that at the time of the filing of the said pleas of set-off and recoupment in the said former action, and up to the time of the entry of the verdict and judgment therein, it, this plaintiff, did not have and possess any knowledge of any of the facts set forth in the plaintiff's declaration in this action showing the breaches of the said covenant prior to June, A. D. 1897, sued on in this action." A demurrer to this amended replication was sustained by the court, and thereupon, the plaintiff declining to further plead, judgment was entered for the Atlantic Lumber Company, and the L. Bucki & Son Lumber Company sued out this writ of error. H. Bisbee, for plaintiff in error. R. H. Liggett, for defendant in error. Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges. PARDEE, Circuit Judge, after stating the facts as above, delivered the opinion of the court. The case shows that on October 1, 1897, when the Atlantic Lumber Company declared the contract ended by the defaults of the L. Bucki & Son Lumber Company, and sued for general damages for the breach thereof, and to recover the several amounts due for logs delivered prior to that date, the L. Bucki & Son Lumber Company had counterclaims against the Atlantic Lumber Company for breach of the guaranty that the logs delivered should average not more than 3 logs to the 1,000 feet, board measure, during each month of the contract. These counterclaims existed for some certain months, 11 in number, in which full payment had been made for the logs delivered, and for some certain 4 months for which payment had not been made, but was demanded in the suit. In answering the suit, the L. Bucki & Son Lumber Company claimed in recoupment and setoff, against the demand for the contract price of the logs delivered, but not paid for, the damages resulting from the breach of the guaranty as to the average of the logs for the certain months sued for, but made no claim for damages for the breach of the guaranty for the other months in which there had been failure to maintain the average. In the present suit, brought to recover for the failure of the guaranty as to the average of logs for the 11 months, the question is whether the judgment in the former suit is conclusive. The contract was one covering the sale of a large quantity of logs to be delivered in installments during a long period of time, and in which the payments were to be made in installments at times having relation to the delivery of the logs. The contract contained stipulations and guaranties in regard to which there might be failures and breaches frequently occurring during the life of the contract,—such as the failure to pay in time as agreed, and the failure to maintain the warranty as to the average of the logs delivered monthly,―none of which would necessarily put an end to the contract, even if suit should be instituted for such breach. Notwithstanding the subsidiary provisions, breaches of which might warrant a suit, the contract appears to be an entirety, and not several independent agreements. Norrington v. Wright, 115 U. S. 189, 211, 6 Sup. Ct. 12, 29 L. Ed. 366. See Clark v. Steel Works, 3 C. C. A. 600, 53 Fed. 494; Cherry Val. Iron Works v. Florence Iron River Co., 12 C. C. A. 306, 64 Fed. 569; Stokes v. Baars, 18 Fla. 656. When the Atlantic Lumber Company declared the contract breached and ended by the defaults of the Bucki & Son Lumber Company, and demanded damages therefor, general and specific, it would seem that the Atlantic Lumber Company was obliged to specify and demand all the damages, general and special, it claimed on account of the breaching and ending of the contract, and would not now be permitted after recovering judgment in such suit to prosecute other suits to recover other general or special damages growing out of the breach of the same contract; and this whether the general or special damage was known at the time of judgment or not. If this be true, -and we have no doubt it is, it seems clear that the same rule applies to the other party. While the L. Bucki & Son Lumber Company did not commence the litigation, it answered, and in its answer set up and charged a breach and abandonment of the contract by the conduct and defaults of the other party, and claimed damages resulting. But it is now claimed in regard to the warranty as to the average of the logs that the damages claimed by L. Bucki & Son Lumber Company were only in reduction and recoupment of the amounts claimed for logs delivered in four certain months, and that the breaches assigned in regard to the guaranty related only to those months. We do not think that this varies the rule to be applied. When the contract was ended, the claims of each party for alleged breaches and damages therefor constituted an indivisible demand; and when the same, or any part of the same, was pleaded, litigation had, and final judgment rendered, such suit and judgment constitute a bar to subsequent demands which were or might have been litigated. Baird v. U. S., 96 U. S. 430, 24 L. Ed. 703. But it is only necessary to now hold that this is the rule to be applied as to damages for the breach of the specific warranty as to the average of logs delivered under the contract. That demand cannot be split up, and be made the basis of subsequent suits. The learned trial judge reached this conclusion, and gave his views in elaborate opinions found in the record. As the former suit is a bar to the present