In Error to the Circuit Court of the United States for the Northern Division of the Northern District of Illinois. This case is here the third time. It was here first on demurrer to the declaration (Columbus Const. Co. v. Crane Co., 9 U. S. App. 46, 3 C. C. A. 216, 52 Fed. 635); and the second time after a trial upon the merits, which resulted in a verdict and judgment for $48,000 in favor of the plaintiff, the present plaintiff in error. The last judgment was in favor of the defendant, the Crane Company, on its counterclaim, for $98,085.94, the amount of the unpaid balance at the contract price for pipe delivered, less eight or nine hundred dollars. The entire contract will be found in our first opinion. The substance of it, to quote from our second opinion, is that: "The Columbus Construction Company, a corporation of New Jersey, the defendant in error, on the 5th day of June, 1890, entered into a contract with the Indiana Natural Gas & Oil Company, which was incorporated under the laws of Indiana for the purpose of owning and operating a pipe line for the transportation of natural gas from the gas fields of Indiana to Chicago, whereby the Columbus Construction Company undertook to construct the proposed line; and to that end on June 20, 1890, it made with the Crane Company, the plaintiff in error, the contract in suit, whereby the latter company undertook to purchase, and to cause to be delivered to the former, the various quantities and sizes of pipe necessary for the completion of the line, including two hundred and sixty miles of eightinch pipe, concerning which this controversy has arisen. The substance of the contract, in so far as it need be stated here, is that the pipe shall be 'eightinch, wrought-iron, standard line pipe, to weigh not less than 27.48 pounds per lineal foot,' 'made from soft iron, free from blisters and other imperfections, and guarantied to stand a working line pressure of one thousand pounds to the square inch when proved and tested in lines'; that each spliced joint shall weigh the weight of the collar in addition to its own required weight; that each joint of pipe shall have eight threads to the inch, and at least two inches of thread on each end, with a full, uniform taper to the threads both on the pipe and in the collar; and that the vendor shall pay to the vendee all damages and expenses sustained by reason of defects in the pipe delivered, up to and including the time when the pipe should be tested by the vendee under working pressure not in excess of one thousand pounds to the square inch, and proved tight in line, which working test should be made with reasonable promptness. Deliveries were to be made at such places as should be designated by the Columbus Construction Company, at the earliest practicable dates in July, August, and September, and of the eight-inch pipe not less than thirty-seven miles in July, one hundred and twenty-three miles in August, and the remainder in September, 1890, 'barring strikes and causes beyond their control.' The Columbus Construction Company, upon the delivery of each invoice at the point by it designated, was to pay 'spot cash' therefor, including a commission of two and one-half per cent. over the amount of the manufac turer's invoice. Shipments were to be by car loads not exceeding five spliced joints, the Crane Company paying freight and other charges of transportation from the mills to the point of destination; and it was agreed finally that the pipe should not be construed to be accepted, by reason of any payments made therefor, so as to relieve the Crane Company from liability on account of its defective character until the same had been laid and tested in line and proved." The declaration contains common and special counts, but all that is alleged of breach of the contract and of damage is believed to be embraced in the following, quoted from the last special count: "Nevertheless, the said defendant did not perform or regard its promise and undertaking so by it made as aforesaid, in this, to wit. that all of said wrought-iron standard line pipe, when the same was so delivered as aforesaid, was not in conformity with the specifications, and did not fulfill the conditions and stand the tests prescribed in the said contract, and was not made from soft iron, free from blisters and other imperfections, and would not stand a working line pressure of one thousand pounds to the square inch, and would not prove tight in line, when proved and tested in line under said working pressure; and further in this, to wit, that each joint of pipe furnished under said contract did not have eight threads to the inch, and at least two inches of thread on each end, and that full, uniform taper was not given to the threads both on the pipe and in the collar, but, on the contrary thereof, all of said wrought-iron standard line pipe was full of imperfections, and was of a weak, imperfect, poor, and defective quality, and was wholly unable to stand a working line pressure of one thousand pounds to the square inch, or to prove tight in line, when proved or tested in line under said working pressure, and each joint of pipe furnished under said contract as aforesaid had less than two inches of thread on each end, and had more or less than eight threads to the inch, and the taper given to the threads, and each and every of them, both on the pipe and in the collar, was imperfect, partial, and varying,-of all of which the said defendant then and there had notice. And the said defendant, not regarding its said promise or undertaking, did not, nor would it, although often requested so to do, purchase, sell, and deliver to said plaintiff such goods, wares, and merchandise as were required by said contract, but wholly neglected and refused so to do, and therein made default. And said defendant then and there so negligently and improperly conducted and behaved in and about the purchase, sale, and delivery of said goods, wares, and merchandise that the same were by reason thereof not in conformity with the specifications, and did not fulfill the conditions and did not stand the tests prescribed in said contract, but wholly failed therein, and were of no value to the said plaintiff, whereby the said plaintiff not only lost all benefit, profit, and advantage which it might and could have derived and acquired from the purchase, sale, and delivery by the said defendant of the said goods, wares, and merchandise, but was also put to great expense of its moneys, to wit, the sum of $600,000, which was paid by it to the said defendant as and for the purchase price of said goods, wares, and merchandise, and also was compelled to and did