National Sur. Co. v. Cincinnati, N.O. & T.P. Ry. Co.

Decision Date28 April 1906
Docket Number1,506.
Citation145 F. 34
CourtU.S. Court of Appeals — Sixth Circuit

Guy W Mallon, for plaintiff in error.

Harmon Colston, Goldsmith & Hoadly, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

This was a suit upon a bond given by the surety company, plaintiff in error, to secure the performance of a contract made by 'F. M. Ease, Incorporated,' with the railway company defendant in error, by which the latter agreed to sell, and Pease to buy, 20 old locomotives; 16 at $3,500, and 4 at $3,000 each. Pease took and paid for all of these locomotives except six, which the railway company, after notice to him and the surety company, sold at public auction, charging them with the difference. The contract price being $20,500 and the proceeds of the sale $11,150, there was a deficiency of $9,350, for which, adding $25, the expense of the sale, making $9,375, with interest, the suit was brought and judgment rendered. By a stipulation in writing filed with the clerk, a jury was waived and the case submitted to the court under sections 649 and 700, Rev. St. (U.S. Comp. St. 1901, pp. 525, 570). The defense was that the railway company, without the knowledge or consent of the surety company, altered the contract in certain material respects. All the testimony appears in the bill of exceptions contained in the record, but no exceptions to the rulings of the court in the progress of the trial are presented, and no special findings were requested or made. The court, at the conclusion of the evidence and arguments, delivered an opinion in which it gave its general finding in favor of the plaintiff, with the reasons for such conclusion. To this the counsel for defendant excepted, and, upon the strength of such exception, we are asked to review the findings of fact and law which are claimed to be involved in the general conclusion reached.

In our opinion, the record raises no questions which are open to revision by us. The opinion of the court, in the absence of aid outside the record, cannot be treated as a sufficient finding of the facts within the statute to warrant us in reviewing the judgment based upon it. Insurance Co. v Tweed, 7 Wall. 44, 51, 19 L.Ed. 65. Section 649, under which this case was tried without the intervention of a jury, provides that 'the finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict...

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4 cases
  • Pennsylvania Co. v. United States
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • May 8, 1917
    ...241 F. 824 PENNSYLVANIA CO. v. UNITED STATES. No. 2905.United States Court of Appeals, Sixth Circuit.May 8, ... (C.C.A. 8) 167 F. 126, 92 ... C.C.A. 578; National Surety Co. v. Railroad Co. (C.C.A. 6) ... 145 F. 34, 76 ... ...
  • Mason v. Smith
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • November 7, 1911
    ...191 F. 502 MASON v. SMITH. No. 2,062.United States Court of Appeals, Sixth ... 608, 41 L.Ed. 1044; Humphreys v. Third National Bank ... (C.C.A. 6) 75 F. 852, 855, 21 C.C.A. 538; Fales ... ...
  • Joline v. Metropolitan Securities Co.
    • United States
    • U.S. District Court — Southern District of New York
    • October 14, 1908
    ... ... losing party has no redress on error except for the ... wrongful admission or ... 739, 26 C.C.A. 128; of the Sixth ... Circuit, in National Surety Co. v. R.R. Co., 145 F ... 34, 76 C.C.A. 19; of ... ...
  • Beam v. Hamilton
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • May 15, 1923
    ... ... 9 BEAM v. HAMILTON, Collector of Internal Revenue. No. 3787.United States Court of Appeals, Sixth Circuit.May 15, ... 408, 415, 41 Sup.Ct. 524, ... 65 L.Ed. 1020; National Surety Co. v. C., N.O. & T.P. Ry ... Co. (C.C.A. 6) 145 ... ...

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