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A Spanish grant of land situate in the District of St. Louis, made May 12, 1785, which this Court, in Stanford v. Taylor, 18 How. 409, decided did not, without a survey, attach to any specific tract, was in 1811 confirmed by the board of land Commissioners. The first survey was made in 1834, but was not carried into patent, and on an application under the act of June 2, 1862, 12 Stat. 410, the Secretary of the Interior issued instructions for another survey. It was made, but he decided that no effect should be given to it, as it did not conform to the calls of the grant. In ejectment, the demanded premises being embraced by that survey, the plaintiff, who claimed under the grantee, offered in evidence it and one subsequently made by the surveyor of St. Louis County, Missouri, accompanied by proof that they conformed to the calls of the grant, and were identical. The evidence was excluded.
1. That the survey, having been disapproved by the Secretary, has no binding effect, and that the question of its correctness was not for the determination of the jury.
2. That in the absence of a subsisting recognized survey, the grant not having been confirmed by ascertained boundaries specifically set forth in the order of the board, so that the tract can be located without a survey, the plaintiff cannot recover.
3. That the Act of June 6, 1874, 18 Stat. part 3, 62, entitled "An Act to obviate the necessity of issuing patents for certain private land claims in the State of Missouri, and for other purposes," applies only to cases where the party interested is by law entitled to a patent.
Titles to lands claimed by individuals in Louisiana at the time the province was ceded to the United States were in most cases incomplete, as the governor of the province never possessed the power to grant a patent. All he could do was to issue to the donee an instrument called a concession or order of survey, which never invested the party with a fee simple title, from which it follows that the plaintiff in a suit to recover the land must prove that his claim had been confirmed under some act of Congress.
of the province was transferred, required no such confirmation, as they needed no other protection than that afforded by the third article of the treaty of cession. 8 Stat. 202; United States v. Wiggins, 14 Pet. 350. Incomplete titles required confirmation, and Congress passed the Act of the 2d of March, 1805, to "ascertain and adjust titles and claims to land in the ceded territory." 2 Stat. 326.
Prior to the passage of that act, however, the province ceded by the treaty had been divided into two organized territories, and the fifth section of the act, to ascertain and adjust titles and claims to land therein, provided for the appointment of Commissioners in each of those territories, to ascertain and adjudicate the rights of persons presenting such claims. Id., 283.
Such Commissioners were required by the act providing for their appointment to lay their decisions before Congress, but a subsequent act provided that the decision of the Commissioners, when in favor of the claimant, should be final against the United States. Id., 441.
Forty arpens of land in front by forty arpens in depth are claimed by the plaintiffs, and they allege that the tract is bounded on the west by the survey made for Charles Gratiot, assignee of Louis Robert, and that the tract claimed was surveyed April 10, 1865, for John F. Perry, assignee of Angelica Chauvin, under the order of the Commissioner of the General Land Office, as directed by the Secretary of the Interior.
Service was made; and the defendants appeared and filed an answer denying that the plaintiffs are entitled to the possession of the premises described in the petition. Subsequently the parties went to trial before the circuit justice and a jury, and the verdict and judgment were in favor of the defendants. Exceptions were filed by the plaintiffs, and they sued out the present writ of error and removed the cause into this Court.
concession for the same to the land Commissioners for confirmation. From the concession, which bears date May 12, 1785, it appears that the acting governor conceded to the applicant forty arpens of land in front by forty arpens in depth, lengthwise the river called Des Peres, from north to south, bounded on one side by Louis Robert, and on the other by the royal domain. Evidence was introduced in support of the claim, but the board rejected it for the alleged cause that it appeared from the records in their possession that the concession had been revoked and that a new one had been issued to another party.
Five years later, the claim came up again before the land Commissioners, and the record shows that the board confirmed the same to the assignee of the original donee for the whole amount of the claim, and entered an order that the same be surveyed conformable to his possession and at his expense. Pursuant to the requirement of the sixth section of the act, the Commissioners also delivered to the party an instrument known as a confirmation certificate, stating the circumstances of the case, and that he is entitled to a patent for the tract of land therein designated, which certificate, the same section provides, shall be filed with the proper register or recorder within twelve months after date, and the record shows that it was duly issued and filed as required. Id., 441, sec. 6.
like manner as is provided by law for the issuing of patents for public lands lying in other territories."
Certificates signed by the land Commissioners were issued subsequent to the confirmation, but before the survey required to be made and transmitted to the register or recorder; but the patent certificate, so called, was required to be issued by the register or recorder, and could not lawfully be issued until the survey and plats had been made and duly transmitted to the register or recorder, as directed by the seventh section of the act.
Suffice it to say in that connection that no such subsisting survey or plat was ever made in this case, nor was any such ever transmitted to the register or recorder, nor did he register or recorder ever issue such a certificate to the party, nor is anything of the kind pretended by the plaintiffs. They made no effort to prove any thing of the sort, but what they attempted to prove was that they had acquired a fee simple title to the land by virtue of certain other proceedings under certain other acts of Congress, which, as they contend, dispenses with the necessity on their part of showing that they ever complied with the sixth and seventh sections of the act of Congress under which the claim in question was confirmed.
Argument to show that the plaintiffs had no sufficient title under the provisions of that act is unnecessary, as they admit that "no previous survey had been made by Spanish, French, or American authority."
certificate. Appended to the decree of confirmation is the order that the tract be surveyed conformable to his possession, and they also offered in evidence the act obviating the necessity of issuing patents for certain private land claims, and for other purposes. 18 Stat. 62.
Parol evidence was also offered by the plaintiffs tending to show that they held all the title confirmed to the assignee of the original donee, and in order to show that the land in question formed part of the land confirmed, they offered in evidence the concession to Louis Robert, by which the tract claimed by the plaintiffs is bounded on one side, and the survey of that tract by Antoine Soulard, Spanish surveyor general of that part of the province before the cession, and also the concession to Charles Gratiot.
Seasonable objection to all this evidence was made by the defendants, and it was excluded from the jury by the court, and the plaintiffs excepted to the ruling.
During the trial, the plaintiff introduced in evidence the letter of the Secretary of the Interior to the Commissioner of the General Land Office, dated March 18, 1865, directing a second survey of the tract to be made whenever the plaintiffs may request, so that it is bounded on the one side by the land of Louis Robert, which is one of the distinctive calls in the grant. In the course of the letter, the Secretary also remarked that attention should be given to calls upon the River Des Peres, as far as practicable, and added in the same connection, that if the claimant causes the survey to be made and the tract patented upon land not granted to the original donee, it will be his error and misfortune. They also offered in evidence the letter of the Commissioner of the General Land Office, dated March 24, 1865, addressed to the recorder of land titles at St. Louis, communicating those instructions; and that also was admitted in evidence without objection.
not conform to the calls of the grant required by the order of survey, and that the survey being upon land not granted, no effect will be given to it by the department. Due objection was made by the defendants to the admissibility of the evidence, and it was excluded by the court, and the plaintiffs excepted.
Failing in that, the plaintiffs then offered in evidence a survey of the tract made by the surveyor of St. Louis County, with oral testimony to show that the survey was identical with the one previously ruled out, and that the land confirmed to the assignee of the original donee was correctly located by that survey, all of which, on the objection of the defendants, was ruled out by the court, and the plaintiffs excepted to the ruling of the court.
Both parties resting, the court instructed the jury that the plaintiffs were not entitled to recover, and they excepted to the charge of the court.
Since the case was entered here, they have assigned for error the several rulings of the court excluding evidence which they offered to introduce at the trial, and the charge that the court gave to the jury that they were not entitled to recover.
1. What would be the legal effect of the survey made under the supervision of the plaintiffs if it had never been disapproved by the Secretary of the Interior?
2. Was it competent for the Secretary of the Interior to disapprove the survey so made, and if so, to what extent did such disapproval affect the right or interest of the plaintiffs?
3. Irrespective of any survey, what is the legal operation of the concession as confirmed by the decree of the land Commissioners?
4. Does it contain such metes and bounds that the circuit court can locate it without a survey and without the aid of parol evidence?
5. Suppose that question is determined in the negative, is it competent for the circuit court to admit parol evidence in an ejectment suit and submit the question of location in all its aspects to the determination of a jury?
of the act obviating the necessity of issuing patents in the private land claims included within that enactment? Id.
Remarks to show that the survey in question never was recognized or approved either by the Commissioner or the Secretary of the Interior may well be omitted, as nothing of the kind appears in the record, and it is certain to a demonstration that no steps were ever taken by the Land Department to carry it into effect. Nor is it necessary to add much to what already appears to show that it does not conform to the calls of the concession, as that plainly appears by the comparison of the survey with the terms employed by the governor in making the concession. Nor is it any proper answer to that objection to say that the survey was authorized by the Secretary of the Interior, as it clearly appears that it was made in utter disregard of his directions, and that it covers land granted to other donees and which is not embraced in the concession granted to the assignor of the party who presented the claim for confirmation.
Surveys of such claims might at one time be made, if the party applied to have it done, under the direction of the proper officers of the government, the condition being that the applicant should pay the expense or secure the same to the satisfaction of the Secretary of the Interior before the work was performed. 12 id. 410.
By that act, the proper executive officers, at the request of the owner of the claim, might cause it to be surveyed, but they could not pass upon the title, nor give the survey any greater effect than prima facie evidence of the true location of the land. Such a survey was made in this case under the direction of the Secretary of the Interior, but there is nothing in that act to compel the Secretary of the Interior to approve the survey if he deemed it erroneous or to give it any effect whatever if he disapproved of it for good reasons. His reasons for disapproving it have already been referred to, and need not be repeated; nor is it necessary to enter into any discussion of the reasons assigned by the officer for rejecting the same, except to say that the reasons given are, in the judgment of the court, amply sufficient to sustain his action.
in the Department of the Treasury. 2 id. 716. By the act to reorganize the Land Office, it is enacted that the executive duties appertaining to the surveys and sale of the public lands &c. shall be subject to the supervision and control of the General Land Office, under the direction of the President. 5 id. 107. Prior to the passage of that act, appeals were always allowed from the decision of the Commissioner to the Secretary of the Treasury, as the head of the Treasury Department.
