kind manufactured by the defendants, was thirty-four dollars per ton, afloat in Milwaukee. Seventh. From May, 1878, to November, 1878, the defendants delivered to the plaintiff four hundred and thirty-five tons of iron, of the value of seventeen dollars per ton, to be accounted for by the plaintiff to the defendants at that price. The plaintiff has accounted and paid for all of this iron except 6 1979-2240 tons, for which amount payment has not been made, nor has the iron been returned to the defendants. A statement of this account was submitted by the defendants to the plaintiff, showing that there was due and unpaid thereon $117.02, on the eighteenth day of June, 1879. Eighth. Between April 20, 1876, and October 5, 1878, the defendants sold and delivered to the plaintiff a quantity of coal, a statement of the weights and prices of which was rendered by the defendants to the plaintiff. Upon receipt of the cargoes at Milwaukee, the coal was weighed at the dock by the plaintiff, and thereafter he submitted to the defendants a statement of the weights and demanded a deduction on account of shortage in weight, which he claimed to exist. The defendants assented to and allowed the claim for shortage, and the plaintiff paid the balance of the account in full. The claim for shortage was, made by the plaintiff in good faith, upon the basis of weights taken at his dock, and the defendants did not in any manner object to the plaintiff's claim until after he had insisted upon the performance of the contract upon which this action was brought. Ninth. In the months of October and November, 1878, the defendants sold and delivered to the plaintiff coal at certain prices, which, with the interest added to the day of the adjustment of the account, April 16, 1879, amounted to the sum of twenty thousand three hundred and four dollars and seventy-one cents. Of this amount the plaintiff paid to the defendant sums of money from time to time, which, with interest to the said sixteenth day of April, 1879, amounted to nineteen thousand six hundred and seventy-eight dollars and ninety-four cents. A statement of said account was made by the defendants to the plaintiff, showing a balance due from the latter to the former on said day, amounting to six hundred and twenty-five dollars and seventy-seven cents. This balance has not, nor has any part of it, been paid by the plaintiff to the defendants. "Upon these facts I do respectfully report as my conclusions of law: First. The plaintiff is entitled to recover from the defendants the difference between the contract price of the four hundred tons of iron which were to be delivered about the first of September, 1879, and the market value of the said iron afloat in Milwaukee, on the seventh day of November, 1879, when the contract was finally broken by the said defendants, amounting to the sum of five thousand eight hundred dollars, with interest from November 7, 1879, to the date of this report. Second. The plaintiff is indebted to the defendants in the sum of one hundred and seventeen dollars and two cents, with interest from June 18, 1879, for the 6 1979-2240 tons of iron, as stated in the seventh finding of fact, amounting, at the date of this report, to the sum of one hundred and forty-eighth dollars and twenty cents, ($148.20,) and they are entitled to have the said amount offset against the amount otherwise due from them to the plaintiff, as stated in the first conclusion of law. Third. The plaintiff is indebted to the defendants in the sum of six hundred and twenty-five dollars and seventy-seven cents, with interest from April 16, 1879, for the balance of the account for coal sold to the plaintiff, as stated in the ninth finding of facts, amounting, at the date of this report, to the sum of seven hundred and ninetynine dollars, and they are entitled to have the said amount offset against the amount otherwise due from them to the plaintiff, as stated in the first conclusion of law. Fourth. The defendants have not established their right to reopen the account between them and the plaintiff for coal delivered from April 20, 1876, and October 5, 1878, as stated in the eighth finding of facts, and they are therefore concluded by the settlement and adjustment made in that respect, and not entitled to the counter-claim in that behalf stated in their answer herein. Fifth. The plaintiff is entitled to judgment against the defendants for the sum of six thousand two hundred and sixty-four dollars and twelve cents, ($6,264.12,) with interest thereon from the date of this report, with the costs of this action, and judgment for that amount is accordingly directed." The defendants moved the court for a new trial upon a "case and exceptions," made according to the practice in the state of New York, in which they excepted to the first, fourth, and fifth conclusions of law found by the referee; but the motion was denied, and the court thereupon made an order denying it, and directing "that judgment be entered herein pursuant to the report of