worth several,liundreddoJIars more than the contract price which the vendees paid for them, and they could have lost nothing by taking them. If the company had :received payment for the 282 cattle that were rejected, there might have been ground for the claim of waiver here. Nor is it easy to see how the statement that the vendees mightcoti,le at some future day fortnore cattle, or any action the vendol'topk, to gather and ship them, could work notified the vendees, before a waiver, when the they started to come for these cattle, that they need not do so, and that it would deliver no more cattle to them under this contract. There seems' to be nothing.in all this that could have induced the vendees to act or omit tQ!*.cttotheir prejudice. We have grave doubts whether the evidenl:le in this case is sufficient to sustain a verdiCt ofa waiver ofthis'ebreachby the cattle company if it were rendered. But it is Ulintecessary to determine that question here. That ql1estion,and theque13tion whether or not the vendees committed the breach in goodfliith, in the belief that the rejected steers did not comply with the requ.irements of the contract, were submitted to the jury under instructions to the effect that, if they answered either in the affirmative, the vendees could recover, although they did commit the firfilt breach of the contract. The verdict shows that the jury found that the vendees committed the first breach, and that they must have answered 'one of these two questions in the affirmative. But it does not show which one. Such a verdict cannot be upheld where there is more than one issue tried, and upon anyone of them is committed in the admission or rejection of evidence, or in the 'charge of the court, because it may ,be that the jury founded their verdict upon the very issue to which the erroneous ruling related, and that they were controlled in their finding by that l'Uling. Coal Co. v. Johnson, 6 C. C. A. 148, 56 Fed. 810; State of Maryland v.. Baldwin, 112 U.S. 490, 492, 5 Sup. Ct.
There are other questions discussed in the briefs, but, as the case must be retried, and these questions may not arise upon a second trial, it is unnecessary now to notice them. The judgment is accordingly reversed, with costs, and the cause remanded, with directiOlIl! to grant a new trial.
BELT et al. v. ROBINSON. (Circuit Court of Appeals, Eighth Circuit.
AssIGNMENT FOn BENEFIT Oll'OnEDITORS /WiNOH, . " , RESERVATIONS :MISTAKE OF
July 16, 1894.) As-
'The reservation, by the assignor in a generai assignment, to himself, as exempt, by Iilistake,' Ofpropel'ty which he does not own or control, does not make the assignment partial, if it in fact conveys, regardless of such reservation, all the property of the debtor not exempt from execution sale; and theassigllce may plead and prove the ownership of the property descrIbed in' the assignment, to establish this fact,' and to> maintain his right to thepropel'ty assigned.
; BELT V. ROBWfSON.
In En;or to the Unitfld States Court in the Indian Territory. This was.an action by J. M. Robinson, doing business as J. M. Robinson.& Co., against J. C. Belt, in which an attachment against defendant's property was issued. C. M. King filed an interplea ·claiming property on which the attachment had been levied. A demurrer to the interplea was sustained, and judgment for plaintiff, as against the intervener, was rendered thereon. The defendant .and the intervener brought error. For report O'f a former decision, dismissing a writ of error sued out to review the ruling on demurrer before judgment thereon, see 5 C. C. A. 521, 56 Fed. 328. ,J. C. Hodges, A. J. Nichols, W. H. H. Clayton, James Brizzolara, J. B. Forrester, and J. H. Koogler, for plaintiffs in error. W. T. Hutchings (No B. Maxey and C. L. Jackson, on tbe brief), for defendant in error. Before CALDWELL and Circuit Judges, and THAYER, District Judge. SANBORN, Circuit Judge. December 30, 1891, the defendant 'in error, J. M. Robinson, commenced an action against his debtor, J. C. Belt,and attached, as his, a stock of general merchandise at Eufaula, in the Indian Territory. Thereupon, pursuant to the practice which prevails in that territory (Mans£. Dig. Ark. §§ 356, 358; 26 Stat. 81, 94, c. 182, § 31), the plaintiff in error, C. M. King, TIled .an interplea, in which he set out a general assignment to him by Belt for the benefit of his creditors, dated December 29, 1891, and claimed to be the owner of the attached property as such as.signee. A demurrer to this interplea was sustained, and judgment rendered for the defendant in error on the issue between him and the interpleader. The only substantial ground on which the counsel for the defendant in error claims that this judgment can be sustained is that the assignor reserved to himself, in the assignment, certain household furniture situated in Eufaula, in the Indian Territory, and a pair of mares, a buggy, and a harness, as exempt from forced sale under execution, when none of this property was in fact legally exempt. This is a preferential assignment, which exacts releases from the creditors as a condith:m for participating in the preferences; and it is conceded that if it is partial-if it does not convey all the debtor's property not exempt from sale under execution-it is void, and the jndgment is right. But the questions whether or not, under a correct construction of the assignment, the assignor did absolutely reserve this property to himself, and whether or not it was legally exempt if he did do it, are zealously contested and ex.haustively discussed in the briefs. Upon an examination of the ('eeord, however, we find that the interplea does not necessarily present these questions. The assignee there avers that the furniture at Eufaula, and the mares, buggy, and harness, were not, when the assignment was made, and never had been, the property of the .assignor, Belt, and that the description of them was written into the