Sec. 2 of the act establishing the Interior Department provides that the Secretary of the Interior shall perform all the duties of supervision and appeal in relation to the Land Office heretofore discharged by the Secretary of the Treasury. 9 id. 395.
Assume that the power of such supervision and appeal was vested in the Secretary of the Treasury prior to the passage of that act, and it would follow beyond controversy that the same power is now possessed by the Secretary of the Interior, but the suggestion in that regard is, that the act reorganizing the Land Office left the Secretary of the Treasury no such power.
importance to ask the opinion of the Attorney General upon the subject.
Prompt response to the request of the President was given by the Attorney General, and in the course of his reply, he adverted to the fact that the act creating the Land Office made it a branch of the Treasury, and he expressed the opinion in very decided terms that the Commissioner, under the new law, would still be, as before, subject to the general superintendence of the President, acting through the head of the Treasury Department. 3 Op. Att'y Gen. 137. But he suggested as a measure of precaution that the President should, before approving the act, direct the Secretary of the Treasury that he should continue under its provisions to exercise the same supervisory power as theretofore over the business of the general Land Office, which suggestion, it appears, was adopted by the President, and that the President issued such an order, bearing even date with his approval of that act. 2 Laws, Instructions, and Opinions, 104. See also the opinion of President Buchanan, 1 Lester, Land Laws, 681.
Throughout the entire period from the approval of that act to the passage of the act creating the Department of the Interior, the Secretary of the Treasury was accustomed to exercise that power without question or challenge.
Viewed in the light of these suggestions, it is clear that the power since the passage of the last named act is vested in the Secretary of the Interior. Conclusive support to that proposition is also found in two decisions of this court, where the precise points is distinctly ruled. Magwire v. Tyler, 1 Black 195; s.c., 75 U. S. 8 Wall. 661.
1. That surveys under such confirmations are, in regard to their correctness, within the jurisdiction of the Commissioner, and that that officer has power to adjudge the question of accuracy preliminary to the issuing of a patent.
2. That the Secretary of the Interior has the power of supervision and appeal in all matters relating to the General Land Office, and that that power is coextensive with the authority of the Commissioner to adjudge.
Spanish grant, and may order another to be made, and issue a patent upon it.
4. That where the construction of the acts of Congress defining the powers of the Secretary of the Interior is drawn in question in a state court, and the decision is against the title supported by the decision of the Secretary, this Court has jurisdiction to revise the case.
1. That the judicial tribunals, in the ordinary administration of justice, have no jurisdiction or power to deal with these incipient indefinite claims without survey or specific boundaries, either as to survey or fixing boundaries, but that such titles, until an authorized survey is made, attach to no land, nor can a court of justice ascertain its location or boundaries, as that power is reserved to the Executive Department. Landes v. Brant, 10 How. 370; West v. Cochran, 17 How. 414.
2. That tracts of land previously surveyed or confirmed according to the specific boundaries set forth in the concession need no further location, as the legal effect of the confirmation is to establish the right of the donee to the designated tract.
Cases of the kind, it was there admitted, do sometimes arise; but the court held that where the claim has no certain limits, and the decree of confirmation carries along with it the condition that the land must be surveyed and severed from the public domain and the concessions of other parties, then in all such cases the title of the party attaches to no particular tract, and that the courts of justice have no power or authority in law to establish the boundaries or locate the concession, the rule being that that power is reserved to the appointed executive officers. Stanford v. Taylor, 18 How. 409; Bissell v. Penrose, 8 How. 334.
3. That the power to revise surveys of such claims was vested in the first instance in the Commissioner, subject to appeal, under the act creating the Department of the Interior, to the secretary of that department, who might lawfully set aside such a survey; and that the concession, when the survey was set aside by the secretary, remained before the court as it existed when confirmed without survey by the land commissioners. 9 Stat. 395.
Even a few observations will be sufficient to show what the legal effect of the concession as confirmed was without a survey to locate the tract and define its boundaries. Commissioners to adjudicate such titles were duly appointed, and they were required, under the sixth section of the act, to transmit to the Secretary of the Treasury and to the surveyor general of the district where the land lay, transcripts of their final decisions made in favor of each claimant, and also to deliver to the claimant the confirmation certificate stating the circumstances of the case, and that he was entitled to a patent for the designated tract, and the further requirement was that the certificate should be filed with the recorder if the land lay in the District of Louisiana and with the register of the Land Office when the land lay in the Orleans territory.
In all cases where the tract of land confirmed by the land commissioners had not been previously surveyed, the seventh section of the act declared that the same should be surveyed under the direction of the surveyor general, and that he should transmit general and particular plats of the tracts that were surveyed to the proper register or recorder, and also transmit copies of the same to the Secretary of the Treasury; the further enactment being that when the confirmation certificates and plats were filed with the register or recorder, he should thereupon issue a patent certificate in favor of the claimant, which, when transmitted to the Secretary of the Treasury, entitled the party to a patent in like manner as patents are issued for lands acquired in other lawful ways. West v. Cochran, supra.
Survey was made in this case, as before explained, but it was disapproved by the Secretary of the Interior, and became a nullity, and of course the patent certificate could not be issued, and the rights of the claimant were never advanced beyond what he acquired by the concession, the confirmation by the land Commissioners, and their certificate of confirmation.
locates the tract without any necessity for a subsequent survey. Alviso v. United States, 8 Wall. 339; Higueras v. United States, 5 How. 827; Bissell v. Penrose, 8 How. 341.
Nothing of the kind, however, of any practical importance is exhibited in the record before the court, nor is it necessary to enter into any extended discussion of the question, as it has already been expressly decided by this court, in a controversy founded upon the same concession. Stanford v. Taylor, supra. Stanford sued the defendant in ejectment, claiming title from the confirmee to the land in dispute under a concession granted by the governor to Angelica Chauvin, the tract consisting of forty arpens in front by forty arpens in depth along the River Des Peres from north to south, bounded on one side by the land of Louis Robert, and on the other by the royal domain. Due confirmation was shown, as in this case, and that the Commissioners ordered in the decree that the land should be surveyed conformable to the possession by virtue of the concession. Survey was made, and the tract located west of the location of Louis Robert and on both sides of the River Des Peres, which location, as the plaintiff contended, was erroneous. What he insisted was that the location should have been made east of the tract of Louis Robert, and that that proposition was so plain on the face of the concession, that no survey was necessary to determine the matter, and he offered parol proof to prove his theory, but the court of original jurisdiction rejected the proof offered, and this court affirmed the judgment.
1. That when there is a specific tract of land confirmed according to ascertained boundaries, the title of the confirmee is complete.
2. That where the claim has no certain limits, the title attaches to no particular land, nor can a court of justice establish the boundaries.
3. That the uncertainty of the intended location and of the outboundary in the case is too manifest to require discussion to show that a public survey is required to attach the concession to any land.
court here now adopts that conclusion, and the reasons given in its support.
Concede that and no further argument is necessary to show that it is not competent for the circuit court in such a case to admit parol proof to establish the boundaries of such a concession, the rule being established by repeated decisions that the concession in such case being indefinite, uncertain, and vague, attaches to no particular tract, and that it must be surveyed and located as required by the seventh section of the act under which it was confirmed, before the party can be entitled to a patent. Stanford v. Taylor, supra; 75 U. S. Tyler, 8 Wall. 661.
Authority to appoint a surveyor of lands in that territory was conferred by Congress, and it was made his duty to cause to be surveyed the lands in the territory which have been or may be hereafter confirmed, under the conditions therein provided. 3 Stat. 325.
Both parties opposed the survey in the case of Stanford v. Taylor, supra; and the court having instructed the jury that it did not include the land in controversy, directed the jury to return a verdict for the defendant. Neither party claims that that survey is of any validity, and the second survey having been disapproved by the Secretary of the Interior, it is clear to a demonstration that the concession in question is without any subsisting valid survey, and remains where it stood at the date of confirmation, having never been advanced to the condition where the owner of the same could claim either a patent or patent certificate under the confirmation act. 2 Stat. 441.
Grant that, and still the inquiry arises, what is the legal effect of the more recent act dispensing with the necessity of issuing patents in the cases to which it applies? 18 id. 62.
construed together, and when so construed, the Court is of the opinion that it dispenses with the necessity of issuing patents for such lands in all cases where the party interested is by law entitled to a patent, and in no other cases.
Patents therefore are not required where the concession was made by specific boundaries, nor where the specific boundaries of the tract confirmed are specifically set forth in the decree of confirmation, or where the tract had been previously surveyed, as required by the decree of confirmation and the seventh section of the act providing for such confirmation.
Ample scope for the operation of the act in question is found in the several classes of cases mentioned, without extending its operation to cases where no right to a patent had been acquired and which could not in that manner be conferred, without holding that it repeals the standard land laws of the country, nor without doing great injustice to claimants by introducing confusion and uncertainty into the administration of the Land Department.
Nor is there a word in the act, when the two sections are construed together, to support the theory of the plaintiffs. Instead of that, the adoption of their theory would operate as a virtual repeal of the second section, which was doubtless inserted to guard against any such consequences as would flow from the act if the theory of the plaintiffs should receive judicial sanction.
