WILBUR K. MILLER, Circuit Judge.
The United States District Court for the District of Columbia summarily adjudged Mrs. Helen Draper Hoffman liable in damages to Mrs. Grace Partridge for breach of a contract to sell and convey real estate. Then, after hearing evidence, the court awarded damages in the sum of $15,-200, plus title expense. Upon Mrs. Hoffman’s appeal, we held a genuine issue of material fact had been presented, so we reversed the summary judgment and remanded the cause. Hoffman v. Partridge, 1949, 84 U.S.App.D.C. 224, 172 F.2d 275.
At the conclusion of plaintiff’s evidence in the second trial of the case, March 16, 1949, the district judge orally announced he would grant the defendant’s motion to dismiss. On March 28, 1949, Mrs. Partridge, the plaintiff, moved for a new .trial. Judgment dismissing the action pursuant to the court’s oral announcement was entered April 11, 1949. An order overruling the motion for a new trial was filed September 27, 1949. On October 4, 1949, the plaintiff noted an appeal to this court. Both original parties are now dead and the action stands here in the names of their executors as appellant and appellee.
Appellee’s argument that the motion for a new trial was premature because it was filed before the actual entry of judgment must be rejected, since Rule 59(b) of the Federal Rules of Civil Procedure requires a motion for a new trial to be “served not later than 10 days after the entry of the judgment.” It is perhaps somewhat unusual practice to move for a new trial before the actual entry of a judgment, but to do so is not forbidden by Rule 59(b).
The appellee also contends the appeal should be dismissed because he says it was not taken within the time fixed by Rule 73(a) of the Federal Rules.1 His theory is that, even if the motion for a new .trial was not premature, it was overruled by the judgment of April 11, with the result that the thirty-day period for appeal then began to run, and ended long before the appeal was noted on October 4, 1949. He bases this contention upon the general principle that the entry of an order inconsistent with granting the relief sought by a motion then pending is a denial of the motion.
In support of the application of this principle to the case at bar he cites Mosier v. Federal Reserve Bank of New York, 2 Cir., 1942, 132 F.2d 710. There, as here, the trial judge announced at the conclusion of the plaintiff’s evidence that judgment would go for the defendant. There, as here, the plaintiff’s motion for a new trial preceded the entry of judgment pursuant to the court’s oral announcement. There, as here, a formal order overruling the motion for a new trial was entered some time after the entry of the judgment. But at this point the similarity between the two cases ends. In the Mosier case the court heard argument on the motion for a new trial, endorsed on the papers that the motion “is in all respects denied,” and then entered formal judgment for the defendant. Thus, the court clearly intended the judgment to overrule the motion in accordance with the principle cited by the appellee; and the subsequent overruling order was unnecessary, as the Second Circuit held.
[647]*647In the present case, however, nothing appears to indicate a hearing was had on the motion prior to the judgment of April 11, nor even that the trial judge was then aware of the pendency of the motion for a new trial. This is the distinguishing difference between the two cases. That an order overruling the motion was entered on September 27, 1949, indicates the court had not consciously disposed of the matter by entering the judgment on April 11; so instead of being unnecessary, as was the subsequent order in the Mosier case, the order of September 27 was the first and only disposition of the pending motion.
It follows that the motion of March 28, even though it was filed before the judgment was entered, terminated the running of the time for appeal from the judgment of April 11, and caused the full thirty-day period to commence to run on September 27, when the motion was denied. The appeal noted on October 4 was in ample time. We are thus brought to a consideration of the merits.
The District Court held the contract void for several reasons, — one being it was impossible for Mrs. Hoffman to comply with the following provision of the contract: “ * * * The seller agrees to deliver her permit from the D. C. for the installation of an additional kitchen in the house, making it a two family dwelling.” Mrs. Patridge, who was an experienced real estate dealer, personally prepared the contract by typing certain matter into a printed form. She typed into it that the property was “known as 8 Lenox St. Chevy Chase Md.” Yet she also typed on the form the agreement quoted above concerning a conversion permit. It appears, therefore, that although she knew the house was in Maryland, Mrs. Partridge inserted the requirement that a District of Columbia permit to convert the dwelling be delivered to her — an obvious impossibility.
