be enforced as a matter of law, to say that plaintiff must carry the whole responsibility. He seemingly might have left the gates shut, and have climbed up on them, or otherwise reached the coal that was lodged, and knocked it down; but the opening of the doors to get at the coal in an easier way involved no risk while the engine was standing still, and little or no risk if the fireman was to be warned before the engine moved. The danger and the risk came from the movement. which plaintiff was not, as a matter of law, bound to anticipate. negligence on his part, was only contributory, standard of that careful conduct, which can and cannot be said to be the sole proximate cause of the injury. The starting of the engine, which caused the doors to swing, as they otherwise would not, and the unfastened condition of the doors, which permitted them to swing, as they otherwise would not, seem to us to be concurring causes of the injury. [1] We think there was substantial basis from which the jury might infer that the starting of the engine without any warning was an act of negligence as against plaintiff. Rule 30 of the operating department is as follows: "The bell will be rung when an engine is about to move; while moving through tunnels; on the streets of towns and cities; approaching and passing public road crossings at grade, stations and trains on adjacent tracks." It follows that the plaintiff was entitled to go to the jury upon the issues involved, and the judgment must be reversed. [2] We think the natural interpretation of 66 [3] If the starting of the engine without the bell was not negligent, there was no case. If it was, we cannot say that plaintiff assumed the risk. His contract of assumption does not reach risks arising from the noncustomary, unknown, and not to be anticipated negligence of a fellow servant. Chesapeake Co. v. Proffit, 241 U. S. 462, 468, 36 S. Ct. 620, 60 L. Ed. 1102; Chicago Co. v. Ward, 252 U. S. 18, 21, 40 S. Ct. 275, 64 L. Ed. 430; Cincinnati Co. v. Thompson (6 C. C. A.) 236 F. 1, 6. [4] Whether plaintiff's conduct in leaving the gates open be challenged as negligent or as carrying an assumption of the resulting risk, it would be invoking too extreme a JULIAN PETROLEUM CORPORATION v. Rehearing Denied December 5, 1927. Damages 18-Generally remote, uncertain, and speculative damages are not recov. erable. As a general rule, remote, uncertain, and speculative damages are not recoverable. 2. Courts 107—Language of court's opinion must be read in light of facts before it. In reading a judicial opinion to determine the rule of law laid down, language of the court must be read in the light of the facts before it. 3. Appeal and error 1048 (2)-If expert opinion evidence respecting damages from failure to complete oil well was competent, mere computation to show. exact amount thereof was not prejudicial. If it was competent for expert witnesses, in action for damages for failure to drill and complete oil well as agreed, to express their opinions as to the quantity of oil that could have been produced if drilling had been completed, the cost of operation, and the value of the oil produced, the mere computations or additions by such witnesses to show exact amount of damages suffered was not prejudicial error. 4. Evidence 525-Expert testimony as to value of oil that could have been produced, if well had been completed, held admissible as to damages. and complete oil well as agreed, admission of In action for damages for failure to drill testimony of experts as to the fact and amount of oil which could have probably been produced, if well had been completed, duration of produc tained, held not error, as against objections that tion, cost of production, and price probably obdamages claimed were too uncertain, remote, 22 F.(2d) 360 and speculative; weight of such testimony be- . ing for jury. 5. Mines and minerals 78 (5)-Forfeiture 6. Appeal and error 928(1)-In absence of Assignment of oil and gas lease, requiring assignee to complete drilling of well, and providing that assignor should perform certain services and receive as compensation therefor a portion of the profits realized, if any, held not to create a partnership relation between corporate parties, especially where contract expressly provided it should have no such effect. 