mony as to Cunningham's statement, there was no proposition or suggestion of any kind that the plaintiff offered it for the purpose of proving the identity of the colliding team, or had any need to use it therefor; and, subsequently, on the various motions of the defendant to strike out this testimony, there was no offer on the part of the plaintiff to limit it in any particular. There was, as we have already said, a question of the identity of the man who went into the drinking saloon, if any person went in there, and an examination of the witnesses which bore on this particular issue; but the record nowhere shows any question as to the identity of the team which collided with the plaintiff. On the other hand, what we have referred to leads to the just conclusion that there was no such issue. Therefore, in that respect, the error comes within the ruling of the court in Waldron v. Waldron, 156 U. S., already referred to, at page 384, of 156 U. S., at page 389 of 15 Sup. Ct. (39 L. Ed. 453), where it was said that it was true that the matter improperly put in by the counsel, which resulted in the new trial, related in one particular to a material issue; but, as that issue had been confessed by the pleadings, and was admitted in open court, it was wholly inadmissible. Under all the circumstances, it seems plain that this evidence was introduced for an improper purpose, and only for an improper purpose, so that the plaintiff should stand by the consequences of her act. An exception was taken by the defendant to the admission of an ordinance of the city of Waltham imposing a penalty for allowing a horse to remain standing in the street, not in the care of some competent person, unless properly weighted or securely fastened. As we understand the case, this was admitted merely on the question of negligence, and, as we understand the common practice in Massachusetts, ordinances of that character are admissible in evidence for the purpose named.

Forty-three errors are assigned, covering nearly 19 printed pages. Many of them relate to opinions of nonexperts and to expressions of pain, all of which were admissible in evidence, within the rules shown by Insurance Company v. Rodel, 95 U. S. 232, 24 L. Ed. 433; Northern Railroad Company v. Urlin, 158 U. S. 271, 15 Sup. Ct. 840, 39 L. Ed. 977: O'Neil v. Hanscom, 175 Mass. 313, 56 N. E. 587; McCoy v. Jordan, 184 Mass. 575, 69 N. E. 358; and other cases of the same character, some of which are grouped in Chase's Stephen's Evidence (2d Ed.) 141, 142. The other errors assigned, to which we have not re ferred, were not brought to our attention in such manner as to demand our investigation of the record with reference to them. For example, one was that the court refused to direct a verdict for the defendant, as to which all said to us was merely that this brought up "the whole question of the defendant's negligence, and the plaintiff's freedom from contributory negligence," without anything further in reference to it. like manner, eight assigned errors are disposed of in the defendant's brief by a mere reference to the fact that they were assigned, with a claim that the jury should have been fully and clearly instructed in regard to the subject-matters thereof. Of course, such treatment of alleged errors not only fails to meet the rules of this court, but also to conform to any practice which would require attention from any appellate tribunal. We think, however, that we have disposed of everything which is likely to arise on a new trial, or to which, for any reason,

In

it is necessary to give particular consideration. We have called attention to the different methods of alleging negligence in the several counts of the declaration. On account thereof the defendant moved before trial that the plaintiff elect between the counts, which motion was denied, and the defendant excepted. Clearly, according to the settled rules of practice, this, under the circumstances, was within the discretion of the Circuit Court, and forms no basis for an application to us. On the whole, notwithstanding the numerous alleged errors which do not demand attention, the writer of this dissenting opinion is of the firm conviction, for the reasons herein stated, that, by refusing the defendant a new trial, great injustice is done it, and the rules of law, as settled and applied by the Supreme Court, are violated.