Constant pressure of business in the Land Office occasioned great delays in issuing patents, even in cases where the applicant held regular patent certificates, as well as in cases where the muniment of title granted by the former government gave the boundaries of the concession, or where the proper location and description of the tract was made certain by the decree of confirmation, and it was to remedy that grievance that the act under consideration was passed for the purpose of dispensing with the necessity of issuing patents in certain cases.
the seventh section of the prior act which creates that necessity. Nor would it ultimately benefit the plaintiffs if the act dispensing with the issuing of patents could be construed, as they contend it should be, unless it could be held to supply monuments or boundaries where they are not given in the foreign concession, as the difficulty would still remain that the description of the tract as given in the concession is too vague, indefinite, and uncertain, to afford the means of location without an authentic survey.
Even construed as they would have the act, still the fact would remain, that the only guide for its identity is the description given in the concession, which is, that it is forty arpens of land in front by forty in depth, lengthwise the River Des Peres from north to south, bounded on one side by the land of Louis Robert and on the other by the royal domain. Nothing definite is stated to show where any of the lines begin or end. As given, one boundary is by Louis Robert, but it is not stated on which side, nor is any point of beginning given to enable the court to determine where it bounds on the royal domain; nor is anything set forth in the description to enable the court to determine where it begins or ends on the river, except what may be inferred from the phrase "from north to south."
Sufficient appears to show that the tract cannot be located without a survey or without the aid of extrinsic proof, which certainly cannot be admitted while the act of Congress requiring the survey remains in full force. These difficulties in the way of the plaintiffs are insuperable; nor would a patent remove them without a survey, as the concession would still be vague, indefinite, and uncertain, and incapable of location until the party in some way should procure an authentic survey.
Such a survey being necessary to the location of the claim, and the antecedent surveys having been rejected, the question will doubtless arise whether a new one may or may not be ordered, which is not determined by the present opinion, and which it is the intention of the court to leave entirely open.
For these reasons, the Court is of the opinion that there is no error in the record.

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1. A copy of memoranda and field notes of a survey of part of the boundary between Mexico and Texas, made in 1852 by a Mexican engineer by order of the Mexican Member of the Joint Boundary Commission, under the Treaty of Guadalupe Hidalgo, was admissible in evidence upon authentication by the Mexican Boundary Commissioner having custody of the original. P. 275 U. S. 296 .
2. A motion, by the party who produced it, to strike out an authenticated copy, accompanied by evidence adduced to prove that the party had been mistaken in believing that there was any original in the place from which the authentication was made, comes too late when deferred until the day when the taking of testimony is closed by mutual agreement, two years after the copy was introduced by the opposite party and treated by both sides as evidence in the case. P. 275 U. S. 297 .
flowed in 1850, extending southwardly from the 32d parallel of North Latitude to the parallel of 31 degrees, 47 minutes in the course and location found and described in Section V(1) of the report of the Special Master in this case; the intersection of the east bank of the river with the 32d parallel is to be taken at a point 600 feet west from Monument No. 1 of Clark's Survey on that parallel made in and after 1859 in locating the Texas-United States boundary, as said monument No. 1 was reestablished by Joint Commissioners of the United States and Texas, appointed pursuant to a Joint Resolution of Congress passed in February, 1911, and the middle line of the channel is to be taken 150 feet from the east and west banks of the river respectively, as found by the Special Master. P. 275 U. S. 303 .
4. That the testimony of ancient witnesses called by New Mexico as to their recollection of the old river is far from satisfactory, and does not, in view of the other evidence, sustain the burden resting on New Mexico of proving her claim that the location was farther east than the one claimed by Texas and found in this case. P. 275 U. S. 300 .
5. That the greater weight of the evidence shows that Clark's Monument No. 1 did not coincide with his Station 1, but was located at least 2783 feet west thereof, substantially as reestablished by the Joint Commission of the United States and Texas above mentioned. P. 275 U. S. 300 .
6. That under the Joint Resolutions of February and August, 1911, preceding and conditioning the admission of New Mexico as a state, she is bound by the reestablishment of the Monument by the Commission, and cannot question its accuracy. Id.
7. That this necessarily extends the Clark boundary line along the 32d parallel to the east bank of the river at a point 600 feet west of the reestablished Monument. Id.
8. That, according to the greater weight of the evidence, the river, in 1850, ran, as shown by certain surveys, patents, and maps relied on by Texas, on the course and in the location set forth and described in the Special Master's report. Id.
9. That this conclusion is reinforced by the tacit and long-continued acquiescence of the United States, while New Mexico was a Territory, in the claims of those holding the land in controversy under Texas surveys and patents, and the undisturbed possession of the Texas claimants. Id.
10. New Mexico, having explicitly declared in her Constitution of 1912 that her boundary between parallels of 32Ą and 31Ą4' followed the main channel of the Rio Grande as it existed on the ninth day of September, 1850, and this having been confirmed by the United States by admitting her as a state with the line thus described as her boundary, and also approved by Texas in her pleadings, New Mexico cannot question this limitation of her boundary and lay claim to lands east of that line because of changes in the river course since 1850, due to the process of accretion. P. 275 U. S. 302 .
This suit was brought in this Court by the State of New Mexico to settle a controversy over a portion of the boundary between that state and the State of Texas. After argument on final hearing, the case was referred to a Special Master, 266 U.S. 586. The present decision is on exceptions taken by both parties to the Master's report. The exceptions of New Mexico are overruled, and those of Texas sustained. The bill is dismissed, and a decree ordered under the cross bill.
concerning the location of the part of their common boundary extending southwardly in the valley of the Rio Grande River an airline distance of about fifteen miles from the parallel of 32 degrees north latitude to the parallel of 31 degrees 47 minutes on the international boundary between the United States and Mexico. This is an offset in the southern boundary of New Mexico extending nearly to El Paso.
"be declared to be the middle of the channel of the Rio Grande as it actually existed in the year 1850," and as shown upon the map exhibited with the answer. And, in its answer to the cross-bill, New Mexico again stated that the true boundary line "is the channel of the Rio Grande . . . as it existed in the year 1850," but denied that this was correctly located on the map exhibited with the answer.
Each state thus asserted that the true boundary line is the middle of the channel of the Rio Grande in 1850. Neither alleged that there had been any change in this line by accretions. And the only issue was as to the true location of the channel in that year.
Upon this single issue, a large mass of testimony was taken before examiners during a period of several years. Some of this, as bearing evidentially upon the location of the river in 1850, related incidentally to subsequent changes by accretions and avulsions. In 1924, New Mexico, on its motion, was allowed by the Court [ Footnote 2 ] to take, subject to rebuttal, the additional testimony of one witness on the question whether, assuming that in what is known as the Country Club area, the river had been located in 1850 on the western side of the valley, as claimed by Texas, it had thereafter moved eastward by accretions. But, still claiming that in fact the river was located in 1850 on the eastern side of the valley, in a position that was inconsistent with such accretions, New Mexico neither averred in its motion that there had in fact been such accretions nor sought to amend its pleadings so as to allege either that they had taken place or that, if so, the boundary line had been changed by reason thereof. And the question as to the location of the middle of the channel in 1850 remained, as before, the sole issue under the pleadings.
Thereafter, the Court referred the cause to a special master, with directions to make special findings, based upon the entire record, on all material questions of fact, and report the same with his recommendations. [ Footnote 3 ] The master, after a full hearing, [ Footnote 4 ] made his report, to which both states filed exceptions. And the cause has been heard on the report and these exceptions.
In the territory in dispute, the Rio Grande flows southwardly through a plain of alluvial and sandy bottom land, composed largely of detritus, and bordered on the east and west by ranges of hills. The valley is about four miles wide at the northern end and narrows gradually to a canyon or gorge at the southern end. The river in normal times is very shallow, but at frequently recurring periods freshets caused by melting snow in the mountains and heavy rains or cloudbursts, flood and overflow the banks of the river and result in many changes in the channel both by erosions and accretions and by sudden and violent avulsions.
gorge near the western range of hills. That is, broadly speaking, New Mexico contends that the river then ran on the eastern side of the valley, and Texas, that it ran mainly on the western side. The distance between the two locations midway of the disputed area is about four miles.
The master made an elaborate and thorough report in which he considered at length the contentions of the two states and the salient features of the testimony. He found, on all the evidence, that the allegations of New Mexico as to the location of the Rio Grande "as it existed in the year 1850" were not sustained, and that the river then followed in general the course claimed by Texas, and, on the dates nearest to 1850 of which there was credible evidence, was located as particularly described in the report, [ Footnote 5 ] and had an average width of 300 feet; but that thereafter, between 1852 and the filing of the bill, the channel in certain portions of the course, including the Country Club area, was moved eastward by reason of accretions. [ Footnote 6 ] And he reported that the true boundary line when the bill was filed was the middle of the channel of the river in the location occupied after such accretions, as described in the report, [ Footnote 7 ] and recommended that this be fixed 150 feet from the east and west banks, respectively, as found by him.
The questions presented are whether the master's finding as to the location of the river in 1850 is correct; and, if so, whether the boundary line was subsequently changed by accretions, and to what extent.
river in 1850, has filed various exceptions to matters leading to this general finding, by which it challenges the correctness of certain incidental statements of the master, his conclusions as to certain portions of the evidence, and the fact that he refers to certain official reports and maps which he thought might be judicially noticed, several of which he filed as exhibits to his report. Some of these exceptions are plainly immaterial. And none of them needs be dealt with separately, as they are merged in the ultimate question whether, upon the competent evidence, viewed in its entirety, the master's finding as to the location of the river in 1850 is correct.
The evidence relating to this matter is so voluminous [ Footnote 8 ] that it is entirely impracticable to refer to it in any detail. And while we have considered the various contentions relating to its many phases, we can here deal with the question of its weight only in the broadest outlines.
