(concurring).
I concur in the judgment of affirmance for the following reasons:
The appellant seeks to have ns review the sufficiency of the evidence to support the judgment of the trial court. The ease was tried by the court, a jury having been waived. The hill of exceptions states that the trial occurred on the 2d of July, 1931; that on the 25th of August, 1931, the court filed its memorandum of authorities and derision in favor of plaintiff and against the defendant, to which ruling an exception was entered on behalf of the defendant. The bill of exceptions states that: “Thereafter, on the 26th day of August, 1931, plaintiff was granted an extension of time within which , to file findings of fact and conclusions of law, for a period of thirty days from and after August 26th, 1931, and thereafter, on the 7th day of November, 1931, the court denied defendant’s proposed amendments and additions to plaintiff’s findings of fact and conclusions of law, to which ruling of the court the defendant, by its counsel, then and there duly excepted, and thereupon, on said 7th day of November, 1931, judgment was entered in favor of plaintiff and against the defendant.”
The findings of fact, conclusions of law, and judgment, filed November 7, 1931, contained, among other findings, this general finding: “Now, after due deliberation and consideration, the court finds generally in favor of plaintiff and against defendant on all the issues raised by the respective pleadings, and further finds as follows:”
Then follow nine special findings of fact, the first of which is “that all of the allegations of .plaintiff’s complaint are true”; second, “that all. of the allegations of plaintiff’s reply to defendant’sj answer and plaintiff’s answer to defendant’s cross-complaint are true”; and, third, “that the : consideration, for said acceptances has not failed, either, in whole or in part.” The only material and ultimate issue of fact in the case was whether or not the consideration for the trade acceptances sued upon had failed. The court found as a fact that the .consideration “has not failed, either in whole or in part.”
The appellant claims that the supplementary agreement, referred to in the main opinion, made by the agent on behalf of the appellee, was a part of the contract of purchase and that, therefore, there was no contract at all as this part of the proposed agreement was rejected because in that event there was no meeting of the minds of the parties. This question calls for a consideration of sufficiency of the evidence to support the general finding of the court in favor of the plaintiff and the special finding that there was no failure of consideration. This matter cannot be reviewed on this appeal for several reasons: No motion for judgment because of the insufficiency of the evidence to sustain plaintiff’s cause of action was made by the defendant at the conclusion of the evidence. Plaintiff, therefore, relies and must rely upon the rulings of the court made when it presented its special findings of fact which were at vari*536anee with, those sighed by the court. The findings claimed to have been presented on behalf of the appellant, although printed in the transcript, were not incorporated in the bill of exceptions and for that reason cannot be considered. McPherson v. Cement Gun Co., Inc. (C. C. A.) 59 F.(2d) 889. Furthermore, the request for findings, even if otherwise sufficient to raise the question sought to be presented here, was made long after the trial was concluded and after the court had announced its decision, and therefore the failure of the court to find the facts in accordance with the findings proposed by the losing party would not be subject to review. Edwards v. Robinson, 8 F.(2d) 726 (C. C. A. 9). Moreover, the making of special findings is discretionary with the trial court and no error can be predicated upon the failure of the court to make special findings of fact. White v. U. S. (C. C. A.) 48 F.(2d) 178; McPherson v. Cement Gun Co. (C. C. A.) 59 F.(2d) 889, supra; Ozark Pipe Line Corp. v. Decker (C. C. A.) 32 F.(2d) 66; Henry H. Cross Co. v. Texhoma Oil & Ref. Co. (C. C. A.) 32 F.(2d) 442. See, also, Merriam v. Huselton (C. C. A.) 45 F.(2d) 983, by Judge Sanborn, and numerous citations therein; Fleischmann Const. Co. v. U. S., 270 U. S. 349, 46 S. Ct. 284, 70 L. Ed. 624, and eases cited; Modoc County Bank v. Ringling (C. C. A.) 7 F.(2d) 535, and cases cited; Mercantile Mut. Insurance Co. v. Folsom, 18 Wall. (85 U. S.) 237, 248, 21 L. Ed. 827. Where the court not only makes a general finding as in the ease at bar, but also makes certain special findings of fact, I do not believe that the failure to make other or different special findings of fact requested by the appellant can be viewed as erroneous, because the court having exercised its 'discretion in favor of making a general finding is not required to make any special findings whatever (authorities cited supra) and the mere fact that it does supplement its general findings by certain special findings cannot require it to make other or additional findings because the general finding already covers all issues not specifically found. See Meath v. Board of Mississippi Levee Commissioners, 109 U. S. 269, 3 S. Ct. 284, 27 L. Ed. 930. In fact, it has been uniformly held that under the statutory provisions regulating a trial where a jury is waived findings should be general or special and not both. Rev. St. § 649, 28 USCA § 773; British Queen Mining Co. v. Baker, etc., Min. Co., 139 U. S. 222, 11 S. Ct. 523, 35 L. Ed. 147; Corliss v. Pulaski County (C. C. A.) 116 F. 289; State Hat. Bank of Ft. Worth v. Smith (C. C. A.) 94 F. 605; Streeter v. Sanitary Dist. of Chicago (C. C. A.) 133 F. 124; U. S. v. Cleage (C. C. A.) 161 F. 85. Ut should be stated also that the denial of a request for a special finding is not reviewable unless the request is based on the ground that the evidence will sustain no other conclusion, otherwise, the denial is the mere exercise of discretion not reviewable on appeal. The xrule in that x’egax’d is stated by the Circuit Court of Appeals of the Eighth Circuit in an opinion delivex*ed by Judge Van Valkenburgh, Henry H. Cross Co. v. Texhoma Oil & Refining Co., 32 F.(2d) 442, 445, as follows: “In the absence of a request made to the trial court before the dose of the trial to find the issues in favor of the requesting party on the ground that the evidence will sustain no other eonelxxsion, we cannot review the sufficiency of the evidence to sustain the finding and judgment. Wear v. Imperial Window Glass Co. (C. C. A. 8) 224 F. 60; Allen, Collector, v. Cartan & Jeffrey Co. (C. C. A. 8) 7 F.(2d) 21; Pennok Oil Co. v. Roxana Petroleum Co. (C. C A. 8) 289 F. 416; Denver Live Stock Comm. Co. v. Lee (C. C. A. 8) 20 F.(2d) 531.”