action, the other assignments of error need not be considered, and we only remark that the conclusion reached in the case does not appear to deprive the plaintiff in error of any just and equitable right. From an inspection of the record, it appears that the breaches of the contract assigned were for months during which the Atlantic Lumber Company delivered, and the L. Bucki & Son Lumber Company apparently received and paid for, logs in accordance with the provisions of the contract, making no question that the logs were not fully up to the requirements of the contract in regard to the average. In fact, in the former suit the Atlantic Lumber Company pleaded and offered to prove that the L. Bucki & Son Lumber Company "had acquiesced in and consented to the construction of the said contract that the average of three and one-half logs to the thousand feet, board measure, according to Preston's rules, did not mean an average of three and one-half logs to the thousand feet, board measure, according to said rules in each particular month's delivery under the said contract, but that the said contract meant a general average covering the entire period of the said contract"; and this plea and evidence was rejected on demurrer. The second paragraph of the contract provides that: "When the logs shall be ready for delivery at the log pens by the party of the second part, the parties shall jointly select a surveyor, whose wages shall be paid one-half by each party, who shall survey and scale according to Preston's rules as the same shall be delivered to the said log pens, and report thereon in writing to each of the parties, and whose report shall be conclusive as to quality and quantity." It is presumed that this provision of the contract was complied with, and, if it was, then at the time of delivery the L. Bucki & Son Lumber Company was fully informed as to whether or not the logs were in accordance with the requirements of the contract, and if, with such knowledge, the L. Bucki & Son Lumber Company then fully paid the contract price for the said logs without notice and protest, it seems to be pretty clear that now, after a litigation in which the breaches of the contract by each party were in question was terminated by a final judgment, it is no denial of justice to refuse to reopen the inquiry as to how faithfully the average guaranty was complied with. The judgment of the circuit court is affirmed. (109 Fed. 416.) SOUTHERN PAC. CO. v. COVEY. (Circuit Court of Appeals, Fifth Circuit. May 14, 1901.) No. 1,020. APPEAL-REVIEW-QUESTION OF FACT. Where the right of a plaintiff to recover depends upon a question of fact on which the evidence is conflicting, the case is one for the jury, and their verdict, which the circuit court has refused to set aside, cannot be reviewed by the circuit court of appeals upon any question as to the weight or sufficiency of the evidence. In Error to the Circuit Court of the United States for the Western District of Texas. This action was brought by P. M. Covey, a citizen of Texas, against the Southern Pacific Company, a corporation chartered under the laws of Kentucky. The plaintiff was injured while in the employ of the defendant as a brakeman. The accident occurred in the yard of the defendant at Lordsburg, N. M. The plaintiff, while in the performance of his duty, was riding on a ladder on the side of a freight car, and was knocked off by a car standing on an adjoining track. His collar bone was broken, and he was injured and bruised about the shoulders and head. He was also injured so as to cause him to lose the sight of one of his eyes. He bases his right to recover on the following statement in his petition: "That defendant has and maintains in its yard at Lordsburg, in the territory of New Mexico, two tracks, being numbered 3 and 4, which join at a switch near which plaintiff was injured; that at the time plaintiff was injured he was riding upon a box car, which was being propelled along said track No. 3, and that certain box cars were standing on said track No. 4 at the place and in the position in which, had said tracks Nos. 3 and 4 been properly and carefully constructed, would have resulted in no harm to the plaintiff; that said tracks Nos. 3 and 4 were so constructed that the inside rails thereof, or the rail of No. 3 nearest to track No. 4, and the rail of No. 4 to track No. 3, were lower than the outside rails, or the rail of No. 4 furthest from track No. 3, and the rail of No. 3 SOUTHERN PAC. CO. V. COVEY. furthest from track No. 4; that by reason of the wrongful construction of Thorth South The material defense was that the stationary car which struck the plaintiff was negligently placed too near the junction of track No. 3 with track No. 4 to enable the car on which the plaintiff was riding to pass in safety, and that the stationary car was so placed there by the plaintiff or by a fellow servant of the plaintiff. The contention of the defendant was that the car was left standing on track No. 4 within the curve, and within less than 30 feet of the junction of tracks Nos. 3 and 4, and that, therefore, it was negligently left so near to track No. 3 that the cars on the latter track could not pass it in safety. The contention of the plaintiff was that the stationary car was two and a half or three car lengths from the junction of the tracks, and that it did not stand on the curve, but at a point where the track was straight, and