NOTE. The following is the opinion of Hale, District Judge, on defendant's motion for a new trial:

HALE, District Judge. In this case the only question requiring a written opinion of the court is upon the motion to set aside the verdict because the damages were excessive. The plaintiff was a woman 65 years old at the time of the injury. The trial of the cause was some six years after the injury. The jury found for the plaintiff, and awarded damages in the sum of $10,000. When the verdict was rendered, I was of the opinion that the damages awarded by the jury were excessive, and that, in the exercise of a sound, judicial discretion, it would be the duty of the court to reduce the verdict or set it aside. After a very careful study of the case, I am still of the same opinion. I am, on the whole, of the belief that the jury must have been influenced by partiality during the conduct of the cause, and have rendered a rather larger verdict than the evidence fairly sustains. It is just, however, to say that, in my opinion, the evidence warrants a substantial verdict for the plaintiff. Neither the plaintiff nor her counsel attempted, during the trial, to arouse prejudice or passion against the defendant, or to inflame the jury's mind by any undue or unauthorized appeal to them. The plaintiff, at the time of the trial, was over 70 years old. She told her story in a simple, straightforward, and evidently truthful manner. The evidence justified a substantial award for doctors' bills, care, and nursing during the six years from the time of the injury until the time of the trial, and a very considerable sum for the plaintiff's personal suffering, both physical and mental. In reference to her suffering, the plaintiff did not undertake to exaggerate or to appeal to prejudice or sympathy. She showed that she had suffered severely during the several weeks when she lay in bed; that she had suffered ever since from weakness; and, for a considerable part of the time, from dizziness, nausea, bleeding from the nose, and from constant apprehension and fear of the recurrence of fainting and dizzy spells. The evidence of the plaintiff's physicians tends to show that the injuries are permanent in their nature, and tends also to show that she will suffer during the remainder of her life, although she was in good health before the injury. It is fair to say, too, that the medical testimony is not of an exaggerated character.

I could see, at the time of the trial, that the very simplicity and directness of the plaintiff's manner of giving her testimony, and of the testimony itself, had a great effect upon the jury, and would be likely to win from them a very large verdict. I therefore instructed the jury that, if they came to a question of damages, it was their duty to exercise great care in that branch of the case. I went so far in my charge as to say to them that, while juries should be just In the estimation of damages, they were not permitted to be generous, and that juries more often than otherwise were accustomed to err in the direction of unreasonably high verdicts.

There were some things in the conduct of the case, on the defendant's part, that might tend to influence the jury in the direction of high damages. As a matter of fact, they did render a verdict for larger damages, I think, than can be warranted by the evidence; but the plaintiff is clearly entitled to a verdict

153 F.-17

for a very considerable sum. She is entitled to a reasonable amount for what she has paid her physicians, and for reasonable bills for nursing and attendance during the six years. The large element of damages, however, is for her suffering. The peculiarity of the plaintiff's case in this regard is that she has shown six years of actual suffering, part of the time of a severe character; for this she should have compensation. The testimony of her physicians tends also to show that she will have some suffering in future during the expectation of her life; and for this she should recover something.

The great question in the case is: How much should be allowed to the plaintiff for her six years of suffering? Upon this question there has been very extended argument by the learned counsel in the cause, who have cited a very great number of cases where the question of excessive damages has been considered by the courts. Two cases exactly alike cannot, however, be found in judicial literature; and the whole matter must come to a question of judicial discretion. It is undoubtedly my duty in this case not to grant a new trial unconditionally, but only in the event that the plaintiff shall not file a remittitur. If the question of allowing a remittitur were a new question, the objection might be raised that a court cannot order a remittitur, without invading the province of the jury, so that the result would be a verdict of the court, and not of the jury; but the practice of federal courts makes it clear that the court may correct a verdict of the jury in respect to excessive damages, and is not limited to granting an unconditional new trial. This court in this circuit has lately, and many times, had to pass upon this question. The Supreme Court has fully considered it. In Blunt v. Little, 3 Mason, 102, Fed. Cas. No. 1,578, Mr. Justice Story, while admititng that the exercise of the discretion of the court to disturb the verdict of the jury was full of delicacy and difficulty. recognized it to be a duty to interfere when it clearly appeared that the jury had given damages that were excessive. See Arkansas Cattle Co. v. Mann. 130 U. S. 69, 9 Sup. Ct. 458, 32 L. Ed. 854; Northern Pacific R. R. Co. v. Herbert, 116 U. S. 642. 646, 6 Sup. Ct. 590, 29 L. Ed. 755; Hansen v. Boyd, 161 U. S. 397, 16 Sup. Ct. 571, 40 L. Ed. 746; Daigneau v. Grand Trunk Ry. Co. (a recent opinion by Judge Brown) 153 Fed. 593.

