Opinion
No. 5027.
February 28, 1927.
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.F. 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.
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; Fleischmann 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 case. 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. Société Nouvelle, etc., v. Barnaby (C.C.A.) 246 F. 68, 73.
Judgment affirmed.