¶1Appeal and error <@=>757(3) — Assignment that plaintiff sues on split cause of action is concluded by general finding, where evidence is not before appellate court (Circuit Court of Appeals rule 24, subd. 2 [b]).
¶2Assignment of error that plaintiff sues on split cause of action, part of which was litigated in a former suit, is concluded by a general finding for plaintiff, in the absence of the evidence, in view of Circuit Court of Appeals rule 24 subd. 2 (b).
¶3In Error to the District Court of the United States for the District of Oregon; Robert S. Bean, Judge.
¶4Action by H. A. Baker against William Reid and another, doing business under the firm name and style of the National Cold Storage & Ice Company, in which Etta Reid, as executrix of the estate of William Reid, deceased, was substituted in his stead. Judgment for plaintiff, and defendants bring error.
¶5Affirmed.
¶6J. E. Boothe, of Portland, Or., for plaintiffs in error.
¶7Carey & Kerr and Omar C. Spencer, all of Portland, Or., for defendant in error.
¶8Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
¶11This is an action to recover damages for the mishandling of certain barrels of loganberries placed by plaintiff with the defendants for cold storage. Jury.was waived, and upon a general finding plaintiff had judgment, from which defendants bring error.
¶12Admittedly the record is such that at most we can review only rulings of the lower court made in the progress of the trial and presented by the bill of exceptions. Edwards v. Robinson (C. C. A.) 8 F.(2d) 726; Wulfsohn v. Bank (C. C. A.) 11 F.(2d) 715; Swanson v. Continental Casualty Co. (C C. A.) 12 F.(2d) 410; Eleischmann Construction Co. v. United States, 270 U. S. 349, 46 S. Ct. 284, 70 L. Ed. 624.
¶13The brief of plaintiffs in error wholly fails to comply with the requirements of our rule 24, subd. 2 (b), and upon a search of the record, with such assistance as counsel has given us, we find no plain error. The evidence, to the admission of which exceptions were taken, within the scope of the assignments of error, was substantially material in one aspect or another of the ease. The point that plaintiff sues upon a split cause of action, part of which was litigated in a former suit, necessarily involves a consideration of the evidence, and is therefore concluded by the general finding. Soeiété Nouvelle, etc., v. Barnaby (C. C. A.) 246 F. 68, 73.
¶14Judgment affirmed.