C. C. A. 186. Hence, while defendants must be held to have consented to the trial of both the legal and equitable issues raised by the reply in this law action because they did not object thereto, yet this waiver did not change the character of proofs required to impeach the validity of the estimates actually made by the engineers of the railway company in pursuance of the contract. The character of evidence required to overcome the estimates of engineers made in pursuance of a contract between the parties making such estimates final and conclusive as to the measurements and classifications of work done under the contract has very often received the consideration of the courts. The rules as stated by Mr. Justice Redfield in Vandewerker et al. v. Vermont Cent. R. Co., 27 Vt. 130, is as follows: "After an estimate by the engineer, no recovery could be had beyond that sum, unless upon the most irrefragable proof of mistake in fact, or positive fraud in the opposite party in procuring an under estimate, or corruption in the engineer." Or as said by this court in Choctaw & M. R. Co. v. Newton, 140 Fed. 225, 71 C. C. A. 655: "Hence it has become the settled doctrine of the law that to give the contractor any standing in a court of equity to vacate the final award of the engineer, and give him judgment for a greater sum than that allowed in the final estimate, the contractor must show by an overwhelming weight of the evidence that the engineer was guilty of fraud, or exhibited such an arbitrary and wanton disregard of the complainant's plain rights under the contract as to be the equivalent of fraud, or committed errors and mistakes to the complainant's prejudice so gross and palpable as to leave no doubt in the mind of the court that grave injustice was thereby done him, * It is not material how the weight of the evidence may be upon this point, unless it shall appear reasons for thinking that the chief engineer's judgment was biased, partial, and consciously unjust.' Mundy v. Louisville & No. Rv. Co., 67 Fed. 633, 638, 14 C. C. A. 583; Elliott v. M., K. & T. R. Co., 74 Fed. 707, 21 C. C. A. 3. Measured by this rule, we are convinced, from a careful examination of the evidence found in the record, it falls far short of that high standard required to impeach the estimates made by the engineers of the railway company, as that issue was tendered by the reply in this action at law, or had it been adduced by plaintiffs in a proper suit brought to set aside such estimates. For although, as appears from the record, plaintiffs, without objection from defendants or interposition on the part of the court, were permitted to fully try out this issue and bring forward all the proofs they had, yet in all the evidence there is found no suggestion even of fraudulent conduct or unfairness on the part of the engineers making the estimates. The evidence offered by plaintiffs for the purpose of showing the estimates of the engineers to be erroneous is entirely consistent with the good faith of the engineers who made them. In brief, there is an absolute want of any evidence found in the record of the character required to impeach the validity of the estimates made by the engineers of the railway company. Therefore, as the contract between the parties, as found from a consideration of the entire record, must be held to include the arbitration clause found in the specifications for the doing of the work, and as the undisputed evidence shows the engineers of the railway company did make estimates of the work done by plaintiffs in pursuance of their contract, and plaintiffs did receive payment for their work based on such estimates, and as there is not even a semblance of evidence to be found in the record of that character required to impeach the validity. of the estimates made by the engineers of the railway company in pursuance of the contract under which plaintiffs performed their work, it follows, as a matter of law, the judgment sought to be reversed is right, that plaintiffs were not prejudiced by the errors of which they complain, and the judgment must therefore be affirmed. CARLAND, District Judge (dissenting). If the court has the right and authority to try the issues between the parties de novo, the result reached by the majority of the court may be justified. The record, however, was brought here by writ of error sued out by the plaintiffs below to review errors of law which occurred at the trial. Eightyfour errors are assigned to the rulings of the trial court. I understand that on writ of error the court is limited to a review of these rulings, and that it will reverse or affirm as it finds prejudicial error or not in the making of the same. That the trial court erred in its charge to the jury is conceded in the majority opinion. But it is therein held that the error was without prejudice, not in relation to the theory on which the case was actually tried, but in relation to a theory upon which a majority of the court thinks it ought to have been tried, Without the defendants in error having any power or authority to complain of any ruling of the trial court against them on this writ of error, the judgment in their favor is affirmed, for the reason that on the theory on which the case ought to have been tried the judgment is right. The majority opinion says that the court is not attempting to review errors committed