REID et al. v. BAKER

REID et al. v. BAKER. (Circuit Court of Appeals, Ninth Circuit. February 28, 1927.) No. 5027. Appeal and error <@=>757(3) — Assignment that plaintiff sues on split cause of action is concluded by general finding, where evidence is not before appellate court (Circuit Court of Appeals rule 24, subd. 2 [b]). Assignment of error that plaintiff sues on split cause of action, part of which was litigated in a former suit, is concluded by a general finding for plaintiff, in the absence of the evidence, in view of Circuit Court of Appeals rule 24 subd. 2 (b). In Error to the District Court of the United States for the District of Oregon; Robert S. Bean, Judge. Action by H. A. Baker against William Reid and another, doing business under the firm name and style of the National Cold Storage & Ice Company, in which Etta Reid, as executrix of the estate of William Reid, deceased, was substituted in his stead. Judgment for plaintiff, and defendants bring error. Affirmed. J. E. Boothe, of Portland, Or., for plaintiffs in error. Carey & Kerr and Omar C. Spencer, all of Portland, Or., for defendant in error. Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges. Rehearing denied May 2, 1927. [MAJORITY — DIETRICH, Circuit Judge.] DIETRICH, Circuit Judge. This is an action to recover damages for the mishandling of certain barrels of loganberries placed by plaintiff with the defendants for cold storage. Jury.was waived, and upon a general finding plaintiff had judgment, from which defendants bring error. Admittedly the record is such that at most we can review only rulings of the lower court made in the progress of the trial and presented by the bill of exceptions. Edwards v. Robinson (C. C. A.) 8 F.(2d) 726; Wulfsohn v. Bank (C. C. A.) 11 F.(2d) 715; Swanson v. Continental Casualty Co. (C C. A.) 12 F.(2d) 410; Eleischmann Construction Co. v. United States, 270 U. S. 349, 46 S. Ct. 284, 70 L. Ed. 624. The brief of plaintiffs in error wholly fails to comply with the requirements of our rule 24, subd. 2 (b), and upon a search of the record, with such assistance as counsel has given us, we find no plain error. The evidence, to the admission of which exceptions were taken, within the scope of the assignments of error, was substantially material in one aspect or another of the ease. The point that plaintiff sues upon a split cause of action, part of which was litigated in a former suit, necessarily involves a consideration of the evidence, and is therefore concluded by the general finding. Soeiété Nouvelle, etc., v. Barnaby (C. C. A.) 246 F. 68, 73. Judgment affirmed.