Syllabus.

November, 1882, he had, in conducting his business as a brewer in San Francisco, heated water by means of a copper coil filled with exhaust steam, placed in the water, the water being in a closed tub containing fifty or sixty barrels, the copper pipe entering the tub on the side, near the bottom, and forming a coil inside, and then passing out through the top. It also appears that a like apparatus was used in the United States, prior to the issuing of the plaintiff's patent, for the purpose of heating high wines by means of steam in a copper coil, so as to evolve the alcoholic vapors. There was no patentable invention in applying to the heating of wine or any other liquor, from the inside of the cask, the apparatus which had been previously used to heat another liquid in the same manner.

The case falls directly within the decisions of this court in Pomace Holder Co. v. Ferguson, 119 U. S. 335, 338, and the cases there collected, and in Thatcher Heating Co. v. Burtis, 121 U. S. 286.

There having been, therefore, nothing new as a process in the operation or effect of the heat on the wine, and nothing patentable in the application of the old apparatus to the heating of the wine,

The decree of the Circuit Court must be reversed, and the case must be remanded to the Circuit Court for the Northern District of California, with a direction to dismiss the bill.

ROBERTS v. BENJAMIN.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF NEW YORK.

Argued December 22, 1887. - Decided January 9, 1888.

In an action at law in a Circuit Court of the United States in New York, an order was made, referring the action to a referee "to determine the issues therein." He filed his report finding facts and conclusions of law, and directing that there be a money judgment for the plaintiff. The defendant applied to the court for a new trial on a case and

Citations for Plaintiffs in Error.

exceptions," in which he excepted to three of the conclusions of law. The court denied the application and directed that judgment be entered "pursuant to the report of the referee," which was done. On a writ of error from this court: Held, that the only questions open to review here were, whether there was any error of law in the judgment, on the facts found by the referee; and that, as the case had not been tried by the Circuit Court on a filing of a waiver in writing of a trial by jury, this court could not review any exceptions to the admission or exclusion of evidence, or any exceptions to findings of fact by the referee, or to his refusal to find facts as requested.

The defendant agreed to make for the plaintiff 400 tons of iron, and to ship it about September 1st, or as soon as he could manufacture it, for $19.50 per ton. He did not deliver any of it at or about that date, nor as soon as he had manufactured the required amount. The referee found that the defendant "postponed the execution of the contract from time to time," and that, on November 7th, he insisted, as conditions of delivering the iron, on certain provisions not contained in the original agreement. The plaintiff did not comply with those conditions, and the iron was not delivered. The referee found that the market value of such iron, on November 7th, was $34 per ton, and did not find what the market value of such iron was at any other time. In a suit by the plaintiff against the defendant to recover damages for a breach of the contract, he was allowed $14.50 per ton. On a writ of error: Held,

(1) The postponement of the execution of the contract must be inferred, from the findings, to have been with the assent of the plaintiff;

(2) The rule of damages applied was proper.

A counterclaim set up by the defendant was, on the facts, properly disallowed.

Ar law, in contract. Judgment for plaintiff. Defendants sued out this writ of error. The case is stated in the opinion of the court.

Mr. James Breck Perkins, for plaintiffs in error, cited: Pembroke Iron Co. v. Parsons, 5 Gray, 589; Morris v. Levison, 1 C. P. D. 155; Clark v. Baker, 5 Met. 452; Shepherd v. Hampton, 3 Wheat. 200; Hadley v. Baxendale, 9 Ex. 341; Messmore v. New York Shot and Lead Co., 40 N. Y. 422; McHose v. Fulmer, 73 Penn. St. 365; Ogle v. Vane, L. R. 3 Q. B. 272; Hill v. Smith, 34 Vt. 535; Hickman v. Haynes, L. R. 10 C. P. 598; Ex parte Llansamlet Tin Plate Co., L. R. 16 Eq. 155; Norton v. Wales, 1 Robertson (N. Y. Sup. Ct.) 561; Hewitt v. Miller, 61 Barb. 567; Sleuter v. Wallbaum, 45 Ill. 43; Champion v. Joslyn, 44 N. Y. 653;

VOL. CXXIV-5

Opinion of the Court.

Hutchinson v. Market Bank of Troy, 48 Barb. 302; Manhattan Co. v. Lydig, 4 Johns. 377; S. C. 4 Am. Dec. 280; Philips v. Belden, 2 Edwd. Ch. 1; Donaldson v. Farnell, 93 N. Y. 631; United States v. Hodge, 6 How. 279; Putnam v. Hubbell, 42 N. Y. 106; King v. Delaware Ins. Co., 6 Cranch, 71; Dows v. Exchange Bank, 91 U. S. 618.