the referee, with costs." Thereupon, judgment was entered for the plaintiff for the $6,264.12, and $192.08 interest from the date of the report, and $399.70 costs, amounting in all to $6,855.90. The defendants have brought a writ of error to review the judgment. The item of recovery allowed to the plaintiff by the referee was for 400 tons of iron at $14.50 per ton, being the difference between $19.50, the contract price, and $34, the market value on November 7, 1879. The only questions open to review here are, whether there was any error of law in the judgment rendered by the circuit court upon the facts found by the referee. The judgment having been entered "pursuant to the report of the referee," the facts found by him are conclusive in this court. Thornton v. Carson, 7 Cranch, 596, 601; Canal v. Swann, 5 How. 83; Railroad v. Myers, 18 How. 246; Heckers v. Fowler, 2 Wall. 123; Bond v. Dustin, 112 U. S. 604, 606, 607, 5 Sup. Ct. Rep. 296; Paine v. Railroad, 118 U. S. 152, 158, 6 Sup. Ct. Rep. 1019. The second and third findings of fact show that there was a complete, valid, and binding contract made between the parties, which was not void for uncertainty, or for any other reason. It is expressly found that the term "cargo," employed in the correspondence between the parties by which the contract was entered into, was understood by both of them to mean a cargo of 400 tons. It is also expressly found that the contract for the delivery of the iron had no relation to or connection with any other dealings between the parties, and that the performance thereof by the defendants was not conditioned upon the performance of any act on the part of the plaintiff, other than as stated in the second and third findings of fact. It is contended by the defendants that the referee erred in taking the $34 per ton, the market value of the iron on November 7, 1879, as the measure of damages, instead of the market price in September, when the iron was to be delivered, and when, it is alleged, the breach of the contract occurred. But, although the defendants did not deliver any of the iron on or about September 1, 1879, nor as soon as they had manufactured the required amount, yet it appears from the findings of fact, considered together, that the breach of the contract did not take place until November 7, 1879. The statement in the findings, that the defendants "postponed the execution of the contract from time to time," and finally insisted upon certain requirements as conditions of the delivery of the iron, must be accepted as a statement that the postponement of the execution of the contract from time to time down to November 7, 1879, was with the assent of the plaintiff. From the fact that, as late as November 7, 1879, the defendants were naming conditions on which they would deliver the iron, it must be inferred that the question of delivery was still regarded by both parties as an open one, and that the mere failure to deliver the iron by the first of September, 1879, or even thereafter, as soon as the required amount had been manufactured, was not regarded by either party as a breach of the contract. It was in the power of the defendants, instead of merely postponing the execution of the contract from time to time, to have absolutely refused to perform it, if they found that the price of iron was rising in the market, as is alleged in argument. But it is not found as a fact by the referee that there was any advance in the market value of the iron in question between September 1, 1879, or the time the iron was manufactured, and November 7, 1879, nor is the price of the iron in the market found as a fact, at any other date than November 7, 1879. On the findings of fact, the rule of damages applied to this case was in accordance with the authorities. Benj. Sales, § 872; 2 Sedg. Dam. (7th Ed.) 134, note b; Ogle v. Earl Vane, L. R. 2 Q. B. 275 and in the Exchequer Chamber, L. R. 3 Q. B. 272; Hickman v. Haynes, L. R. 10 C. P. 598; Hill v. Smith, 34 Vt. 535, 547; Newton v. Wales, 3 Rob. (N. Y.) 453. It is also alleged for error, that the referee erred in refusing to open the account between the parties and to allow the defendants' counter-claim for $1,926.73, as wrongfully charged to them by the plaintiff for shortages on coal. The finding of the referee is, that the plaintiff, after weighing the coal, submitted to the defendants a statement of the weights and asked a deduction on account of shortage; that the defendants assented to and allowed the claim; that the plaintiff paid the balance of the account in full; that the claim for shortage was made by the plaintiff in good faith, upon the basis of weights taken at his dock; and that the defendants did not in any manner object to the plaintiff's claim until after he had insisted upon the performance of the contract on which this action was brought. On these facts, the referee found, as a conclusion of law, that the defendants had not established their right to reopen the account for the coal in question; that they were