author: McDERMOTT, Circuit Judge.

text:
    TIGER et al. v. TWIN STATE OIL CO. et al.
    No. 312.
    Circuit Court of Appeals, Tenth Circuit.
    March 16, 1931.
    Charles B. Rogers, of Tulsa, Okl. (E. C. McMichael, of Sapulpa, Okl., on the brief), for appellants.
    John M. Goldesberry, U. S. Atty., of Tulsa, Okl., for appellee the United States.
    William J. Gregg, of Tulsa, Okl. (G. Earl Shaffer and R. E. Berger, both of Tulsa, Okl., on the brief), for other appellees.
    Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.
   McDERMOTT, Circuit Judge.

The appellants, plaintiffs below, are the children of a full-blood Creek Indian whose English name was John Tiger. Plaintiffs demand possession of certain land allotted by the Dawes Commission to one Do-saw-cher, a full-blood Creek, and for an accounting for rents and profits. The defendants in possession deny plaintiffs’ claim; they assert that Do-saw-cher was the Indian name of John Tiger; that John Tiger had been allotted other land, enjoyed the use thereof for years, and sold it and enjoyed the proceeds. That shortly after the allotment to Do-saweher was made the government discovered that it was a duplicate allotment, the same Indian having theretofore received his allotment under his English name; that upon discovery of the error, the United States canceled the duplicate allotment, and -reallotted the land to Leslie King and Alice Colbert, other Creeks entitled to allotments, through whom defendants claim. The United States appeared in the case for itself and on behalf of the Secretary of the Interior and Leslie'King and Alice Colbert, and set up in detail the facts concerning the duplication of allotments, and affirmatively prayed for a decree canceling the allotment to Do-sawcher on account of the gross mistake of fact and law in'the making thereof, and that the title of Leslie King and Alice Colbert be quieted in them and their assigns. Upon the issues so joined the case was tried.

While there is room for conjecture in the tribal records, the evidence leaves no doubt as to the facts. OiL September 9, 1899, Mrs. Emma Lynch, a white woman, was appointed guardian for one “Euehee Indian boy whose name is John Tiger, a minor, under the age of 14 years.” ■ The name this boy was known under, in the Euehee Tribe, was Do-saw-eher. Mrs. Lynch then made application for an allotment for John Tiger, her ward. On September 3, 1902, allotment deeds for the land selected by Mrs. Lynch were executed to John Tiger, which were approved by the Secretary of the Interior on December 22, 1902, and filed for record on December 30, 1902. This is not the land involved in this aetion. Later Joseph Bruner was appointed his guardian, and as such executed a departmental oil and gas lease for him on the land so deeded to him. Siller Kemohah married John Tiger on September 5, 1913; he was known to her as John Tiger Lynch, getting the “Lynch” from his guardian. The marriage license names him as John Tiger. His wife testified that her husband was known in the Euehee Tribe as Do-saw-cher. She and John Tiger are the parents of the plaintiffs. He enlisted in the United States Army as John Tiger, and during his service his wife made several applications for the payment to her of royalties from the land deeded to her husband, and in such applications described herself as “Siller Tiger, the wife of J ohn Tiger.” The royalties were paid to her. In 1919 John Tiger applied for a removal of his restrictions, which was granted. In the same year he sold the land to W. R. McKee, the deed being executed by John and Siller Tiger. In 1920 Siller Tiger procured a divorce from her husband John Tiger, and later married Kemohah. John Tiger died in 1924.

From this brief recital it incontrovertibly appears that the father of plaintiffs, using his English name of John Tiger, accepted an allotment made to him, enjoyed the use of it for years, sold it and, used the proceeds. The object of this aetion is to procure anothr er allotment under his Indian name of Do-saw-cher. Plaintiffs’ claim is that the “John Tiger” appearing on the records of the Dawes Commission was intended to identify another Indian called “Johnny” or “John Peter,” and that John Tiger accepted, used and sold an allotment intended for John Peter, and has never had his own allotment. The trial court found against this'claim on the facts, and we agree. But it is immaterial; for it cannot be disputed that this land was intentionally allotted and deeded to the father of plaintiffs, and the name used by him is but incidental. We turn now to the history of the land involved in this action.