To establish its contention as to the location of the river, New Mexico relied mainly upon the testimony of a large number of Indians and Mexicans, most of whom -- with others who did not testify -- had been members of different parties that had accompanied its engineers on various trips down the river between 1912 and 1914, shortly before and after the filing of the bill, for the purpose of pointing out the location of the old river; the testimony of a former registrar of the Land Office, who had known the river in 1857 and 1858 when conductor on a state route and had been employed by New Mexico to find witnesses having knowledge of the old river, and a survey of the 32d parallel made in 1859 by John H. Clark, United States commissioner, with the testimony of its engineers, surveyors and others relating thereto.
2. While there were various discrepancies and contradictions in the testimony of the witnesses as to the location of the old river, their evidence was to the general effect that. at different times between 1850 and 1860, it ran, as they recollected, on the eastern side of the valley, near the eastern range of hills, substantially as claimed by New Mexico.
many years, at the time of annual floods . . . , the river covered the whole valley from its western to its eastern margin. When the floods subsided, the river at times resumed its former channel, and at times it did not. . . . [As] testified to by plaintiff's engineer witness, Post:"
"There are old river beds or indications of old river beds in various parts of the valley. . . . If I had started out to survey old river beds . . . , I would not be through surveying yet."
the ground, the course of a river as it flowed over fifty to sixty years prior."
"In view of all the evidence in the case, I am unable to attach great weight or credit to the testimony of the plaintiff's witnesses as to the location either of the bed or of the course of the Rio Grande as it flowed in 1850. . . . I am of opinion that their memories were defective, and especially that they were mistaken as to dates, and that they confused the course of the river as they knew it in later years with their knowledge of it in earlier years. If not so mistaken . . . , it is apparent that many of them were testifying as to . . . those periods of the year when the river was in flood, and may well have been flowing along the eastern as well as the western banks. There is also evidence . . . as to the existence on the east side of the remains of an old river channel of 1826, which had left sloughs or esteros at various points; also as to the existence of old ditches. . . . It is probable that the river, subsiding from floods, at times ran in these sloughs, esteros, or ditches as a minor channel or branch, and that it was thus mistaken by some witnesses for the main channel of the river. "
from the east bank of the river. This monument has long since disappeared. New Mexico contended that, as shown by the field notes and as reestablished by its engineers with reference to other objects called for in the field notes and shown on the maps, the location of this Monument coincided with that of Station 1 on the survey of the parallel from which Clark took the bearings of various objects, and that the river bank was thereby fixed at a point 600 feet west of this Station, whose location was agreed upon, substantially as shown by the witnesses who testified to the location of the old river. On the other hand, Texas contended that, as shown by the field notes and as reestablished by its engineers with reference to other objects, this Monument was located at a point about 2800 feet west of Station 1, and the river bank was thereby fixed at a like distance west of the location claimed by New Mexico, and further that, in 1911-1913, this Monument had been reestablished at a point about 200 feet west of the location shown by its witnesses, by joint commissioners of the United States and Texas, and this reestablishment was binding upon New Mexico, irrespective of its precise accuracy.
corner of New Mexico, and thence west with the 32d parallel as determined by him to the Rio Grande; the position of the boundary lines as marked by him to be determined by his old monuments and lines where found on the ground, or otherwise by their original position as shown by parol evidence or his topographical maps and field notes.
reports of the commissioners, and confirmed and established their findings, conclusions and acts for the establishment and demarcation of the boundary lines between New Mexico and Texas.
The Clark Monument No. 1, as reestablished by the Scott-Cockrell Commission, is almost exactly 3,000 feet west of Station 1, and, if this is conclusive as to its original location, places the river bank in 1859 substantially in the position claimed by Texas. As to this, New Mexico contended that, in reestablishing the monument, the Commission had mistaken Clark's Monument No. 3 for his Monument No. 4, and consequently started the measurement from a point 3,000 feet too far to the west, and, further that, as the reestablishment was not made until after New Mexico had been admitted as a state, it was not bound thereby.
him or as fixed by the Commission, was utterly inconsistent with the location of the river claimed by New Mexico.
4. In support of its contention as to the location of the river, Texas further relied upon various old surveys, patents, and maps, and the testimony of its engineers in regard thereto as showing the true course of the river southwardly through the valley from the point where it crossed the parallel. These documents consisted mainly of the so-called Salazar-Diaz Survey of the Rio Grande, made in 1852 by Diaz, a Mexican engineer, by order of Salazar, the Mexican member of the Joint Commission under the Treaty of Guadalupe-Hidalgo; [ Footnote 19 ] a survey made in 1860, and a resurvey made in 1886, by Texas surveyors, of a Mexican grant on which Texas reissued a patent in 1886; surveys made by Texas surveyors between 1848 and 1873, several of which were bounded on the west by the river bank, on which Texas issued patents between 1860 and 1874; maps of surveys made in 1852-1853 and 1855 under the direction of the American surveyor for the Joint Boundary Commission under the Treaty of Guadalupe-Hidalgo and the American member of the Joint Boundary Commission under the Gadsden Treaty, and agreed to by the joint Commissions, which showed the course of the river, and War Department maps of surveys made in 1854-1856 in the course of explorations for a railroad route to the Pacific Ocean, likewise showing the course of the river. And Texas also relied upon long acquiescence by the United States before the Territory of New Mexico had been admitted as a state.
original document in the archives of the International Boundary Commission under the Convention of 1889, [ Footnote 20 ] which was authenticated by a certificate of the Mexican Commissioner. This was introduced in evidence by Texas, over the objection of New Mexico that the Commissioner had no authority to make such a certificate. [ Footnote 21 ] A few days later, counsel for New Mexico stated that they would offer in evidence a copy of these memoranda and field notes properly certified by one of the departments of the Mexican government. They later furnished counsel for Texas a copy certified by a government officer in the City of Mexico. [ Footnote 22 ] The copy so furnished was thereafter introduced by Texas, without objection, and engineers of both states were examined and cross-examined as to their work and calculations based on this copy, concerning the reproduction of the survey on the ground. Two years later, in 1918, on the day that the taking of testimony was closed by agreement, New Mexico moved to strike out both copies from the record on the ground that they were not so authenticated as to be admissible in evidence, and introduced evidence in support of this motion for the purpose of showing that there was not in fact any original of the document in the department in the City of Mexico, as they had believed when they furnished the copy to the counsel for Texas.
admissible upon authentication by the Mexican Boundary Commissioner having proper custody of the original. See United States v. Wiggins, 14 Pet. 334, 39 U. S. 346 , and United States v. Acosta, 1 How. 24, 42 U. S. 26 . And, under all the circumstances, the motion to exclude the second copy came too late, apart from any question as to its proper authentication. See Benson v. United States, 146 U. S. 325 , 146 U. S. 333 .
There was much conflict in the evidence of the engineers for New Mexico and Texas as to the location of the river as shown by the Salazar-Diaz Survey, which was described in the field notes by traverse from triangulation points; also as to the location of the Texas patent on the Mexican grant and other Texas surveys and patents. New Mexico also challenged the authenticity of the Salazar-Diaz Survey.
That the Salazar-Diaz Survey was corroborated by certain of the maps of the surveys made for the Joint Boundary Commissions and the War Department, and by a map accompanying Clark's survey of the 32d parallel, and that all these maps -- as well as certain other maps that had not been introduced in evidence, but of which he thought judicial notice might be taken -- sustained the contention of Texas as to the course of the Rio Grande in 1850, and were inconsistent with the contention of New Mexico.
that, for at least thirty years prior to the admission of the Territory of New Mexico as a state, the United States made no challenge of the claims to lands asserted by Texas and its citizens and, impliedly at least, recognized the practical line that had been established as the boundary between the territory and Texas.
The master concluded on all the evidence that the allegations in New Mexico's bill as to the location and course of the Rio Grande "as it existed in the year 1850" were not sustained, and that the river did not then flow on the eastern side of the valley, as claimed by New Mexico; that its location and course in 1850 was, in general, as alleged in the cross-bill of Texas, and, in particular, that, on the dates nearest to 1850 of which there was credible evidence, it followed the course set forth in his report and described by reference to Clark's Monument No. 1, two Texas surveys made in 1860, a Texas survey made in 1849, and the Salazar-Diaz Survey of 1852, substantially as reproduced by the engineers for Texas, and that, under the testimony, the average width of the river should be estimated as 300 feet, and the middle of the channel fixed at 150 feet from the line of its east bank as shown by the Texas surveys, and 150 feet from the line of its west bank as shown by the Salazar-Diaz Survey.
6. We need not determine whether any of the documents referred to by the master that had not been introduced in evidence were properly the subject of judicial notice. Be that as it may, since New Mexico had no opportunity to introduce evidence in explanation or rebuttal of them, we have not considered them in reaching our own conclusions.
possible after the lapse of more than three-quarters of a century. Without attempting to set out our reasons in detail, we conclude: that the testimony of the witnesses as to their recollection of the old river is far from satisfactory, and does not, in view of the other evidence in the case, sustain the burden of proof resting upon New Mexico; that the greater weight of the evidence shows that Clark's Monument No. 1 did not coincide with Station 1, but was located at least 2,783 feet west thereof, substantially as reestablished by the Scott-Cockrell Commission; that, under the Joint Resolution of February and August, 1911, preceding and conditioning the admission of New Mexico as a state, it is bound by the reestablishment of the monument by the Commission, and cannot question its accuracy; that this necessarily extends the Clark boundary line along the 32d parallel to the east bank of the river at a point 600 feet west of the reestablished monument; that, according to the greater weight of the evidence, the river, in 1850 or as near thereto as may now be determined, ran southwardly through the valley from the parallel, as shown by certain of the surveys, patents, and maps relied on by Texas -- especially the Salazar-Diaz Survey of 1852, the Texas surveys of 1849 and 1860, the maps of the surveys made in 1852-1855 for the Joint Boundary commissions, and the Clark map of 1859 -- on the course and in the location set forth and described in the master's report, and that this conclusion is reinforced by the tacit and long-continued acquiescence of the United States, while New Mexico was a Territory, in the claims of those holding the land in controversy under Texas surveys and patents, and the undisturbed possession of the Texas claimants. In short, we find that New Mexico has failed to sustain the burden of proof, and that the master's report is in accord with the greater weight of the evidence.
