Page:Federal Reporter, 1st Series, Volume 7.djvu/44

 02 FEDBBAIi BEFOBTBB. �specifie reference to them in detail, and are all of them over- ruled. These considerations and conclusions furnish a basis for disposing of all the items and questions in this case, except those remaining in respect to, or resting upon, the item of $20,000, and the computation of interest, when all items are settled, �The answer admits and claipis the eff^ct of the proposai and acceptances to be that the defendants' were to have that sum for entering into the arrangement, as alleged in the bill; but denies that the payment of it was provided for in the iijcrease of prices agreed upon. The traverse of the answer raises an issue pf f act as to whether or not payment of it was so provided for. Issues of ; fact made by the pleadings in equity are usually triable by the court, upon evidence taken for that purpose. In this case, by consent of the parties, an aqcount was prdered to be taken by the master, and returned with the evidence, without any trial by the court of that or any issue. Taking the account would include trying aJOi questions of fact involved with the items. This $20,000 is an item of the account, and this question of fact was directly involved in adjusting it. As before shown, this question was not tried by the master upon so broad an issue as the plead- ings, and the construction of the writings adopted left open; and as the case npw stands it is still open and uijdetermined. As the question was one proper to be determined by him on the evidence taken before himi it would probably be withiii the province of the court, in the exercise of its power of revision over the report, to determine it now, upon the evidence returned by him. But the parties provided for sending the case to the master in a manner which would carry this question of fact there for trial, with others. The master bas heard the evidence upon it thus far adduced, and can take more, if necessary, in order to determine the ques- tion properly. It is more usual to send such questions, so situated, back to the master, than for the court to determine them upon the evidence returned. And then the proof, in Bome degree, tends to show that the parties never came to ��� �