reservation otexempt property in the aSsignment by mistake. The demurrer admits the truth of this averment, and it is a complete answer to the charge that' the assignment was partial because the assignor reserved this proPerty. An assignment that conveys aU the debtor's property is not a partial assignment; and one that conveys alIbis property, and then by mistake reserves or exempts from the conveyance the property of another, that the assignor could not in any way convey, none the less conveys his entire property, and cannot be obnoxious to the objection that it is a partial assignment. There is nothing in the proposition maintained by Flower v. Cornish, 25 Minn. 473; Clapp v. Nordmeyer,25 Fed. 72; and Rice v. Frayser, 24.Fed. 464,-that an assignee is not vested with the rights and that he is not a of creditors to attack bona fide purchaser for value,-to estop this assignee from pleading and proving the fact to which we have referred, to sustain his right under this assignment. He is not thereby attacking, but is sustaining, the assignment. He is not thereby attempting to prove any act or conveyance of his assignor fraudulent, but that this assignment wa,svalid and honest. He is· not attempting to contradict or varyany'of the terms of the assignment, but to prove by evidence aliunde that one portion· of a clause was inoperative because the property it described was not owned by the assignor. Tbere.sult is that the reservation to himself,as exempt, of property wliich he does not own or control, by the mistake of an assignor in a gan,eral assignment, does not make the assignment partial, if it in fact conveys, regardless of such reservation, all the property of the debtor not exempt from execution sale; and. the assignee may plead and prove the ownership of the property described in the assignment to establish this fact, and to maintain his right to the property assigned. The suggestion that the allegations of the interplea are insufficient to show that the four lots in. Ft. Smith, Ark., claime!l as a homestead, were exempt, because there is no averment that Mr. Belt ever .occupied or intended to occupy that property as a home residence, is unworthy of serious consideration. Some of the allegations of the interplea are that Mr. Belt, at the time he made the deed of. assignment, was the head of a family, and a bona fide resident of the state of Arkapsas, and that he was holding and occupying these lots, comprising less than one acre of land, as a homestead for himself, wife, and .minor child. These allegations were surely ample. Mansl. Dig. §§ 3006-3013, inclusive. In our opinion the interplea stated a good cause of action for the recovery of the attached property, and the demurrer should have been overruled. The judgment is accordingly reversed, with costs, and the cause remanded tor further proceedings not inconsistent with this opinion.
KENTUCKY LIFE & ACC. INS. CO. V. HAMILTON.
KENTUCKY LIFE &: A.CC. INS. CO. v. HAMILTON.t
(Circuit Court of ApI*als, Sixth Circuit. May 8, 1894.)
REVIEW-SPECIAL FINDINGS BY COURT-OPI::'<ION.
The recital in a judgment entry that the court delivered an opinion, and made a finding of all the issues in favor of plaintiff, does not make the opinion a part of the record and a special finding of facts, within Rev. St. § 700, providing that when an issue of fact is tried by the court, and its finding is special, the sufficiency of the facts found may be reviewed. An opinion which, so far as it deals with the facts, is a mere statement of part of the evidence, referred to and commented on for the purpose of supporting the judgment, and not the conclusion ot court as to facts from the eVidence, is not a special finding, within the !lLatute.
SAME-BILL OF EXCEPTIONS.
A bill of exceptions embodying the evidence is not a special finding allowing review of the suffielency of the facts.
An agreed statement of facts, on which judgment is rendered, consisting 'not of the ultimate facts, but of the evidence to be submitted to the court on the issues presented by the pleadings, is not the equivalent of a special finding of the facts, allowing review of their suffi.ciency.
SAME-STATE AND FEDERA.L PRA.CTICE.
Rev. St. § 914, requiring the practice and pleadings in law cases in federal courts to conform to those of the state courts, does not apply to appellate proceedings, so as to require a determination on the merits on a record which would permit it in the appellate court of the state. The sufficiency of the pleadings to warrant a judgment may be passed on in the appellate court, though the question was not raised in the lower court. A condition on the back of a life policy, under the title "Assignments," providing that it shall not be assigned without notice, "nor unless a claim hereunder made by assignee be subject to proof of interest, nor unless the amount recoverable hereunder by such assignee, an insurable interest, existing at the time of the. assignment or transfer must be shown by all claim'ants at the time of claim hereunder; and claims by any creditors as beneficiary or assignee shall not exceed the amount of the actual bona fide indebtedness pf the member to him existing at the time of said death," and the policy, as to amounts in excess thereof, shall be void, except the assignee be wife, child, parent, brother, or sister of the insured,-applies only to aseignees, and, even if it did refer to original beneficiaries, wouid apply only to one made a beneficiary as a creditor, and not to one who SUbsequently became a creditor. One not the wife, child, parent, brother, sister, or creditor of insured may have an insurable interest in his life.
SAME-SUFFICIENCY OF PLEADING-QUESTION NOT RAISED BRLOW.
LIFE INSURANCE-CONDITIONS OF POLICY.
BAME-PLEADIKGS-SUFFICIENCY AFTEIt VERDICT.
An allegation by plaintiff that the policy in suit was not speculative, Without affirmatively setting out an insurable interest, is sufficient, after verdict, on motion in arrest, and therefore on writ of error.
Appeal from the Circuit Court of the United States for the District of Kentucky. 1