returned delinquent to the county for collection. Second. In not permitting a recovery for the amount of assessments paid to the county treasurer of Douglas county, or for those assessments bought in by Douglas county and for which it took a deed upon the property assessed. Third. For failing to decree for the complainant for such unpaid assessments as the city had failed to collect. Fourth. In denying a recovery for assessments extended under chapter 184, p. 304, of the Laws of 1897. Fifth. Limiting the amount of recovery to his pro rata share of the fund to which the holders of all the bonds were entitled, claiming that a decree should have passed for the total amount of his bonds and interest. Sixth. That the court erred in limiting the interest to 4 per cent. prior to July 25, 1895, and to 1 per cent. thereafter; insisting that he should have recovered 6 per cent. from the dates of collection, because of the city's conversion of such sums at such dates. That, if not entitled to 6 per cent. interest, he should have been allowed 4 per cent. interest up to January 2, 1898, because the charter provided that such funds should be deposited in the bank at not less than that rate of interest, and the city failed to obtain that rate; and that upon sums collected by the city interest should be computed at 6 per cent. from January 2, 1898, the date of the maturity of the bonds. Seventh. The complainant also assigned for error that the court erred in its method of determining the amount that the complainant was entitled to recover.

Chester B. Masslich, for appellant.
Thomas E. Lyons, for appellee.

Before JENKINS, GROSSCUP, and BAKER, Circuit Judges.

JENKINS, Circuit Judge (after stating the facts). We are not put to the necessity of determining the question of the personal liability of the city of Superior upon these bonds. With respect to somewhat similar obligations its liability was considered by us in King v. City of Superior, 54 C. C. A. 499, 117 Fed. 113, and by the Supreme Court of Wisconsin in Fowler v. City of Superior, 85 Wis. 411, 54 N. W. 800. The authority of the latter case is, however, somewhat shaken by the later case of Uncas National Bank v. City of Superior, 115 Wis. 340, 91 N. W. 1004. The appellant, the owner of the bonds in question, has, for the purposes of this suit, waived any claim thereon except for such relief as he may be entitled to growing out of the acts and omissions of the city with respect to the assessments pledged for the payment of the bonds. Therefore, within the theory of the bill and stipulation, the city is not a primary debtor, but merely the legal agent through whom the special assessments are to be collected. The municipality is statutory trustee for collection, bound to the exercise of due diligence to collect according to law, enforcing the lien through municipal machinery as agent of the owners of the bonds, and answerable for failure to perform this duty, or in paying over or in failing to pay the money collected. New Orleans v. Warner, 175 U. S. 120, 132, 20 Sup. Ct. 44, 44 L. Ed. 96. It is not a guarantor of collection; and, unless there be such failure in duty, there cannot be liability for noncollection. Roter v. City of Superior, 115 Wis. 243, 91 N. W. 651.

It is insisted that the city of Superior should respond for the assessments returned delinquent to the treasurer of the county of Douglas, from the fact of such return, and whether in fact collected or not. By the general law of the state taxes returned delinquent "shall belong to the county." But this is the rule only when the county levy is equai

to or exceeds the amount of delinquent taxes in the return. Any excess must, when collected, be returned to the city. Rev. St. Wis. 1898, § 1114. These provisions of law deal with the relations between cities and counties with respect to the collection of taxes, and do not affect the relations between the holder of street certificates or street improvement bonds and the city as trustee for collection. The latter is responsible for the due execution of its trust. It is not rendered liable because of the methods of accounting provided by statute as between itself and the county. It is liable for moneys collected by it, or, if collected by another branch of government, for such of those moneys coming to its possession under the law. Jenks v. City of Racine, 50 Wis. 318, 6 N. W. 818; Town of Iron River v. Bayfield, 106 Wis. 587, 82 N. W. 559. The case of Sheboygan County v. City of Sheboygan, 54 Wis. 415, 11 N. W. 598, does not, we think, sanction the claim here made. There was involved, as between the county and the city, the amount of a special assessment returned by the city as delinquent and charged back to the city. The opinion states arguendo that the holder of the certificate was entitled to the amount from the city treasurer so soon as the latter received credit from the county treasurer, because the city treasurer had retained the amount out of the taxes collected by him. It must therefore be that the amount of the delinquent return was less than the county levy. In the later case of The State ex rel. Donnelly v. Hobe, 106 Wis. 411, 82 N. W. 336, the charter provisions of the city of Superior were considered, and it was expressly ruled that these special liens constituted private property until actually discharged by payment to the owners, or to the respective officers of the law authorized to receive payment; that, if the county treasurer, after receiving the delinquent tax roll, collects the amount of the lien, he becomes trustee of the money for the owner or the holder of the lien, and that mandamus will lie in favor of the holder to compel payment from him. These special assessments are private property, and belong to the owners of the bonds, not to the municipality. The law requires that they should be carried out on the tax roll in separate columns opposite the respective lots affected. Although as a matter of bookkeeping, the total delinquent tax, whether composed of general tax or special assessments, or both, is returned to the county treasurer in a lump sum, the tax roll delivered to him with the return exhibits the special assessments in separate columns. There is no need of confusion, for upon collection by the county treasurer the particular assessment paid is checked off upon the tax roll. So that it is a matter of no difficulty to trace each assessment paid, and the law requires the county treasurer to pay to the owner the amount collected. Therefore it was held in the Hobe Case that mandamus would lie to compel the county treasurer to pay directly to the owner the assessment by him collected, without regard to his account with the city treasurer. None of these cases, as we read them, sanctions the theory that the city becomes liable simply because of the return of the tax as delinquent. They place liability upon the ground of the receipt of the moneys by the municipality or officer sought to be charged. These suggestions dispose of the first, second, and third assignments of error.

