255 F. 670 | 5th Cir. | 1919
(after stating the facts as above).
It lias been seen that plaintiff claims damages for a breach of contract, but the contract required a delivery of the coiton “f. o. b. cars,” and it is plain that there was delivery of only 68 bales in the manner specified in the contract. That further delivery, as contemplated by the parties, was prevented, does not appear to have been due to any fault of the defendant. The law intervened at the instance of other parties, and the court took jurisdiction of the subject-matter, and possession, by its receiver, of the cotton collected by plaintiff. The receiver, of course, was tbe representative of tho court, and could not be in any sense tbe representative of the defendant. Wiswall v. Sampson, 14 How. 64, 65, 14 L. Ed. 322; Metcalf v. Barker, 187 U. S. 175, 23 Sup. Ct. 67, 47 L. Ed. 122. The plaintiff and defendant were both impleaded in the equity cause, which sought to impound the cotton, and both were under the legal duty to attorn to the court and abide tho judicial determination as to rightful claimants to the property. The lot of 52 bales, which was loaded on cars the same day as the appointment of the receiver and by him intercepted, as well as the other cotton assembled by plaintiff for shipment, from that time on was in custodia. legis, and the performance of the contract rendered impossible. The appointment of the receiver was impliedly an injunction against any interference with the custody of the cotton.
A distinction, it has been said, must be taken between cases for specific performance of a contract and those in which damages are sought
“Both parties in a civil action may sue out a writ of error to a final judgment, but where one party only exercises the right the other cannot assign error in the appellate court.” Paully Jail Building & Manufacturing Co. v. Hemphill Co., 62 Fed. 698, 10 C. C. A. 595; Building & Loan, etc., of Dakota v. Logan, 66 Fed. 827, 14 C. C. A. 133.
While the defendant’s errors may not be considered, the plaintiff has no ground to complain of the judgment.
For the reasons indicated, the judgment must be affirmed; and it is so ordered.