8. New Mexico's exceptions to so much of the report as deals with the location of the river in 1850 are accordingly overruled.
Both states have filed exceptions to the master's report in reference to accretions. Texas, on the one hand, insists that he was in error in reporting as the boundary line the location occupied by the river after it had been moved eastward from its location in 1850 by accretions. New Mexico, on the other hand, insists conditionally -- that is, only if its exceptions as to the location in 1850 are not sustained -- that, in determining the accretions in the Country Club area, the master fixed the line of such accretions in an indefinite manner, and not far enough to the east. We find that the contention of Texas is well taken, and the conditional contention of New Mexico is therefore immaterial.
This case is not one calling for the application of the general rule established in Nebraska v. Iowa, 143 U. S. 359 ; Missouri v. Nebraska, 196 U. S. 23 ; Arkansas v. Tennessee, 246 U. S. 158 , and Oklahoma v. Texas, 260 U. S. 606 , as to changes in state boundary lines caused by gradual accretions on a river boundary.
We reach this conclusion without reference to the fact that there were no issues under the pleadings as to accretions or changes in the boundary line since 1850, and without considering the propriety of permitting amendments to the pleadings, since, in any event, the outcome must be the same.
"along said thirty-second parallel to the Rio Grande . . . as it existed on the ninth day of September, one thousand eight hundred and fifty; thence, following the main channel of said river, as it existed on the ninth day of September, one thousand eight hundred and fifty, to the parallel of thirty-one degrees, forth-seven minutes north latitude."
This was confirmed by the United States by admitting New Mexico as a state with the line thus described as its boundary, and Texas has also affirmed the same by its pleadings in this cause. Since the Constitution defined its boundary by the channel of the river as existing in 1850, and Congress admitted it as a state with that boundary, New Mexico manifestly cannot now question this limitation of its boundary or assert a claim to any land lying east of the line thus limited. And it was doubtless for this reason that New Mexico alleged in its pleadings and has consistently asserted throughout this litigation that the true boundary is the channel of the river as it existed in 1850.
The exceptions of Texas to so much of the master's report as deals with the question of accretions and fixes the boundary with reference thereto are accordingly sustained, and the conditional exceptions of New Mexico to so much of the report as relates to accretions in the Country Club area, are overruled.
is the middle of the channel of the Rio Grande as it was located in 1850, extending southwardly from the parallel of 32 degrees north latitude to the parallel of 31 degrees 47 minutes, as found and described by the master in Section V(1) of his report; the intersection of the east bank of the river with the line of the 32d parallel to be taken at a point 600 feet west from the Clark Monument No. 1 as reestablished by the Scott-Cockrell Commission, and the middle line of the channel to be taken 150 feet from the east and west banks of the river, respectively, as found by the master.
It results that the bill of New Mexico must be dismissed, and that, under the cross-bill of Texas, the line above described must be decreed to be the boundary between the two states.
This boundary line should now be accurately surveyed and marked by a commissioner or commissioners to be appointed by the Court, whose report shall be subject to its approval.
The parties may submit within forty days the form of a decree to carry these conclusions into effect.
Bill dismissed and decree directed under cross-bill.
Legislative compact of 1850 between the United States and the Texas, 9 Stat. 446, c. 49; 2 Sayles' Early Laws of Texas, p. 267; Pres.Proclamation, 9 Stat. 1005; Gadsden Treaty of 1853 with the Republic of Mexico, 10 Stat. 1031; Act of 1854 declaring the southern boundary of the Territory of New Mexico, 10 Stat. 575, c. 245; New Mexico Enabling Act of 1910, 36 Stat. 557, c. 310; Constitution of New Mexico, Art. 1; Joint Resolution of 1911 reaffirming the boundary line between Texas and the Territory of New Mexico, 36 Stat. 1454; Joint Resolution of 1911 admitting New Mexico as a state of the Union, 37 Stat. 39.
Printed briefs aggregating 2,150 pages were submitted to him.
The entire evidence covers about 3,500 pages of the record, supplemented by about 200 maps, photographs, and other documentary exhibits.
This Commission was appointed under a Texas Act of 1854, 3 Gammel's Laws of the Texas, 1525, and an Act of Congress of 1858, 11 Stat. 310, c. 92, to run and mark the entire boundary line between Texas and the territories of the United States from the point where it left the Red River to its intersection with the Rio Grande. The Commissioners began at the Rio Grande, but soon separated, and the survey was continued by Clark, the United States commissioner. See generally Oklahoma v. Texas, 272 U. S. 21 , 272 U. S. 26 . His original report, with the accompanying field notes and maps, have long been lost; but a copy of portions thereof contained in Sen.Ex.Doc. No. 70, 47th, Cong., 1st Sess., in which the maps appear on a reduced scale, was introduced in evidence by stipulation.
Legislative compact of 1850 between the United States and the State of Texas; Gadsden Treaty of 1853 with the Republic of Mexico, and the Act of 1854 declaring the southern boundary of the Territory of New Mexico, cited in note 1 supra.
26 Stat. 948, 971, c. 542; 10 Gammel's Laws of the Texas, 195. See Oklahoma v. Texas, supra, 272 U. S. 31 .
36 Stat. 557, c. 310.
House Doc. 1369, 61st Cong., 3d Sess. This Constitution was adopted by a constitutional convention in November, 1910, and ratified by the voters in January, 1911.
No. 6. Reaffirming the boundary line between Texas and the Territory of New Mexico, 36 Stat. 1454.
"The contention of the constitutional convention of New Mexico . . . seems to be that the boundary line . . . from latitude 36.30Ą north to latitude 32Ą north is located west of the true one hundred and third meridian, . . . and that a strip of territory between the true . . . meridian and the line as now established and recognized by the United States and the State of Texas . . . of right belongs to New Mexico."
"contains a clause purporting to fix the boundary line between New Mexico and Texas which may reasonably be construed to be different from the boundary lines heretofore legally run, marked, established, and ratified by the United States and the State of Texas, and under which claims might be set up and litigations instigated of an unnecessary and improper character."
House Doc. No. 1076, 61st Cong., 3d Sess.
No. 8, 37 Stat. 39.
President's Proclamation, 37 Stat. 1723.
No. 1716, February 25, 1913. This order directed that a copy of the commissioners' reports, plat, and field notes should be deposited in the permanent archives of the General Land Office as a perpetual memorial of the existence and location of the boundary line.
This copy also contained a calculation of courses that had been made from the field notes, in 1911, by an engineer for the International Boundary Commission. This calculation, which the master found to be inadmissible, played no part in the evidence in the case.
This did not contain the engineer's calculation of courses, but contained a copy of Diaz's diary. Otherwise, the memoranda and field notes were substantially the same as in the first copy.
New Mexico specifically alleged in its bill that Texas had attempted to assume jurisdiction over land lying to the west of the channel of the river as it existed in 1850, and had made grants, conveyances, patents and surveys thereof.
All these acts are cited in note 1 supra.

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A German seller, plaintiff, made several deliveries of aluminium hydroxide to a French glass manufacturer, defendant. The buyer stored the chemicals in a silo, adding new material to that from previous deliveries. Due to the lack of quality of the aluminium hydroxide, the glass produced was defective. On the day after the second of the two deliveries in question, the buyer notified the seller that the goods received in two previous deliveries had been defective. The seller contested the lack of quality of the goods in the said deliveries and sued for the purchase price. The court of first instance allowed the claim.
The court dismissed the buyer's appeal. It held that the buyer was not released from its obligations under article 81(1) of the CISG, since the buyer was not entitled to declare the contract avoided. As to the first delivery in question, the court held that the buyer had failed to prove that the unusable aluminium hydroxide derived from this particular delivery. During the relevant time period, several deliveries had been made by the seller. Although the silo only contained chemicals delivered by the seller, if the defect had arisen from a different delivery, the buyer would have failed to notify the seller (article 39(1) CISG). As to the second delivery in question, the court found that, as defective glass already had been produced prior to the date of this delivery, the buyer had failed to prove any lack of quality of this particular delivery (article 35 CISG).
Moreover, the court held that the buyer had failed to examine the goods in time. Under normal circumstances, examination within a period of one month would have been reasonable. However, where delivered goods are mixed with previous deliveries, immediate inspection was said to be incumbent, since the defect would have been revealed even by means of simple tests (article 38(1) CISG).
The court held that, by mixing the aluminium hydroxide without prior examination, the buyer had failed to take due care of its own goods; consequently, it also failed to mitigate its loss (article 77 CISG). Thus, the buyer was not entitled to set-off with damages.
"The Higher District Court of Köln, in a 1997 judgment concerning the sale of aluminium hydroxide, affirmed the [Article 39(1)] general rule of the 'noble month,' but stressed that this 'noble month' is a vantage point by adding that the time-frame must be restricted in certain cases where the facts of the specific case reasonably prescribe it. The Court stated: 'Eine solche Frist [Monatsfrist] kann freilich nur für Waren gelten, bei denen keine Veranderungen zu besorgen ist . . .'. In this case, notice was given after the aluminum hydroxide provided by the seller had been placed in a large silo along with other shipments (and the buyer could not substantiate that all materials herein were provided by the seller). The time of the notice thus jeopardized the seller's possibility to ascertain the non-conformity. The Court restricted the flexible month to a shorter time-span with reference to the specific facts of the case and the purpose of Article 39." Andersen, Pace Review of the Convention on Contracts for the International Sale of Goods (1998) 124-125 and n.222.
