consent of" the lessor. The lease contains full special provisions giving the lessor the right to resume possession, and prohibiting the removal of the installation to "any other vessel or place," and also giving, in case of "abandonment," or "any use otherwise than" as provided in the contract, special remedies by injunction, etc.; all of which renders it inconsistent and unnecessary that the words "loss," "destruction," or "detention" should receive any unusual or forced construction. For all of these reasons we find it impossible to hold that the claimant's presentation of its own case shows any "loss," "destruction," or "detention," within the provisions of the lease on which it relies.

The principal burden of the discussion before us related to the fact that the Circuit Court had refused to direct the master to whom the claim was referred to report certain evidence with regard to the appellant's exceptions, although no request to report it had been made to him. The practice with reference to this topic in the federal courts is clearly pointed out in Greene v. Bishop, 1 Cliff. 186, 195, Fed. Cas. No. 5,763, and in Bates' Federal Procedure in Equity, vol. 2, §§ 771777. According to the settled practice, it would not have been proper for the master to report the entire evidence before him, as there was no order from the court to that effect, nor to report even such portions of the evidence as related to the exceptions, without a request from the party excepting. Of course, it was within the power of the Circuit Court to relieve any party excepting from so strict a rule as this; a power which is ordinarily expressed to be within the discretion of the court of first instance, but which, nevertheless, it would be within the authority of the appellate tribunal to revise, in case that tribunal found that justice required that the two courts should have the evidence referred to, for the purpose of properly disposing of the suit as it came before them. The extent to which authority of this kind is used by appellate courts is illustrated in some cases which go far beyond what would be required here. Goodman v. Niblack, 102 U. S. 556, 563, 26 L. Ed. 229; Wiggins Ferry Company v. Ohio & Mississippi Railway, 142 U. S. 396, 413, 416, 12 Sup. Ct. 188, 35 L. Ed. 1055; and The Helen Story, 71 Fed. 431, 17 C. C. A. 669. It is not, however, necessary for us to dwell on this topic, because the exceptions to which this discussion relates were as to purely incidental matters, wholly unimportant in view of the fact that we are able to dispose of the case on the face of the claimant's petition. The truth is that the propositions on which we rest our conclusions go so deep that these incidental matters are wholly immaterial.

The decree of the Circuit Court is affirmed, and the appellee recovers his costs of appeal.

VULCAN IRON WORKS CO. v. ROQUEMORE.

(Circuit Court of Appeals, Fifth Circuit.

December 21, 1909.)

No. 1,926.

1. SALES (§ 1681⁄2*)—TRIAL AND APPROVAL-CONSTRUCTION-CORRECTION of De

FECTS.

Where a contract for the sale of a steam shovel provided that if during the trial test any part of the shovel should prove defective, or any change be necessary, the seller should have a reasonable time to replace such parts, or make such changes as it should find necessary, the fact that the boiler, which was materially smaller than required by the specifications, was found during the trial test to be too small, and that certain other defects were discovered, did not warrant the buyer in refusing to permit the seller to perform; the seller having as of right a reasonable time in which to replace the boiler and correct the other defects.

[Ed. Note. For other cases, see Sales, Cent. Dig. §§ 409, 410; Dec. Dig. § 1682.*]

2. SALES (§ 418*)-SELLER'S CONTRACT-BREACH-DAMAGES.

For breach of a seller's contract to sell, the measure of the buyer's damages in case he has not paid any part of the price is the difference between the agreed price and the market value of the goods, or article sold, at the time of and place of delivery.

[Ed. Note.-For other cases, see Sales, Cent. Dig. § 1195; Dec. Dig. § 418.*]

3. SALES (§ 418*)-BREACH-DEFECTIVE MACHINERY-Damages.

Where a machine delivered under a contract of sale is defective, the measure of the buyer's damages is the actual cost of supplying the deficiency.

