Moller v. Herring

SHEPPARD, District Judge (after stating the facts as above). [ 1 ] Tbe plaintiff complains by his general assignment that the court erred in giving judgment in his favor for only $1,070, and allowing him only $7.50 per bale for 52 bales loaded on cars, and disallowing bis claim in toto on 458 bales delivered to the receiver. It lias been seen that plaintiff claims damages for a breach of contract, but the contract required a delivery of the coiton “f. o. b. cars,” and it is plain that there was delivery of only 68 bales in the manner specified in the contract. That further delivery, as contemplated by the parties, was prevented, does not appear to have been due to any fault of the defendant. The law intervened at the instance of other parties, and the court took jurisdiction of the subject-matter, and possession, by its receiver, of the cotton collected by plaintiff. The receiver, of course, was tbe representative of tho court, and could not be in any sense tbe representative of the defendant. Wiswall v. Sampson, 14 How. 64, 65, 14 L. Ed. 322; Metcalf v. Barker, 187 U. S. 175, 23 Sup. Ct. 67, 47 L. Ed. 122. The plaintiff and defendant were both impleaded in the equity cause, which sought to impound the cotton, and both were under the legal duty to attorn to the court and abide tho judicial determination as to rightful claimants to the property. The lot of 52 bales, which was loaded on cars the same day as the appointment of the receiver and by him intercepted, as well as the other cotton assembled by plaintiff for shipment, from that time on was in custodia. legis, and the performance of the contract rendered impossible. The appointment of the receiver was impliedly an injunction against any interference with the custody of the cotton. A distinction, it has been said, must be taken between cases for specific performance of a contract and those in which damages are sought [672] for the nonperformance of a contract. The bare fact that the court can decree and enforce the specific performance of the contract shows that its performance is not impossible. But when the contract cannot be specifically performed, and the only remedy is by way of damages, the court will not inflict damages, if the breach for which damages are sought has been occasioned by the law. In such cases it appears the doctrine of damnum absque injuria applies. It is a very well settled rule of law that, if performance is rendered impossible by act of God, the law, or the other party, it is a sufficient excuse. Dermott v. Jones, 2 Wall. 1, 17 L. Ed. 762; Malcomson v. Wappoo Mills et al. (C. C.) 88 Fed. 680; Kansas Union Fife Insurance Co. v. Burman, 141 Fed. 848, 73 C. C. A. 69. [2] Defendant’s assignments are not predicated' on a writ of error sued out at his instance. It is settled law that on a writ of error sued out on appeal taken by plaintiff to review a judgment rendered for defendant assignments by the latter in the same record cannot be considered. The rule was early announced in The Maria Martin, 12 Wall. 40, 20 L. Ed. 251. “Both parties in a civil action may sue out a writ of error to a final judgment, but where one party only exercises the right the other cannot assign error in the appellate court.” Paully Jail Building & Manufacturing Co. v. Hemphill Co., 62 Fed. 698, 10 C. C. A. 595; Building & Loan, etc., of Dakota v. Logan, 66 Fed. 827, 14 C. C. A. 133. While the defendant’s errors may not be considered, the plaintiff has no ground to complain of the judgment. For the reasons indicated, the judgment must be affirmed; and it is so ordered.