The appeal of the Defendant [buyer] is admissible; on the merits, however, it cannot be successful.
The Plaintiff [seller] demands the undisputed purchase price amounting to 12,900 Deutsche Mark [DM] for 52 tons of aluminium hydroxide which were, according to the party's basic agreement, collected with the [buyer]'s silo vehicles in two parts on 13 January 1994 and 25 January 1994 and then filled into the [buyer]'s silo on the following days after the respective arrivals.
The Court of First Instance [District Court (Landgericht)] granted the [seller]'s claim. The appeals lodged which, by way of reversal of the challenged judgment, demand to dismiss the claim as inadmissible or alternatively as legally not justified, respectively, or to suspend the appellate proceedings until it is held that decision J 96-11.984 of the Court of Cassation in Paris on the [buyer]'s appeal against decision 95001880 of the Cour d'Appel Orleans of 3 January 1996 is not legally justified.
1.	The [seller]'s claim is admissible. The District Court (Landgericht) rightly affirmed its international jurisdiction. This, however, has to be considered ex officio also within the appellate proceedings according to Art. 19 of the European Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters of 27 September 1968 in the version of 26 May 1989 (hereinafter Brussels Convention) which entered into force in relation to France on 1 February 1973. As mentioned correctly by the [buyer], � 512 a ZPO [*] does not apply in respect of the international jurisdiction.
The international jurisdiction of the District Court (Landgericht) Köln results from Art. 5 No. 1 of the Brussels Convention. According to that, legal proceedings can be taken against a person which has its registered seat in a Contracting State in another Contracting State before the Court of the place of performance, where a contract or claims based on a contract are the subject to the litigation. As laid down correctly in the challenged judgment, according to Art. 57(1)(a) of the United Nations Convention on International Sale of Goods of 11 April 1980 (hereinafter CISG) the place of business of the [seller] in B. [a location in Germany] is the place of performance as regards the [buyer]'s obligation to pay the purchase price.
The [buyer] does not allege that in so far a different place of performance had been agreed or was otherwise relevant.
2.	A suspension of proceedings until the decision on the [buyer]'s appeal against the cited judgment of the Appellate Court of Orleans is not required.
3.	The [seller]'s claim is legally justified. According to Art. 53 CISG, the [seller] is entitled to the purchase-money claim amounting to 12,900 [DM] put forward against the [buyer].
The claim is not ruled out by Art. 81 CISG as the [buyer] is not entitled to declare the contract avoided according to Arts. 49(1)(a), 45(1)(a), 35 CISG. That would require establishing a lack of conformity of the goods, of which [seller] was given notice within the time limit of Art. 39 CISG. This, however, cannot be assumed.
The [buyer] did not put forward substantively that the delivery of 25 January 1994 which was filled into the silo for lack of another possibility of storage on 26 January 1994 was defective. According to the [buyer]'s own submissions, the [buyer] already on 22 January 1994 located inclusions in the glass production which led to fractures. After microscope analyses, the [buyer] on 26 January 1994 notified the [seller]'s representative in France (L. France S.a.r.l.) of the defect of the material delivered. This cannot have referred to the material filled into the silo only on 26 January 1994.
On 27 January 1994, the [buyer] had taken samples from the silo in the presence of a bailiff. At the occasion of stirring the material, thick lumps grew which remained in the strainer after sifting the liquid whereas a sample of faultless aluminum hydroxide did not leave behind any lumps and was of a brighter coloring. By writing dated 4 August 1995, the [buyer] put forward that the materials examined on 27 January 1994 were samples from the delivery of 14 January 1994 and from the funnel in which the raw materials were stored before being put in the furnace. It cannot be assumed nor was it alleged by the [buyer] that the material filled into the silo only on 26 January 1994 had already got into the funnel. Consequently, it cannot be assumed that the material examined and declared defective on 27 January 1994 stemmed from the delivery of 25 January 1994.
If this delivery had been filled into the silo on 26 January 1994, the [buyer] would have violated the duty to mitigate the loss according to Art. 77 CISG. Consequently, the [buyer] could not be entitled to a damage claim aimed at the exemption of an existing debt in respect of a purchase price obligation.
Not even regarding the delivery of 14 January 1994 did the [buyer] put forward a defect substantively. It is undisputed that the material taken from the silo respectively from the funnel on 27 January 1994 was defective. It is disputed, however, whether the material taken stems from the delivery of 14 January 1994 or from the [seller] at all. If partially old material had been in the silo, no assessments as to the quality of the material delivered by the [seller] could have been made. According to the list of the deliveries between January 1993 and March 1994 submitted by the [buyer], the correctness of which is proven, the material obtained in the period in question solely stemmed from the [seller]. The allegation of the [seller] that the delivered quantity could not have satisfied the [buyer]'s wants, was not substantiated further. According to the cited list, the [buyer] had obtained at least 26.26 t from the [seller] in December 1993. Even assuming consequently that the silo only contained material from the [seller], it cannot be found out whether the sample stemmed from the delivery of 14 January 1994 or from a preceding delivery of the [seller]. As preceding deliveries had not been criticized as defective, claims were in so far not put forward.
The [seller] did not admit a defect of the deliveries at issue by taking the content of the silo which was emptied by the [buyer] after the taking of the samples on 27 January 1994. Such a defect was contested by the [seller] consistently. Already in reply to the rebuke of 26 January 1994, the [seller] informed the [buyer] by fax of the same day that the reserved sample out of the delivery 13 January 1994 was faultless. At the occasion of the acceptance of the material to be transported to the [buyer] in three silo-vehicles, the [seller] emphasized that there was no link between the material delivered and the problems that occurred.
In accordance with the ruling of the District Court (Landgericht), a violation of the duty to give notice of defects is to be assumed.
According to Art. 39(1) CISG, the buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller within a reasonable time after he has discovered it or ought to have discovered it. Therefore, the time for claims starts to run at the time at which the seller can ascertain the lack of conformity after the obligatory duty to examine the goods according to Art. 38 CISG.
According to Art. 38(1) CISG, the buyer must examine the goods, or cause them to be examined within as short a period as is practicable in the circumstances. Consequently, the time limit to examine the goods and the time limit for claims are to be added and constitute a total time limit for the notification of defects (von Caemmerer/Schlechtriem/Schwenzer, Kommentar zum Einheitlichen UN-Kaufrecht, 2d edition, Art. 39 No. 20; Honsell/Magnus,Kommentar zum UN-Kaufrecht, 1997, Art. 38 No. 13). The buyer is obliged to examine the goods only in so far it is reasonable and usual. At any rate, the examination has to be appropriate as customary in trade and particularly thorough (Schwenzer, loc. cit. Art. 38 No. 13) where the risk of high consequential damages is likely; also experts are to be called if qualities which are difficult to examine are at issue (Magnus, loc. cit. No. 15, 17). The time limit depends on the objective circumstances of the particular case, above all on the nature of the goods and the defect as well as on the necessity of the examination.
In Germany, normally a period of two weeks is recommended (Magnus, loc. cit. Art. 38 No. 22, 24, Art. 39 No. 21). Basically, the time limits are to be assessed more generously than according to the precedents regarding �� 377, 378 HGB [*] and the Uniform Law on International Sales (ULIS) [*] in force before. Moreover, the traditions of other Contracting States -- which, as for example France, grant generous time limits -- have to be taken into consideration with respect to a uniform interpretation of the law. Consequently, the time limit of one month should be assessed as a rough average (compare Schwenzer, loc. cit., Art. 38 No. 16, Art. 39 No. 17).
Certainly, such a time limit can only be granted with respect to goods where no changes are to be expected which would contravene the purpose of Arts. 38, 39 CISG, namely to find out quickly whether the performance was proper (Magnus, loc. cit., Art. 39 No. 4) and to secure the relevant means of proof (Schwenzer, loc. cit., Art. 38 No. 4). Where, as in the case at hand, goods are concerned which are to be mixed with material of the same kind, the examination has to take place before the mixing. Otherwise it is difficult to find out which delivery the defective goods stem from. That applies regardless of the allegation that the whole material stemmed from the [seller]. On the one hand, this is disputed; in so far it is not sure whether or not the [seller]'s material was defective. On the other hand, the obligation to examine exists for each delivery separately.
Therefore, the aluminum hydroxide received from the [seller] should have been examined right after the arrival at the [buyer] before it was filled into the silo. An immediate examination of each delivery could be expected from the [buyer], as no particularly complicated procedure of examination was necessary. The defect could have been detected easily at sight by way of comparing the colors of samples out of the silo-vehicleand faultless material which was stored at the [buyer] or by way of touching, stirring or sifting the sample from the silo-vehicle. According to the minutes of bailiff G. dated 27 January 1994 concerning the examination of the aluminum hydroxide taken out of the [buyer]'s silo, the sample was of a darker coloring than the compared faultless material. At the occasion of stirring the material, thick lumps grew which remained in the strainer after sifting the liquid. These lumps developed also by merely pressing the material by hand. The parties present - the representative of the [seller] amongst them - agreed on the facts that the difference in coloring was as obvious as the difference at touching the material.
