BUTLER, District Judge.
In this case, (which was tried without a jury,) involving the construction of a contract, and the defendant’s alleged liability for failure to perform, forty-eight errors are assigned. Most of them are unnecessary, and many are trivial. Such a practice tends to waste of time, and obscurity, and deserves discouragement.
The only assignment which requires notice is that involving the construction of the contract. The instrument is inarlificially and carelessly drawn; but the intention of the parties is, we think, reasonably clear. It provides, substantially, that the plaintiff shall cut, house and deliver on board the defendant’s vessels, 15,000 tons [572]*572of ice, of a given quality, during the mouths of June, July, August, and September, 1889; the defendant paying therefor fl.60 per ton, as follows: $3,750 on signing the contract, a further sum of equal amount the following March, in case three-fourths of the whole quantity of ice is then stored, in specified houses, and 75 cents per ton additional as the ice is delivered, until the amount advanced is exhausted by shipments, and thereafter pay $1.00 a ton as shipped. It also provides that the ice shall become the defendant’s property when cut. If the contract contained nothing more it should receive the construction adopted by the circuit court. The plaintiff in such case would be required to cut and store the entire quantity of ice named. But it contains the following additional paragraph:
, “Provided, however, the said Pred. S. Fisher shall have a right to make up the quantity to be delivered as aforesaid by purchase or otherwise, indemnifying the said Newark Ice Oo. for any additional expense it may be put to.”
This language was intended to, and does, qualify the preceding terms respecting storage; otherwise it has no significance whatever. It was not intended to relieve the plaintiff from cutting, with his own hands or those of his employes; he needed no such relief. He had a right without this provision to avail himself of anybody’s cutting. The defendant was only interested in his procurement of the ice and storing it. He needed relief, however, against the' obligation imposed by the preceding language to store the entire quantity. The defendant was interested in the storage of the three-quarters, named, which was necessary to secure his advances; but no further. This quantity was required to be stored in March, before the last advancement should be made. To require the plaintiff to store (in his own houses) such part of the balance as he should purchase (stored already elsewhere) would subject him to heavy and unnecessary expense; and it was relief against this which the proviso was intended to afford. The stipulation that he “shall bear any additional expense” to the defendant arising from such purchase, seems to remove all doubt of this. It is such “additional expense” as the defendant may incur in. talcing the ice from other houses, that is contemplated. If the ice was stored in the plaintiff’s houses his purchasing could not entail any additional expense on the defendant. The scheme in the minds of the parties seems plain. It was for a sale and purchase of 15,000 tons of ice, on which $7,500 should be advanced. It was important the purchaser should be secured for this sum; and hence the provision for storing three-fourths of the quantity, and a lien upon it for the one-third of the price paid. It was no doubt understood from the beginning that a chattel mortgage on the ice stored should be executed and recorded, as was done when the last advancement was made. The provision for a transfer of title .as soon as it was cut afforded no security; and the storage of an additional quantity subsequently to the mortgage would not have increased the security which that instrument afforded. That the plaintiff was not required [573]*573or expected to store more than three-fourths by the last of March is made clear by the language referred to. Whether ice of the specified quality (12 inches thick) could be cut, after that date is not shown; but we think it is safe to assume that it could not. The parties foreseeing' that the plaintiff might not succeed in storing the full amount while the season for cutting lasted, added the proviso for his protection.
The construction stated accords, therefore, not only with the terms of the contract, but willi what seems to have been the intention of the par ties.
With this construction it becomes necessary to ascertain wbeth. or the plaintiff was ready to perform. Nothing shown relieved him from the burden of proving such readiness. He loaded all the vessels forwarded. The tender of certain cargoes afloat, on payment of freight, is unimportant. It appeal's, however, that he had 4,000 tons on hand. It is immaterial that another was interested in this; he had entire control of it. The refusal to take it excused him from making further provision to deliver. The evidence shows, however, that he could have complied with his contract, and was ready and anxious to do so. The only ques rion open, therefore, is that of damages. Tiie plaintiff is not entitled to the balance of pun-base money; bur only to such sum as will cover his loss- — in oilier words, the profit; he would have made if the ice had been taken and paid for according to the contract. This may be ascertained by deducting from the unpaid purchase money the value of the undelivered ice in tiie market (in Canada) at the time it should have been taken, and the expenses of loading, etc., saved to the plaintiff by the failure' to take it.
Tiie case must’go back to the circuit court for the purpose of ascertaining the damages, and entering judgment against the defendant therefor.
