
    CHESAPEAKE & O. S. S. CO. v. MORRIS.
    (Circuit Court, S. D. New York.
    December 3, 1906.)
    Co-livers & Kirlin, for complainant.
    A. Opdyke, for defendant.
   LACOMBE, Circuit Judge.

Complainant is in error in stating that the “evidence” on which he* relies here was “offered and excluded” in the District Court. It was all set forth in the record in that court, ..and apparently was considered by the district judge, as it certainly was by the Court of Appeals. 148 Fed. 11. The very point relied on here, that such evidence tended to show a condition precedent as to the Rapidan, was urged upon the attention of the court and fully considered, and that evidence was held insufficient, even if uncontradicted, to sustain the contention made, because it was apparent on the face of the papers that there was “an entire contract, not seven separate ones.” If complainant desired to reform that contract* so as in effect to make separate contracts out of it, he should have applied to a court of equity long ago. The present application is in substance and effect an effort to reargue a point which was fully considered by the court and decided adversely to defendant in the admiralty cause. Had that court found the point meritorious, it would, with the broad eqpitable powers which admiralty courts possess, have found some way to relieve the defendant in that cause. Therefore this motion is denied.

It may be added that the writer, weighing the oral testimony relied on as against the written testimony which the contract afforded, was satisfied that the fact was not as the witness asserted, but that his-memory of the transactions was inaccurate.  