To be sure, the printed form contained this language:
“If the property involved in this contract is located in a jurisdiction other than the District of Columbia, wherever any reference is made to the District of Columbia or any official thereof, the name of the jurisdiction in which the property is located and the proper official thereof is substituted automatically.”
But, if it be considered that this printed provision prevails over the deliberately inserted requirement of a District of Columbia permit, so as to cause the typed sentence to be read as requiring a Maryland permit to be delivered, performance was impossible because the house is in a territory restricted by Maryland zoning regulations to one-family dwellings. It is suggested, in opposition to this conclusion, that the Maryland zoning ordinance was neither pleaded nor proved, and that courts do not take judicial notice of municipal ordinances. We point out, in response to the suggestion, that the pretrial order shows the appellee’s contention that the property is in a Maryland area zoned for single-family units, and thus shows the presence of that issue. It is true that at the second trial the zoning of the property was not proved* but we observe that at the first trial two witnesses — one testifying for each party— said the house was within an area zoned for single-family houses. We are justified in referring to that evidence because an appellate court takes judicial notice of its own records, particularly of the record on a prior appeal of the same case between the same parties. Franz v. Buder, 8 Cir., 1929, 34 F.2d 353; City of Orlando v. Murphy, 5 Cir., 1938, 94 F.2d 426. Moreover, pursuant to a motion by the appellant made soon after the present appeal was noted, we ordered the record on the first appeal to be treated as part of the record in the present appeal.
In addition, there was no evidence at the second trial that Mrs. Hoffman represented to Mrs. Partridge that she had or could obtain a permit to convert the single dwelling into apartments. At the first trial there was testimony, of doubtful admissibility, that Mrs. Hoffman had told a third person she had a permit.
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WILBUR K. MILLER, Circuit Judge.
The United States District Court for the District of Columbia summarily adjudged Mrs. Helen Draper Hoffman liable in damages to Mrs. Grace Partridge for breach of a contract to sell and convey real estate. Then, after hearing evidence, the court awarded damages in the sum of $15,-200, plus title expense. Upon Mrs. Hoffman’s appeal, we held a genuine issue of material fact had been presented, so we reversed the summary judgment and remanded the cause. Hoffman v. Partridge, 1949, 84 U.S.App.D.C. 224, 172 F.2d 275.
At the conclusion of plaintiff’s evidence in the second trial of the case, March 16, 1949, the district judge orally announced he would grant the defendant’s motion to dismiss. On March 28, 1949, Mrs. Partridge, the plaintiff, moved for a new .trial. Judgment dismissing the action pursuant to the court’s oral announcement was entered April 11, 1949. An order overruling the motion for a new trial was filed September 27, 1949. On October 4, 1949, the plaintiff noted an appeal to this court. Both original parties are now dead and the action stands here in the names of their executors as appellant and appellee.
Appellee’s argument that the motion for a new trial was premature because it was filed before the actual entry of judgment must be rejected, since Rule 59(b) of the Federal Rules of Civil Procedure requires a motion for a new trial to be “served not later than 10 days after the entry of the judgment.” It is perhaps somewhat unusual practice to move for a new trial before the actual entry of a judgment, but to do so is not forbidden by Rule 59(b).
The appellee also contends the appeal should be dismissed because he says it was not taken within the time fixed by Rule 73(a) of the Federal Rules.1 His theory is that, even if the motion for a new .trial was not premature, it was overruled by the judgment of April 11, with the result that the thirty-day period for appeal then began to run, and ended long before the appeal was noted on October 4, 1949. He bases this contention upon the general principle that the entry of an order inconsistent with granting the relief sought by a motion then pending is a denial of the motion.
In support of the application of this principle to the case at bar he cites Mosier v. Federal Reserve Bank of New York, 2 Cir., 1942, 132 F.2d 710. There, as here, the trial judge announced at the conclusion of the plaintiff’s evidence that judgment would go for the defendant. There, as here, the plaintiff’s motion for a new trial preceded the entry of judgment pursuant to the court’s oral announcement. There, as here, a formal order overruling the motion for a new trial was entered some time after the entry of the judgment. But at this point the similarity between the two cases ends. In the Mosier case the court heard argument on the motion for a new trial, endorsed on the papers that the motion “is in all respects denied,” and then entered formal judgment for the defendant. Thus, the court clearly intended the judgment to overrule the motion in accordance with the principle cited by the appellee; and the subsequent overruling order was unnecessary, as the Second Circuit held.