While, in the exercise of a sound, judicial discretion, I cannot allow the verdict of $10,000 to stand, it is my duty to carefully review the testimony, and to allow plaintiff to retain as large a portion of this verdict as the evidence will, in my opinion, warrant. I am of the opinion that there is a reasonable basis in the testimony for a verdict of $6,500. If the verdict had been for that amount only, I should not have set it aside.

A new trial will be granted, upon the ground of excessive damages, unless. within 14 days, the plaintiff shall remit the sum of $3.500, and consent to judgment for the plaintiff for the sum of $6,500, and costs.

MANSON v. DAYTON et al.

JARMUTH v. SAME.

(Circuit Court of Appeals, Eighth Circuit. January 24, 1907.)

Nos. 2,427, 2,428.

1. EVIDENCE-Contracts-VARIANCE OF WRITING BY PAROL.

In the adjustment of private reciprocal rights, where the parties have deliberately put into writing their mutual convention, such expression of their intention and understanding is final and conclusive, and cannot be varied or controlled by any antecedent negotiations or declarations in pais. [Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, § 1756.] 2. PROPERTY-REAL OR PERSONAL-MANNER OF TREATMENT BY OWNER.

Slag, dumped as refuse from an ore smelter or mill while ordinarily appurtenant to the land on which it is dumped, may be treated by the owner of both the land and dump as personalty, and may be sold and delivered as such.

3. SALES-CONTRACT FOR CONDITIONAL SALE-REMEDY OF SELLER FOR BREACH. Where the right to reclaim property conditionally sold is reserved to the seller in the event of the failure of the purchaser to make payment of any installment of the purchase price, he may not retake and appropriate the property, and also recover the unpaid installments of the purchase price; but his remedy is in the alternatiye, unless the contrary is so clearly provided as to leave no reasonable doubt that such was the intention of the parties.

[Ed. Note. For cases in point, see Cent. Dig. vol. 43, Sales, §§ 14181438.]

4. SAME CONSTRUCTION OF CONTRACT.

The owner of land on which there were dumps of slag and smelter products entered into a contract denominated a "lease," by which he purported to lease the land for a stated term, with the right to remove the dumps on payment of a series of notes maturing at intervals through a portion of the term. The contract provided, in effect, that removal of the dumps should proceed only in proportion as payments were made, that when all the dumps were removed the lease should terminate, and that on payment of all the notes on or before maturity the lessee should be entitled to a bill of sale of the dumps, with the right to remove the same within a specified term. It further provided that: "It is mutually agreed that all work on the said above described slag, slag dumps and materials and smelter products shall be performed in a thoroughly workmanlike manner, and that any failure of the said party of the first part to do or keep any of the agreements herein, * * or any failure to pay immediately when due any one or more of said 100 promissory notes, *

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*

shall work a forfeiture of all rights of the said party of the first part under this agreement, and the said party of the second part shall have the right * to declare each and every one and all of the said 100 promissory notes, or whatever number of the said notes may remain unpaid, * immediately due and payable, and * to collect the same, * and in case of forfeiture as aforesaid all work done and money expended by the said party of the first part shall inure to the party of the second * * and the said party * * * part as liquidated damages, may thereupon enter upon said premises and dispossess all persons occupying the same." Held, that such transaction was not a lease, but a conditional sale of the material in the dumps, which gave the owner alternative remedies for breach of the contract, and that, where he declared a forfeiture and took possession because of default in payment of notes, he could not also collect the notes maturing thereafter.

[Ed. Note. For cases in point, see Cent. Dig. vol. 43, Sales, §§ 13271331, 1431.]

5. CONTRACTS--CONSTRUCTION--SUBSTITUTING "OR" FOR "AND."

To prevent an absurd or unreasonable result, the word "and," used in a contract, may be read "or," or vice versa.