[Ed. Note.-For other cases, see Sales, Cent. Dig. § 1200; Dec. Dig. § 418.*1

4. SALES (§ 418*)-SELLER'S CONTRACT-BREACH-DAMAGES-MARKET VALUE. In an action for breach of a seller's contract to sell an article having no market value, the actual value must be determined by the best evidence obtainable, which in some instances might be proof of what it would cost the buyer acting in good faith and with diligence to procure the article contracted for in the condition required by the contract, delivered at the place named for delivery.

[Ed. Note.-For other cases, see Sales, Cent. Dig. § 1182; Dec. Dig. § 418.*]

5. SALES (8 418*)-SELLER'S BREACH-DAMAGES-PART PAYMENT IN GOODSVALUE-AGREEMENT AFFECTING MEASURE OF DAMAGES.

Where defendant contracted to manufacture and deliver to plaintiff a specified steam shovel for $6,250, $1,500 of which was to be paid in cash and the balance, $4,750, by delivery to defendant of another shovel owned by plaintiff the value so fixed must be regarded as the value in determining the buyer's measure of damages for breach by the seller.

[Ed. Note.-For other cases, see Sales, Cent. Dig. § 1187; Dec. 'Dig. § 418.*]

6. EVIDENCE (§ 419*)-PAROL EVIDENCE-WRITTEN CONTRACT-CONSIDERATION. Where a written contract for the sale of a steam shovel provided for payment of $1,500 in cash and the balance, $4,750, by the delivery to the seller of another shovel owned by the buyer, parol evidence, in an action for the seller's breach of contract that the buyer's shovel was not worth the contract value, was inadmissible as varying the terms of the contract, notwithstanding it also provided that on the buyer's acceptance of the sell•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

er's proposition the contract was to be a mutual cancellation of all obli gations between the parties to the date of the contract.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 1923; Dec. Dig. § 419.*1

In Error to the Circuit Court of the United States for the Middle District of Alabama.

Action by John D. Roquemore against the Vulcan Iron Works Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

This is an action for damages for the breach of a contract of sale. It was brought by the defendant in error (the plaintiff below) against the plaintiff in error (the defendant below) in the city court of Montgomery, and was duly removed on the ground of diverse citizenship to the Circuit Court.

On January 13, 1905, the Vulcan Iron Works Company, an Ohio corporation, sold to John D. Roquemore, a citizen of Alabama, a shovel called the "Baby Giant." For convenience it will hereafter be called the "first shovel." Afterwards, on December 22, 1995, the Vulcan Iron Works Company (hereinafter called the "seller") sold to Roquemore (hereinafter called the "buyer"), by a written contract of sale, a machine called the "Little Giant Special Steam Shovel." This machine will hereafter be referred to as the "second shovel." The following is the contract of sale:

"Memorandum of Sale of Little Giant Special Steam Shovel No.

"To John D. Roquemore, Montgomery, Alabama:

"We, The Vulcan Iron Works Company, of Toledo, Ohio, sell to John D. Roquemore of Montgomery, Ala., one Little Giant Special Steam Shovel No. on trucks, our standard make, built according to the specifications hereto attached, and which is made a part of this contract, said specifications being changed so far as required to put said shovel on standard trucks in place of traction wheels.

"We agree to ship the same on or before March 1st, 1906, barring, of course, delay that may be caused by accident, strikes or other calamities, unavoidable, and beyond our control.

"Price for said steam shovel is $6,250.00 net f. o. b. car Toledo, Ohio, freight paid by John D. Roquemore on delivery at destination and purchase price, $6,250.00, to be paid $1,500.00 cash upon the acceptance of said shovel and balance by the delivery to said the Vulcan Irou Works Company at the place where the same now is, a certain Baby Giant No. 926, delivered to said Roquemore in pursuance of a certain contract between the parties dated Jany. 13, 1905.

"We will send a competent steam shovel engineer at our own expense for 15 days of 10 hours each from time of his leaving Toledo until his return thereto, proceeding without delay en route, this date to be when he leaves Toledo in response to your wire notice of arrival of said steam shovel at destination. All other expenses and completing task of getting steam shovel to operation and trial test you are to bear. This engineer is to superintend the unloading and to operate the engines of said Steam Shovel No. to demonstrate same to be as herein represented.