According to this, a hidden defect which, as alleged by the [buyer], could only have been detected by way of microscope and chemical analysis cannot be assumed. The fact that it took several days for the [buyer] to analyze the produced glass, does not mean that such an analysis was necessary to detect the defect of the material delivered. The allegation of the [buyer] that the fact that the aluminum hydroxide was unserviceable for the production of glass could not be inferred from a darker coloring and the formation of lumps, was put forward decidedly for the first time in the appellate procedure. Considering the assessment of the bailiff, this allegation is not sufficiently substantiated. It is mentioned in the minutes that several entities of glass were examined that showed defects which were due to the usage of unsuitable aluminum hydroxide and that all of the examined glasses contained a lump of aluminum hydroxide. It is obvious that the formation of lumps of the raw material leads to the formation of lumps in the produced glass. Should the [buyer], who is sufficiently competent as a glass producer, have intended to deny that, an understandable explanation had been required.
It cannot be inferred from the writing of the [seller] of 26 January 1994, that a visual examination would only have revealed a particularly unusual soiling. It is only mentioned there that the transport vehicles were examined regarding contamination by employees of the [seller].
The [buyer]'s obligation to examine existed regardless of the fact that faultless goods were delivered before and the [seller] had carried out analyses to ensure the quality and had taken reserve samples. A quality control agreement by which the [buyer] had stipulated exemption from the obligation to examine and give notice of defects is not alleged (compare Schwenzer, loc. cit., Art. 38 No. 29).
If the [buyer] was consequently obliged to examine the aluminum hydroxide delivered by the [seller] immediately, namely before filling it into the silo, also an immediate notice of the detected defect was required. In the age of communication by fax, the period of transmission does not essentially affect the assessment of the time limit for claims. Therefore, the rebuke could and should have transmitted as well before the filling of the silo to maintain the right to plead defects of the object of purchase. The rebuke of 26 January 1994 was delayed.
The [buyer] does not claim avoidance of the contract by taking back of the material. As the [seller] accepted the content of the silo stating that there was no link between the delivered material and the problems occurred, the taking over of the material does not have contractual meaning as stated already by the District Court (Landgericht).
Finally, the purchase-money claim does not fail due to the set-off with the claim for consequential damages amounting to the purchase-money claim stated alternatively by the [buyer]. According to what has been said, there is no offsettable contractual claim according to Arts. 45(1)(b), 74 CISG, on which the German Courts have to rule due to the connection with the claim according to Art. 6 No. 3 of the Brussels Convention (Kropholler, loc. cit., Art. 6 No. 37).
Consequently, the appeal is not legally justified and must be dismissed with the consequence as to costs according to � 97(1) ZPO [*]. The judicial pronouncement of the provisional enforceability is based on �� 708 No. 10, 713 ZPO [*].
Value of the appeal in dispute: 25,800 [DM] (12,900 [DM] claim + 12,900 [DM] precautionary set-off).
* All translations should be verified by cross-checking against the original text. For the purpose of this translation, the Plaintiff-Appellant of Germany is referred to as [seller]; the Defendant-Appellee of France is referred to as [buyer]. Amounts in German currency (Deutsche Mark) are indicated as [DM].
Translator's note on other abbreviations: Brussels Convention = EuGVÜ = Gerichtsstands- und Vollstreckungsübereinkommen in Zivil- und Handelssachen [European Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters]; HGB = Handelsgesetzbuch [German Commercial Code]; ULIS = Uniform Law on International Sales [1964 Hague International Sales Law antecedent to the CISG]; ZPO = Zivilprozessordnung [German Code of Civil Procedure].

matches:
Art. 19
Art. 5
Art. 57
Art. 53
Art. 81
Art. 39
Art. 77
Art. 39
Art. 38
Art. 38
Art. 39
Art. 38
Art. 38
Art. 38
Art. 39
Art. 38
Art. 39
Art. 39
Art. 38
Art. 38
Art. 6
Art. 6


text: Lista de participantes: Arsenal	:	L. Insigne, Arsenal	:	A. Robben, Arsenal	:	Arturo Vidal, Arsenal	:	L. Hradecky, Arsenal	:	Rodrigo, Arsenal	:	H. Mkhitaryan, Arsenal	:	S. Mustafi, Arsenal	:	A. Ramsey, Arsenal	:	J. Stones, Arsenal	:	Fabian, Arsenal	:	A. Rudiger, Arsenal	:	M. Sanson, Arsenal	:	Mariano, Arsenal	:	C. Pavon, Arsenal	:	Lautaro Martinez, Arsenal	:	K. Asamoah, Arsenal	:	S. Aurier, Arsenal	:	A. Hurtado, Arsenal	:	E. Valencia, Arsenal	:	E. Martinez, Athletic	:	Neymar, Athletic	:	A. Griezmann, Athletic	:	Thiago Silva, Athletic	:	G. Buffon, Athletic	:	N. Fekir, Athletic	:	Paulinho Becerra, Athletic	:	M. Reus, Athletic	:	P. Kimpembe, Athletic	:	A. Rabiot, Athletic	:	G. Kondogbia, Athletic	:	Dani Alves, Athletic	:	L. Kurzawa, Athletic	:	F. Coquelin, Athletic	:	A. Golovin, Athletic	:	De Marcos, Athletic	:	Ruben Dias, Athletic	:	J. Roussillon, Athletic	:	T. Kehrer, Athletic	:	Yeray, Athletic	:	R. Ozcan, Athletic	:	A. Musa, Barcelona	:	Aleña, Barcelona	:	M. ter Stegen, Barcelona	:	B. Matuidi, Barcelona	:	C. Lenglet, Barcelona	:	Coutinho, Barcelona	:	K. Mbappe, Barcelona	:	Fabinho, Barcelona	:	I. Rakitic, Barcelona	:	R. Mahrez, Barcelona	:	J. Cillessen, Barcelona	:	H. Son, Barcelona	:	M. Depay, Barcelona	:	L. Goretzka, Barcelona	:	Jordi Alba, Barcelona	:	O. Dembele, Barcelona	:	Pique, Barcelona	:	Hector Bellerin, Barcelona	:	Rafinha Alcantara, Barcelona	:	S. Umtiti, Barcelona	:	Sergi Roberto, Cádiz	:	J. Oblak, Cádiz	:	R. Lukaku, Cádiz	:	Filipe Luis, Cádiz	:	J. Gimenez, Cádiz	:	Gabriel Jesus, Cádiz	:	S. Kagawa, Cádiz	:	Rodri, Cádiz	:	I. Gueye, Cádiz	:	T. Partey, Cádiz	:	A. Lallana, Cádiz	:	J. Milner, Cádiz	:	Hulk, Cádiz	:	R. Lewandowski, Cádiz	:	Juanfran, Cádiz	:	N. Kalinic, Cádiz	:	M. Hitz, Cádiz	:	Capa, Cádiz	:	Y. Mina, Cádiz	:	E. Badu, Chelsea	:	James Rodriguez, Chelsea	:	Willian, Chelsea	:	Kepa, Chelsea	:	A. Martial, Chelsea	:	Marcos Alonso, Chelsea	:	A. Christensen, Chelsea	:	Pedro, Chelsea	:	J. Henderson, Chelsea	:	Lucas Moura, Chelsea	:	Marlos, Chelsea	:	Andre Gomes, Chelsea	:	K. Bellarabi, Chelsea	:	Maximiliano Gómez, Chelsea	:	J. Weigl, Chelsea	:	N. Tagliafico, Chelsea	:	R. Barkley, Chelsea	:	S. Feghouli, Chelsea	:	V. Moses, Chelsea	:	W. Caballero, Chelsea	:	Merih Demiral, Chelsea	:	Javier Puado Díaz, Everton	:	Ederson, Everton	:	D. Alaba, Everton	:	S.Milinkovic-Savic, Everton	:	M. Skriniar, Everton	:	A. Di Maria, Everton	:	J. Pickford, Everton	:	L. Bailey, Everton	:	J. Vardy, Everton	:	Allan, Everton	:	M. Rashford, Everton	:	K. Balde, Everton	:	H. Lozano, Everton	:	Bruma, Everton	:	Lucas Paquetá, Everton	:	T. Ndombele, Everton	:	F. de Jong, Everton	:	M. Akanji, Everton	:	Dalbert, Everton	:	M. Antonio, Everton	:	Mario Hermoso, Everton	:	J. Sancho, Everton	:	N. Pepe, Everton	:	L. Advincula, Everton	:	D. Dumfries, Girona	:	K. De Bruyne, Girona	:	A. Sanchez, Girona	