(dissenting). I do not think the conclusion of the court accords with good appellate practice. Belt sued Clark for breach of contract of sale and purchase of land in South Dakota and one-third of the crops of the year. Belt was given judgment for the full value of the one-third of the crops. He got nothing on account of the land, but did not appeal. Clark, the defendant, appealed from the award as to the crops. We all agree Clark has good cause for complaint on that score, and that the measure of damages applied was erroneously excessive, but my Brothers nevertheless condone the erroneous excess to Belt by finding the trial court erred also as to the land. Whether there was error as to the land depends upon the place of the contract. South Dakota has a statute definitely prescribing the measure of damages for breach of contract for sale of land. If the contract was made there where Clark lived, instead of in Iowa where Belt resided, the South Dakota statutory rule would apply, and the decision of the trial court on the land item would be right. The local statutory rule of the state would, in such case, be applied in the federal court. The trial court assumed that the South Dakota rule of damages also prevailed in Iowa, and therefore it made no finding upon the issue as to the place of contract. The brief of Belt’s counsel also contains an explicit concession that the rule is the same in both states. But to escape the South Dakota statute my Brothers conclude that the contract was not made there, but was made in Iowa. They reach *581that conclusion by inferring that certain acts witli respect to the contract were done in Iowa solely because Belt, the plaintiff, resided there. And this though no evidence is shown in the record, and, as already stated, the trial court made no finding upon the issue. Having located the contract in Towa, a rule of damages differing from that of South Dakota is applied. It seems quite plain to me the case should be sent back and the parties given a chance to try the issue of fact upon which their rights depend. The practice is well settled. Graham v. Bayne, 18 How. 60, 63, 15 L. Ed. 265; The E. A. Packer, 140 U. S. 360, 365, 11 Sup. Ct. 794, 35 L. Ed. 453. “Inferences will not be made to supply omitted findings of fact.” Chief Justice Marshall in Barnes v. Williams, 11 Wheat. 414, 6 L. Ed. 508. Little Miami R. Co. v. United States, 108 U. S. 277, 2 Sup. Ct. 627, 27 L. Ed. 724, like the case at bar, went up on a finding of facts. After speaking of certain items of depreciation the court said:
“For this reason wo aro unable to decide whether these losses, or any part of them, should be deducted. As the omission to make the finding sufficiently specific in this particular undoubtedly arose from the fact that the court ruled as a matter of la.w that no deductions could be made on account of losses of this character, we will remand the cause, so that further inquiry may be had on that point.”
In Murdock v. Ward, 178 U. S. 139, 149, 20 Sup. Ct. 775, 44 L. Ed. 1009, it was said:
“As, however, the parties proceeded on a mutual mistake of law, we think the practical injustice that might result from an affirmance of the judgment may bo avoided by reversing the judgment at the cost of the plaintiff in error, and sending the cause back to the Circuit Court with directions to proceed therein according to law.”