"If after said trial and test, said Little Giant Special Steam Shovel has proven to be as guaranteed herein, you are to accept same, and relieve us from further expense.

"If it is found necessary for our engineer to remain longer than the said fifteen days, you are to pay us $5.50 for each day you retain him.

"If during said trial test, any part of said Little Giant Special Steam Shovel shall prove defective, or any change necessary to be made, we are to have a reasonable time to replace such parts or to make such changes as we find necessary. If we then fail to demonstrate our guarantee, we will remove said Little Giant Special Steam Shovel at our expense, and refund any money having been paid to us by you on purchase of same and you hereby waive all claim for possible damage or expense.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

"It is further agreed that the title and ownership of said Little Giant Spe cial Steam Shovel shall remain with and be the property of the Vulcan Iron Works Company until payment is made as noted herein.

"Upon your acceptance of this proposition it is to be and constitute a mu tual cancellation of all obligations between said parties to this date. "Montgomery, Ala., Dec. 22nd, 1905.

"Accepted:

"John D. Roquemore."

"The Vulcan Iron Works Company,

Per W. H. A. Read, Vice-President.

The declaration claimed $5,000 as damages for the breach of the contract, which was set out in full. It concluded with the following averment and charge of breach:

"And plaintiff avers that the specifications mentioned in and attached to the said contract called for and required, among other things, a boiler, which was to be used as a necessary part of said shovel, to wit, fifty-four inches in diameter and eight feet six inches in height, also to have attached thereto a boiler feed called a Pemberthy injector.

"And plaintiff avers that the defendant violated the terms of said contract on its part, in that it failed to ship to the plaintiff a shovel with a boiler of the dimensions as required by the said contract and specifications thereto attached; that the defendant did, on or about the first of March, 1906, ship to the plaintiff a steam shovel and a boiler to be used in connection therewith and as a part thereof, but which was materially different from the boiler called for in said contract; that the boiler so shipped was of dimensions of, to wit, forty-eight inches in diameter and seven feet six inches in height and was totally incapable of operating the said shovel; that said boiler did not have attached thereto a Pemberthy injector, as by the said contract called for; and that one of the engines in connection with and to be used in the operation of the said shovel and as a part thereof was defective, in that there was an opening or hole in the steam chest of said engine, made when the said engine was casted, so that the steam escaped therefrom, rendering the same incapable of being operated, and plaintiff refused to accept said shovel so shipped; that plaintiff paid the freight on said shovel, thus shipped, from Toledo, Ohio, to Montgomery, Ala., amounting to, to wit, $500.00, which has never been repaid to plaintiff; that the value of the shovel stipulated to be delivered by plaintiff to defendant on the delivery and acceptance by plaintiff of the shovel agreed to be shipped in accordance with said contract was, to wit, $1,500.00, all to the damage of the plaintiff as aforesaid, wherefore plaintiff sues."

* *

The seller, among other pleas, filed the following: "(6) And for further answer the defendant says that the plaintiff should not recover for the alleged breach of the contract as complained of in said complaint, for that in the said contract which in said complaint is alleged to have been entered into between the plaintiff and the defendant on, to wit, December 22, 1905, a copy of which said contract is hereto attached as Exhibit A, and made a part of this plea with leave to refer thereto, there was contained the following paragraph:

"If during said trial test, any part of said Little Giant Special Steam Shovel shall prove defective, or any change necessary to be made, we are to have a reasonable time to replace such parts or to make such changes as we find necessary. If we then fail to demonstrate our guarantee, we will remove said Little Giant Special Steam Shovel at our expense, and refund any moneys having been paid to us by you on purchase of same, and you hereby waive all claims for possible damage or expense.'