that the accident was caused by the tracks being so constructed that cars on them would lean inward; the cars on track No. 3 leaning towards track No. 4, and those on track No. 4 leaning towards track No. 3. It was contended that this construction of the tracks placed the cars too close together at the top, and so caused the accident. A brief statement of the evidence relating to these respective contentions is necessary: P. M. Covey testified that the places where he measured tracks Nos. 3 and 4 were on the straight track, on the tangent; that it was "between two and a half and three car lengths" from where the tracks leave each I found the inside other. He also testified: "I found the inside rail of No. 4, the rail nearest 3, two and one-half inches lower than the outside rail. rail of 3 nearest to rail 4 a fraction over one inch and a half lower than * the outside rail, the furthest rail from 4. I measured in several different places about half a car length along the track and found that condition. The measurement was made on the tangent or straight track. As to track 3, there was no curve there. It was a straight track where I found the inside rail a fraction over an inch and a half lower than the outside rail. Where the rails are not of the same height as to the perpendicular position of the cars, it will have a tendency to throw the tops of the cars together. The cars are not rigid, and set loosely on the trucks, with what is called a 'king pin,' from the center of the cars down to the parts of the trucks. and have a bearing of 3 or 4 inches space, and after the car has lost its perpendicular, one rail being 21⁄2 inches lower than the other, I should think the top of the car would naturally pull it further, so that it would lean further than the 211⁄2 inches, owing to the construction of the car. The distance between the tracks that I measured was about 5 feet and 11 inches. I know that it was not as much as 8 feet and 3 inches. Just 5 feet 11 inches. The distance that would give between the cars, allowing for the projection of the cars of about 2 feet each, would leave a space between the cars of about 2 feet. The injury was from my shoulders up. My hips were not hurt at all. There were no bruised spots from my shoulders down. I was standing on the hand holt, just above the stirrups. The stirrup goes a little under the car, and I was not standing up as high as the roof of the car. My head was not as high as the roof, or even with it. On the size of the car that was, it was lacking about 18 inches. The roof or eaves of the car could not strike my head in the position I was standing. I know positively how I was standing on the ladder. My head was not as high as the roof of the car. I was standing on the first hand holt up of the ladder, and hand holt about even with my head, and the lamp was on my arm. A tall man can stand up in the car. It is about 7 or 8 feet, I should judge. It is higher than I would be standing on the bottom hand holt. My head would lack about 18 inches, standing on the bottom hand holt, of coming to the eaves of the car. The bottom hand holt is about even with the floor of the car, and standing in the door the head does not come to the top of the door. * * It was the extreme west car on No. 4-on the west end of No. 4-that I was hurt by. From where this coupling was made to where this car was supposed to strike me, where I lost consciousness, I should judge the distance I did not count the cars, but, measuring the entire length of the track, I should judge it was thirty or forty car lengths. In coupling this car back on the other cars, they did not run any cars down on No. 4 west. It is up hill that way. In leaving cars sitting on either track, you will have to leave the brakes set on the west end to hold them. The cars that got cornered the night before happened right about where I got hurt on 3 and 4. These cars hit at the top. They were coal cars, and not loaded. I did not know of the condition of the track, and did not know what caused them to hit at the top." Joseph A. McDonald, who was with Covey when the accident occurred, testified: "Said plaintiff (P. M. Covey) received his injuries at a point between two and a half and three car lengths from where tracks 3 and 4 came together." James Hartigan testified: "In order to allow cars to safely pass, they should be placed at least 30 feet from the heel of the frog. The heel is the wider part, where the rails are connected." George W. Moore testified to being on a car on track No. 3 after the accident, and passing one on No. 4 "back about 22 or 3 car lengths" from the junction of the two tracks. He said "it must have been on the straight track. * I raised my legs to get them out of the way, to take no chances on it. The roof of the car-the eaves-came over the ties. The roof of an ordinary box car comes about four inches over. I never measured. I don't know exactly. At the bottom of the car there was plenty of room for a man to pass through. I don't know whether there was room for a man to pass through at the top of the car below the roof. I hardly think so." Eugene Clapp testified: "This car (the one on No. 4 track that struck Covey) was inside of the curve,-must have been a shorter distance than 30 feet. I should judge it was 22 to 24 feet, something like that. *** We figure a car length at 30 feet. They run 36 and 40. Two and a half car lengths would be about 75 feet." * * * |