ANDREWS et al. v. MILLER et al., 65 F. 897

PUTNAM, Circuit Judge. The plaintiffs in error have not undertaken to show, either to this court or the court below, that the damage to the ice by steam occurred before the arrival of the cargo at New York'; nor have they based any defense on any theory of that character, or secured proper findings to enable us to determine the merits of such a defense, if it had been urged on us. Therefore we refrain from passing on any questions of that nature. The propositions submitted to us arise from the conclusions stated in the court below, as follows: “The contract between these parties cannot be treated as a sale.

In some aspects it was like a shipment on joint account, with special terms. If it be regarded as a partnership in a particular adventure, those conditions of the copartnership by which the defendants were to secure to the jilaintiffs at least $2.50 per ton at in-take weight for the ice shipped, and were themselves to bear all losses, must be regarded.

It is better to treat it as a special contract, according to its terms, by which the defendants undertook, in consideration that the plaintiffs would ship the ice, to return to them, free of any expense, $2.50 per Ion, before the properly should pass out of the control and custody of the shippers. This action proceeds on that view, and is for damages for the breach of such a contract. Whatever view bo taken of the nature of the contract, (he same result will he reached. The defendants have wholly failed to perform their part of it. They have not been prevented by any wrong on the part of the plaintiffs.

The loss of the plaintiffs from the defendants’ breach is the same, and the damages suffered by them are the same, under any

interpretation of the contract. No act or acts of the plaintiff's can be held as a waiver of its terms.” We agree to these expressions. Under the circumstances the plaiu tiffs below were entitled, for their own protection, to make the best of the ice wldch they could by reasonable efforts, after the defendants below refused to accept it, and they are accountable only for the net proceeds. They have been charged with these by the court below.

In attempting to secure the net proceeds, they paid the freight, which the defendants below were holden to pay in any event, and the latter cannot complain that, in the computations of the court below, they were charged with it. The plaintiffs below were charged with the net amount they recovered from the barge for damage to the ice. Therefore, on the > ’-¡nciples of law applicable to persons who are compelled to intervene to save property unjustly thrown back on their hands, the plaintiffs below have been credited and debited with the various sums with which they should have been.

These principles are so familiar that we do not deem it necessary to elaborate them. The judgment of the circuit court is affirmed.