1. In a suit in equity for specific performance of a contract to
purchase an oil lease, the issue was whether a greater sum than had
been paid was due, and the decisive question was whether a
particular well would produce 3,000 barrels of oil per day. An
umpire's report, based on tests made in accordance with the
contract, and admitted in evidence without objection, showed that
the well would not produce that quantity of oil through a 3/8 inch
choke, but would produce in excess of that quantity on open flow.
Interpreting the contract to mean that the test was as to the
quantity the well would produce through a 3/8 inch choke, the
District Court gave judgment for the defendant. The Circuit Court
of Appeals, interpreting the contract to mean that the test was
what the well would produce on open flow, reversed the District
Court and directed entry of judgment for the plaintiff.
Held, that the failure of the Circuit Court of Appeals
to remand the case for a
Page 308 U. S. 366
new trial did not deprive the defendant of his day in court in
violation of the Fifth Amendment.
Saunders v Shaw,
244 U. S. 317,
distinguished. P.
308 U. S.
369.
2. The defendant is not entitled here to urge that a new trial
should be allowed in order that he may attack the competency and
accuracy of the umpire's report when that point was not a ground
either of his petition to the Circuit Court of Appeals for
rehearing or of his petition here for certiorari. P.
308 U. S.
369.
3. Review by certiorari in this Court is confined to the grounds
upon which the writ was sought or granted. P.
308 U. S.
370.
102 F.2d 519, affirmed.
Certiorari,
post, p. 537, to review the reversal of a
judgment, 20 F. Supp. 514, dismissing a suit upon a contract.
Page 308 U. S. 367
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This is a suit for specific performance of a contract to
purchase a mineral lease brought by respondents, as vendors. The
contract price was to be determined pursuant to a formula based
upon the production of certain designated wells on the property.
That price was fixed at $300,000
"if the average daily production of said wells for a period of
fifteen days after completion is less than
Page 308 U. S. 368
3,000 barrels each, calculated on a 3/8-inch choke according to
the methods usually employed in gauging the capacity of oil
wells."
In case the production, calculated in that manner, was more than
3,000 barrels per day, the purchase price was fixed at $400,000.
The test was to be made jointly by a representative of respondents
and a representative of petitioner, and "in the event they fail to
agree on the proper gauge," it was provided that "Judge Hardin . .
. will appoint a reputable engineer to act as umpire."
The parties failed to agree on the proper gauge, and Judge
Hardin appointed W. L. Massey, a petroleum engineer, to make the
test. [
Footnote 1] Massey
conducted a test and submitted a written report, which without
objection, was admitted at the trial. That report stated that,
although "the well will not make 3,000 barrels per day on such 3/8"
choke," it was "capable of flowing merchantable oil at a rate much
in excess of 3,000 barrels of oil per day on an open flow, or
through any choke larger than a 5/8" choke." At the trial, there
was other testimony that the production "through a 3/8-inch choke"
was not more than 3,000 barrels a day. The trial court held that
the contract meant that the well was to be flowed through a
3/8-inch choke. Accordingly, it dismissed the bill, since, on that
interpretation, it was clear that the production was not more than
3,000 barrels a day, and since petitioner already had paid
$300,000. On appeal, the Circuit Court of Appeals held that the
test provided in the contract "was not to measure the production
through a 3/8-inch choke, but to calculate on a 3/8-inch choke the
amount the well was capable of producing." It then turned to the
record and ascertained that Massey, the umpire appointed
pursuant
Page 308 U. S. 369
to the agreement of the parties, had found that, by using the
3/8-inch choke as a base and "building up therefrom by using other
chokes to determine pressures and conditions," the well was capable
of producing much in excess of 3,000 barrels of oil per day. Since
that calculation by Massey was consistent with the Circuit Court of
Appeals' interpretation of the formula in the contract, that court
concluded that petitioner was liable to pay the higher amount
provided in the contract, $400,000. It accordingly reversed the
judgment directing the District Court to enter judgment for
respondents for $100,000, the balance due under the contract, with
interest, 102 F.2d 519, 103 F.2d 519. We granted certiorari,
limited to the question whether a new trial should not have been
granted, 308 U.S. 537, on the assertion that the failure to remand
for a new trial deprived petitioner of his day in court in
violation of the rule of
Saunders v. Shaw, 244 U.
S. 317.
We conclude that the Circuit Court of Appeals committed no
error.
The fact that the case was tried by the District Court on an
interpretation of the contract different from that of the Circuit
Court of Appeals is not
per se sufficient to cause a
remand for a new trial under the rule of
Saunders v. Shaw,
supra. The production of the well was tested by the umpire in
the manner provided in the contract, and the results of that test
were, without objection, admitted at the trial. Complete
establishment of the facts necessary for application of the formula
was thus made in the manner provided by the parties in their
contract. To be sure, petitioner now asserts that, on a new trial,
he would attack the competency and accuracy of the umpire's report
-- matters which were immaterial to the issues on the trial in view
of the fact that it was not contested that no more than 3,000
barrels of oil a day could be produced through a 3/8-inch choke.
But the difficulty with petitioner's position is that he has not
preserved
Page 308 U. S. 370
that point. On his petition for rehearing to the Circuit Court
of Appeals, petitioner did not ask that court to allow him a new
trial in order to attack the umpire's report. [
Footnote 2] Nor was that the ground upon which the
petition for certiorari was predicated. For review by this Court
was sought and granted on the ground that the Circuit Court of
Appeals had decided the merits on facts not contained in the
record, and on a theory which had never been tried by the
litigants. There was no intimation in the petition for certiorari
that a new trial should be granted in order to afford petitioner an
opportunity to attack the competency and accuracy of the umpire's
report. It is well settled that this Court confines itself to the
ground upon which the writ was asked or granted, the review here
being no broader than that sought by the petitioner.
Clark v.
Williard, 294 U. S. 211,
294 U. S. 216;
Helvering v. Tex-Penn Oil Co., 300 U.
S. 481,
300 U. S. 498;
Washington, Virginia & Maryland Coach Co. v. Labor
Board, 301 U. S. 142,
301 U. S. 146.
Accordingly, petitioner cannot now complain that he has not had his
day in court and has been deprived of due process of law contrary
to the Fifth Amendment. Due process of law is not concerned with
mere afterthoughts.
Affirmed.
[
Footnote 1]
Judge Hardin instructed Massey:
"You are requested to determine, first, the actual production of
three-eighths (3/8) choke; second, by using the three-eighths (3/8)
choke you are to calculate the open flow capacity of the well."
[
Footnote 2]
In addition to attacking the interpretation of the contract by
the Circuit Court of Appeals, petitioner merely asserted, "Your
Honors have erred in predicating your opinion upon facts not
contained in the record and upon facts which are disproved by the
record."