at the trial against defendants in error, but that as it appears as matter of law that the trial court erred in holding that the umpire and arbitration clause did not apply to the contract between the parties, and as it appears to the majority that the umpire and arbitration clause did apply, and as it also appears to the majority that there was no competent evidence to impeach the award of the engineers of the Algoma Central Railway, therefore the judgment must be affirmed. The trial in the court below was had on the theory that the arbitration and umpire clause did not apply. The majority of this court have tried the case here as if the arbitration and umpire clause did apply. In so doing, I believe the court has deprived the plaintiffs in error of a substantial right. This court will not allow litigants to try a case below on one theory, and when the case is brought here try it on another. Does not the decision of the court herein accomplish the same result? It is certainly true that the plaintiffs in error have never tried their case on the theory that the arbitration and umpire clause did apply, and yet the judgment against them is affirmed on that theory alone. On the theory on which the case was tried below, there was confessedly prejudicial error in the charge of the court, saying nothing about the other errors assigned. I think the judgment below should be reversed and a new trial ordered, so that a fair opportunity may be given to the plaintiffs to present such case as they may have. 1. GIFTS BEAUMONT v. BEAUMONT (two cases). (Circuit Court of Appeals, Third Circuit. March 1, 1907.) Nos. 66, 67. GIFTS INTER VIVOS-DELIVERY-NECESSITY. It is essential to a completed gift that the donee should have such control, and such control only, of the subject-matter of the gift, as is consistent with the ownership purported to be transferred to him. [Ed. Note.-For cases in point, see Cent. Dig. vol. 24, Gifts, §§ 31, 34.] 2. SAME. Where delivery of property as a gift has once been made, and possession transferred, the gift is irrevocable, and is not affected by the fact that the donor immediately thereafter comes into physical possession and control of the property without any retransfer of the ownership by the donee. [Ed. Note. For cases in point, see Cent. Dig. vol. 24, Gifts, § 20.] 3. SAME CONDITIONS. A donor may attach a condition to a gift in presenti, if that condition be not inconsistent with possession or control by the donee of the thing given. [Ed. Note. For cases in point, see Cent. Dig. vol. 24, Gifts, § 68.] 4. SAME JOINT ACCESS TO PROPERTY BY DONOR AND DONEE. If a donor, with the clearly expressed intention of making a gift, make an actual delivery into the hands of the donee, the fact that the donor has lawful access to the depository of the thing given does not invalidate the gift, if the donee has also the same access to said depository, and has such control over the thing given that he may remove it at any time he chooses to do so. 5. SAME. The owner of 50 bonds rented a box of a safety deposit company in the name of himself and his two brothers, whom he took to the company, introduced them, and had them sign the contract of renting, and then retired with them to a room, taking the box and the bonds. He then handed one-half the bonds to each brother, stating that they were a gift, but that he desired the brothers to give him the coupons therefrom which should mature during his lifetime. After some conversation, they cut off some of the coupons next maturing, and gave them to him. They then placed the bonds and the coupons in the box, which was put in the vault; he taking one key, and giving them the other. Held, that the fact that he retained a key, and that he afterward visited the vault and took coupons from the box was not such a retention of control over the bonds as to invalidate the gift. 6. TRIAL-INSTRUCTIONS-CREDIBILITY OF TESTIMONY. An instruction held erroneous, in that it intimated to the jury that the testimony of a witness which was uncontradicted was inherently improbable, and was discredited by the cross-examination, which inferences were not warranted. [Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, §§ 414 152 FEDERAL REPORTER. In Error to the Circuit Court of the United States for the District of New Jersey. See 144 Fed. 288. Wm. Findley Brown and Gilbert Collins, for plaintiff in error. Before DALLAS and GRAY, Circuit Judges. GRAY, Circuit Judge. The writs of error in these cases are to judgments in two separate actions of replevin, brought in the court below by the same plaintiff, who is the defendant in error in each. Both cases depended upon the same material facts, although in one, there was some testimony additional to that adduced in the other. Being so related as to both the facts and the law applicable thereto, they have been so argued, and may now be considered together. The facts in evidence common to the two cases are as follows: It appears that one Jacob A. Bostwick died about 1893 or 1894. For many years prior to his death, Lucius S. Beaumont, the intestate of the plaintiff below, had been Mr. Bostwick's confidential agent. From the date of the latter's death until October 23rd, 1901, Lucius S. Beaumont was the confidential agent of Mr. Bostwick's widow. On the last mentioned date, Mrs. Bostwick presented to Lucius S. Beaumont, then about sixty years