After the above opinion was handed down, and an order entered in accordance therewith, Hie defendant in error moved to amend the reversing order by striking out therefrom so much 1,hereof as directs as follows:
"Ami it ⅛ further ordered that this cause be remanded to the said circuit court for tiie purpose of ascertaining Uie damages in accordance with the opinion tiled, and entering1 judgment against: the defendant therefor.”
At the same time the defendant in error moved for leave to lile a petition for a rehearing of the cause so far as I,lie same relates to or is covered by the said portion of the said order of reversal.
John R. Emery, of counsel for defendant in error, in support of the motion.
The defendant in error assigns the following reasons for said motion:
‘•First Because on the said writ of error and on the opinion of tiie court the only proper judgment is a judgment of reversal and a direction for a; new trial. The order is made as if tiie cause wore heard on an appeal in equity, and not a writ of error.
[574]*574“Second. Because the said court, sitting as a court of review on a writ of error, has no power or jurisdiction to decide any questions of fact or to direct that any questions of fact shall he considered as settled or determined for the purpose of directing the judgment of the court below upon a reversal of the judgment and order for new trial.
“Third. Because the order of reversal as made deprives the defendant in error of the right of review on the exceptions taken by it during the trial, and which it has the right to have reviewed in case, on a now trial, judgment should be entered against it.
“Fourth.
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BUTLER, District Judge.
In this case, (which was tried without a jury,) involving the construction of a contract, and the defendant’s alleged liability for failure to perform, forty-eight errors are assigned. Most of them are unnecessary, and many are trivial. Such a practice tends to waste of time, and obscurity, and deserves discouragement.
The only assignment which requires notice is that involving the construction of the contract. The instrument is inarlificially and carelessly drawn; but the intention of the parties is, we think, reasonably clear. It provides, substantially, that the plaintiff shall cut, house and deliver on board the defendant’s vessels, 15,000 tons [572]*572of ice, of a given quality, during the mouths of June, July, August, and September, 1889; the defendant paying therefor fl.60 per ton, as follows: $3,750 on signing the contract, a further sum of equal amount the following March, in case three-fourths of the whole quantity of ice is then stored, in specified houses, and 75 cents per ton additional as the ice is delivered, until the amount advanced is exhausted by shipments, and thereafter pay $1.00 a ton as shipped. It also provides that the ice shall become the defendant’s property when cut. If the contract contained nothing more it should receive the construction adopted by the circuit court. The plaintiff in such case would be required to cut and store the entire quantity of ice named. But it contains the following additional paragraph:
, “Provided, however, the said Pred. S. Fisher shall have a right to make up the quantity to be delivered as aforesaid by purchase or otherwise, indemnifying the said Newark Ice Oo. for any additional expense it may be put to.”
This language was intended to, and does, qualify the preceding terms respecting storage; otherwise it has no significance whatever. It was not intended to relieve the plaintiff from cutting, with his own hands or those of his employes; he needed no such relief. He had a right without this provision to avail himself of anybody’s cutting. The defendant was only interested in his procurement of the ice and storing it. He needed relief, however, against the' obligation imposed by the preceding language to store the entire quantity. The defendant was interested in the storage of the three-quarters, named, which was necessary to secure his advances; but no further. This quantity was required to be stored in March, before the last advancement should be made. To require the plaintiff to store (in his own houses) such part of the balance as he should purchase (stored already elsewhere) would subject him to heavy and unnecessary expense; and it was relief against this which the proviso was intended to afford. The stipulation that he “shall bear any additional expense” to the defendant arising from such purchase, seems to remove all doubt of this. It is such “additional expense” as the defendant may incur in. talcing the ice from other houses, that is contemplated. If the ice was stored in the plaintiff’s houses his purchasing could not entail any additional expense on the defendant. The scheme in the minds of the parties seems plain. It was for a sale and purchase of 15,000 tons of ice, on which $7,500 should be advanced. It was important the purchaser should be secured for this sum; and hence the provision for storing three-fourths of the quantity, and a lien upon it for the one-third of the price paid. It was no doubt understood from the beginning that a chattel mortgage on the ice stored should be executed and recorded, as was done when the last advancement was made. The provision for a transfer of title .as soon as it was cut afforded no security; and the storage of an additional quantity subsequently to the mortgage would not have increased the security which that instrument afforded. That the plaintiff was not required [573]*573or expected to store more than three-fourths by the last of March is made clear by the language referred to. Whether ice of the specified quality (12 inches thick) could be cut, after that date is not shown; but we think it is safe to assume that it could not. The parties foreseeing' that the plaintiff might not succeed in storing the full amount while the season for cutting lasted, added the proviso for his protection.
