22 F.(2d) 254 of the aggregate value of approximately $100,000, was shipped and delivered, and the sum of $30,180.50 was paid on account of the purchase price. All deliveries were made some time prior to November 1, 1923. Later, the date not appearing, the purchaser was adjudicated a bankrupt, and on October 27, 1925, the vendor filed a petition for reclamation with the referee, claiming that the property had been sold under a conditional contract of sale, reserving title in the vendor until the entire purchase price was paid. The answer of the trustee put in issue the allegations of the petition for reclamation, and upon the hearing the referee found that the sale was absolute and not conditional. This finding of the referee was approved by the District Judge; hence this appeal. The case made by the appellant is inherently weak in many particulars. The only testimony offered tending to show a conditional sale was that of the president of the bankrupt corporation. He testified that before the order was given he and Holland discussed the number and size of the tanks, the terms of sale, the time of payment, the time of delivery, the question of title, and that title should remain in the vendor until each tank was paid for in full. They also discussed the possibility that the tanks might be taken back if the purchase price was not paid. October 3, 1923, the vendor forwarded three copies of a conditional sale contract to Holland, with directions to have them executed by the purchaser and returned. On November 26, 1923, the president of the purchasing corporation returned the three copies unexecuted, for the reason that further shipments of material had been withheld at the request of the purchaser, and the conditional sale contract covered the entire order, instead of the material already delivered. The letter contained the statement: "In the meantime, to cover one of the most important features, in so far as your company is concerned, you may consider this letter an agreement on our part that the steel has been sold under a conditional sales contract, and that title to it will not pass to us until it is fully paid for." This letter, of course, could not create a conditional sale, if an absolute sale had already taken place. No further effort seems to have been made to procure the execution of the conditional sale contract by the purchaser, nor is there any explanation of the long delay before attempting to regain possession of the property. If the sale was a conditional one, it would seem that the notation on the order above quoted would have so stated, instead of using the general language, "Send along formal contracts for your collateral security." It may be claimed that the vendor would understand the meaning of this expression; but its letter of September 11, written the day before the order was given, indicates the contrary, because in that letter the vendor stated that it would accept payments at the times specified in the order, "with deferred payments covered by bankable trade acceptance note bearing 7 per cent. and by chattel mortgage on tanks and oil, providing you get some company of sufficient rating in Dun or Bradstreet's to sign note." Furthermore, it appears from the testimony that the terms of the conditional contract of sale were never agreed upon. According to the testimony of the president of the bankrupt corporation, the sale was several; that is, title to the material in each tank would pass to the purchaser as soon as the material for that tank was paid for, whereas under the conditional contract of sale, as prepared by the vendor, the title to all the material was reserved in the vendor until the entire purchase price was fully paid. Nor was there any agreement as to the application of payments. Again, while an oral contract of this kind may be valid in the state of California, it seems improbable that a vendor would deliver material before the execution of the formal conditional contract of sale, if in fact there was such a contract. To do so in the case of a sale of this magnitude would be a very unbusinesslike transaction, to say the least. Lastly, there were but two parties to the original transaction, the president of the bankrupt corporation, representing the purchaser, and Holland, representing the vendor. Holland was not called as a witness, and no satisfactory reason for the failure to call him was given, as he apparently resided and had offices in the city where the testimony was taken. There is an intimation in the record that he concealed himself, so that process could not be served upon him; but, in the absence of some more satisfactory explanation as to why he was not called, we have a right to presume that his testimony, if taken, would not support the claim of his principal. For these reasons, there is no error in the finding of the referee, as approved by the District Judge, and the order is affirmed. UNITED CONST. CO. v. HAVERHILL, N. H., covering by fact that work had been finally ac et al. Circuit Court of Appeals, Second Circuit. November 1, 1927. No. 21. 1. Bridges ~20(4)—Breach of contract to excavate to solid ledge in constructing pier held not excused by towns' misrepresentation as to depth of ledge, where excavation did not extend to depth required. Failure of contractor, constructing bridge pier, to excavate to solid ledge, as required by plans and specifications, held not excused by towns' misrepresentation that solid ledge would be reached by excavating to line shown, where excavation was from 2 to 6 feet above depth so required. 