GILBERT, Circuit Judge. The defendant in error obtained a judgment against the plaintiff in error for $1,000 as damages for delay in the transportation of goods shipped from San Francisco to New York on August 29, 1916, the goods not having been delivered until October 6, 1916.

[1] Error is assigned to the admission of plaintiff's testimony that at the time of the shipment, in a conversation with the defendant's clerk, through whom the shipment was made, he said:

"I inquired how long this shipment would take to New York City from here, and he told me 15 days. In the conversation I told him I wanted these goods to arrive there for the purpose of reaching certain trade that was in New York in September, 1916, and to whom I expected to sell these goods."

It is contended that it was error to admit this testimony, for the reason that the written contract superseded any verbal agreement. The bill of lading provided:

"No carrier is bound to transport said property by any particular train or vessel or in time for any particular market or otherwise than with reasonable dispatch, unless by specific agreement indorsed hereon."

This bound the carrier to transport the goods with reasonable dispatch. The court, in submitting the case to the jury, limited their inquiry to the question whether the shipment was delivered by the defendant within a reasonable time. The written contract did not forbid the plaintiff to inquire what was a reasonable time, or what was the usual time for such a shipment, and that was what the testimony amounted to. We see no error in its admission.

Error is assigned to the admission of plaintiff's testimony that the value of the goods in New York 15 or 20 days after they were shipped from San Francisco was $6,000. In the bill of lading their value was stated to be $113. The bill of lading provided that:

"The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property at the place and time or shipment under this bill of lading, including the freight charges, if paid."

[2] It is urged that the bill of lading limits damages to the value as stated therein, and N. Y. & Norfolk R. R. v. Peninsula Exchange, 240 U. S. 34, 36 Sup. Ct. 230, 60 L. Ed. 511, L. R. A. 1917A, 193, is cited. But the question whether or not the amount recoverable for delay was limited by the bill of lading is not properly before us, for it was never presented to the court below. It was not involved or suggested in the objections to the admission of the testimony that the value of the goods in New York was $6,000. Those objections were that the testimony was immaterial, irrelevant, incompetent, and speculative, and that no foundation had been laid therefor. The court instructed the jury that the measure of damages would be the necessary expense incurred by plaintiff by reason of the delay and the difference between the fair market value of the goods at New York at the time they should have been delivered to the plaintiff and the time when they were delivered to the plaintiff. No exception was taken to this or any portion of the charge. We can consider only the rulings of the trial court to which exceptions were duly taken.

[3] The plaintiff introduced in evidence a portion of a letter which he had received from an agent of the defendant. The defendant assigns error to the refusal of the court to admit in evidence the remainder of the letter, and invokes the rule that, when a part of a writing is given in evidence by one party, the whole on the same subject may be given in evidence by the other. That rule is subject to the limitation that no more of the remainder of the letter than concerns the same subject and is explanatory of the portion admitted is receivable in evidence. 3 Wigmore, p. 2860; Jones on Evidence, § 294. The first part of the letter which was introduced in evidence referred to the delay between San Francisco and Galveston, and said:

"The actual handling of this shipment shows that it was about 15 days en route San Francisco to Galveston, as against a schedule for like freight during normal times of about 10 days."

The remaining portion of the letter was subject to objection as selfserving, and it related only to the delay after arrival at Galveston. It was, therefore, not erroneously excluded.

Error is assigned to the admission of testimony of certain items of the plaintiff's expenses in New York as elements of damages, but on final submission of the case to the jury those items were by the court excluded from their consideration. This cured the error. The judgment is affirmed.

MORSE v. UNITED STATES.

(Circuit Court of Appeals, Fourth Circuit. December 5, 1918.)

No. 1646.

1. CRIMINAL LAW 762(2)—INSTRUCTIONS-EXPRESSION COURT.

OF OPINION BY

Expression by a federal trial judge in his charge to the jury of his opinion that defendant was guilty is not error, where the jury were clearly told that they should exercise their own independent judgment, regardless of such opinion.

2. CRIMINAL LAW 717-TRIAL-ARGUMENT OF COUNSEL.

Refusal to permit counsel for a defendant to argue to the jury that they were not bound by an expression of opinion by the court in its charge as to the guilt or innocence of defendant held error.