8. Joint adventures 5(1)-One joint adventurer may sue another at law. One joint adventurer may sue another at law. 9. Mines and minerals 78(1)-Mere breaking of machinery or other misfortune is no excuse for failure of assignee of oil and gas lease to complete drilling of well as agreed. Where assignee of oil and gas lease positively agreed to drill well to a certain depth, the mere breaking of the machinery, destruction of the well, or other misfortune, without assignee's fault, affords no excuse for failure to perform its contract. In Error to the District Court of the United States for the Southern Division of the Southern District of California; Edward J. Henning, Judge. Action by the Courtney Petroleum Company against the Julian Petroleum Company. Judgment for plaintiff, and defendant brings error. Affirmed. McAdoo, Neblett, O'Connor & Clagett, Wm. H. Neblett, T. P. Conroy, J. Hart Willis, Anderson & Anderson, and A. G. Ritter, all of Los Angeles, Cal., for plaintiff in error. Harold C. Morton, Byron C. Hanna, J. D. Fredericks, Jr., and Fredericks, Hanna & Norton, all of Los Angeles, Cal., for defend ant in error. Before HUNT, RUDKIN, and DIETRICH, Circuit Judges. RUDKIN, Circuit Judge. This is a writ of error to review a judgment in favor of the plaintiff in an action to recover damages for breach of a drilling contract. On June 3, 1925, Courtney Petroleum Company assigned to the Julian Petroleum Corporation an oil and gas lease on certain property in the Athens oil field in Los Angeles county, California, on which there was an uncompleted oil well drilled to a depth of 4,158 feet. At the same time a collateral agreement was entered into between the assignor and assignee wherein it was agreed as follows: "2. The assignee shall within two days start operations on said well which is now practically drilled on said land, and diligently and continuously continue operations in good faith and in the usual and customary manner on said well with three towers of six men each until the well is placed on production. "3. The assignee agrees that, in the event the partially drilled well now located on the property is put on production at a total depth of less than 4,600 feet, and said well is at any time for a period of five consecutive days making less than 350 barrels of oil for 24 hours, to kill said well and deepen the same in a first-class, workmanlike manner, in accordance with accepted oil field standards, to that certain producing horizon in the Athens field, commonly known as the Miley sand, which horizon is located approximately 5,000 to 5,100 feet. Assignee does not undertake to complete said well as a producing oil well at said depth, but does agree to properly drill the same to said depth, and there endeavor in the usual and customary manner to place the same on production. Two days later the assignee entered into possession and drilled the well to an additional depth of about 4 feet, when the drill pipe was twisted off, leaving a considerable portion of the pipe in the bottom of the well. An attempt was made to remove the broken stem or pipe, but without success. A further attempt was then made to drill to the side of and past the obstruction, but, after drilling to a depth of about 70 feet additional, the drill pipe was again twisted off, and all further attempts to complete the drilling were abandoned by the assignee. The present action was thereupon instituted by the assignor against the assignee to recover damages for failure to drill and complete the well as agreed. Upon the trial the plaintiff below was permitted to prove its damages by expert witnesses who testified substantially, that they. Fredonia Gas Co., 92 Kan. 50, 139 P. 1010; had had several years' experience in geological work, or in the oil business; that they were familiar with the Athens field, and the location and the production of other wells in that field; that the well in question was favorably located; that, if drilled to the Miley sand, the well would, in their opinion, have produced oil; that the estimated cost of drilling the well to the Miley sand would be a certain amount; that the production of oil would be a certain quantity; that the cost of operation would be a certain amount; and that the oil would sell for a certain price. They further testified that this method of estimating the production of uncompleted wells is a familiar one in the oil business; that the government of the United States has adopted rules for estimating the future production of such wells; that the corporation commissioner of the state of California acts upon such estimates in authorizing the issuance of bonds and other sureties; and that oil property is bought and sold on the market on such estimates, the same as other real property changes hands on the opinion of experts in that line. The foregoing does not appear from the testimony of any one witness, but such is the general import of all the testi mony. At every stage of the trial the plaintiff in error objected to the competency of the above testimony, contending that the damages claimed were too uncertain, remote, and speculative. The several objections were overruled, and upon these rulings the principal assignments of error are predicated. [1] No doubt, as a general rule, remote, uncertain, and speculative damages are not recoverable; but the difficulty lies in the application of the rule, not in the rule itself, and it seems to be firmly established in all the oil and gas producing states that damages such as are claimed here are recoverable, and that such damages are provable by experts, or by the opinions of well-informed persons upon the subject under investigation. 