2. Bridges 20 (4)-Contractor's excavation to solid river bed, not reaching line specified, held not compliance with requirement to excavate to solid ledge. Contractor's excavation to solid river bed in building bridge pier, where not reaching line specified, held not compliance with contract requiring excavation to solid ledge, though engineer, whose approval was required, apparently believed that ledge actually formed river bed. 3. Bridges 20(4)-Alleged approval of engineer held not to excuse contractor's inadequate excavation, where contract required approval by board as condition to payment. Where contractor, constructing bridge pier, failed to excavate to depth required, fact that engineer or engineer's assistant may have approved work done did not relieve contractor from liability for breach, under provision that assistant's approval of improper work should not entitle contractor to payment, unless work was approved by board. 4. Bridges 20 (4)-Satisfaction of engineer held not alone sufficient to relieve contractor, excavating for bridge pier under contract requiring excavation to "line shown" and engineer's satisfaction. Under contract for constructing bridge pier, providing excavation should go to "line shown" and should be done to satisfaction of engineer, satisfaction of engineer with excavation did not of itself relieve contractor from liability for breach. 5. Contracts 284(4)-Decision of engineer as to construction contract is final only where so provided by express terms or their equivalent. While in construction contract it is not necessary that decision of engineer, to be final, shall be declared final and conclusive in so many words, equivalent must nevertheless appear from terms of contract. 6. Estoppel 90(2)-Towns' recovery for defective construction of bridge pier held not precluded by final acceptance of work and payment therefor without knowledge of defects. In action by towns to recover damages from contractor for breach of contract to construct bridge pier, towns were not estopped from re cepted and payments made, where acceptance and payments were made without knowledge of defective performance. 7. Contracts 322(1)—Burden is on contractor to establish excuse for breach of construction contract. Where breach of construction contract is proved, burden is on contractor to establish his excuse in action against contractor for damages. 8. Contracts 1-Court must measure parties' rights according to contract, notwithstanding resulting hardship. Court has no choice but to make contract measure of parties' rights, even where hardship will result. In Error to the District Court of the United States for the District of Vermont. Action by Haverhill, N. H., and Newbury, Vt., against the United Construction Company. Judgment for plaintiffs, and defendant brings error. Affirmed. Writ of error to the District Court of Vermont upon a judgment in favor of the plaintiffs (the defendants in error) against the defendant (plaintiff in error), entered upon the general and special verdicts of a jury. The action is the same as was considered by this court in the opinion reported in 9 F. (2d) 538, which sets forth the general situation with enough detail, and to which reference may be had. Upon the second trial the plaintiffs, accepting the interpretation of the contract there laid down, proved that the piers had not been sunk to the depths specified upon the plans. These were elevation 385 on the western, or Vermont, side, and 394 on the other. The issue so arising was left to the jury, who by special verdict found that neither pier had been sunk to the required depth. As it was conceded that the solid ledge turned out to be between 15 and 35 feet lower than the lines shown on the plans, the plaintiffs contended that, not only had the defendant broken its promise to excavate to the solid ledge, but that it no longer had the excuse which had prevailed before; that, while the contract represented that the ledge would be found by excavating to the line shown, it gave no assurance that it could be reached earlier, and the defendant had therefore failed to prove any reliance upon the representation. Thus the breach of the contract to dig to solid ledge stood without excuse. The defendant, on the other hand, maintained that the depths indicated upon the plans were not to be taken literally, but all parties understood that the piers should only 22 F.(2d) 256 be well seated on the river bed, which was in practice accepted as the contract depth; especially that, since a river bottom and a ledge could not be understood as lying in a geometrically horizontal line, it was impossible to read the plans as meaning that the piers should exactly conform to the indicated depth. The deviations proved were not substantial enough to constitute a breach. Furthermore, even if this were not true, the plaintiffs had employed one Storrs as their engineer in charge of the work; who had in turn deputed two assistants, Marshall and Whitney (the latter formally in the defendant's employ), who had been present daily, as the work proceeded, and who had taken measurements of the depths to which the cofferdams were sunk, and had, if not expressly, at least by implication, assured the defendant that the excavation was in accordance with the plans. Again, the engineer, Storrs, had personally examined the foundation before the concrete was poured in, and had then accepted it as solid ledge; this also excused any default in failing to reach it. Finally, the defendant insisted that it did not lie upon the contractor, as the District Judge charged the jury, to excuse his default in failing to reach