necessarily expend a large sum of money in and about the purchase of other goods, wares, and merchandise to supply the place of the insufficient and defective goods, wares, and merchandise so purchased, sold, and delivered by the said defendant as aforesaid, amounting to, to wit, the sum of two hundred thousand dollars over and above the said contract price of the said defective and insufficient goods, wares, and merchandise so purchased and delivered as aforesaid by the defendant; and also necessarily laid out and expended a large sum of money, to wit, two hundred thousand dollars, in and about the taking up of such defective and insufficient pipe so purchased, sold, and delivered by the said defendant as aforesaid, as had been laid in line in the ground, and in and about unscrewing the same, and taking the defective and insufficient collars therefrom, and replacing such collars with other and sufficient collars, and again laying said pipe, and in and about the rethreading and repairing of such portions of said defective and insufficient pipe as it was necessary to rethread and repair in order to make it in those respects of the description, character, and quality provided for in said contract, and in and about the taking the defective and insufficient collars from the other of said insufficient and defective pipe so purchased, sold, and delivered by the said defendant as aforesaid, which had not been laid in line, and replacing said collars with other and sufficient collars, and in and about the loading and hauling to and from the thread mills of such portions of said defective and insufficient pipe as it was necessary to rethread and repair for the purpose aforesaid,—all of which sums of money the plaintiff says were necessarily and reasonably expended in order that the said wrought-iron standard line pipe might conform with the specifications and fulfill the conditions and stand the tests herein before and in said contract set forth; and also sustained great loss and damage on occasion of its not being able to use the same at Chicago, in the district aforesaid, whereby the said plaintiff, having employed large numbers of men, and secured teams, wagons, tools, and machinery, to lay said pipe for use, was greatly delayed, damaged, and hindered in the prosecution of said work by the said failure of said defendant to comply with its contract in promptly delivering said pipe, and thereby sustained further damage and loss, to wit, in the sum of two hundred thousand dollars, at Chicago, in said district, and has been and is by reason of the premises otherwise greatly injured and damaged." The plea was a general denial, with notice of special matters of defense, setoff, and a counterclaim to the effect that there was a balance of $150,000 due from the plaintiff to the defendant for pipe delivered in accordance with the contract, and for commission on undelivered pipe; that the plaintiff failed and neglected to lay the pipe properly and to make suitable tests thereof with reasonable promptness; and that though the defendant was at all times ready and willing to perform the contract on its part the plaintiff neglected and refused to perform, and on the 12th day of February, 1891, notified the defendant that it would not perform, and unlawfully and wrongfully broke, canceled, and repudiated the contract. S. S. Gregory and Jacob Custer, for plaintiff in error. Before WOODS, Circuit Judge, and BUNN and ALLEN, District Judges. WOODS, Circuit Judge, after making the foregoing statement, delivered the opinion of the court. Concerning the letter of February 12, 1891, and its effect as a breach of the contract by the plaintiff, we said in our second opinion (46 U. S. App. 59, 65, 20 C. C. A. 233, 73 Fed. 984): "On the facts as presented in the briefs, beyond which we have not looked, it does not appear that there was an adequate excuse for the refusal to accept further performance of the contract; and, on that basis, whether other modes of relief were available or not, we think it clear that the defendant [now plaintiff] in error can have no remedy in an action upon the contract. It cannot at one and the same time repudiate an executory contract like this, in respect to a part of the subject-matter, and in respect to other parts insist upon enforcement." In this respect it is asserted, and seems to be conceded, that at the last trial "the facts remained precisely the same," and, that being so, the court might without error have instructed peremptorily against a recovery by the plaintiff in any sum; and it would follow that there was no available error in any instruction touching the obligations, duties, or rights of the parties under their contract in so far as confined to the plaintiff's right of action,-leaving it material to inquire only whether error was committed in respect to the right of the defendant to recover upon its counterclaim. In apparent recognition of this as the true status of the case, the argument in the brief for the plaintiff in error begins by saying that the main question, concretely stated, is "whether defendant can recover full contract price for eight-inch standard line pipe, made according to the specification of the contract, in the best manner known to the art of pipe making, but which for some reason is incapable of meeting another, and, after all, the most important, requirement of the contract, that it prove tight when tested in line at a pressure of one thousand pounds to the square inch." We have not been able to perceive that this question, as stated, arises upon the record. It does not seem to be deducible from any exception saved and assigned as error. Touching the test under a pressure of 1,000 pounds, our ruling when the case was here before was that while the plaintiff was entitled to pipe of the character stipulated, and that "If at the time of the delivery it remained necessary or desirable, and was practicable, by a reasonable expenditure, to bring the pipe up to the requirements of the contract, it was the privilege of the defendant [now plaintiff] in error to make the expenditure necessary for that purpose, and to exact reimbursement of the Crane Company, instead of resorting to the proof of compara tive values; but if * the pipe met the requirements of the modified contracts of the Indiana Company, and by reason of the Indiana statute a pipe capable of bearing a pressure of over three hundred pounds was not needed, then manifestly it was not reasonable to expend time or money on an effort to impart to the pipe a degree of strength which could be of no practical utility. Under such circumstances the ordinary rule should prevail, and the recovery