The fourth assignment asserts the right to recover for the assess

ment extended under the provision of law. The extension of time for the payment of these bonds and the extension of time for the payment of assessments were substantially cotemporaneous, and corresponded as to the date of maturity. The appellant had knowledge of the law which authorized the extension, and knew of the practice of the city to extend assessments. These facts, with knowledge of the general financial condition of the city of Superior following the panic of the year 1893, might well lead to the inference that the appellant gave at least a tacit consent to, and exhibited a passive acquiescence in, the extension. However that may be, he has failed to show-indeed, he has not attempted to show-that any loss or harm has accrued to him by reason of the extension. The lien granted to him by the law is not lost. So far as the record discloses, it remains intact, and as available for his protection as it was prior to the extension.

The fifth assignment questions the action of the trial court in limiting the amount of his recovery to his pro rata share of the fund to which the holders of all the bonds were entitled. This fund, derivable from the assessments, was a trust fund, pledged to the payment of all of the bonds. The right of the appellant therein was only to such portion of the fund realized as the sum of his bonds bore to the entire amount of the issue of bonds. It is true that equity favors the vigilant, not the slothful; but we think it would be a manifest perversion of equity to require a trustee to commit a breach of trust owing to other cestuis que trustent, by taking from other bondholders and awarding to the appellant so much of this fund as would pay his bonds in full. We know of no principal of equity which would warrant such a decree.

The sixth assignment has reference to the question of interest. The rate allowed was that which the city received from the depositories of the fund, and that usually is all that a trustee in like circumstances would be liable to pay. The insistence is based upon the theory that the city had converted the fund, but we are unable to concur in that contention.

Several assignments embodied in the seventh assignment in the statement of the case go to the manner adopted to ascertain the proportion of the fund due to the appellant. The method pursued is somewhat involved, but we need not be careful to determine its correctness, because, whether computed by that method or by any other known to us, the amount decreed is greater than the share of the fund due to the appellant. Compelled, under the stipulation, to view these bonds, not as obligations of the city for the payment of money, but as mere certificates to pay which the assessments are pledged, there is no liability upon the city for the payment of money, except for failure. to put in force the machinery of the law to collect them, or to pay over the amount collected. One who is content to invest upon such security must take the hazard of collection under and according to law, and cannot hold the municipality as guarantor. Therefore the appellant here is only entitled to his pro rata share of the fund collected by the city, less the amount which he has already received. We have been unable to arrive at the result of the decree by the method of computation declared. The tables furnished by the appellee (the appellant has furnished none) show that upon the method of computation adopted by

the trial court the appellant had received more than he was entitled to, and that upon the theory that the city was chargeable with the moneys collected by the county (a theory repudiated by the court below) the appellant was entitled to $3,524.91, instead of the $3,000 decreed. We have adopted another method of computing the amount due him; one less involved, and possibly more nearly accurate. He is entitled to such proportion of the moneys collected by the city as the amount of bonds of each class held by him bear to the total amount of bonds issued against each such improvement, less the sums previously paid to

him.

Thus he is entitled to 71.70 per cent. of the amount chargeable to the city with respect to Clough avenue improvement ($8,932.78), which would amount to......

