never arise. Anvil Co. v. Humble, supra. By the contract the plaintiff was absolutely bound to manufacture and deliver the exclusive output of his factory, with certain exceptions already noted, during each year of the term of the lease. The proviso which relieved him from this obligation when the price of corn should exceed 45 cents was one which also virtually contained a penalty for such failure to manufacture for defendants, in that it denied him the privilege of manufacturing any whiskey during such season, except 500 barrels for his own use, unless he should also manufacture and deliver to the defendants at the contract price, and at their option, 5,000 barrels during such season. The contract, therefore, was one binding upon the plaintiff, when the price of corn was 45 cents, either to manufacture as agreed, or to practically close his entire plant. In view of these mutual stipulations relating to said qualified option, and which served as a consideration passing to and from each of the parties, we think the obligation was a mutual one, and that the question of the right of recovery was properly left to the jury under the instructions of the court as given above.

The contract contained a provision that, in case of fire or accident which might prevent plaintiff from manufacturing in any one season, he should be excused for such failure. It is not claimed that this provision made the contract unilateral. And if the contract had contained an agreement that, in case of a strike, the entire failure of the corn crop, or the death of the plaintiff, in any year, the manufacturer should be relieved from the obligation of fulfilling the contract during the year when such casualty happened, it could not reasonably be claimed that such agreement constituted a defense against all claims for damages suffered during a period of years by reason of the default of the other party. And yet the charge requested by defendants as above was to the effect that, if the price of corn at the time when they, the defendants, broke the contract, happened to be more than 45 cents per bushel, the plaintiff could not thereafter recover any damage by reason of defendants' breach. The object sought, in case of a breach of contract, is to secure to the party just compensation for his damages suffered by reason thereof. It would be a travesty upon justice to apply the rule contended for by defendants, and thus enable them to escape all liability, because of the possibility that plaintiff might at some time have the right to exercise said option, and elect so to do at the penalty of closing his plant. The next exception is to the exclusion by the court of evidence that whiskey was manufactured by the plaintiff during the season of 1901 and 1902, and of the price at which said whiskey was sold. It was stipulated that such evidence, if admitted, would show that the prices received by plaintiff were largely in excess of the contract price. Counsel for plaintiff argues that, as defendants had no further interest in plaintiff's business after the repudiation of the contract, it was immaterial whether or not he continued thereafter to manufacture. We have already discussed this contention. But while, in the absence of evidence as to plaintiff's actual loss, the rule of damages is as stated above, yet, as the first consideration is to ascertain actual damages where possible, if evidence is available of manufacture and sale after such breach, such evidence should go to the jury, in order to enable them the more nearly to approximate plaintiff's actual damages. Diamond Co. v. San An

tonio R. R. Co. (Tex. Civ. App.) 33 S. W. 987; Hochster v. De La Tour, supra; Wakeman v. Wheeler & Wilson Mfg. Co., supra. Especially is this so, in view of the admission of evidence as to the value or profit to plaintiff derivable from storage. If the jury were at liberty to award plaintiff damages for storage during the years succeeding the breach, they were bound to deduct there from such amounts as plaintiff actually received for his warehouse and factory during said season of 19011902. The exclusion of said evidence was clearly error. The ruling was directly contrary to the views expressed by the Supreme Court in Hinckley v. Steel Co., supra, where the court said as follows:

"The Circuit Court finds that it would have cost the plaintiff $50 per ton to have manufactured and delivered the rails called for by the contract, according to its terms; that the profits of the plaintiff, if the conduct of the defendant had not prevented it from fulfilling the contract, would have been $8 per ton on each of the 6,000 tons, being $48,000; and that the plaintiff manufactured and sold to other persons 4,000 tons of rails from the materials purchased by it with which to perform the contract with the defendant, and received for such rails $54.60 per ton, and made a profit of $1.60 per ton on the 4,000 tons, being a profit, in all, of $6,400. Deducting this $6,400 from the $48,000 leaves $41,600, for which amount the judgment was finally entered."

Error is also assigned to the refusal of the court to permit expert witnesses to answer the following question:

"Taking a contract for the sale of the product of a distillery, the contract being dated April 12, 1899, covering five distilling seasons for an annual output of 3,000 barrels, and the next ten distilling seasons for an annual output of 3,500 barrels, the distillery being located in Owensboro, Kentucky, and its total capacity being about 3.000 barrels, and the total value of the distillery and property being about $35,000, and the contract price of its output being 30 cents per proof gallon; supposing that two seasons of that contract has elapsed, and that thirteen seasons were still to elapse, at the time when the contract was rescinded or canceled or terminated, what, in your opinion, would be a reasonable deduction for the less time engaged, and for release from care, trouble, risk, and responsibility attending a full execution of the contract; what proportion of the profit which the contract would have yielded, if any, to the manufacturer?"

