#### THOMAS C. POWER v. THE UNITED STATES.

No. 12921

April 30, 1883.

*Motion for a neio trial.*

Judgment having been rendered in favor of the claimant for $415.24 *(ante,*263), he moved for a new trial on the ground that the court gave insufficient damages upon the evidence.

Held :

The court does not grant a now trial for the mere purpose of reopening a case for reargument by the parties on the same evidence as before.

The following motion for a new trial in Powers’ case *(ante,*263) was presented by the claimant’s counsel. It was submitted by *Mr. Harvey Spalding*without argument:

Now comes the said claimant, by his attorney, Harvey Spal-ding, and moves the court to grant him a new trial.

The grounds of this motion are:

First. The twelfth finding of fact by the court is erroneous and contrary to the evidence, it .appearing that the claimant at his own expense furnished team's and drivers in sufficient number to transport from Fort Peck to Fort Belknap 66,000 pounds of freight, thus involving an outlay and liability five or six times greater than necessary to transport li,235 pounds of freight. This excess of outlay is shown by the sixth, seventh, and eighth findings of fact.

Second. The measure of damage awarded by the court is erroneous in this: The claimant sent teams and men over the whole route in sufficient numbers to transport 54,765 pounds freight in addition to the 11,235 pounds actually transported, *494entitling him, under the law laid down by this court in *Hardy’s Case*(9 0.01s. B., 244), which is still the law.binding this court, to the full contract price of transportation of the said 54,765 pounds of freight, whereas the court awarded one-fourth of said contract price.

Third. This court applied the full contract price as the rule of damages in Hardy’s Case, although his men and teams were not required to travel at all, they having simply ^waited at the designated place for the freight to be furnished, while in this case they have awarded one-fourth that rate of damages, although the claimant was compelled to actually travel with his, teams over the whole route. •

Fourth. It is submitted, in view of the fact that Hardy’s Case was accepted by the claimant — inasmuch as it stood unmodified as the rule in such case — as his authority and reliance for expecting an award of the contract price of the work as damages, if the court now requires detailed proofs of the actual cost incurred by the claimant in sending teams from Fort Belknap and return thereof to transport 66,000 pounds of freight, he should be permitted an opportunity to furnish such evidence by allowing this motion.

Haryey Spalding,

*Attorney for Claimant.*

OPINION.

Davis, J.,

delivered the opinion of the court:

The first ground assigned by the motion for a new trial is that the findings of fact are contrary to the evidence, with a reference to the evidence supposed to be conflicting. This is in substance a proposal to reopen the case and reargue it on the same evidence. On a similar motion recently made in another case we said:

> In making the finding of facts of a case the court sets out only- ‘,f the facts established by the evidence,” in accordance with the rule on that subject prescribed by the Supreme Court.

> Facts alleged on the one side and the other which the court does not find to he established are omitted ae not proved. ,

> This motion refers to the very evidence which we considered when making that finding, and which then failed to satisfy us that it established the facts alleged. We have now re-examined it without seeing any- reason for supposing that our minds would he changed by a reargument, nor do we find any material fact omitted. *(Roche’s Case, ante,*289.)

*495The same may be said of the present motion. It does not present in this branch a proper case for a rehearing within the rules.

The second ground of error assigned professes to be one of law, that the measure of damages was erroneous. But when examined it is found to be an allegation of an error in fact.

The counsel alleges that he sent teams and men in sufficient numbers to perform his entire agreement, and maintains that to deny him payment in full is to reverse the rulings of this court in *Hardy's Case*(9 C. Cls. R., 244).

The court neither denied nor assented to the law as the counsel understands it. It was not necessary to pass upon it, because the claimant did not prove what he maintains was proved. He took one view as to the effect of the evidence; the court took a different one. This is no ground for a new trial. As. was said in Boche’s Case *(ante,*289):

> In point of fact, the claimant’s motion is simply that he may have a new trial in order to reargue his whole ease upon the law and the facts exactly as they were before us at the other hearing, without the slighest indication that he has anything new to offer.

> The reargument of cases cannot be permitted upon the sole ground that, one side or the other is dissatisfied with the conclusions reached by the court, otherwise the losing party would generally, if not always, try his case a second time, and litigation would be unnecessarily prolonged with no more satisfactory results, as there would still be a losing party in the end.

If the court did err in this case, it was in giving the claimant any judgment on the slight proof in the record; but, as was stated in the opinion, the court felt itself justified, in view of' the manifest equities of the case, in stretching a point and giving the claimant judgment for all that a liberal construction of the rules of evidence most favorable to him would allow.

But we do not think we can justify ourselves in setting aside in his favor long-settled rules regulating motions for new trials..

The motion is overruled.