The construction stated accords, therefore, not only with the terms of the contract, but willi what seems to have been the intention of the par ties.
With this construction it becomes necessary to ascertain wbeth. or the plaintiff was ready to perform. Nothing shown relieved him from the burden of proving such readiness. He loaded all the vessels forwarded. The tender of certain cargoes afloat, on payment of freight, is unimportant. It appeal's, however, that he had 4,000 tons on hand. It is immaterial that another was interested in this; he had entire control of it. The refusal to take it excused him from making further provision to deliver. The evidence shows, however, that he could have complied with his contract, and was ready and anxious to do so. The only ques rion open, therefore, is that of damages. Tiie plaintiff is not entitled to the balance of pun-base money; bur only to such sum as will cover his loss- — in oilier words, the profit; he would have made if the ice had been taken and paid for according to the contract. This may be ascertained by deducting from the unpaid purchase money the value of the undelivered ice in tiie market (in Canada) at the time it should have been taken, and the expenses of loading, etc., saved to the plaintiff by the failure' to take it.
Tiie case must’go back to the circuit court for the purpose of ascertaining the damages, and entering judgment against the defendant therefor.
After the above opinion was handed down, and an order entered in accordance therewith, Hie defendant in error moved to amend the reversing order by striking out therefrom so much 1,hereof as directs as follows:
"Ami it ⅛ further ordered that this cause be remanded to the said circuit court for tiie purpose of ascertaining Uie damages in accordance with the opinion tiled, and entering1 judgment against: the defendant therefor.”
At the same time the defendant in error moved for leave to lile a petition for a rehearing of the cause so far as I,lie same relates to or is covered by the said portion of the said order of reversal.
John R. Emery, of counsel for defendant in error, in support of the motion.
The defendant in error assigns the following reasons for said motion:
‘•First Because on the said writ of error and on the opinion of tiie court the only proper judgment is a judgment of reversal and a direction for a; new trial. The order is made as if tiie cause wore heard on an appeal in equity, and not a writ of error.
[574]*574“Second. Because the said court, sitting as a court of review on a writ of error, has no power or jurisdiction to decide any questions of fact or to direct that any questions of fact shall he considered as settled or determined for the purpose of directing the judgment of the court below upon a reversal of the judgment and order for new trial.
“Third. Because the order of reversal as made deprives the defendant in error of the right of review on the exceptions taken by it during the trial, and which it has the right to have reviewed in case, on a now trial, judgment should be entered against it.
“Fourth. Because such order of reversal shall deprive the'defendant in error of defenses which it is entitled to raise upon a new trial.
“Fifth. Because in right and justice the said cause should bo retried by the court below upon evidence to be produced on such new trial.
“Sixth. Because, for other reasons, the said amendment should be made.”
Roger Foster, of counsel for plaintiff in error, in opposition.
The court had power to enter the order in the form that it adopted. Such a form is authorized by section 701 of the Revised Statutes, which provides as follows: “The supreme court may affirm, modify or reverse any judgment, decree or order of a circuit court, or district court acting as a circuit court, or of a district court in xnáze causes, lawfully brought before it for review, or may direct such judgment, decree, or order to be rendered, or such further proceedings to bo had by the inferior court, as the justice of the case may require. The supreme coui’t shall not issue execution in a cause removed before it from such courts, but shall sena a special mandate to the inferior court to award execution thereupon.” The same power is given to the circuit courts of appeals by section 11 of the Evarts act. The object of Rev. St. U. S. § 649, and of the stipulation providing that the court “shall make special findings upon the facts herein,” would bo nullified were a new trial to be ordered, upon which entirely different findings upon the facts might be made. A similar course has been frequently adopted by the supreme court of the United States. In Railway Co. v. Hoyt, 149 U. S. 1, 17 [13 Sup. Ct. 779], the case was also tried by a court without a jury, which made special findings. The opinion concludes as follows: “The conclusion of this court is that the judgment awarded the lessees is erroneous, and must be reversed, with costs, and that the cause should be remanded, with directions to the court below to- enter judgment in favor of the plaintiff in error for the above amount of rent due it, with interest thereon from October 1, 1889, the date of judgment below, and it is according^ so ordered.” In Insurance Co. v. Boykin, 12 Wall. 433. where a general verdict had been rendered below against all the defendants, the court reversed the judgment, and directed that the damages be divided between the different defendants. The supreme court said, speaking through Mr. .Justice Miller: “Indeed, it was for a long time