concluded by the settlement and adjustment made in that respect; and that they were not entitled to the counter-claim in that behalf stated in their answer. The answer alleged, in respect to such counter-claim, that the statements of the weight of the coal made by the plaintiff to the defendants were false, and were so known to be by the plaintiff, and that the amount which he had received from the defendants for shortage was obtained from them by his unlawful act. No facts in support of this allegation of the answer are found by the referee, and his conclusion of law was correct. This case not having been tried by the circuit court on the filing of a waiver in writing of a trial by jury, this court cannot, on this writ of error, review any of the exceptions taken to the admission or exclusion of evidence, or any of the exceptions to the findings of fact by the referee, or to his refusal to find facts as requested. Bond v. Dustin, 112 U. S. 604, 606, 607, 5 Sup. Ct. Rep. 296; Paine v. Railroad, 118 U. S. 152, 158, 6 Sup. Ct. Rep. 1019. The judgment of the circuit court is affirmed. INLAND & SEA-BOARD COASTING Co. v. HALL. 1. NEW TRIAL-DENIAL OF MOTION-SUPREME COURT OF DISTRICT OF COLUMBIA. overruled. 2. SAME. Rev. St. U. S. § 804, relating to the District of Columbia, empowering a trial judge, in his discretion, to entertain motions made on his minutes for new trials, upon exceptions taken at the trial, for insufficiency of the evidence, or for excessive damages, does not limit the cases in which an appeal may be taken from his decision, on motions for new trials, to the three cases enumerated. Construing that section in connection with section 772, giving an appeal from special to general term from any order, judgment, or decree, "if the same involved the merits of the action or proceeding," rulings on motions for new trials based upon other grounds, such as that the verdict is contrary to law, or against the instructions of the court, or for newlydiscovered evidence, are equally appealable to the general term as are those enumerated in section 804. 3. SAME. Where a motion for a new trial is made on the minutes, on other grounds than those mentioned in Rev. St. U. S. § 804, relating to the District of Columbia, the trial judge has no discretion as to entertaining the motion, but must do so with the right of appeal from his decision, as provided by section 772. 4. SAME. A motion for a new trial, on the ground that the verdict is against the weight of evidence, may be heard by the trial judge under the provision of Rev. St. U. S. § 804, relating to the District of Columbia, authorizing him to hear such a motion on his minutes, where the verdict is attacked "for insufficient evidence." The phrase quoted is not to be limited to evidence insufficient in point of law, but includes insufficiency in point of fact, and is thus equivalent to "against the weight of evidence." 5. SAME. Rev. St. U. S. §§ 772, 804, relating to the District of Columbia, were taken from Code Proc. N. Y. 1851-52, and should be construed in conformity with the interpretation placed upon them by the courts of New York, rather than tested by the law of Maryland prevailing in the District previous to the reorganization of the supreme court by the act of congress of March 3, 1863. 6. APPEAL SUPREME COURT OF DISTRICT OF COLUMBIA-SPECIAL AND GENERAL TERM. For the purpose of determining the relation of the special to the general term of the supreme court of the District of Columbia, the act of congress of March 3, 1863, adopted the provisions of the legislation of the state of New York relative to the similar branches of its own supreme court, as that legislation is understood by the courts of New York. 7. SAME. An appeal from the special to the general term of the supreme court of the District of Columbia is not an appeal from one court to another, but is simply a step in the progress of a cause during its pendency in the same court. 8. SAME-HARMLESS ERROR. Error in refusing to entertain an appeal from the denial of a motion to set aside a verdict, as against the weight of evidence, cannot be said to have been non-prejudicial, because the court necessarily passed upon the same matter in considering and sustaining the ruling of the trial court in refusing to direct a verdict in appellant's favor. The two questions thus raised are not identical. Following Railroad Co. v. Moore, 7 Sup. Ct. Rep. 1334. In Error to the Supreme Court of the District of Columbia. The Inland & Sea-Board Coasting Company assigns error upon the refusal of the general term of the supreme court of the District of Columbia to entertain an appeal from the action of the special term in overruling a motion for a new trial, based on the ground that the verdict in favor of George W. Hall, defendant in error, was against the weight of the evidence. For a full statement of the principles of law involved, see Railroad Co. v. Moore, 7 Sup. Ct. Rep. 1334. Nathaniel Wilson, for plaintiff in error. L. G. Hine and S. T. Thomas, for