Sanborn. Circuit Judge, holds that the contract gave the seller the right to collect the entire purchase price, and also to retake and hold the prop► erty sold, but concurs in the result on the ground that such provision was so unconscionable that it would not be enforced by a court of equity or bankruptcy.

Appeal from the District Court of the United States for the District of Colorado.

On the 23d day of March, 1905, an agreement in writing was entered into between the Independence Smelting & Refining Company, a corporation of Colorado, as party of the first part, and Adolph J. Jarmuth, of Denver, as party of the second part, the essential parts of which contract are as follows: "That the said party of the second part, for and in consideration of the sum of one dollar to him in hand paid by the said party of the first part, the receipt whereof is hereby acknowledged, and for and in consideration of the further sum of forty-nine thousand and nine hundred and fifty ($49,950) dol

lars, to be paid according to the tenor of one hundred (100) certain promissory notes made by the said party of the first part to the said party of the second part, each of the said notes being of even date herewith, and each of said notes being for the principal sum of five hundred ($500) dollars, except that certain promissory (note) falling due the 28th day of January, 1907, which shall be for the principal sum of four hundred and fifty ($450) dollars, and for and in consideration of the agreements and undertakings of said party of the first part herein expressed, has demised and let unto said party of the first part, for the purpose of taking and using, for a term of five years and no longer, commencing March 28, A. D. 1905, and ending March 28, 1910, all the slag, slag dumps and all materials and smelter products, belonging to said first party, situated upon the following described land at Golden, Jefferson County, Colo. rado: [Here follows a description of the land by metes and bounds]; being the slag, slag dumps and all materials and smelter products situated about three thousand (3,000) feet southwesterly from the smelter now operated by said first party.

"And the second party, for the consideration named herein, hereby grants to said first party, its agents and employees, free access to said slag, slag dumps and all materials and smelter products upon said land, and full and free right of way over, upon and across said land at any and all parts thereof, for wagons and wagon roads, tramways and tramway tracks, railways and railway tracks, aerial tramways, pole lines and bucket lines during the term of this lease, for the purpose only of loading, taking out and carrying away said slag, slag dumps and all materials and smelter products in accordance with the terms and objects of this agreement, provided, however, that this lease shall terminate as soon as all the slag, slag dumps and all materials and smelter products shall have been removed from said land, whether the said five years shall have expired or not."

Provisions reserving right of access in party of second part.

Further provision regarding the method of working and removing the slag and smelter products, in blocks of 100 feet parallel with the tracks of the Colorado & Southern Railway.

Provision as to the payment of the notes consecutively, and, after May S, 1905, within six weeks after maturity, with interest after maturity at 1 per cent. per month, "providing no slag, slag dumps or other materials or smelter products shall be removed from said land by said first party after any of the said notes are past due one week and unpaid"; with the further agreement that, if the first party desires an extension of any note, written notice shall be served upon the second party by registered letter or in person, before the maturity of such note.

Then a provision regarding the discount of any one or more of the notes, by payment before maturity.

"It is mutually agreed that all work on the said above described slag, slag dumps and materials and smelter products shall be performed in a thoroughly workmanlike manner, and that any failure of the said party of the first part to do or to keep any of the agreements herein, including the above described agreement to work said slag dumps in blocks of one hundred (100) feet, or any failure to pay immediately when due any one or more of the said one hundred (100) promissory notes maturing on or before the 8th day of May, 1905, or failure to pay the rest of said one hundred (100) promissory notes within six weeks after the same becomes due according to the tenor of the same, provided notice of extension, as aforesaid, shall have been given, or the taking or using of more than five hundred (500) tons per week of and from the said slag dumps as hereinafter provided while any (one) or more of the said one hundred (100) notes shall remain unpaid, shall work a forfeiture of all rights of the said party of the first part under this agreement, and the said party of the second part shall have the right, on giving a three days' written notice to the said party of the first part to declare each and every one, and all of the said one hundred (100) promissory notes, or whatever number of the said notes may remain unpaid, given to pay for the within lease, immediately due and payable, and shall have the right, immediately, to collect the same from the said party of the first part and in case of forfeiture as aforesaid, all work done and money expended by the said party of the first part shall inure to the benefit of the said