[647]*647In the present case, however, nothing appears to indicate a hearing was had on the motion prior to the judgment of April 11, nor even that the trial judge was then aware of the pendency of the motion for a new trial. This is the distinguishing difference between the two cases. That an order overruling the motion was entered on September 27, 1949, indicates the court had not consciously disposed of the matter by entering the judgment on April 11; so instead of being unnecessary, as was the subsequent order in the Mosier case, the order of September 27 was the first and only disposition of the pending motion.
It follows that the motion of March 28, even though it was filed before the judgment was entered, terminated the running of the time for appeal from the judgment of April 11, and caused the full thirty-day period to commence to run on September 27, when the motion was denied. The appeal noted on October 4 was in ample time. We are thus brought to a consideration of the merits.
The District Court held the contract void for several reasons, — one being it was impossible for Mrs. Hoffman to comply with the following provision of the contract: “ * * * The seller agrees to deliver her permit from the D. C. for the installation of an additional kitchen in the house, making it a two family dwelling.” Mrs. Patridge, who was an experienced real estate dealer, personally prepared the contract by typing certain matter into a printed form. She typed into it that the property was “known as 8 Lenox St. Chevy Chase Md.” Yet she also typed on the form the agreement quoted above concerning a conversion permit. It appears, therefore, that although she knew the house was in Maryland, Mrs. Partridge inserted the requirement that a District of Columbia permit to convert the dwelling be delivered to her — an obvious impossibility.
To be sure, the printed form contained this language:
“If the property involved in this contract is located in a jurisdiction other than the District of Columbia, wherever any reference is made to the District of Columbia or any official thereof, the name of the jurisdiction in which the property is located and the proper official thereof is substituted automatically.”
But, if it be considered that this printed provision prevails over the deliberately inserted requirement of a District of Columbia permit, so as to cause the typed sentence to be read as requiring a Maryland permit to be delivered, performance was impossible because the house is in a territory restricted by Maryland zoning regulations to one-family dwellings. It is suggested, in opposition to this conclusion, that the Maryland zoning ordinance was neither pleaded nor proved, and that courts do not take judicial notice of municipal ordinances. We point out, in response to the suggestion, that the pretrial order shows the appellee’s contention that the property is in a Maryland area zoned for single-family units, and thus shows the presence of that issue. It is true that at the second trial the zoning of the property was not proved* but we observe that at the first trial two witnesses — one testifying for each party— said the house was within an area zoned for single-family houses. We are justified in referring to that evidence because an appellate court takes judicial notice of its own records, particularly of the record on a prior appeal of the same case between the same parties. Franz v. Buder, 8 Cir., 1929, 34 F.2d 353; City of Orlando v. Murphy, 5 Cir., 1938, 94 F.2d 426. Moreover, pursuant to a motion by the appellant made soon after the present appeal was noted, we ordered the record on the first appeal to be treated as part of the record in the present appeal.
In addition, there was no evidence at the second trial that Mrs. Hoffman represented to Mrs. Partridge that she had or could obtain a permit to convert the single dwelling into apartments. At the first trial there was testimony, of doubtful admissibility, that Mrs. Hoffman had told a third person she had a permit. There was no evidence at either trial that she made such a representation to Mrs. Partridge.
At the time of the negotiations between the parties, Mrs. Hoffman had begun the work of converting the dwelling into a two-[648]*648family unit, but clearly she had done so without any permit from the Maryland zoning authorities. Mrs. Partridge did not want to taire such a chance. She said she wanted “to be sure I had the permit” if she went on with the work of conversion after purchasing the property. That was the reason she inserted the language concerning the permit, which must be construed as requiring a legally effective permit under which the conversion could lawfully be made and maintained. Since the zoning regulations forbade such conversion, the provision inserted by Mrs. Partridge required Mrs. Hoffman to do something which was legally impossible. A violation of a zoning regulation is a misdemeanor. (II Md. Code Ann., Art. 66B, § 8(1939).)
