without proper compensation to be determined by the engineer from the facts." "(14) Extra Work.-When required by the engineer the contractor shall perform any extra work that may be, in the opinion of the engineer, necessary or desirable, and if not contemplated by the contract, the contractor shall receive the same unit prices for the same character of work as are specified in his contract. Should the work be of a different character from that covered by his contract, the contractor shall receive the actual cost to him plus twenty-five per cent. (25%); said cost to include the usual salaries and expenses paid to the field organization, fuel, oil, necessary repairs, premium on employer's liability contracts and costs of changes in equipment made necessary by the extra work, and these costs only." There is no dispute that the work actually done was 595,349 cubic yards and the master and court adopted the highest cost price of doing the work which the evidence allowed under the contract. Therefore, this contention, which centers on the amount of uncompleted cubic yardage for which recovery may be had, depends upon what yardage was to be completed in the entire work and the application of paragraph 8 of the contract, above quoted. The cross-section notes showed 762,106 yet to be done, or a total of 1,357,455, or 168,455 cubic yards more than the specifications estimate of 1,189,000 cubic yards. The master thought that section 8 of the specifications authorized him to reduce the specification estimate of 1,189,000 cubic yards by 25 per cent. and take that result as the uncompleted work upon which the profits could be recovered. The court thought the above total of 1,357,455 cubic yards represented the work to be done and that the uncompleted work should be ascertained by deducting the completed yardage (595,349) therefrom. We think both were wrong. The evidence seems to support the court as to the total work to be done. We do not find any reason for an arbitrary reduction of 25 per cent., as made by the master. Section 8 of the specifications provided there should be no recovery for anticipated profits for a divergence of not exceeding 25 per cent. from the estimated work of 1,189,000 cubic yards. The difference between 1,189,000 and 1,357,455 cubic yards is less than 25 per cent. of the former, therefore, the contract permits no recovery for this excess yardage over 1,189,000. This leaves 1,189,000 cubic yards as the basis which, less the work done (595,349 cubic yards), leaves 593,651 cubic yards as the uncompleted work on which anticipated profits may be recovered. This yardage, at the profit of 9 cents per cubic yard, is $53,428.59. We think recovery, on account of anticipated profits, should be so limited. Remand for Evidence. [5] Irrespective of their bill in the nature of a bill of review, appellants contend that the case should be remanded for further evidence. It states two grounds therefor. In their brief, counsel for appellants state that one of these grounds becomes immaterial if this court should hold that profits should be calculated only upon any "increase in the work in excess of 25 per cent. of the original estimate." As we have so held above, this ground is eliminated. The other ground is the payment of $15,188.88, discussed above, in connection with the bill in the nature of a bill of review. The legal theory for this position is that a court of equity has power to remand an entire case or any portion of or issue therein where it appears that the matter remanded has not been fully developed and where justice between the parties requires that opportunity for such full development should be given. We have carefully examined the citations thought by appellants to justify such action in this case. Ballard v. Searls, 130 U. S. 50, 9 S. Ct. 418, 32 L. Ed. 846, was a case of remand of an entire proceeding because of a change in condition subsequent to the trial. Such procedure was based on the rule announced by Lord Redesdale in his work on Equity Pleading. That rule was confined to instances in which "new matter discovered could not be evidence of any matter in issue in the original cause, and yet clearly demonstrated error in the decree." Ballard v. Searls, supra, page 55 (9 S. Ct. 420). Here, the evidence is not "new matter" and it could have been introduced in the original cause as it was specifically pleaded. Levy v. Arredondo, 12 Pet. 218, 9 L. Ed. 1062, was an action for breach of certain contracts. These contracts were stated to have been set out in the petition which was answered by defendant but they did not appear in the record before the Supreme Court. There being a diversity of view among the justices as to the possible effect of these contracts "and it being considered, from the manner the complainant has set out those contracts in his bill, and from the manner they are replied to by the defendant, Arredondo, that they are substantially exhibits in the cause which should have been annexed by the complainant to his bill; and which the superior court of the eastern district of Florida 15 F. (2d) 41 might have called for, before it proceeded to make any decree in the cause" (page 218); the court remanded the case with the requirement that the contracts be produced or accounted for and evidence given of the contents of them. The basis for this