The exclusion of this evidence is now sought to be justified on the ground that the witnesses were not qualified to testify as experts, and that, in any event, the jury were the sole judges of what deductions. were to be made. The witnesses duly qualified as experts, and no objection was made at the trial on the ground that they were not thus qualified. That the defendants were entitled to such deductions is settled by the authorities. Hinckley v. Steel Co., supra; Masterton v. The Mayor, supra; United States v. Speed, 8 Wall. 77, 19 L. Ed. 449. And the court charged the jury to this effect, as appears from the following excerpt from the charge:

"If the jury believe from the evidence that the said defendants committed a breach of said agreement of April 12, 1899, then in estimating the damages, if any, sustained by plaintiff by reason of such breach after October 14, 1901, the jury should make a reasonable deduction for the less time engaged, and for release from care, trouble, risk, and responsibility attending a full execution of said agreement by the plaintiff."

The general rule is well settled that, where a subject is one involving special knowledge upon subjects as to which the jury are not as well able to judge for themselves as one familiar with such matters, the

130 F.-42

testimony is properly admitted to aid them in reaching their conclusion Transportation Line v. Hope, 95 U. S. 297, 24 L. Ed. 477; L. S. & M. S. R. R. Co. v. B. & O. & C. R. R., 149 Ill. 272, 37 N. E. 91; Campbell v. Mayor (C. C.) 81 Fed. 182. In Herring v. Gage, 12 Fed. Cas. 44, Judge Wallace said:

"By further exceptions the defendants insist that the master's findings as to the actual savings realized by the defendants by the use of this device is not sustained by the evidence. This finding is based in part upon the testimony of various experts who were familiar with the practical working of the device in other mills, and who were permitted to state the quantity of flour lost when the device was not used, thus estimating the saving realized under their observations, and basing upon that their opinion of the saving ordinarily gained by the use of the device. The conditions under which the device was used differed in the different instances observed by the witnesses. It is contended that this testimony is not entitled to consideration. To this I cannot agree."

In the case at bar it would be difficult, if not impossible, for a jury in the city of New York to determine with any degree of accuracy what would be a reasonable deduction for time and release from risk and responsibility attending the execution of a contract for the manufacture of whiskey during a period of years in a distillery in Kentucky, without some testimony from those familiar with such business. The determination would involve, inter alia, questions of wear and tear, of insurance, of cost of maintenance and care of the property, and the testimony of experts on those subjects was competent and material. The particular question, however, was too comprehensive; it was not calculated to elicit the experience of the witness, from which the jury might have drawn its own conclusions, but called for a general conclusion of the witness upon all the elements involved. In other words, it sought to substitute the witness for the jury as assessor of the damage, and objection to it was properly sustained.

Error is further assigned to the admission of evidence as to the cost of storage of whiskey, and the profit per year on such storage, and exception is taken to the refusal of the court to charge that the plaintiff was not entitled to recover damages for loss of expected profits by reason of the storage of whiskey which might have been manufactured under said agreement. This question as to the allowance of damages for lost profits on storage is not free from doubt. In view, however, of the distinct provision in the contract for payment of storage, we think it was competent to show the usual custom as to storage in such cases, as indicating the profit which was in the minds of the parties when the contract was entered into, especially in view of the testimony of one of the defendants:

"The profits which would have been realized had the contract been performed, and which have been prevented by its breach, are included in the damages to be recovered in every case where such profits are not open to the objection of uncertainty or of remoteness, or where, from the express or implied terms of the contract itself, or the special circumstances under which it was made, it may be reasonably presumed that they were within the intent and mutual understanding of both parties at the time it was entered into." Howard v. Stillwell & Bierce Mfg. Co., 139 U. S. 199, 206, 11 Sup. Ct. 500, 503, 35 L. Ed. 147.

Cincinnati Gas Co. v. Western Siemens Co., 152 U. S. 200, 14 Sup. Ct. 523, 38 L. Ed. 411.