The requirement that a valid conversion permit be delivered was not a minor consideration with Mrs. Partridge but was one to which she attached importance. She testified that the right to convert the house into apartments was to her an important element of value. It is to be noted also that the contract contains no express agreement on the part of Mrs. Hoffman to assume the risk of performance, whether possible or not. Certainly the impossibility was not due to her fault. That being so, she is excused from the obligation of doing, and from liability for not doing, that which is made impossible by domestic law. Professor Williston, in his Treatise on the Law of Contracts (v. 6, p. 5418, § 1935, 1938 ed.), says:
“Not every kind of impossibility will excuse a promisor from liability for breach of his promise, even though he does not expressly undertake the risk of impossibility. There are, however, three classes of cases where it is well settled that the prom-isor will be excused unless he either expressly agreed in the contract to assume the risk of performance, whether possible or not, or the impossibility was due to his fault; * * *.
“.(1) Impossibility due to domestic law; * * =M>
It appears, moreover, that at the second trial Mrs. Partridge made no effort whatever to prove damage. Her omission in this respect doubtless was based on her theory that this court’s reversal of the previous judgment required only that the question of Mrs. Hoffman’s liability to her be retried; and that, if on the second trial the court should again determine that Mrs. Hoffman was liable in damages under the contract, the judgment of the District Court at the first trial as to the amount of damages would prevail. She relied on this theory in spite of the fact that at the pretrial proceedings held before the second trial the District Court entered an order which included the following:
“The Court of Appeals reversed the judgment on the ground that the motion for summary judgment should not have been granted. Plaintiff now contends that the second trial should be limited to the issue of liability and that if the plaintiff recovers on that issue judgment should be rendered for the amount of damages previously assessed.
“Defendant contends that all issues should be tried. The Pretrial Court holds that since the judgment was reversed the new trial should not be limited to the particular ground on which the Court of Appeals predicated its Opinion, but that in accordance with the usual practice the entire case should be retried.”
The pretrial judge was correct in holding all the issues were to be tried again, so Mrs. Partridge’s failure to introduce evidence tending to show damage was alone enough to justify dismissal of her suit. It is suggested, with respect to the failure, that no opportunity was given the purchaser to present evidence on the issue of damages before the trial court awarded judgment to the seller upon the theory that the contract was unenforceable. We do not so read the record. The purchaser made no tender of such evidence and indicated no desire to present it.
But if that were not true, and if the evidence adduced at the first trial on the question of damage had been before the District Court at the second, we should be constrained to hold it insufficient to justify an award. Aside from her own evidence on the subject, Mrs. Partridge offered at [649]*649the first trial one expert witness who testified the property had a fair market value of $46,500 on June 1, 1946, and another who fixed it at $47,500. The proof also showed, however, that Mrs. Hoffman had purchased the property at an auction either in December, 1945, or January, 1946, for a sum between $26,500 and $26,750. There was no evidence of any repairs or improvements made between the date of purchase and the date of the contract here involved which materially added to the value. Two experts introduced by Mrs. Hoffman fixed the fair market value as of June 1, 1946, at $34,000. Mrs. Partridge testified she had unsuccessfully tried in April or May, 1946, to sell the real estate for $47,000; and that she was even unable to find a purchaser at $34,000, and so decided to make an offer of $32,300 on her own behalf, that being the net amount Mrs. Hoffman would have received had a sale been made at $34,000 and a commission of $1,-700 been paid to Mrs. Partridge. On May 23, 1946, Mrs. Hoffman made an actual sale for $34,000 cash.
The amount of Mrs. Hoffman’s purchase price, Mrs. Partridge’s failure to obtain a purchaser even at $34,000, and the actual sale at $34,000, tend to support the evidence of Mrs. Hoffman’s expert witnesses who fixed the fair market value at $34,000. Expert opinion that the fair market value was in the neighborhood of $47,-000 could not prevail over the opinion of other experts that it was no more than $34,-000 when the latter was supported, as we have seen, by actual occurrences; and so an award of damages based on the unsupported and disproportionately large estimate of Mrs. Partridge’s expert witnesses would be clearly erroneous. So, even had the contract been valid, there was no showing of damage to Mrs. Partridge at either the first or the second trial.
Affirmed.