action was that "this court have not sufficient materials before them whereon to found any final and satisfactory decree; and that justice requires that the cause should be opened in the court below, for further proofs" (page 219). Lincoln Gas & Elec. Light Co. v. Lincoln, 223 U. S. 349, 32 S. Ct. 271, 56 L. Ed. 466, was a complicated rate case which had been heard by the trial court and no specific findings of fact made. It was remanded for reference to a master who should make specific findings of fact upon which exceptions might be presented and ruled by the trial court. The purpose of this remand was to narrow and clarify the issues before the Supreme Court and to secure "the aid of the trial court" thereon through distinct, definite rulings on specific findings of fact. Dietz v. Horton Mfg. Co., 170 F. 865, 96 C. C. A. 41 (6th C. C. A.), was a trade-mark and unfair competition case which the court remanded, on its own motion, to permit an amendment of the pleadings to conform to the proof and in furtherance of justice as revealed by the evidence. Parker-Washington Co. v. Cramer, 201 F. 878, 120 C. C. A. 216 (7th C. C. A.), was a personal injury suit. Jurisdiction in the federal court did not appear. The court, of its own motion, remanded the case for the purpose of amendment and evidence upon the matter of diversity of citizenship. Chicago, R. I. & P. Ry. Co. v. Stephens, 218 F. 535, 134 C. C. A. 263 (6th C. C. A.), was like the Parker-Washington Company Case. Fifth Third Nat. Bank v. Johnson, 219 F. 89, 134 C. C. A. 529 (6th C. C. A.), was an action by a trustee in bankruptcy to set aside a deed on the grounds that it was preferential and fraudulent. The trial court ruled that the bill did not sufficiently plead a preference but erroneously found that the deed was fraudulent. The court said (page 95 [134 C. C. A. 535]): "This would, ordinarily, lead to a direction that the bill be dismissed; but we are not satisfied to make that final disposition of the case. The theory that there was a preference in violation of the Bankruptcy Act (Comp. St. § 9585 et seq.) or of section 6343, Rev. St. Ohio, discloses, upon the facts proved, a meritorious controversy that ought to be decided, and that might better be decid ed in this case than in another case to be now commenced. This theory does not necessarily affect the conveyance and notes as much as it does the later distribution of the notes and money, and yet the two are closely involved. The deed has been set aside as against Warner, and he has not appealed. That it should be invalid as to him and yet valid to the extent of the interest of the banks suggests complications. Further, it would seem that a final decree now made or directed by us would be appealable to the Supreme Court, and that court might think that the pleadings sufficiently raised the issue of preference under the Bankruptcy Act, and might finally decide the case on that issue. Since the District Court sustained the defendants' contention that this issue was not on trial, it is probable that they did not take their full proofs on that subject, and a final decision on the present record might be unjust. Under these unusual conditions, we see no way to insure that the full controversy shall be finally decided, in this case and upon a proper record, save to direct that the decree be reversed as to appellants and the case remanded; that the plaintiff have opportunity to amend his bill so as sufficiently to allege a case of preference both under the state law and the Bankruptcy Act; that, if he does so, the defendants have opportunity to amend their answer, and that both parties take further proofs, if desired, on these issues; and that a decree be entered thereupon as to the District Court shall seem proper." Kirkpatrick v. McBride, 203 F. 449, 120 C. C. A. 328 (4th C. C. A.), was an action between a landlord and tenant and involved, as issues, the existence of a lease and the ownership of certain personal property. Upon the record before it, the Circuit Court of Appeals found "it difficult to arrive at satisfactory conclusions, and, as both sides in argument express their ability to produce such additional testimony as will substantiate their respective contentions, the court conceives that it would be in the interest of justice to modify the decree below to the extent of reopening the question as to the ownership of the personal property, and of permitting each side to introduce such additional testimony as they may be advised, so that the court below may upon the testimony now in the cause, with such additional testimony as may be introduced make a final decree as to the ownership of the property. As this is done upon the application of appellant, the court conceives that it is only proper that it should be done on condition that certain questions heretofore made that affect a full and final adjudication on this question should be to file petition for leave to file bill in the naeliminated" (pages 449, 450). Dillingham v. T. B. Allen & Co., 205 F. 146, 123 C. C. A. 378 (5th C. C. A.), was an action to recover lands and the value of timber cut therefrom. The Circuit Court of Appeals ruled that the plaintiff had failed to prove the market value of the timber taken by competent evidence. The court (page 147 [123 C. C. A. 379]) said: "However it is