denied that a court of error could award a venire facias de novo. In the case of Philips v. Bury, reported at great length in Skin. 447, which was an action in the king’s bench and writ of error to the peers, who reversed the judgment below, the case was carried back and forward several times between the peers and the king's bench on the question of which court should render the judgment on the verdict, and it was finally settled that the house of lords should give the judgment which the king’s bench ought to have given, Eyre, C. J., saying that, where judgment is upon a verdict, if they reverse a judgment, they ought to give the same judgment that ought to have been given at first, and that judgment ought to be sent to the court below. So in Slocomb’s Case, Cro. Car. 442, on a general verdict, where judgment was reversed in the king’s bench, it was, in the language of the reporter, ‘agreed by all the court, if the declaration and ver-diet’be good, then judgment ought to be given for plaintiff, whereof Jones at first doubted, but at last agreed thereto, for we axe to give such judgment as they ought to have given there.’ In 1 Salk. (Anon., 1 Salk. 401. See, also. Butcher v. Porter, 1 Show. 400) it te said: ‘If judgment be below for plaintiff, and error is brought, and that judgment reversed, yet, if the record will warrant it, the court ought to give a new judgment for the plaintiff,’ — which is precisely the case before us. See also, Butcher v. Porter, Id. And in Mellor v. Moore, 1 Bos. & P. 30, on the authority of these and other cases, the court [575]*575of exchequer chamber held that, when a judgment is reversed on demurrer iu favor of plaintiff, the case is sent down, and a writ of inquiry goes; hut when it is upon a verdict they should give the; same judgment that ought to have been given at first, and that judgment ought to be sent below. In Gildart v. Gladstone, 12 East, 668, on a case from the common pleas having been reversed on a special verdict, Lord Ellenborough said: ‘The court are bound, ex officio, to give a perfect judgment upon the record before him.’ The provisions of our statute of 1789, already cited, show that the lawyers who framed it were familiar with the doubts which seemed at that time to beset the courts in England as to the precise judgment to be rendered In a court of errors on reversing a. judgment, and they in plain language prescribed the rule which has since become the settled law of the English courts on the same subjects.” In Bank v. Smith, 11 Wheat. 171, 172, 182, where a demurrer to the evidence had been sustained, and judgment below entered for the defendant, the supreme court, on a reversal, ordered that judgment be entered for the plaintiff for the damages that were due him, saying: “We are accordingly of opinion that the evidence was sufficient to entitle the plaintiffs to recover; that the judgment of the court below must be reversed, and the cause sent back, with directions to enter judgment for the plaintiffs upon the demurrer to evidence for the amount of the note and interest.” In Insurance Co. v. Piaggio, 16 Wall. 378, where judgment had been rendered for the plaintiff, the court, on writ of error, instead of granting a new venire, modified (lie judgment by disallowing a certain amount of damages therein included, and directing that the court below .enter judgment, for a less amount with interest. The practice adopted- by the court In this case is in accordance with the former practice in the house of lords and the exchequer chamber, which were accustomed, when reversing a judgment in favor of the defendant in a case like that at bar, to direct a writ of inquiry as to (he damages to be issued by the court below.
The special findings here are to be treated as a special verdict. Rev. St. U. S. § 649.
2 Tidd, Pr. p. 1180: “When a judgment against the plaintiff Is reversed on a writ of error brought in the king’s bench, that court, having the record before them, may in all cases give such judgment as the court below should have given; and, if necessary, may award a writ of inquiry to assess the damages. And so, when judgment is given against the plaintiff in the king’s bench on a special verdict, by which the damages are assessed, — as where judgment is given on demurrer, — the exchequer chamber or house of lords, ⅞ * not having the record before them, but only a transcript, cannot give a new and complete judgment, but only an interlocutory judgment quod recuperet; and, the transcript being remitted, tlie court of king’s bench will award a writ of Inquiry, and give final judgment.” Citing Philips v. Berry, 1 Ld. Raym. 5, 10, 1 Salk. 403, 1 Skin. 447, Carth. 319; Denn v. Moore, 1 Bos. & P. 30; Faldowe v. Ridge, Cro. Jac. 200. See, also, Stephens v. Cowan, 6 Watts. 511, 513, 514.
2 Tidd, Pr. p. 1179: “If judgment be given against the defendant, and he bring a writ of error upon which the judgment is reversed, the judgment, it Is said, shall only he quod judicium reversetur; for the writ of error is brought only to be ease.d and discharged from that judgment. But, if judgment be given against the plaintiff, and ho bring a writ of error, the judgment shall not only be reversed, if erroneous, but the court shall also give'such judgment as the court below should have given, for the writ of error is to revive the first cause of action, and to recover what he ought to have recovered by the first suit, wherein an erroneous judgment was given.”
The motion was denied without any opinion being filed.