:	Naldo, Girona	:	M. Verratti, Girona	:	T. Horn, Girona	:	Illarramendi, Girona	:	Q. Promes, Girona	:	L. Hernandez, Girona	:	J. Mathieu, Girona	:	F. Smolov, Girona	:	Nelson Semedo, Girona	:	F. Cervi, Girona	:	M. Sakho, Girona	:	T. Walcott, Girona	:	Soares, Girona	:	A. Begovic, Girona	:	E. Lavezzi, Girona	:	J. Gbamin, Girona	:	G. Conti, Girona	:	S. Ristovski, Liverpool	:	E. Hazard, Liverpool	:	M. Salah, Liverpool	:	Roberto Firmino, Liverpool	:	T. Alderweireld, Liverpool	:	Alisson, Liverpool	:	V. van Dijk, Liverpool	:	Pepe, Liverpool	:	N. Keita, Liverpool	:	T. Lemar, Liverpool	:	G. Wijnaldum, Liverpool	:	M. Arnautovic, Liverpool	:	X. Shaqiri, Liverpool	:	D. Lovren, Liverpool	:	A. Robertson, Liverpool	:	A. Doucoure, Liverpool	:	M. Batshuayi, Liverpool	:	N. Clyne, Liverpool	:	L. Paredes, Liverpool	:	S. Mignolet, Liverpool	:	T. Alexander-Arnold, Liverpool	:	Vinicius Junior, Man. City	:	David Silva, Man. City	:	S. Handanovic, Man. City	:	N. Otamendi, Man. City	:	Fernandinho, Man. City	:	V. Kompany, Man. City	:	R. Sterling, Man. City	:	K. Walker, Man. City	:	Bernardo Silva, Man. City	:	I. Gundogan, Man. City	:	William Carvalho, Man. City	:	D. Sanchez, Man. City	:	Y. Carrasco, Man. City	:	A. Laporte, Man. City	:	L. Messi, Man. City	:	J. Lingard, Man. City	:	B. Mendy, Man. City	:	F. Delph, Man. City	:	A. Yarmolenko, Man. City	:	C. Bravo, Man. City	:	E. Mangala, Man.United	:	De Gea, Man.United	:	P. Pogba, Man.United	:	P. Aubameyang, Man.United	:	D. Mertens, Man.United	:	M. Pjanic, Man.United	:	N. Matic, Man.United	:	J. Cuadrado, Man.United	:	J. Draxler, Man.United	:	K. Coman, Man.United	:	E. Bailly, Man.United	:	Fred, Man.United	:	C. Smalling, Man.United	:	I. Piatti, Man.United	:	S. Kolasinac, Man.United	:	L. Shaw, Man.United	:	J. King, Man.United	:	K. Zouma, Man.United	:	R. Alessandrini, Man.United	:	M. Holgate, Man.United	:	H. Onyekuru, Man.United	:	C. Kouyate, Man.United	:	D. Yedlin, Man.United	:	D. Machis, Man.United	:	D. Amartey, Man.United	:	C. Vela, Man.United	:	S. Romero, Newcastle	:	Cristiano Ronaldo, Newcastle	:	T. Kroos, Newcastle	:	E. Cavani, Newcastle	:	G. Chiellini, Newcastle	:	P. Dybala, Newcastle	:	M. Özil, Newcastle	:	L. Bonucci, Newcastle	:	Alex Sandro, Newcastle	:	Douglas Costa, Newcastle	:	Miranda, Newcastle	:	W. Szcz?sny, Newcastle	:	Morata, Newcastle	:	Nacho Fernandez, Newcastle	:	Joao Cancelo, Newcastle	:	Joao Mario, Newcastle	:	C. Pulisic, Newcastle	:	M. De Sciglio, Newcastle	:	S. Bergwijn, RCD Espanyol	:	Luis Suarez, RCD Espanyol	:	M. Neuer, RCD Espanyol	:	N'Golo Kanté, RCD Espanyol	:	Casemiro, RCD Espanyol	:	M. Icardi, RCD Espanyol	:	T. Muller, RCD Espanyol	:	Azpilicueta, RCD Espanyol	:	Sokratis, RCD Espanyol	:	B. Leno, RCD Espanyol	:	Lucas Vazquez, RCD Espanyol	:	E. Banega, RCD Espanyol	:	S. Gnabry, RCD Espanyol	:	F. Bernardeschi, RCD Espanyol	:	S. Vrsaljko, RCD Espanyol	:	G. Lo Celso, RCD Espanyol	:	K. Vogt, RCD Espanyol	:	M. Politano, RCD Espanyol	:	Iñigo Martinez, RCD Espanyol	:	K. Havertz, RCD Espanyol	:	N. Schulz, RCD Espanyol	:	Juan Jesus, Real Betis Balompie	:	Sergio Busquets, Real Betis Balompie	:	K. Koulibaly, Real Betis Balompie	:	Koke, Real Betis Balompie	:	Iago Aspas, Real Betis Balompie	:	Marco Asensio, Real Betis Balompie	:	Saul, Real Betis Balompie	:	A. Gomez, Real Betis Balompie	:	Jonas, Real Betis Balompie	:	Raul Albiol, Real Betis Balompie	:	Pizzi, Real Betis Balompie	:	T. Werner, Real Betis Balompie	:	S. Savic, Real Betis Balompie	:	Gelson Martins, Real Betis Balompie	:	R. Jarstein, Real Betis Balompie	:	Morales, Real Betis Balompie	:	O. Karnezis, Real Betis Balompie	:	L. Torreira, Real Betis Balompie	:	Mario Rui, Real Betis Balompie	:	V. Chiriches, Real Betis Balompie	:	J. Mojica, Real Betis Balompie	:	G. Simeone, Real Madrid	:	Sergio Ramos, Real Madrid	:	L. Modric, Real Madrid	:	T. Courtois, Real Madrid	:	S. Aguero, Real Madrid	:	Marcelo, Real Madrid	:	G. Bale, Real Madrid	:	C.Immobile, Real Madrid	:	K. Navas, Real Madrid	:	R. Varane, Real Madrid	:	J. Kimmich, Real Madrid	:	Carvajal, Real Madrid	:	Danilo Pereira, Real Madrid	:	W. Zaha, Real Madrid	:	Inaki Williams, Real Madrid	:	Deulofeu, Real Madrid	:	M. Musacchio, Real Madrid	:	D. Zappacosta, Real Madrid	:	Marcos Llorente, Real Madrid	:	Vallejo, Real Madrid	:	Dani Ceballos, Real Madrid	:	H. Villalba, Sevilla	:	S. Mane, Sevilla	:	Y. Brahimi, Sevilla	:	S. Khedira, Sevilla	:	A. Lacazette, Sevilla	:	C. Bakambu, Sevilla	:	F. Vazquez, Sevilla	:	Pablo Sarabia, Sevilla	:	G. Xhaka, Sevilla	:	Nolito, Sevilla	:	D. Tadic, Sevilla	:	S. Jovetic, Sevilla	:	Denis Suarez, Sevilla	:	S. Kjaer, Sevilla	:	Escudero, Sevilla	:	Jesus Navas, Sevilla	:	G. Mercado, Sevilla	:	Roque Mesa, Sevilla	:	T. Vaclik, Sevilla	:	Sergi Gomez, Sevilla	:	J. Gnagnon, Sevilla	:	Aleix Vidal, Sevilla	:	I. Amadou, Sevilla	:	Soriano, Sporting Gijón	:	M. Hummels, Sporting Gijón	:	Iniesta, Sporting Gijón	:	E. Dzeko, Sporting Gijón	:	Z. Ibrahimovic, Sporting Gijón	:	Alex Telles, Sporting Gijón	:	O. Baumann, Sporting Gijón	:	Giuliano, Sporting Gijón	:	K. Strootman, Sporting Gijón	:	A. Rami, Sporting Gijón	:	K. Demirbay, Sporting Gijón	:	P. Kaderabek, Sporting Gijón	:	L. Bittencourt, Sporting Gijón	:	B. Hubner, Sporting Gijón	:	R. Zobnin, Sporting Gijón	:	V. Grifo, Sporting Gijón	:	A. Szalai, Sporting Gijón	:	J. Iturbe, Sporting Gijón	:	J. Brenet, Sporting Gijón	:	J. Biabiany, Sporting Gijón	:	G. Kobel, Tottenham	:	H. Lloris, Tottenham	:	C. Eriksen, Tottenham	:	J. Vertonghen, Tottenham	:	K. Manolas, Tottenham	:	K. Benzema, Tottenham	:	M. Dembele, Tottenham	:	D. Alli, Tottenham	:	C. Tolisso, Tottenham	:	Bartra, Tottenham	:	K. Trippier, Tottenham	:	A. Witsel, Tottenham	:	J. Matip, Tottenham	:	K. Gameiro, Tottenham	:	A. Oxlade-Chamberlain, Tottenham	:	M. Marega, Tottenham	:	I. Traore, Tottenham	:	A. Onana, Tottenham	:	Andre Silva, Tottenham	:	K. Tierney, Tottenham	:	M. Sissoko, Tottenham	:	Theo Hernandez, Tottenham	:	R. Karsdorp, Tottenham	:	Renato Sanches, Valencia	:	Isco, Valencia	:	Arthur, Valencia	:	Thiago, Valencia	:	L. Sane, Valencia	:	R. Nainggolan, Valencia	:	Diego Costa, Valencia	:	Neto, Valencia	:	Gabriel Paulista, Valencia	:	D. Wass, Valencia	:	Gonzalo Guedes, Valencia	:	J. Murillo, Valencia	:	Ricardo Pereira, Valencia	:	Carlos Soler, Valencia	:	M. de Ligt, Valencia	:	Gaya, Valencia	:	C. Piccini, Valencia	:	Jese, Valencia	:	Jaume, Valencia	:	Lato, Villarreal	:	H. Kane, Villarreal	:	Javi Martinez, Villarreal	:	Marquinhos, Villarreal	:	Victor Ruiz, Villarreal	:	Anderson Talisca, Villarreal	:	Felipe Anderson, Villarreal	:	Pablo Fornals, Villarreal	:	Bruno Soriano, Villarreal	:	Mario Gaspar, Villarreal	:	K. Toko-Ekambi, Villarreal	:	J. Butland, Villarreal	:	V. Wanyama, Villarreal	:	Alvaro, Villarreal	:	Jaume Costa, Villarreal	:	P. Piatti, Villarreal	:	Paco Alcacer, Villarreal	:	M. Layun, Villarreal	:	Javi Fuego, Villarreal	:	Pedraza, Villarreal	:	M. Barbosa, Villarreal	:	R. Guerra, Watford	:	D. Godin, Watford	:	G. Higuain, Watford	:	M. Hamsik, Watford	:	J. Boateng, Watford	:	F. Ribery, Watford	:	Quaresma, Watford	:	Gerard Moreno, Watford	:	Pepe Reina, Watford	:	Samu Castillejo, Watford	:	G. Donnarumma, Watford	:	Suso, Watford	:	K. Volland, Watford	:	Grimaldo, Watford	:	M. Caldara, Watford	:	R. Rodriguez, Watford	:	T. Bakayoko, Watford	:	H. Calhanoglu, Watford	:	Odriozola, Watford	:	F. Kessie, Watford	:	J. Kluivert.

matches: V. V. V. V. V. V.