clear that the timber was converted, and there is evidence in the record tending to show that the plaintiff was damaged as found by the master, though not technically proving market value. In this contingency equity would require that the parties be afforded an opportunity of supplying the omission, and to that end the decree is reversed and the case is remanded to the District Court, with instructions to recommit to the master the matter of damages, permitting all parties to introduce proof to show the market value of the timber at the time it was taken, and thereafter take such other proceedings as may be necessary to do full equity between the parties." The appellant cited, also, 4 C. J. p. 1115, § 3096, page 1194, § 3234, page 1199, § 3239, page 1201, § 3241, and 2 R. C. L. pp. 284 and 285, §§ 239 and 240. ture of a bill of review shows that the parties agreed upon a form and method of payment of the decree which was for $109,332.66. This plan was by certificates of indebtedness bearing interest from the date thereof (three days after the decree) at 6 per cent. Of these certificates, $35,963.25 were delivered to appellee leaving a balance in the hands of the district of $73,369.41. As the reduction in recovery on account of anticipated profits and the allowance of the payment of $15,188.88 (if found to be properly allowable) would not affect the amount of payment on the decree already-a balance still being due—no injustice could be done appellee by permitting the showing asked. The injustice of permitting appellee to retain, unaccounted for, this considerable sum of $15,188.88 is clear, if it were in fact made. We think, therefore, that the decree should be modified to this extent and to this extent only: that the case be remanded with instructions to reduce the total amount of recovery to $89,391.84 and to reopen the case for evidence on the sole points of whether the alleged payment of $15,188.88 was made and, if made, should be credited in further reduction of the above amount of $89,391.84 but not for any purpose of reopening the entire case or of further considering any issue except as just above indicated. It is so ordered. The motion for leave to file is denied. The costs of this appeal are assessed against appellants. Dillingham v. T. B. Allen & Co., 205 F. 146, 147, 123 C. C. A. 378 The Ballard, Levy, Lincoln Gas & Elec. Light Co. and Dietz Cases are hardly in point. The other federal cases are to the effect that a federal court of equity may, in its discretion and in the furtherance of justice, remand a case or an issue or item therein to the trial court for amendment of pleadings or for further evidence. An examination of these cases as well as a consideration of the reasons for the effect of and the possible abuse and harm from the exercise of this power convince that such power is purely discretionary and that such discretion will not be exercised except in rare and particular instances. The question is, therefore, wheth- (Circuit Court of Appeals, Seventh Circuit. In a er the present is such an instance calling In re BALLANCE. HIBBEN, HOLLWEG & CO. v. BLANN et al. 1. Bankruptcy August 27, 1926.) 15 F. (2d) 46 In the matter of the bankruptcy of Charles E. Ballance. The order of the referee, disallowing the priority of the claim of Samuel Blann, was overruled by the Dis trict Court, and Hibben, Hollweg & Co. appeal, opposed by Samuel Blann and Jacob Cadden, as trustee. Affirmed. Murat W. Hopkins, of Indianapolis, Ind., for appellant. Ewing R. Emison and William S. Hooyer, both of Vincennes, Ind., for appellees. Before ALSCHULER, EVANS, and ANDERSON, Circuit Judges. ALSCHULER, Circuit Judge. One Ballance owned a stock of merchandise and fixtures kept in a store in Oaktown, Ind., where he had long carried on a regular mercantile business. June 22, 1923, owing the Oaktown bank $5,600 and one Haughton $1,500, he gave the bank notes due in 6 months and Haughton a note due in 18 months; appellee Blann signing each as surety. To secure Blann on his indorsement Ballance gave him a chattel mortgage, which was shortly afterwards recorded, on "the following described personal property, to wit: A general line of merchandise consisting of dry goods, groceries, notions, canned goods, scales, counters, safe, fixtures, and all other articles of merchandise; also shoes, clothing, furnish ing goods, and all other articles of every kind, character and description now in or hereafter placed in store of the mortgagor on Bond street in the town of Oaktown, Knox county, Indiana." The mortgage provided that "said Ballance shall retain possession of and have the use of said property until said notes hereby secured shall become due." Ballance continued to carry on the business. Most of the mortgaged merchandise was sold, and other merchandise was purchased to replace it. October 31, 1924, he was adjudged a voluntary bankrupt. The evidence tended to show that the stock of goods and fixtures on hand when it was given was worth about $15,000 and that at time of bankruptcy all of those goods had been sold except about $1,200, and at time of bankruptcy that on hand was worth about $11,000. The sales during the period aggregate about $45,000. Blann, who was a salesman in the store during all the time, was required to make good his undertaking of surety, and paid nearly the