"And defendant says that after the said Little Giant Special Steam Shovel was shipped by the defendant to the plaintiff, as provided for in said contract, and was received by the plaintiff, the defendant sent, in response to a wire notice of the plaintiff of the arrival of said steam shovel at Montgomery, ⚫ a steam shovel engineer for the purpose of getting the steam shovel into operation and making a trial test of said steam shovel, and that the said steam shovel engineer proceeded to Montgomery, and upon arriving there proceeded to operate the said steam shovel and to have a trial test of said Little Giant Special Steam Shovel shipped to the plaintiff under the contract hereinabove

referred to; and that during the trial test so had and conducted by said steam shovel engineer sent by the defendant, it was discovered that the boiler on said steam shovel was smaller than the one alleged to have been contracted for by the plaintiff, and that said boiler did not have attached thereto a Pemberthy injector boiler feed. That thereupon and during the trial test of said steam shovel, the defendant, as it had a right to do under said provision contained in said contract as hereinabove set out, offered to replace such parts or to make such changes as were necessary and make said Little Giant Steam Shovel accord in every respect to the specifications of said contract, but that the plaintiff refused to allow and would not permit the defendant to replace such parts as were defective or to make such changes as were found necessary by the defendant to make said Little Giant Steam Shovel in accordance with the contract which was entered into between the plaintiff and the defendant. Wherefore the defendant says that the plaintiff is not entitled to recover in this suit."

The seller's eighth plea stated the same facts substantially as set out in the sixth plea, and then alleged that it "offered to take back the shovel which was delivered to the plaintiff and to give the plaintiff a new shovel in every respect in accordance with the contract made by the plaintiff with the defendant and in accordance with the plans and specifications, but that the plaintiff refused to allow and would not permit the defendant to take the shovel back and give to the plaintiff in place thereof a new shovel in accordance with the plans and specifications and in accordance with said contract. Wherefore the defendant says that the plaintiff is not entitled to recover in this suit."

Demurrers were interposed to these pleas alleging various grounds to the effect that the pleas did not show a defense to the action. The court sustained these demurrers. The case was tried on the plea of the general issue, and on pleas 10 and 11, which contained general denials of the complaint, but, also, averments of some of the facts stated in pleas 6 and 8, which the court had held insufficient. Witnesses were examined by both parties, and, on the part of the plaintiff below, there was evidence tending to prove the averments of the complaint, including the alleged breaches of the contract. The defendant below offered evidence tending to sustain its pleas and to show that it had offered to replace parts of the machine found defective and to make such changes as were necessary to make the machine comply with the terms of the contract. Exceptions were reserved separately to the following portions of the judge's charge:

"Suppose you find that the contract was made for a 54-inch boiler, as specified, and the machine sent down here had a 48-inch boiler, then that contract to try it don't apply to that sort of a machine. It applied only to the one that conformed to the stipulations of the plaintiff's contract.

* **

"Now the evidence is uncontradicted in this case that a machine was sent down there that didn't have a 54-inch boiler, and the experiment was made with that, and that after the experiment was made, it didn't prove satisfactory, and the plaintiff refused to receive it. That is the uncontradicted evidence. Now, then, the law giving each his rights in this connection says that was a breach of contract. Now in those 15 days he did have a right to tender him an engine-I mean a steam shovel-of the character specified; but if he simply tendered him an offer to make him a steam shovel at some indefinite future time, then the plaintiff was not bound to receive it, unless in some of their transactions in some way they waived that, and that is for you to judge whether they waived it. **

"Now, then, the contract having been breached in that aspect of it, what are the damages? The object of the law in computing damages is to make a man whole, to reimburse him for his loss, to put him in as good condition as he would have been if the contract had been carried out. Now the plaintiff didn't pay anything on this contract. The $1,500 he didn't pay. The machine that was to make the balance of the payment, he didn't deliver; he still has it. You take the $1,500 and the value of the first machine and deduct that from the $6,250, and that would be the measure of recovery if you find that the contract was as sued on, and that it was breached, as the evidence tends to show it was, by the failure to ship here a machine with a 54-inch boiler, the one that was tested and tried.