In Error to the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Judge.

Criminal prosecution by the United States against Fred B. Morse. Judgment of conviction, and defendant brings error. Reversed.

Nathaniel T. Green, of Norfolk, Va. (Daniel Coleman, of Norfolk, Va., on the brief), for plaintiff in error.

Hiram M. Smith, Asst. U. S. Atty., of Richmond, Va. (Richard H. Mann, U. S. Atty., of Petersburg, Va., on the brief), for the United States.

Before KNAPP and WOODS, Circuit Judges, and ROSE, District Judge.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

WOODS, Circuit Judge. [1] On conflicting testimony, the defendant was convicted of transporting whisky from Providence, R. I., to a point on Elizabeth river, Va., near Norfolk. In the following concluding instruction, it is contended, the District Judge went beyond his province in expressing his opinion of the guilt of the defendant:

"You are the sole judges of the facts of the case, and should determine the same after due consideration of all the evidence, in the light of attending circumstances, and the reasonable and fair inferences to be drawn from the testimony, and in so doing you should act upon your own independent judgment, uninfluenced by what others, including the court, may think or say. But I would be derelict in my duty if I did not say to you that, from my standpoint and viewpoint, this testimony irresistibly and irrefutably points to the absolute guilt of these defendants."

The opinion that the accused was guilty was strongly expressed, but the expression was accompanied by an equally strong statement that the jury should exercise their own independent judgment in coming to a verdict uninfluenced by the opinion of the judge. Since the ultimate conclusion was left to the jury, there was no error in the instruction. United States v. Philadelphia & Reading R. R. Co., 123 U. S. 113, 8 Sup. Ct. 77, 31 L. Ed. 138; Simmons v. United States, 142 U. S. 148, 12 Sup. Ct. 171, 35 L. Ed. 968; Doyle v. Union Pacific Ry. Co., 147 U. S. 413-430, 13 Sup. Ct. 333, 37 L. Ed. 223; Allis v. United States, 155 U. S. 117, 15 Sup. Ct. 36, 39 L. Ed. Í1. Breese v. United States, 108 Fed. 804, 48 Č. C. A. 36, relied on by defendant, seems to be inconsistent with the doctrine laid down by the Supreme Court in the cases cited. If that case can be sustained at all as a precedent, it is on the narrow distinction that the District Judge, although clearly charging the jury that they were not bound by his opinion, and should exercise their independent judgment, yet used the words "that in his opinion it was the duty of the jury to convict the defendant." Here the jury were not told that it was their duty to convict, or that they ought to convict.

[2] The other assignment of error relied on is more serious. It is thus set out in the exceptions:

"Counsel for the defendant, F. B. Morse, was proceeding to argue to the jury to the following effect: That while the court had said in the charge that 'the testimony irresistibly and irrefutably points to the absolute guilt of the defendants,' yet the jury were not bound by the opinion of the court, but that it was their right and duty to decide this question for themselves. But the court interrupted counsel, and said that the court had charged the jury as to that subject, and refused to permit counsel to continue said argument."

Counsel may not address to the jury argument on issues of law; the jury is bound by the instructions of the trial judge on the legal questions involved, and confined to the application of the instructions on the law to the evidence. But it is the right of counsel in applying to the evidence the law laid down by the trial judge to restate, elaborate, and emphasize it, the limits of propriety in exercising this right being controlled by the discretion of the trial judge. Discretion, however, does not extend to cutting off any discussion of a point so material as that here involved. Counsel for defendant in

connection with his general argument for acquittal had the right to elaborate and emphasize the proposition that however learned and experienced the judge, and however great the weight to be attached to his opinion that accused was guilty, yet the jury were not bound by it, and that the duty of the jury was to come to their own conclusion on the issue of guilt or innocence, giving to the opinion of the trial judge only such weight as they saw fit. There was error in the denial of this right of argument.

Reversed.

UNITED STATES, for Use of NATIONAL REGULATOR CO., v. MONTGOMERY HEATING & VENTILATING CO. et al.

(Circuit Court of Appeals, Fifth Circuit.

No. 3269.

January 7, 1919.)