full amount of the notes, and he is claiming under his mortgage priority as to the merchandise and fixtures in the store at time of bankruptcy. Overruling the referee, who disallowed the claim, the District Court allowed it, giving it priority. For appellant it is not contended that under the law of Indiana the mortgage upon this stock of merchandise of a going business is void, but it is insisted that upon the sale of the mortgaged goods the proceeds should be applied or considered as having been applied upon the mortgage debt. In general, the principle of this contention is sound as applicable to Indiana chattel mortgages; but the principle will not be applied where the facts do not warrant. a [1] The mortgage in question authorized the mortgagor to retain and have the use of the mortgaged property, and made the mortgage which was brought into the store. lien upon after-acquired merchandise From these provisions it is fairly to be inferred that the indicated use was such use as one conducting a store would make of the stock in trade. The intended or contemplated use was surely not that the mortgagor might wear the apparel or consume the groceries, but the use intended was evidently that of selling the goods in the usual course of trade, and, in connection with the other clause, inchased and paid for with the proceeds of the dicated that other merchandise might be pursales, and that the mortgage should be a lien upon such after-acquired property. If this were not so, these clauses would have no meaning. Such a use does not of itself impair the validity.of an Indiana chattel mortgage, nor require application on the mortVermillion v. National Bank of Greencastle, gage debt of the proceeds of sales as made. 59 Ind. App. 35, 105 N. E. 530, 108 N. E. 370. [2] We gather from the record that this is what was here done. Appellee was selling this $15,000 stock of mortgaged merchandise. in usual course of trade, replenishing his stock by new purchases, paying the store expenses and some of the merchandise bills, and after a year or more has on hand a stock of about $11,000, of which only about $1,000 was of the originally mortgaged merchandise (barring fixtures). Under this state of facts the mortgage remained a lien on the stock of merchandise finally on hand, for the full amount of the mortgage debt, unless it appears from the evidence that the mortgagor has taken unto himself or otherwise disposed of, proceeds of the mortgaged goods which are not represented by the goods on hand at time of bankruptcy, and the expenses of conducting the business-a state of facts which the record before us does not disclose. There is no evidence that the mortgagor ben efited by the proceeds of the sales, or, other wise than as indicated, withdrew any part thereof. or Under the facts disclosed by the record there is no basis for requiring the mortgage debt to be considered extinguished reduced as against the other creditors, and we are not warranted in disturbing the order of the District Court, which is accordingly affirmed. SPOKANE INTERSTATE FAIR ASS'N v. (Circuit Court of Appeals, Ninth Circuit. No. 4900. means of actual force and violence employed during the policy period, which was from August 31, 1924, to September 10, 1924. At a subsequent trial, defendant's motion for a nonsuit at the close of plaintiff's case in chief was granted, upon the ground that the evidence was insufficient to show force or violence within such period. The dismissal is assigned as error. [1] Defendant moves to strike from the record the bill of exceptions and also to dismiss the writ. We have considered, but do not deem it necessary to discuss at length, the issues presented by these motions. It is sufficient to say that, notwithstanding the general rule of the court providing that without consent of the parties extensions of the time in which to present a bill of exceptions or a petition for a new trial would not be granted for more than 30 days, the court had the power in the exercise of a sound discretion to grant a greater length of time. Poultney v. La Fayette, 12 Pet. 472, 9 L. Ed. 1161; U. S. v. Breitling, 20 How. 252, 15 L. Ed. 900; Hunnicutt v. Peyton, 102 U. S. 333, 353, 26 L. Ed. 113; Abbott v. Brown, 241 U. S. 606, 36 S. Ct. 689, 60 L. Ed. 1199; So. Pac. Co. v. Plaintiff cannot on appeal contend that bur- Johnson, 59 F. 559, 16 C. C. A. 317; Russo 1. Exceptions, bill of 40(2)-New trial 118. Trial court has discretion, without consent of parties, to grant greater length of time in which to present bill of exceptions or petition for new trial than that prescribed in a general rule of court. 2. Appeal and error 882(7). den of proof which he assumed at trial was on defendant. Chinese Bank v. National Bank, 187 F. 80, F. 695, 77 C. C. A. 121. But, aside from that consideration, we entertain no doubt that the construction which it then put upon the policy is the correct one. The clause formally fixing the insurance period is not in the nature of an exception or proviso to, but is an integral part of, the definition of defendant's obligation. The fact that such definition extends to more than one sentence or paragraph is not controlling. Besides, if, in harmony with plaintiff's position, we look only to the first paragraph for a definition of the obligation, the policy could not reasonably be con |