Mr. Matthew Hale (with whom was Mr. Esek Cowen on the brief), for defendant in error, cited: Paine v. Central Vermont Railroad, 118 U. S. 152, 158; Bond v. Dustin, 112 U. S. 604, 606, 607, and cases there cited; Boogher v. Insurance Co., 103 U. S. 90; Tyng v. Grinnell, 92 U. S. 467; Tayloe v. Merchants' Insurance Co., 9 How. 390, 398; Mactier v. Frith, 6 Wend. 103; S. C. 21 Am. Dec. 262; Miller v. Life Insurance Co., 12 Wall. 285, 300, 301; Ryan v. Carter, 93 U. S. 78, 81; United States v. Dawson, 101 U. S. 569; Stanley v. Albany, 121 U. S. 535, 547, 548; Ogle v. Earl Vane, L. R. 2 Q. B. 275; S. C. affirmed, L. R. 3 Q. B. 272; Hill v. Smith, 34 Vt. 535, 547; Newton v. Wales, 3 Robertson (N. Y. Sup. Ct.) 453; Hetherington v. Kemp, 4 Camp. 192; Dana v. Kemble, 19 Pick. 112.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is an action at law brought in the Circuit Court of the United States for the Northern District of New York, by Henry M. Benjamin, a citizen of Wisconsin, against Henry C. Roberts and Archibald S. Clarke, citizens of New York, composing the firm of H. C. Roberts & Co., doing business at Rochester, New York, to recover damages for the alleged failure of the defendants to deliver to the plaintiff a quantity of iron, on a contract for its sale by the former to the latter.

The complainant alleged that at the time of the breach of the contract by the defendants the market value of iron of the kind and quality agreed to be sold was much greater than the contract price of the iron, and that, if the iron had been delivered pursuant to the contract, the plaintiff could have sold it at a large profit.

The defendants, in their answer, besides denying any liability

Opinion of the Court.

to the plaintiff, set up by way of counterclaim (1) that the plaintiff was indebted to them in the sum of $796.99, for coal and iron sold and delivered by them to him, and that, as a part of the contract for the sale of the iron upon which the action was brought, it was a condition that the plaintiff should pay to the defendants the $796.99, which he had not done; (2) that, on the sale and delivery to the plaintiff by the defendants of certain coal, the plaintiff had claimed various items of shortage in the coal, for which the defendants had allowed to him $1926.73, that they had afterwards ascertained that the statements of the plaintiff as to the shortage were untrue, and that they were ready to deliver the iron upon the payment to them by the plaintiff of the $1926.73.

The reply of the plaintiff admitted an indebtedness to the defendants of $112.73, on account of the item of $796.99 claimed in the answer, and, in regard to the $1926.73, it alleged that the items of shortage had been allowed and agreed to by the defendants.

After issue was joined, it was stipulated in writing by the parties, that the action be referred to a person named, "as sole referee, to hear, try, and determine the issues therein.” Upon this stipulation, an order was entered by the court that the action be referred to such person, "to determine the issues therein."

The referee filed his report as follows:

"I, the undersigned, the referee to whom were referred the issues in the action above entitled, do respectfully report that I have heard the allegations and proofs of the respective parties, and the arguments of counsel thereon, and, after due deliberation, report the following as my findings of facts:

"First. The plaintiff is a citizen of the State of Wisconsin, and resides in the city of Milwaukee, in said State, and the defendants, on and prior to the 17th day of July, 1879, were, have since then continued to be, and now are, citizens of the State of New York, residing at Rochester, in said State, and partners in business in said city, under the firm name of H. C. Roberts & Co.

"Second. On or about the 17th day of July, 1879, the

Opinion of the Court.

plaintiff inquired of the said defendants, by telegraph, their lowest price for four hundred tons of number two iron and four hundred tons of number one iron, or one cargo of each, delivered afloat at Milwaukee; to which, on the 22d day of July, 1879, the said defendants replied by telegram, stating the price at nineteen dollars and fifty cents cash, per ton, for number one foundry-iron delivered afloat at Milwaukee, and declining to put any price or to make any agreement for the sale of number two iron, and in a letter written on the following day promised and agreed to ship a cargo of the iron about the first day of September, 1879, if the plaintiff should accept the offer.

"On the 25th of July, 1879, the plaintiff, by letter, accepted the offer of a cargo of the iron, at $19.50 per ton afloat at Milwaukee, provided that the plaintiff should be allowed the deduction from the price per ton, if freight could be had for less than one dollar per ton; and also provided that the terms should be, instead of cash, a credit of four months, with interest at the rate of seven per cent per annum after thirty days.

"The defendants, by letter dated July 28th, 1879, accepted the modification of the terms and conditions of sale, and agreed to ship the iron about September 1st, 1879, or as soon as they could manufacture it.

"Third. The term 'cargo,' employed in this correspondence, was understood by the plaintiff and the defendants to mean a cargo of four hundred tons.

"Fourth. The contract for the delivery of the cargo of iron had no relation to or connection with any other dealings between the parties, and the performance thereof by the defendants was not conditioned upon the performance of any act on the part of the plaintiff other than as stated in the preceding findings.

"Fifth. The defendants did not deliver the iron or any part of it to the plaintiff on or about the time specified in their offer, nor did they deliver it as soon as they had manufactured the required amount. They postponed the execution of the contract from time to time, and finally insisted, as a condition of the delivery of the iron, that the plaintiff should pay certain