(dissenting). The brief of the plaintiff in error does not comply in any respect with the requirements-of rule 24 of this court (31 C. C. A. clxiv, 90 Fed. clxiv), which declares that errors not specified according to that rule “will be disregarded.” The technical character of the plaintiff’s case makes it one-for the rigorous application of this rule. Tubbs v. U. S., 44 C. C. A. 357, 105 Fed. 59; City of Lincoln v. Sun Vapor Street Light Co., 19 U. S. App. 431, 8 C. C. A. 253, 59 Fed. 756; Assurance Co. v. Polk, 44 C. C. A. 104, 104 Fed. 649; Oswego Tp. v. Travelers’ Ins. Co., 36 U. S. App. 13, 17 C. C. A. 77, 70 Fed. 225; Van Gunden *77v. Iron Co., 8 U. S. App. 229, 3 C. C. A. 294, 296, 52 Fed. 838, 841; Grape Creek Coal Co. v. Farmers’ Loan & Trust Co., 24 U. S. App. 38, 45, 12 C. C. A. 350, 353, 63 Fed. 891, 894; Doe’s Ex’rs v. Mining Co., 44 U. S. App. 204, 214, 17 C. C. A. 190, 196, 70 Fed. 455, 461; Sovereign Camp v. Jackson, 38 C. C. A. 208, 97 Fed. 382. There is no reason why this rule, which we have applied in so many other cases, should not be applied to this case, but many reasons why it should be, and among them this one: it would have the effect to terminate this litigation. It is always allowable to oppose one technicality against another in order to put an end to litigation and promote the ends of justice.
If this rule is disregarded, and the merits gone into, it should be affirmed. Three small lots of lumber, amounting in the aggregate to a few hundred feet only, were delivered before the required written agreement was signed, but the sale was of so much lumber as the road overseer might need in making and repairing the roads in his district and of a small quantity a miner might need in his mining' operations. When the defendant agreed to supply this lumber, no fixed quantity was or could be agreed upon that was to be determined by its application to the purposes and uses for which it was purchased. As soon as this amount was ascertained, the required written agreement was signed. This was not only a substantial,' but a full, compliance with the rule of the secretary of the interior.
The verdict and judgment for the defendant ex necessitate disposed of the fund in court, because that fund was derived from the sale of property, which, though claimed by the United States at the inception of the suit, the jury found belonged to the defendant, and this finding necessarily entitled him to the fund. It is unreasonable to suppose that the owner of the property was not entitled to the proceeds of its sale. On motion the court must' have ordered the proceeds of the sale paid to the owner of the property sold, in accordance with the uniform- practice in such cases.