Opinion of the Court.

300 U.S.

The proceeds of the warrant are to be placed in a bank to be chosen by the contractor, the deposit to be "designated as a special trust fund for the payment of bills for labor and material used on the United States Veterans Hospital in Batavia, New York.” No provision is made that the surety, or indeed any one other than the contractor, shall have any control thereof.

From that decree the contractor appealed to the Circuit · Court of Appeals for the eighth circuit. There was no cross-appeal by the surety. The Court of Appeals states in its opinion, "We are in grave doubt whether exoneration can properly be granted.” Preferring by reason of that doubt to put its decision on some other ground, it concludes that there should be specific performance of the supplementary agreement. It concedes that the surety is in default for failing to live up to the agreement strictly, but it finds that the default was not unconscionable or fraudulent, and that a court of equity in its discretion may overlook an unsubstantial wrong. Recognizing the necessity of modifying the decree if exoneration is to be exchanged for specific performance, the opinion states that "an injunction against using the moneys except as agreed upon, and an order to place said moneys when received in the joint account and disburse the same in payment of just claims for labor or materials, would meet the requirements and rights of plaintiff and would not be impossible of performance” and that "a decree along such lines should be granted by the trial court.” 84 F. (2d) 522, 526. Accordingly, the mandate of the appellate court provides that the cause be remanded to the District Court with directions to modify its decree in accordance with the views expressed in the opinion. We granted certiorari to fix the measure of relief available to a non-appealing suitor. · The substitution of specific performance for exoneration at the instance of the suretv was not an affirmance

of the decree below, as if the reasons only had been changed with the decision standing firm. Alike in substance and in form there was a modification of the decree itself, the facts being found anew and differently, the law declared anew and differently, and the relief remodeled and adapted to the new law and the new facts. Without a cross-appeal, an appellee may "urge in support of a decree any matter appearing in the record although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it.” United States v. Ameri

v can Railway Express Co., 265 U. S. 425, 435. What he may not do in the absence of a cross-appeal is to "attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary, whether what he seeks is to correct an error or to supplement the decree with respect to a matter not dealt with below.” Ibid. The rule is inveterate and certain. Canter v. American Insurance Co., 3 Pet. 307, 318; Chittenden v. Brewster, 2 Wall. 191, 196; The Maria Martin, 12 Wall. 31, 40, 41; Field v. Barber Asphalt Co., 194 U. S. 618, 621; Landram v. Jordan, 203 U. S. 56, 62; Union Tool Co. v. Wilson, 259 U. S. 107, 111; Peoria & Pekin Union. Ry. Co. v. United States, 263 U. S. 528, 536; Langnes v. Green, 282 U. S. 531, 538; Alexander v. Cosden Co., 290 U. S. 484, 487. Findings may be revised at the instance of an appellant, if they are against the weight of evidence, where the case is one in equity. This does not mean that they are subject to like revision in behalf of appellees, at all events in circumstances where a revision of the findings carries with it as an incident a revision of the judgment. There is no need at this time to fix the limits of the rule more sharply. "Where each party appeals each may assign error, but where only one party appeals the other is bound by the decree in the court below, and he cannot assign error in the

Opinion of the Court.

300 U.S.

appellate court, nor can he be heard if the proceedings in the appeal are correct, except in support of the decree from which the appeal of the other party is taken.” The Maria Martin, supra.*

The surety laid claim to relief upon the basis of a contract, and to other relief by force of an equitable doctrine independent of contract. The decree of the District Court rejected the first claim because the contract had been broken, and accepted the second because the breach was then irrelevant. The decree was responsive to the claim that had been accepted, and not to any other. If there was to be specific performance of the contract, the surety, together with the contractor, would control the distribution of the fund, for so the parties had agreed. If there was to be exoneration and nothing more, the contractor or perhaps the court would control the application and the surety would stand aside. Stulz-Sickles Co. v. Fredburn Construction Corp., 114 N. J. Eq. 475, 478; 169 Atl. 27; cf. Glades County v. Detroit Fidelity Co., supra; Arant, Suretyship, pp. 318, 319 and cases cited. Exoneration "does not entitle the surety to custody or control of the fund." Stulz-Sickles Co. v. Fredburn Construction Corp., supra. The decision of the Court of Appeals puts an end to this nice adjustment of the relief to the law and of the law to the facts as found. A decree appropriate to exoneration is annulled, and one appropriate to specific performance is given in its place. This is to find the facts anew and differently, for the trial iudge