defendant in error. WAITE, C. J. This judgment is reversed on the authority of Railroad Co. v. Moore, 121 U. S. 558, 7 Sup. Ct. Rep. 1334, and the cause remanded, with directions to take further proceedings therein in accordance with the opinion in that case; that is to say, to consider the appeal from the order at special term denying the motion of the Inland & Sea-Board Coasting Company for a new trial, made on the ground that the verdict was against the weight of the evidence. GLENN v. FANT. APPEAL PRACTICE-SUBMISSION ON ORAL ARGUMENT. Where parties stipulate to submit a cause without oral argument, and no reference is made to rule 20 of the supreme court, which permits the submission of printed arguments, within the first 90 days of the term, without regard to the number of the case on the docket, that rule will not be applied upon suggestion by one party, against the protest of the other, as the terms of the stipulation will be fulfilled if the submission be made when the case is reached in its order. In Error to the Supreme Court of the District of Columbia. On motion by plaintiff in error, John Glenn, trustee, to require the defendant in error, Hamilton G. Fant, to submit, under rule 20 of the supreme court, entitled "Printed Argument," which provides, in section 1, that printed arguments will be received if counsel for both sides shall choose to submit the same within the first 90 days of the term. Rule 21, § 1, requires the brief for plaintiff in error to be filed at least six days before the case is called for argument, and that for defendant in error, under section 3, at least three days before hearing. See, for rules of court, 3 Sup. Ct. Rep. 5-17, and, as to operation of rule 20, § 1, the announcement by Chief Justice WAITE, January 10, 1886, published in 7 Sup. Ct. Rep. iii. Chas. Marshall, Henry Wise Garnett, and Conway Robinson, Jr., for the motion. M. F. Morris, contra. WAITE, C. J. This motion is denied. While the stipulation binds the parties to submit the cause without oral argument, there is nothing which requires this to be done at any particular time. Its terms will be fulfilled if the submission is made when the case is reached in its order. As no reference is made to rule 20, we cannot apply that rule to the case on the suggestion of one of the parties against the protest of the other. CRAWFORD v. HEYSINGER et al. 1. PATENTS FOR INVENTIONS-INFRINGEMENT-DEVICE FOR FIXING STAPLES. Claim 1 of reissued letters patent No. 9,803, granted July 12, 1881, to George W. Heyl, for an improvement in devices for inserting metallic staples, is the "combination of a stationary staple-support or anvil and a sliding staple-guide, with a reciprocating slotted or recessed hammer, operating to insert a staple through layers of stock to be united, and simultaneously bend over to projecting ends;" and claim 2 is "in a device for inserting metallic staples, in combination of the staple-guide, anvil, spring, and reciprocating driver, provided with a knob." Held not to be infringed by a device constructed under letters patent No. 218,227, granted August 5, 1879, and No. 260,365, granted July 4, 1882, to William J. Brown, for a device having a stationary recessed clincher, and a movable detached staple-inserting tool. 2. SAME-REISSUE-LIMITATION OF CLAIM. The patent-office before it would grant a reissue upon letters patent No. 195,603, granted September 25, 1877, for an improvement in devices for inserting metallic staples, required the applicant to limit his claims to a reciprocating clincher and stationary staple-supporting anvil. Held that, the applicant having voluntarily made the limitations, he is bound by them in subsequent suits on the reissued patent. 3. SAME-ACTION UPON-EVIDENCE-FILE-WRAPPER. In a suit upon reissued letters patent, the file-wrapper and contents in the matter of the reissue are part of the evidence in the case. 4. APPEAL WHAT REVIEWABLE-ISSUES BELOW. Where, in a suit upon reissued letters patent, the circuit court, in an interlocutory decree, states that it considered only two certain claims, and the decree holds those claims alone to be valid, and to have been infringed, and the final decree applies only to those claims, and the plaintiff does not contend in his brief that any other claim is infringed, the supreme court will confine itself to the consideration of those two claims, although in the proofs the plaintiff undertook to show that three other claims were also infringed. Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania. Bill filed by Isaac W. Heysinger, Christian H. Hershey, and J. Loren Heysinger, trading as the Philadelphia Novelty Manufacturing Company, against James P. Crawford, founded on an alleged infringement of reissued letters patent No. 9,803. Judgment for plaintiffs. Defendant appealed. Hector T. Fenton, for appellant. Joshua Pusey, for appellees. BLATCHFORD, J. This is a bill in equity filed in the circuit court of the United States for the Eastern district of Pennsylvania by Isaac W. Heysinger, |