And to 10.46 per cent, of the amount collected on the Tower avenue improvement ($35,270.89), which would amount to..

Less previously received by him on both series of bonds.....

Adding interest at 6 per cent. from July 2, 1902, to date of decree,
March 5, 1904.....

Making a total.....

$ 6,404 81

3,689 34

$10,094 15 8,337 50

$ 1,756 65

177 36

$ 1,934 01

-being over $1,000 less than he has been awarded by the decree. We should, of course, decree for any assessment collected by the county if the moneys so collected had been traced into the hands of the city treasurer; but the finding of the decree, stipulated to be correct as to facts, is to the contrary.

The decree must therefore be affirmed.

THOMAS CHINA CO. v. C. W. RAYMOND CO.

(Circuit Court of Appeals, Sixth Circuit. February 7, 1905.)

No. 1,342.

1 SALE-BReach of Warranty-RemEDY OF PURCHASER.

Where a purchaser of machinery which does not comply with the contract of sale retains and uses the same, he loses the right to rescind, and his only remedy is the recovery of damages for the breach of warranty, either by direct action, or by way of counterclaim in an action by the seller to recover the purchase price.

2 SAME-CONSTRUCTION OF CONTRACT.

In a contract for a sale of machinery, containing a general warranty of its fitness for the purpose intended, a further agreement by the seller to replace any part breaking from defective material or improper workmanship provides a cumulative remedy only, and, in case parts of the machinery prove defective or break, the purchaser has the right to remedy the defects, or procure new parts from other manufacturers, and re cover the reasonable cost and expense thereof from the seller under his general warranty.

8. SAME-ACTION TO RECOVER PRICE-DEFENSES.

In an action for the price of machinery which has been accepted, re tained, and used by the purchaser, it is not necessary to allege or prove compliance with a provision of the contract requiring the seller to submit

the drawings and plans to an agent of the purchaser for approval before the machinery was built.

4. SAME-CONSTRUCTION OF CONTRACT.

Where a contract to furnish for the equipment of a pottery "machinery as follows" enumerated among other articles kiln doors, such doors are "machinery," for the purposes of the contract, and of a requirement therein that the plans and drawings of the machines should be submitted to and approved by an agent of the purchaser before they were built; and the purchaser cannot complain that the doors made were too light or of improper design, where they were made in accordance with plans and drawings so approved.

5. SAME-ACTION FOR PURCHASE PRICE-COUNTERCLAIM.

Defendant, having contracted for certain machinery to be built by plaintiff, wrote for the blue prints showing the size and dimensions of the machines, from which to build the foundations, and they were furnished. Held, in an action to recover the purchase price, that defendant was entitled to plead and prove as a counterclaim that the machines sent did not correspond in dimensions to such blue prints, and that additional expense was incurred in rebuilding the foundations, providing it was shown that plaintiff knew the purpose for which the blue prints were wanted. 6. APPEAL-REVERSAL-ERROR PREVENTING RECOVERY OF NOMINAL DAMAGES. A judgment is not reversible because of an erroneous construction of a contract by the court in its instructions, by which a party was denied the right to recover damages for a breach, where, under the evidence, only nominal damages would have been recoverable.

7. SAME-REVIEW-OBJECTIONS TO EVIDENCE.

To entitle a party to review a ruling overruling objections to the admission of evidence, the grounds of such objections must have been stated.

In Error to the Circuit Court of the United States for the Northern District of Ohio.

Billingsley, Clark & De Ford, for plaintiff in error.

Carr, Stearns & Chamberlain, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

SEVERENS, Circuit Judge. This is a suit brought by the defendant in error, by petition, to recover from the plaintiff in error the unpaid balance, amounting to $2,107, of the purchase price of certain machinery used in the manufacture of pottery. The answer admitted the contract of sale, but denied the performance of the conditions to be performed by the plaintiff in the court below, and a cross-petition was filed by the defendant in that court to establish a counterclaim against the plaintiff for damages alleged to have been sustained by the defendant in consequence of specified breaches of the contract by the plaintiff. By the verdict of the jury, the defendant appears to have established at the trial a counterclaim in the sum of $696.92, and the plaintiff to have established its claim to the unpaid balance of the purchase price stated in the contract, and the sum of $193.56 for extras, less the amount allowed upon the counterclaim. Judgment for the plaintiff was entered accordingly. The defendant, not being satisfied with this result, brings the case here, alleging errors in the rulings of the court upon the trial.