* State decisions on the question of the review of findings at the instance of an appellee who has not taken a cross-appeal exhibit a wide variance of procedure. For cases of the stricter type, see Turner v. East Side Canal Co., 168 Cal. 103, 108; 142 Pac. 69; Clark v. Corser, 154 Minn. 508; 191 N. W. 917; Cox v. Stokes, 156 N. Y. 491; 51 N. E. 316; Werdebach's Estate, 280 Pa. 26; 124 Atl. 268. With these contrast the following: Bullman v. Cooper, 362 III. 469; 200 N. E. 173; Wyatt v. Manning, 217 Iowa 929; 250 N. W. 141; Oppenheimer v. Bank, 97 Tenn. 19; 36 S. W. 705; Huntington v. Love, 56 Wash. 674; 106 Pac. 185.

had held, at least by implication, that the breach by the surety, viewed in the light of all the circumstances, was something more than unsubstantial. It is to find the law anew and differently, for the trial judge had held that a surety chargeable with such a breach was not entitled to a decree upon the footing of the contract. Even more important, it is to give a new measure of relief, for the trial judge had ruled that the fund was not to be held upon the restrictions stated in the contract, but upon different restrictions originating in the conscience of the Chancellor. True, the relief proper to the theory accepted at the trial is almost as favorable from the viewpoint of the protection of the surety as the one adopted on appeal, though distinctly less burdensome from the view-point of the principal. Exoneration is not the same as specific performance, but it is not very different, and may be nearly, if not quite, as good. This is surely not a reason why an appellate court should be at liberty to treat the two as interchangeable. One might as well say that at the instance of a non-appealing plaintiff a judgment for specific performance could be made to take the place of one for the recovery of damages.

The decree should be reversed and the cause remanded to the Court of Appeals to pass upon the question, not yet definitively answered, whether relief in the form of a decree for exoneration is proper in the circumstances, and for other proceedings in accord with this opinion.

Reversed.

1306079-37-13

KNOX NATIONAL FARM LOAN ASSN. ET AL. V.

PHILLIPS.

CERTIORARI TO THE COURT OF APPEALS OF OHIO.

No. 389. Argued January 14, 15, 1937.—Decided February 1, 1937. 1. A judgment of a state court against an insolvent association for

a sum of money is final, although accompanied by provisions requiring the debtor to turn over all of its property to a receiver

for liquidation of its business and payment of the debt. P. 197. 2. Under the Federal Farm Loan Act, a national farm loan associa

tion cannot be required to retire, and repay the par value of, shares subscribed for and pledged with it by a member in connection with the procurement of a loan from a federal land bank, while the bank refuses to retire, and make re-payment for, the corresponding shares of bank stock subscribed for by the association

in that connection and pledged with the bank. P. 198. 3. A shareholder of a farm loan association, subject by statute to

an extra personal liability for its debts, is not entitled to have his shares retired and his subscription payment repaid when the association is insolvent and corresponding subscriptions to the stock of the federal land bank that made the loan have not

been canceled and refunded. P. 201. 4. A receivership for the purpose of satisfying a judgment, falls with

the judgment. P. 202. 5. A national farm loan association is an instrumentality of the

Federal Government; the time and manner of its liquidation are governed by the federal statute; and jurisdiction does not reside in the tribunals of a State to wind up the business of this govern-:

mental agency either by a receivership or otherwise. P. 202. 54 Oh. App. 334, reversed.

CERTIORARI, 299 U. S. 533, to review the affirmance of a decree against the National Farm Loan Association for the par value of certain of its shares, accompanied by provisions for placing the Association in the hands of a receiver for the liquidation of its business.

Mr. Peyton R. Evans, with whom Messrs. Roger D. Branigin, Gerald E. Lyons, and John M. Rankin, and Miss May T. Bigelow were on the brief, for petitioners.

Mr. William E. Richardson, with whom Mr. Harvey B. Cox was on the brief, for respondent.