should be on the basis of the difference of value between the article delivered and that which ought to have been delivered, to be determined by the market prices, or, if that should be impracticable, then probably by the difference in cost of production at the mills, certainly not by the cost of repair or reconstruction on or along the trenches in which the pipe was to be laid, where necessarily the work would be more difficult and expensive than at the mills." There does not seem to have been any attempt at the last trial to show, by market prices or otherwise, the difference in value between the pipe delivered and that contracted for. There has been no reference to evidence on that point, and the inference is fair that there was none. The evidence of the tests made of the pipe in line tended, as stated in our former opinion, "to show the quality and value of the pipe delivered as compared with that contracted for," but that alone was not enough to afford a basis on which to compute or estimate damages on the theory of comparative values. The trial was not conducted on that theory, but, as before stated, the effort was to show that the pipe delivered was defective,especially that the threading of the pipe and collars was defective, that the collars were too light, and that the substitution of the Hequembourg collars was necessary in order to make the line tight, even under the reduced pressure permitted by the Indiana statute. To the extent necessary to bring the pipe up to that standard, the plaintiff in error, of course, had the right to incur reasonable expense, and to exact reimbursement, but could not at the same time claim damages on the other basis of difference of values; and there could have been no error in the refusal of an instruction which proceeded on the latter basis. The contention that, under the notice of a counterclaim which alleged the delivery of pipe in conformity to the contract, proof of strict conformity was essential to a recovery of the contract price, if in itself sound, seems not to have been insisted upon or suggested in the court below, and therefore should not be available here. If suggested, the objection could have been obviated by an amendment to the notice. No exception was saved and no error assigned which hinted at an assertion of variance between the pleading and the proof, if, indeed, such a notice of special matter of defense, accompanying the general issue, was intended to be governed by the strict rule applicable to a declaration, that the allegation and the proof must correspond. There should certainly be a liberal practice in allowing amendments of such notices, and on appeal or writ of error any amendment should be regarded as having been made which if allowed could have caused no injustice to the adverse party. The first specific objection to the charge of the court is that in a number of passages, to which exceptions were saved, the plaintiff was required to sustain the issues of which it had the burden by "satisfactory evidence," and not simply by a preponderance of the evidence; but the meaning of the entire charge was clear, as in some instances it was explicitly stated, that the jury should be satisfied by a preponderance of the evidence. The last expression of the court on the point was too plain to be mistaken, when, after stating that the plaintiff was not entitled to recover "unless it has established a cause of action," the court added, "It must be established by a preponderance of the evidence." In view of the nature of the issue, however, which was whether the pipe was originally defective in the threading or in the weight of the collars, or was injured through the negligence or want of skill of those employed to lay it, -on which latter point the plaintiff, having kept and used the pipe in line, certainly had the burden of proof,-it is not clear that more than a mere preponderance of evidence might not properly have been required to establish a right of recovery on the declaration. This objection to the charge ought not to prevail for the further reason that it is not pointed out in any exception taken, nor in any specification of error, according to the requirement of our rules 10 and 11 (31 C. C. A. cxlv., 90 Fed. cxlv.), that a party excepting shall "state distinctly the several matters of law in the charge to which he excepts," and that the assignment of error "shall specify separately and particularly each error asserted and intended to be urged." To comply with that requirement, it was explained in the recent case of Stewart v. Morris (June Sess., 1899) 37 C. C. A. 562, 96 Fed. 703"It may be enough sometimes merely to quote the language of that part of the charge which is supposed to be erroneous. That will do if the language quoted expresses a single proposition of law with unambiguous directness, but if the quotation embraces different propositions, or, like those now before us, is supposed to carry implications beyond or outside of what is expressed, it is intended by the rule that the exception shall state the particular meaning or implication, the exact proposition of law object to; and then, to enable this court to determine whether the language of the court embodied that proposition, either expressly or by implication, it is necessary that the language be brought up in the bill of exceptions, and set out totidem verbis, as required by rule 11, in the specification of error. These rules, if carefully and intelligently followed, will accomplish the purpose of their adoption, namely, that this court shall not be compelled to consider questions not brought to the attention of the lower court." * * These rules, it should be recognized, were prepared with care. Their terms are too clear to have needed exposition, yet, for some reason,-inattention, probably,-their most important requirement has not been generally heeded. While the court would not needlessly embarrass the practice by insisting upon overnice observance of its rules, it is intended, so far as practicable, to accomplish the wholesome purpose that no question shall be reviewed here which was not considered below. For the same reason the objections urged to other parts of the charge, with perhaps one exception, might be disregarded. They are not directed to the obvious and main purport of the portions of the charge excepted to and specified as erroneous, but to some subordinate idea or implication, which, it may be, was not in the mind of the court, and which, if specifically made the subject of exception, presumably would have been corrected at the time. For instance, in that portion of the charge embraced in the fifth exception, the direct |