It should be added that the “defendants’ proposed amendments and additions to findings of fact,” although in part couched in the language of the pleadings, are nevertheless evidentiary instead of ultimate facts, and for that reason the request for their adoption by the court should have been denied. The mile in that regard is stated by Judge Van Devanter, speaking for the Circuit Court of Appeals for the Eighth Circuit in Anglo-American, etc., Co. v. Lombard, 132 F. 721, 733, as follows:
“What is treated by counsel as a special finding does not meet the requirements of the act of Congress (sections 649, 70CÍ, Rev. St. [U. S. Comp. St. 1901, pp. 525, 579 (28 USCA §1 773, 875)]), as uniforxnly interpreted by the Supi-eme Court and the several Circuit Courts of Appeals. It does not respond to all the issues raised by the pleadings, and is thex-efore incomplete. * * * But a special finding of facts should be the equivalent of the special vex’diet of a jury, and should cover all the issues, so that in the event of proceedings in error, if the trial court’s conclusions of law are deemed incorrect, and if the proceedings are othex-wise without error, the appellate court may, under section 791, Rev. St. [28 USCA § 876], direct such judgement as the special finding requires, without the necessity of awarding a new trial. *537Ft. Scott v. Hickman, 112 U. S. 150, 165, 5 S. Ct. 56, 28 L. Ed. 636.
“In actions at law, where a trial by jury is waived, the duty of finding the facts is placed upon the trial court. We have no authority to examine the evidence for the purpose of finding the ultimate facts, or of correcting or completing a special finding which is imperfect or incomplete. Sun Mutual Ins. Co. v. Ocean Ins. Co., 107 U. S. 485, 500, 1 S. Ct. 582, 27 L. Ed. 337; Lehnen v. Dickson, 148 U. S. 71, 77, 13 S. Ct. 481, 37 L. Ed. 373. To meet the requirements of the statute, as defined in the decisions of the Supremo Court and of the several Circuit Courts of Appeals, a special finding should he a clear and concise statement of the ultimate facts, and not a statement, report, or recapitulation of evidence from which such facts may be found or inferred. The ultimate facts must be so stated that, without inferences, or comparisons, or balancing testimony, or weighing evidence, the case may be determined by the application of pertinent rules of law. If any ultimate fact material to the issues is to be inferred from the whole evidence, or from other facts proved or admitted, the inference must be drawn by the trial court, and the fact must be stated in the finding. Like the special verdict of a jury, a special finding can present only questions of ‘ law. Barnes v. Williams, 11 Wheat. 415, 6 L. Ed. 508; Graham v. Bayne, 18 How. 60, 15 L. Ed. 265; Guild v. Frontin, 18 How. 135, 15 L. Ed. 290; Burr v. Des Moines [Nav. & R. Co.], 1 Wall. 99; 17 L. Ed. 561; Norris v. Jackson, 9 Wall. 125, 19 L. Ed. 608; Miller v. Life Insurance Co., 12 Wall. 285; 301, 20 L. Ed. 398; Crews v. Brewer, 19 Wall. 70, 22 L. Ed. 63; Tyng v. Grinnell, 92 U. S. 467, 472, 23 L. Ed. 733; Raimond v. Terrebonne Parish, 132 U. S. 192, 10 S. Ct. 57, 33 L. Ed. 309; British Queen Mining Co. v. Baker Silver Mining Co., 139 U. S. 222, 11 S. Ct. 523, 35 L. Ed. 147; Wilson v. Merchants’ Loan & Trust Co., 183 U. S. 121, 126, 22 S. Ct. 55, 46 L. Ed. 113; Mercantile Trust Co. v. Wood, 8 C. C. A. 658, 60 F. 346; Kentucky, etc., Co. v. Hamilton, 11 C. C. A. 42, 63 F. 93; Minchen v. Hart, 18 C. C. A. 570, 72 F. 294; Burnham v. North Chicago St. Ry. Co., 23 C. C. A. 677, 78 F. 101; Packer v. Whittier, 33 C. C. A. 658, 91 F. 511; State Nat. Bank v. Smith, 36 C. C. A. 412, 416, 94 F. 605 ; American Nat. Bank v. Watkins, 56 C. C. A. 111, 119 F. 545; Powers v. United States, 56 C. C. A. 128, 119 F. 562.”