the ledge; that it was misleading, and unfair to take the special verdict; and that it was error to admit certain evidence which tended to impair in the jury's minds the authoritative interpretation given to the contract on the first writ. Louis E. Wyman, of Manchester, N. H., and M. P. Maurice, of Brattleboro, Vt., for plaintiff in error. Charles H. Darling, of Burlington, Vt., and Raymond U. Smith, of Woodsville, N. H., for defendants in error. Before MANTON, L. HAND, and SWAN, Circuit Judges. L. HAND, Circuit Judge (after stating the facts as above). [1] On the main issue we think that the towns are right; the contractor confessedly did not dig to the solid ledge. That was a breach, and it was the cause of the bridge's collapse. We did not hold before, and could not properly have held, that the contractor might ignore this promise; but we did say that the specifications and the plans, when read together, assured him that what seemed like solid ledge at the prescribed depths he might accept as such. Thus, although his engagement remained to dig to the ledge, and though he was in default, he would have had an excuse, 22 F. (2d)-17 had he gone to the lines shown and found We agree that nobody could expect to ever, decide whether, if Marshall had been authorized to speak for the towns, this would have made out an excuse for performance, or have been a practical construction of the contract. We may assume as much arguendo, because the specifications, under the heading "Consulting Engineer," in any case dispose of the contention. The language is: "The assistants' approval of improper work or material shall not entitle the contractor to payment therefor, if the same shall not be approved by the board." The board never knew that the contractor had not dug to the elevations shown; they knew nothing whatever about the matter. Storrs, it is true, swore that he knew that the piers were approximately down to the line, in which he was quite mistaken. Perhaps he thought so because Marshall had told him; but his approval, if he gave it, would not help the contractor. The clause meant that no approval should count, unless the board, being advised that the work was improper, was content to accept it. Only so could it be protected from the negligence or disloyalty of the engineer's assistants. Nobody suggests that any such consent was ever given. Next, as to the examination of the bottom by Storrs personally: After the contractor had sunk the cofferdams, and by a diver had examined and somewhat ineffectually cleaned the bottom, and when the time had therefore come when it proposed to begin to pour the concrete, Storrs was summoned to examine the foundation, and came to the site. His story, which the jury accepted, was that he pushed about with an iron rod and found rock and sand. The contractor's foreman on the job was present, and Storrs asked him whether the rock he felt was the ledge. The foreman said that it was, to which Storrs replied that, if this was true, he might begin to pour. Nothing more was said, though Storrs admitted that in fact he felt sure that the ledge had been reached. [4, 5] The contract required the excavation, not only to go "to the line shown," but also to be done "to the satisfaction of the engineer." These are separate stipulations in the copula, and, unless the engineer had power to excuse the first, his satisfaction with the excavation was not enough. The contractor insists that he had, but we cannot agree. While we concede that it is not necessary that a contract shall in so many words declare that the decision of an engineer shall be "final and conclusive" (U. S. v. Hurley, 182 F. 776 [C. C. A. 8]), nevertheless the equivalent must appear within its four corners (Mercantile Trust Co. v. Hensey, 205 U. S. 298, 27 S. Ct. 535, 51 L. Ed. 811, 10 Ann. Cas. 572; U. S. v. Walsh, 115 F. 697 [C. C. A. 2]; General Fireproofing Co. v. Wallace, 175 F. 650 [C. C. A. 8]). In the case at bar, not only does this not appear, but the contrary is manifest. It is quite true that, in case of any "dispute or difference" between the parties, the decision of the engineer is made final; but no dispute had arisen. Assuming that Storrs gave an unconditional assent, the contract did not therefore make it final; his powers, being so defined, could not be extended by implication. "Expressio unius." In fact, he never gave an unconditional assent. It is also true that his instructions to the contractor were to be authoritative; but he gave none. All he said was that, if what he felt was in fact the ledge, the foreman might go ahead. This was conditional upon something on which he did not profess to pass. Perhaps he should have done so, but that is immaterial; his failure was not a substitute for his performance. Nor does it make the least difference whether the foreman was authorized to speak for the contractor. Storrs' assent remained conditional none the less, and the contractor was obliged either to persuade him to act on his own responsibility, or to accept the condition which he imposed. Indeed, as the thing fell out, Storrs had changed the situation not a bit; in substance, he left it to the contractor to make his own decision. Thereafter the latter's only course was to use his own judgment or to insist upon a less equivocal commitment; he chose the first. [6] The last excuse is the final acceptance of the work by Storrs and the board, and the payment by the towns. As we have already said, the contract gave only a limited authority to Storrs. His approval and acceptance were not decisions of disputes referred to him, and could not conclude the towns, if unknown departures from the contract were later discovered. If the point be good at all, it must rest upon general principles of estoppel. But there could be no estoppel after the bridge was completed. It is one thing to approve work as it goes on, and so to induce the contractor to proceed; it is quite another to approve it when it is done. There are grounds enough for an estoppel in the first case, but none in the second. Payments made after completion are irrecoverable for quite another reason; if made with knowledge of the default they are voluntary, and the law sees no reason in justice to recall voluntary payments. In the case at bar neither 22 F.