this went into the capital stock of the new bank. Most, if not all, of the organizers of the new [240]*240bank were directors of the old. Their first duty was to the old bank and its creditors.
We think the appellant’s interpretation of the contract would not be an incentive to due diligence in liquidating bank assets. We cannot reconcile its interpretation with paragraph VI of the contract, which says that when appellant shall have collected from all of the assets transferred to it an amount sufficient to indemnify itself for the liability assumed, including expenses and a reasonable fee for its services, the residue of such assets may be reconveyed to the old bank or a committee of its stockholders. This paragraph is clear and valid; the accounting should be made in accordance with it and the other consistent provisions of the contract as amended, disregarding any conflicting provision. The appellant should be allowed a reasonable fee for administering Class C assets if the court finds that it has earned the same by faithful and efficient services to the trust estate.
For errors alleged by appellant in numbers three and four of its assignment of errors, we think the judgment appealed from should be set aside and a new trial granted. An entirely new account should be rendered by appellant. Useless and repetitious entries, as with reference to the million-dollar note, should be avoided. Granting that these entries were merely convenient symbols for keeping the accounts, they were very confusing. It would be more accurate to say that the note itself was merely a symbol if, as we understand, no money was advanced on it. The note was symbolic of the federal statutory liability of the stockholders. The total interest on the note charged by appellant was $308,926.29. This was a real entry; it was not symbolic. It was as real as any fact in life. If this was not usury, it was profit on a pledged asset and belonged to the pledgor. In any view it was a charge unsupported by a good or valuable consideration. The note was given to represent a potential not an existing indebtedness. The transaction was analogous to one pledging his promissory note to secure his own debt. The note was unnecessary because the contract was executed before liquidation began; and any debt for money advanced in excess of the assets would have been a debt arising under the contract. Hightower v. Am. Nat’l Bank, supra. It would not have been necessary to rely on subrogation, a doctrine indigenous to the civil law. No service charge for keeping this note safely can be sustained in reason or custom. It was held as cumulative collateral security by the new bank for its own benefit. Since principal and interest are correlative terms, like parent and child, where no principal is owing no interest can accrue.
Because it did not take a cross-appeal from a judgment reversed on direct appeal, the dissenting opinion would perpetuate an error against appellee committed on the original trial of this case. None of the authorities cited in the dissenting opinion supports this contention. There was but one final judgment in this case; the others were interlocutory. The appellant saw fit to appeal from the entire judgment, not from items or portions thereof as it might have done. Also, under Rule 75 (d), Rules of Civil Procedure, 28 U.S.C.A. following section 723c, it designated the entire record, proceedings, and evidence in the court below for inclusion in the record on appeal. Why should an appellate court, remanding for retrial an action involving an intricate equitable accounting, not notice a plain error against the appellee? Courts sit to do justice between the parties, not merely to decide points in a tilt between lawyers. We are not enlarging the appellee’s rights under the judgment appealed from; we are reversing and annulling the judgment at the instance of appellant.
An appeal in equity, unless expressly restricted, brings up both law and fact.12 It is a proceeding in continuation of the original suit.13 The entire cause is removed the appellate court and tried de novo on the record and evidence in the lower court.14 Findings of fact may not be set aside unless clearly erroneous, and due regard must be given to the opportunity of the trial court to judge of the credibility of the witnesses;15 but there is nothing in our decision that contravenes the provisions of this rule, or of any rule, statute, or legal principle that has been called to our attention.
All distinctions as to forms in [241]*241the federal courts between actions at law and suits in equity have been abolished;16 but the difference in substance in federal judicial power between law and equity is imbedded in the Constitution and remains unaltered.17 Therefore, a civil action against a trustee to compel an accounting for trust funds, and for profits derived from the use or misuse of trust property, falls within the established equitable jurisdiction of the federal courts, and is governed by the maxims and principles of equity.
The mere fact that filing a notice of appeal18 has been substituted for other methods of invoking the jurisdiction of a circuit court of appeals has not obliterated pre-existing distinctions in the . scope of the review between appeals and writs of error. Upon such writs, no error in law could be reviewed that did not appear upon the record or unless made a part of the record by bill of exceptions;19 but an appeal, which was derived from the civil law, reopened the whole case, subjecting the law and the facts to a review and retrial.20
In the case at bar, without a cross-appeal, the appellee might have urged in support of the judgment in its behalf that usurious interest erroneously allowed appellant by the court below equalled or exceeded the amount of all items comprising said judgment. This course was approved and the additional grounds examined in United States v. American Ry. Express Co., 265 U.S. 425, page 435, 44 S.Ct. 560, 564, 68 L.Ed. 1087, wherein the Supreme Court said: “But it is likewise settled that the appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it. By the claims now in question, the American does not attack, in any respect, the decree entered below. It merely asserts additional grounds why the decree should be affirmed. These grounds will be examined.”
The appellee did not so urge in its brief, though its plea of usury is not withdrawn but is in the record before us on this appeal, and the very items held by us to be usurious are assailed on another ground in the brief of interveners, who are the equitable owners of the remaining assets of the old bank. Therefore, the real basis of appellant’s complaint must be that this court noticed an error against appellee upon a ground ignored, overlooked, or rejected by the court below and not brought up by cross-appeal. By the error under review, the interveners were not attacking the judgment in favor of appellee but were asserting an additional ground for its affirmance. We have examined the items and find them to be usurious but insufficient to prevent reversal, because of the intricacy of the accounts and the necessity of further findings. Having sought reversal of the judgment, appellant cannot complain of the action of the court on the errors assigned by it.
A comprehensive construction of the contract in suit is a prerequisite to a correct decision of the issues presented by appellant’s five assignments of error. No such construction is possible without a harmonious determination on this appeal of the intention of the parties in the use of the words contained in the contract. We should not remand the cause for a new accounting in such condition that the word interest would have one meaning when examining credits to appellant and a different meaning when examining debits against it.
Appellant’s fifth assignment of error assails an interest charge in favor of appellee on the ground that there is no principal due. This contention implies that interest is compensation for the use or detention of money, while under the contract appellant seeks to hold fast to the ruling that interest on assets is compensation for [242]*242services rendered. Its third assignment of error relates to the denial of service charges for administering Class C assets. Its fourth deals with its right to reimbursement for a pro rata share of expenses and salaries in administering Class C assets. Appellant is obtaining a reversal of the judgment on assignments three and four. Our power to reverse and remand generally on these two grounds is beyond question. Except as otherwise directed by us, this case will go back to the district court as if the former trial had not taken place.21 It cannot be denied that the trial court may then review, reverse, or ignore its former rulings, and yet it is contended that this court may not at this time lay down the principles governing the new trial, although it may review the action of the trial court on a subsequent appeal. We do not see the necessity of such circuity of action.22
The judgment appealed from is reversed, and the cause remanded generally for further proceedings not inconsistent with this opinion. The costs of this appeal shall be assessed against appellant except as to one-fourth thereof, which shall be assessed against appellee.