It was conceded that the universal custom of the whiskey trade is to keep Kentucky whiskey in the warehouse for several years, and that there is a profit in such business. One of the defendants testified that the business of warehousing whiskey is a very safe source of revenue to the distiller, and that, even if the distiller were to sell his product at cost, he could still count upon the average of three or four years' storage of the whiskey before it leaves his hands. The charge of the court on this point was as follows:

"It is claimed that the sum of five cents per barrel for storage monthly which the defendants agreed to pay, would have been a strong inducement to continue such manufacture, especially as it is the custom of the trade to allow barrels of whiskey to remain in storage for two or three years after manufacture. This is an item of testimony which you should consider; in connection, however, with the fact that it does not appear how long the whiskey would have remained in storage if the contract had been performed. Its disposition was absolutely in the control of the defendants after the delivery of the warehouse receipts to them. The warehouse receipts were constructive deliveries of whiskey, and are transferable by indorsement. And it follows that whiskey which remains on storage, and which has been delivered in the manner stated, may be removed from storage whenever the owner desires its removal. You should consider these circumstances in making your calculations to ascertain plaintiff's gain and profit, provided you conclude he has sustained damage."

We think this charge was justified by the evidence, and was sufficiently favorable to defendants.

The judgment is reversed, and the case remanded for a new trial.


(Circuit Court of Appeals, Ninth Circuit. May 2, 1904.)

No. 1,036.


Under the act of Congress ratifying agreements made with Indian tribes in Montana, including the Blackfeet, which provide, inter alia, for the issuance of cattle to such Indians for stockraising purposes, and that all such cattle and their increase shall bear the brand of the Indian Department, and shall not be sold, exchanged, or slaughtered, except by consent of the agent in charge, an Indian to whom such cattle are issued acquires only a conditional ownership for the purposes stated in the act and it is the right and duty of the United States to protect such ownership, for which purpose it may maintain an action in a federal court in behalf of an Indian from whom cattle so issued have been unlawfully taken; and such right is not affected by the fact that an Indian in whose behalf such an action is brought is a woman who is married to a white man, and has thereby become a citizen of the United States, but who remains on the reservation with her tribe it being expressly provided by Act Aug. 9, 1888, c. 818, 25 Stat. 392, 1 Supp. Rev. St. p. 608, that such marriage and citizenship shall not "impair or in any way affect the right or title of such married woman to any tribal property or interest therein."


The right of the United States to maintain an action in respect to a governmental matter cannot be affected by a state enactment requiring a notice to be given or demand made as a condition precedent to suit. 3. SHERIFFS-LEVY OF ATTACHMENT-SEIZING PROPERTY OF THIRD Person.

A sheriff is not protected in levying an attachment against a man on cattle owned by his Indian wife residing on a reservation, which cattle she could not lawfully dispose of, except with the consent of the Indian agent, and which, as required by law, bore the brand of the Indian Department, as well as her own brand, which was different from that of her husband; and it is immaterial that they were in the possession of the husband, or with cattle owned by him--the brands being sufficient to put him on inquiry as to the ownership.


The doctrine of confusion of goods has no application to cattle or horses, or other property of similar nature, that can be readily identified.



In an action against a sheriff and an attaching creditor for conversion of property of the debtor's wife by its seizure and sale under the attachment, declarations of the husband to the creditor that the property was in his possession and that he was the owner are not admissible to prove his ownership as against plaintiff, especially where such declarations were made prior to the suit, and were therefore not a part of the res gestæ.


In an action by the United States, as guardian of an Indian woman, for the conversion by defendant of cattle issued to her by the government for stockraising purposes, and which she had no power to dispose of, declarations by her as to the ownership of the cattle are inadmissible against the plaintiff.


Declarations of an officer, in making a levy, going to show his knowledge that the property levied on was owned by a third person, or that he was put on inquiry as to such ownership, are admissible in an action in behalf of such third person for the conversion.


The failure of the court, on the separation of the jury for a noon recess during a trial, to admonish them against conversing about the case or forming an opinion thereon, as required by a statutory provision, is not a material error, where the admonition had been given on their previous separations during the same trial.


Remarks of the court in its charge to the jury with respect to the conduct of the case by counsel held, while improper, not to have constituted prejudicial error.

In Error to the District Court of the United States for the Dis trict of Montana.

McConnell & McConnell, for plaintiffs in error.

Carl Rasch, U. S. Atty.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

ROSS, Circuit Judge. This action was brought by the United States, as guardian of Josephine Hall, an Indian woman, for the conversion by the defendants to the action of 34 head of cattle, alleged

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