UNITED STATES 67(1)—CONTRACTORS FOR PUBLIC WORKS-SUIT ON BONDS. A suit on the bond of a contractor for public work, in behalf of persons furnishing labor and materials, as provided in Act Aug. 13, 1894, as amended by Act Feb. 24, 1905 (Comp. St. § 6923), cannot be maintained, where the bond does not contain the provisions for the protection of such persons prescribed by that statute.

Appeal from the District Court of the United States for the Northern District of Georgia; Wm. T. Newman, Judge.

Suit by the United States, for the use of the National Regulator Company, against the Montgomery Heating & Ventilating Company and another. Decree for defendants, and the use plaintiff appeals. Affirmed.

Alex W. Smith, of Atlanta, Ga. (Smith, Hammond & Smith, of Atlanta, Ga., on the brief), for appellant.

W. D. Ellis, Jr., John D. Little, A. G. Powell, M. F. Goldstein, and Marion Smith, all of Atlanta, Ga., for appellees.

Before WALKER and BATTS, Circuit Judges, and SHEPPARD, District Judge.

BATTS, Circuit Judge. The action was brought under Act Aug. 13, 1894, c. 280, 28 Stat. 278, as amended February 24, 1905 (33 Stat. 811, c. 778 [Comp. St. § 6923]). The act provides that:

"Hereafter any person or persons entering into a formal contract with the United States for the construction of any public building, or the prosecution and completion of any public work, or for repairs on any public building or public work, shall be required before commencing such work to execute the usual penal bond with good and sufficient securities with the additional obligation that such contractor or contractors shall promptly make payments to all persons supplying him or them with labor and material in the prosecution of the work provided for in such contract."

The act makes provision for suit in any district in which the contract was to be performed, and without reference to the amount involved. The bond in this case was conditioned:

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

"Now, if said Montgomery Heating & Ventilating Company shall well and truly comply with, keep, and perform and fulfill all and singular the covenants, agreements, and conditions and stipulations made by them, or on their part, in, by, or through said contract, and all and singular the obligations whatsoever by them assumed, or on them imposed, in, by, or through said contract, and every obligation thereby imposed on them, then this obligation shall be null and void."

It will be observed that the bond did not impose "the additional obligation" to make payments to all persons supplying labor and material, as required by the act; nor did the contract mentioned in the bond obligate the contractors to make payments to laborers and materialmen.

It is insisted that the bond as given, though not expressed in the language of the statute, is conditioned upon the performance of all obligations imposed upon the contractors resulting from the contract, and is sufficient. It is evident that Congress, in the passage of the act, assumed that the provision especially providing for the protection of laborers and materialmen was more comprehensive than the ordinary penal bond. As suggested in the case of Hill v. American Surety Co., 200 U. S. 203, 26 Sup. Ct. 170 (50 L. Ed. 437):

"As against the United States, no lien can be provided upon its public buildings or grounds, and it was the purpose of this act to substitute the obligation of the bond for the security which might otherwise be obtained by attaching a lien to the property of an individual."

In Guaranty Co. v. Pressed Brick Co., 191 U. S. 416, 24 Sup. Ct. 142, 48 L. Ed. 242, the obligations of the bond to the government and to the laborers and materialmen were treated as separate and distinct; and in Illinois Surety Co. v. Peeler, 240 U. S. 224, 36 Sup. Ct. 325 (60 L. Ed. 609), it is said that it is "an obligation for the payment of money to the persons described, which they are entitled to enforce.'

All of the cases construing the original act and the amendment (the provision with reference to materialmen and laborers being substantially the same) assume that the specific provision gives to the bond an effect which would not result from the provisions of an ordinary penal bond. Whether this be true or not, Congress had the right to determine what should be the provisions of a bond, the execution of which would confer jurisdiction upon the federal courts which they might not otherwise have. The exact point involved was decided by the Circuit Court of Appeals for the Eighth Circuit in Babcock & Wilcox v. American Surety Co., 236 Fed. 340, 149 C. C. A. 472, and is in accordance with the opinion which has been reached upon a consideration of the statute itself, and of the opinions of the Supreme Court, to the effect that the statutory bond not having been executed, and the court not otherwise having jurisdiction, the case was properly dismissed.

The judgment is affirmed.