SUTHERLAND v. ROUND et al., 57 F. 467

TAFT, Circuit Judge, (after stating the facts as above.) The assignments of error are based — First, on the improper rejection and admission of evidence; and, second, on misdirection by the court to the jury. The plaintiff offered evidence of the employes of the San Diego Marine Railway Company — first, to show how the chain broke, which was admitted; and, second, to show the extent of the damage caused the San Diego Marine Railway, and the amount of money that had been expended in repairing the damage, as well as the consequential damages incurred by the railway company in the loss of its trade.

This evidence was rejected, and we think rightly. The damages sought to he proved were damages to the business, not of the vendee under the contract and the assignor of the plaintiff, hut damages to the vendee of the vendee. The petition claimed damages only for the cost of substituting a new chain for an old one, and evidence as to that was admitted. The plaintiff was limited to that. He could not go on to show consequential damages in the absence of a specific averment in Ms petition.

Moreover, there was no evidence that the contract or circumstances of the sale by Van Winkle & Co. to the Marine Railway Company made the former liable for consequential damages, or that defendants were informed in selling the chain that Van Winkle & Co. had contracted to incur such liability. In no aspect of the case, therefore, could the plaintiff, as the assignee of Van Winkle & Co., recover consequential damages, and evidence tending to show them was wholly inadmissible. Evidence was offered of statements by agents of the Marine Railway, made to Van Winkle & Co., that a new chain must be furnished.

These statements were hearsay, and were properly excluded. The fact which the plaintiff, as the assignee of Van Winkle & Co., had to prove was that the chain was defective, and so defective that a new chain ought to have been furnished; or, if not that, how much it would have taken to make the chain satisfy the warranty. It was not a question of the bona lides of Van Winkle & Co. in furnishing the Marine Railway with a new chain.

Another exception was based on the refusal of the court to allow the plaintiff’s attorney to re-examine his witness with reference to the kind of tests that are now made of iron to be used in machinery where life and limb are dependent on its tensile strength. This subject was collateral to the main issue, and largely within the discretion of the court. The question in the case was not whether the defendant had been guilty of negligence in not properly testing the iron. It was whether the chain was up to the warranty.

It might incidentally have aided the jury, in weighing the evidence as to the strength mf the chain in question, to know the kinds of tests used in the trade, because there was evidence tending to show the kind of tests applied to this chain. The plaintiff’s counsel had gone into the question of tests on direct examination. In re-examination he sought to elaborate, and the court restricted him. We think this was in the discretion of the court. Certainly no prejudice arose from the exclusion of the particular question.

There are other exceptions based on the admission and rejection of evidence, which are even less material, and require no mention. The chief argument for plaintiff in error is based on the instructions of the court to the jury. These we cannot consider, because the original bill of exceptions does not show that any exceptions were noted by counsel for plaintiff at the time the charge was given. It is true that since the hearing the return to the certiorari sent to the circuit court clerk shows an order of the trial judge amending the bill of exceptions, if he now has authority.

The amendment to the bill was made long after the term to which the preparation of the bill was postponed. It appears on the face of the amendment that the only reason why the exceptions were not noted in the original bill of exceptions was because of the oversight and omission of the counsel preparing the bill. We think this must be held to be a waiver of the exceptions, and that the court was without power to amend the bill under such circumstances. In the case of Muller v. Ehlers, 91 U. S. 249,'Chief Justice Waite, speaking for the supreme court, said: “As early as Walton v. U.

S., 9 Wheat. 651, the power to reduce exceptions taken at the trial to form, and to have them signed and filed, was, under ordinary circumstances, confined to a, time not later than the term at which the judgment was rendered. This, we think, is the true rule, and one to which there should be no exceptions without ail express order of file court during the term or consent of the parties, save under very extraordinary circumstances. Here we find no order of the court, no consent; of the parties, and no such circumstances as will justify a departure from (he rule.

A judge cannot act judicially upon the rights of the parties, after the parties in tiie due course of proceeding have both in law and in fact been dismissed from the court.” We do not think tliat the negligence or omission of counsel is such an extraordinary circumstance as to warrant the act of the court below in amending the bill of exceptions, long alter the term of the trial had passed, long after the parties had been dismissed from the court, and long after a bill of exceptions had been allowed sind signed. The judgment of the court below is affirmed.