Page:Federal Reporter, 1st Series, Volume 3.djvu/641

 634 ÏKDBBAI. EEPOETEE. �said, and the bill of exceptions so states, tîiat the case was argued before the district court upon the assumption that the bankrupt was himself a party to the arrangement, and that it was net until the argument in court was elosed, and the printed or written argument was left with the judge, that the ground was taken stated in the fourth amended para- graph, by which it was claimed the assignee was entitled to recover because C. G. Stewart & Co. were the agents of the defendants. But can it make any difference in the rights of the parties at what particular stage of the proceedings, before the judgment was actually rendered, that a different phase was given to the case on the part of the plaintiff from that which existed at the time of the original argument ? Clearly not. The case having been submitted to the court without the intervention of a jury, it was under the complete control of the court, and if, upon the pleadings and evidence, the plaintiff was entitled to recover, it was the duty of the court to give effect to that right, whatever view might have been taken of the case by the counsel at the time of the original argument. So I think there can be no question of the right of the court to place the case upon a different ground from that upon which it was placed by the counsel originally. Therefore, the only question is whether the fourth amended paragraph presents a valid case upon which there could be a recovery for the value of the goods, for the reason that C. Gr. Stewart & Oo. were the agents of the defendants in the pur- chase from the bankrupt. �' It is to be observed that some of the objections which are now made to this paragraph were not made at ail in the court below ; for instance, it is said now that there is no alle- gation as to the precise value, or, indeed, as to any value, of the forty-four car loads of coal. �It is true, if we considered each paragraph in the nature of a separate count, which is to be suffieient in itself, it might not be of any avail that the other paragraphs of the com- plaint successively state what was the value of the coal, and what was the price agreed upon between the bankrupt and C. G. Stewart & Co. But I do not feel in clin ed to ����