(2d) 259 the board nor Storrs knew of the defects when the work was approved and paid for. On the contrary, they supposed both that the piers were on the ledge and were down to the line. Since they were not responsible for the performance in these regards, they remained free to object when the truth was dis closed. [7] So much for the main issues. We need add little concerning the conduct of the trial. The charge presented the case quite as we understand it, and the requests either added nothing of substance, or should have been refused. The burden was upon the contractor to establish his excuse, once the breach was proved. The defendant got the full benefit of our earlier decision, which was not impaired by taking a special verdict. The evidence admitted was either competent and relevant, or could not have misled the jury in the face of a clear and satisfactory charge. [8] So far as we can see, the contractor ignored the terms of his contract and substi tuted what he, perhaps correctly, supposed was everybody's understanding. It was a natural, but a perilous, course, and, having adopted it, the loss must fall where the words of the contract put it. Contracts are written to avoid such uncertainties, and, however hardly they may bear, we have no choice but to make them the measure of the parties' obligations. Judgment affirmed. TRAITEL MARBLE CO. v. U. T. HUNGERFORD BRASS & COPPER CO. sued of the two patents is not prior art to the other, it is not necessary to validity of the patembody a patentable advance over the disclo ent last issued that the claims thereof should sure of the first patent, but it is enough that the claims of one patent are for an invention separate from that of the claims of the other. 4. Patents 91 (4)-Patents for flexible metal strip on copending applications by same person held for separate inventions, where continuous edge, not disclosed by original patent with general claims, is added as new feature by claims of second patent. Even though the general claims of a patent for a flexible metal strip, first issued on one of two copending applications by the same person, were not required to be limited to the disclosure, which was merely of a discontinuous lower edge, and so covered continuous as well as discontinuous edges, yet the claims of the patent later issued on the other application having added the continuous edge as a new feature designed to effect a result which would not follow on the practice of the first disclosure, except in case it had been deliberately varied, the patents were for separate inventions. 5. Patents 139-Holder of two patents, by application for reissue based on one, held not to abandon claims of other, though his position involved belief of invalidity of the other. One having two patents for a strip, the first disclosing only a discontinuous lower edge, but having claims not specifically limited thereto, and the other claiming only a continuous edge, by application for reissue patent based on the first patent, limiting his claims specifically to the discontinuous edge, and giving as his only reason for the reissue that the continuous edge was old in the art, did not abandon the claims of the second patent. 6. Patents 120-Defense of double patenting is good only where the claims are the same. Defense of double patenting is not avail Circuit Court of Appeals, Second Circuit. No- able, where the claims of the two patents are vember 1, 1927. No. 148. 1. Patents 328—1,451,491, for guide strip for terrazzo flooring, claims 4-7, held not anticipated. Calkins patent, No. 1,451,491, claims 4, 5, 6, 7, for a pattern and guide strip for terrazzo flooring, held not anticipated. 2. Patents 66(4)-Patent first issued on one of two copending applications by same person held not prior art to patent on the other application. Where two applications for patent by the same person are copending, the patent first granted is not part of the prior art to patent on the other application. 3. Patents 66(4)—If claims of two patents issued on copending applications by same person are for separate inventions, last issued is valid, without patentable advance over disclosure of first. Where two applications of the same person for patents were copending, so that the first is not the same. Appeal from the District Court of the United States for the Southern District of New York. Suit by the Traitel Marble Company against the U. T. Hungerford Brass & Copper Company. From a decree granting preliminary injunction, defendant appeals. Affirmed. See, also, 16 F. (2d) 495. Appeal from a decree of the District Court for the Southern District of New York, granting a preliminary injunction upon claims 4, 5, 6, and 7 of patent, 1,451,491, to Seward H. Calkins for a pattern and guide strip for terrazzo flooring. The general features of the invention are described in the decision of this court in a suit between the same parties upon Calkins' |