of age and about to leave her employment, the sum of $50,000. On October 24th, 1901, Lucius S. Beaumont purchased fifty bonds of the New York Gas, Electric Light, Heat & Power Co., of the par value of one thousand dollars each, and made a partial payment thereon. On the same day, he also rented a box in the safety vault of the Lincoln Safe Deposit Company of New York (a different deposit company from that in which he kept his other valuables), in the names of himself and his two brothers, John and Charles. On October 25th, 1901, he paid the balance due on the bonds, secured possession of them, met his two brothers by previous arrangement, at the Grand Central Station in New York, took them to the office of the Lincoln Safe Deposit Company, introduced them to an employé of that company, had them sign the card containing the contract of renting, which he had signed on the previous day, and retired with them and the box to a small room. He then put his hand in his coat pocket, and, taking out a package, said: "Here, John, is 25 bonds, $1,000 each, I give to you," and handed them over to John. He then took out of his other pocket another package, and said: "Here, Charley, is 25 bonds, which I give to you. What I want you to do, is to give me the coupons,-cut off the coupons and give me the coupons of these bonds as long as I live." six months cut them off, and then it was decided, as he was going to "He then said we were to go there once in leave New York and going West, it would be inconvenient for us to get away from our work; that we had better cut off two or three years' coupons; we then cut off the coupons for two and a half years and gave them to him." He then put an elastic band around each six months' coupons and put them in an envelope. The next coupon was due February, 1902, and the coupons from February to February were cut off, which included February, 1904. He also said: "Sit down and take the numbers of the bonds and see if they are all right. Count them and see if they are there," and this was done, John taking the numbers down as Charles called them off. John then put his bonds into the box and Charles, his, and Lucius put his coupons in. Charles then took up the box and carried it to the vault, where it was locked in its receptacle. One key was given to Charles for both the brothers, and the number of the box and the pass-word were communicated to them, Lucius telling them that they had access to the box when they pleased, but that he trusted them (presumably about the coupons). The other key was kept by Lucius. On being asked by one of his brothers whether his wife knew anything of the transaction, he said that she did not; that he did not want her to know; that she was otherwise provided for. He said: "She thinks Mrs. Bostwick has given me a pension, and I want her to think so, and on my death it ceases." These, in the main, are the facts testified to in each suit by the brother of the defendant, the defendant himself being incapable, by reason of section 858 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 659], of testifying in his own behalf. In the case against Charles Beaumont, there was some additional testimony in corroboration of that given by his brother John. The custodian of the vault of the Lincoln Safe Deposit Company testified that he knew Lucius in his lifetime, and that when he applied to him for a box in the safe deposit vault, Lucius told him, as explaining why he wanted it, of his gift from Mrs. Bostwick, and that he was going to present $25,000 to each of his brothers; that he spoke of it as an "absolute" or "outright" gift, and that he wanted to bring them there to sign for the box that he was about to rent. He also told him that he had provided for his wife, and how he had done so, and witness testified that he provided him, at his request, with a box of dimensions just sufficient to hold the two packages of bonds. Other minor facts and incidents were testified to by this witness, or were otherwise in evidence, which arguably corroborate the story of the brothers as to the gift of the bonds; but it is unnecessary to recite them here. The testimony of this witness (Carter) is criticised by counsel for defendant. in error, as being confused and inconsistent with itself, and therefore unreliable. A careful examination, however, of this testimony, as it appears in the record, only discloses the fact that, upon crossexamination, the witness failed to appreciate the distinction between a gift outright of the bonds, and a gift to take effect at the death of the donor. This confusion does not seem to have been other than what was to be expected in the mind of a layman, subjected to a cross-examination on a distinction between gifts inter vivos and those which are intended to be testamentary in their character. His corroboration, however, of the testimony of the brothers, that Lucius intended in some way to give them these bonds, and had provided a box in a safe deposit vault, of which he gave them the key and in which they were to be deposited, is full and unequivocal. None of the witnesses were contradicted, discredited or impeached, otherwise than by the suggestion of the improbability of their story, in view of what was called the common experience of human nature under such circumstances, and the assignments of error raise a question as to the propriety of some |