40 Corpus Juris, 1095; White on Mines and Mining Remedies, p. 235; Blair v. Clear Creek Oil & Gas Co., 148 Ark. 301, 230 S. W. 286, 19 A. L. R. 430; Dempsey Oil Co. v. Torrans (Tex. Civ. App.) 244 S. W. 855; Texas Pac. Coal & Oil Co. v. Barker (Tex. Civ. App.) 252 S. W. 809; Texas Co. v. Ramsower (Tex. Civ. App.) 255 S. W. 466; South Chester Tube Co. v. Texhoma Oil & Refining Co. (Tex. Civ. App.) 264 S. W. 108; Sinclair Oil & Gas Co. v. Bryan (Tex. Civ. App.) 291 S. W. 692; Wheeland v. Junction Oil & Gas Co. v. Pratt, 99 Okl. 14, 225 P. 717; Daughetee v. Ohio Oil Co., 263 Ill. 518, 105 N. E. 308; Bradford Oil Co. v. Blair, 113 Pa. 83, 4 A. 218, 57 Am. Rep. 442. Thus in Wheeland v. Fredonia Gas Co., supra, the Supreme Court of Kansas said: "This action was brought for failure to develop the land, a trial was had, and evidence was produced. Under these conditions, it was impossible for the appellees, there being no further development of the land, to prove the actual amount of damages they had suffered. The nature of the case is such that it is impossible to tell what a well will develop until it is sunk, and yet experts in oil territory are able to furnish reasonably accurate estimates of what a certain territory will produce, estimating from producing wells in the locality. This the appellants did in this case." [2] The plaintiff in error contends that, regardless of the rule adopted in these cases, a different rule obtains in California, and that this court has itself adopted a different rule. Many California cases are cited, but none directly in point. Some might seem to support the right of recovery, and others to oppose it; but the facts were not the same, and the language of the court must be read in the light of the facts before it. The case relied on from this court is Blodgett v. Columbia Live Stock Co., 164 F. 305, where it was held that damages for breach of a contract such as this are necessarily indefinite, uncertain, and speculative, and for that reason it was competent for the parties to fix the amount of such damages by mutual agreement. But a stipulation for liquidated damages is valid in all cases where the damages are indefinite, uncertain, and speculative, or difficult of proof, regardless of whether they are recoverable at law or not, and a decision upholding a stipulation for liquidated damages has no bearing upon the question now before us. [3] After expressing an opinion as to the cost of completing the well, the quantity of oil that would be produced, the cost of operation, and the value of the oil, some of the witnesses made computations tending to show the exact amount of damages suffered by the plaintiff in error, and this is assigned as error. But, if it was competent for the witnesses to express an opinion as to the amount of the different items, the mere computations or additions could not be prejudicial error. [4] No doubt there are elements of uncertainty in this case, such as the fact of pro 22 F.(2d) 360 duction, the amount of production, its duration, the value of the oil, and perhaps in other respects; but the testimony offered was the best obtainable, and we think that under the authorities its weight was for the jury. There was, therefore, no error in the rulings complained of. [5] The remaining assignments call for but brief consideration. The plaintiff in error contends that the only remedy for a breach of the collateral agreement was to declare a forfeiture of the contract. Neither the assignment of the oil and gas lease from the defendant in error to the plaintiff in error, nor the collateral agreement between the parties, contained a forfeiture clause; but, even if either or both did, it is well settled that such a clause is designed for the benefit of the lessor, and that he may take advantage of it or not as he chooses. He may declare a forfeiture of the contract, or he may, at his option, allow the contract to stand and sue for damages for the breach. 40 Corpus Juris, 1094; Empire Gas & Fuel Co. v. Pendar (Tex. Civ. App.) 244 S. W. 184; Junction Oil & Gas Co. v. Pratt, 99 Okl. 14, 225 P. 717. [6] It is also contended that there was no proof that the well would not have produced oil at a depth of less than 4,600 feet. There was competent testimony tending to prove that the well would not produce in the quantities specified in the collateral agreement above the Miley sand, and in the absence of exceptions to the instructions we must presume that the issues were properly submitted to the jury. [7] It is next contended that the assignment of the oil and gas lease and the collateral agreement created a partnership or joint adventure between the parties, and that an action at law will not lie in such cases. Under the terms of the agreement between the parties, the defendant in error agreed to perform certain services, and to receive as compensation therefor a portion of the profits realized, if any. Such an agreement between two corporations does not create a partnership, especially in the face of an express agreement that their contract shall have no such effect, as was the case here. "It seems to us that this agreement cannot be construed to be a formation of a partnership in any sense. It purports to be a lease. It is recited in the instrument itself that it is a lease, and while, of course, such [9] It is lastly contended that the destruc- We find no error in the record, and the judgment is affirmed. DOWLING et al. v. UNITED STATES, No. 4878. Criminal law 1186(1)-Death of trial ste the indictment had followed a search made in the basement of the building used as the family residence, which search was made by prohibition officers under the purported authority of a search warrant, and disclosed in this basement some 500 cases of bottled nographer and inability to read his notes held, whisky in sacks, and also some other intoxi under facts shown, not to require reversal. Judgment held not reversible on the ground that the death of the stenographer who reported the trial and inability to read his notes made it impossible to prepare an accurate bill of exceptions, where the trial judge, in denying a motion for new trial on the same ground, stated that the testimony and rulings were the same in all substantial respects as on a previous trial, in which the jury disagreed, and the record of which was preserved, and offered from such record and his own recollection to prepare and settle a bill of exceptions, which offer defendants declined. In Error to the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge. Criminal prosecution by the United States against Mary M. Dowling and others. Judgment of conviction, and defendants bring error. Affirmed. Arthur Bensinger, of Louisville, Ky. (William T. Fowler, of Lexington, Ky., Edward C. O'Rear, of Frankfort, Ky., and Wallace Muir and Fowler, Wallace & Fowler, all of Lexington, Ky., on the brief), for plaintiffs in error. Sawyer A. Smith, of Covington, Ky., for the United States. Before DENISON, Circuit Judge, and HICKENLOOPER and RAYMOND, District Judges. DENISON, Circuit Judge. 1. The motion of the United States to dismiss the writ of error for lack of any bill of exceptions must be denied, because errors are assigned as to matters shown by the record as it is. 2. The motion of the defendants below (plaintiffs in error here) to reverse because of the impossibility of settling a proper bill of exceptions and the errors assigned upon the trial court's denial of the motion for a new trial, which motion was based on the same impossibility, raise the same question. The case below was a prosecution for conspiracy to possess, transport, and sell intoxicating liquors in violation of the National Prohibition Act (27 USCA), and also for the three substantive offenses. The defendant, Mary Dowling, is the mother of the others. She owned a distillery, and also owned an adjacent home, in which the other defendants lived with her. The finding of cating liquors. It was defendants' theory that the stock of liquor had been placed there before January, 1920, and had been since kept for family and home use only. It was the theory of the prosecution that sales were being made therefrom. The case came on for trial in April, 1924. Upon the opening of the trial, defendants made a motion to quash the search warrant and return the liquors. Evidence was taken upon this motion. All aspects of the validity of the search warrant and of the search and seizure were covered by these proofs. The motion was denied, and the trial proceeded. All aspects of the case on the merits were then covered by full proofs on both sides. The jury disagreed. When the case was again called for trial, in September, 1924, it was postponed on account of Mrs. Dowling's illness. In December, 1924, she filed in the District Court, though apparently as an independent proceeding in equity, a petition for the return of the property and a quashing of the search and seizure. The petition was heard in open court, further proofs taken, and a transcript of the indictment trial evidence was included by consent. The petition was denied, and in January, 1926, that denial was affirmed by this court. Dowling v. Collins, 10 F. (2d) 62. In the meantime (March, 1925), the indictment again came on for trial, and the jury returned a general verdict of guilty. The court delayed sentence until the decision of the pending appeal in this court, and during efforts to get a further review. When the sentence was finally imposed, and this present writ of error then brought, it was found that the stenographer who had taken the record of the last trial had died, and that his notes could not be read. Defendant's counsel set up that, in reliance upon the present common practice, they had not, nor had the trial judge, taken notes of the trial evidence or rulings sufficient to be a basis for a bill of exceptions, and that they were therefore entitled to a new trial, because they had thus, without fault, lost the right to review. Upon this application the trial judge filed a memorandum, reciting that the testimony upon the last trial and his rulings during it were, in all substantial respects, the same |