. On the rolls of the Dawes Commission appeared the name “Do-saw-eher.” No one applied for an allotment under this enrollment, and accordingly the Dawes Commission arbitrarily allotted to “Do-saw-eher” the land in litigation, and in 1993 patents to him were executed, approved and recorded. They were sent to the Principal Chief of the Creek Nation for delivery, but no one called for them. In 1904 the Dawes Commission discovered that John Tiger, who already had his allotment, was the same .individual as Do-saw-eher, and that the Do-saw-cher allotment was therefore a duplicate. The Commission procured affidavits supporting the fact of duplication and transmitted them to the Secretary of the Interior with its recommendation that Do-saw-cher’s name be stricken from the rolls and the deeds issued in his name be canceled. The Secretary directed that this be done, and accordingly the name Do-saw-eher was stricken from the rolls; the Principal Chief of the Tribe canceled his signature to the deeds, and they were returned to the Secretary of the Interior. The land was later allotted to Leslie King and Alice Colbert, under whom defendants claim. Leslie King and Alice Colbert, and their assigns, have been in possession since 1907 or 1908.

The trial court denied a motion to dismiss the answer and cross-petition of the United States, and the answers 1 of the defendants; and upon final hearing dismissed the plaintiffs’ bill and entered a decree upon the cross-petition of the United States, striking the name of Do-saw-cher from the rolls, canceling the deeds issued in his name, and quieting the titles of the defendants. The plaintiffs appeal.

There can be no question of the correctness of that part of the decree which dismissed plaintiffs’ bill. There is not the slightest doubt that the father of plaintiffs was granted his full allotment, accepted it, enjoyed it and sold it. That neither he nor his children are entitled to two allotments is conceded. The assertion of a claim to a second allotment is a fraud on every other member of the Tribe. That courts of equity can never he used as an aid in the perpetration of a fraud has been so long settled that the rule has become axiomatic. The plaintiffs’ father has had his full share of the tribal property. That he used the name of John Tiger for that purpose is but incidental, for allotments are made to individuals and not to names. The father of plaintiffs cannot use his English name of Tiger to get one full allotment and his Indian name of Do-saw-cher to get another.

There is another all-sufficient reason why plaintiffs cannot prevail. Section 23 of the Creek Agreement (31 Stat. 861, 867) provides :

“Any allottee accepting such deed shall be deemed to assent to the allotment and conveyance of all the lands of the tribe, as provided herein, and as a relinquishment of all his right, title, and interest in and to the same, except in the proceeds of lands reserved from allotment.
“The acceptance of deeds of minors and incompetents, by persons authorized to select their allotments for them, shall be deemed sufficient to bind such minors and incompetents to allotment and conveyance of all other lands of the tribe, as provided herein.”

By accepting the allotment selected by Mrs. Lynch, the plaintiffs’ father expressly relinquished all his right, title, and interest to the land here in controversy.

Plaintiffs argue that John Tiger and Do-saw-cher are two individuals; the evidence to the contrary is overwhelming; but if they are, there is no dispute that plaintiffs’ father is the individual who accepted the allotment he later sold to McKee; .if Do-sawcher is another individual, he is a phantom that is no kin to plaintiffs, and they have no concern with his allotment or this lawsuit. Plaintiffs claim that John Tiger on-.the rolls is in fact John Peter in the flesh; that John Tiger in the flesh is Do-saw-cher on the rolls; that plaintiffs’ father accepted John Peter’s allotment by mistake, lived on it for years and sold it by mistake. But the claim is not. borne out by the record, and is contradicted by the fact that even now the plaintiffs in this action are suing in the state courts to recover the land sold to McKee, land which in this court they assert to belong to the heirs of John Peter. But this is enough. Turn as we will, we come back to the undisputed fact that plaintiffs’ father was the boy for whom Emma Lynch selected the land deeded to John Tiger; that the Commission intended that boy to have that particular land; he then became the “John Tiger” on the rolls, as he remained John Tiger throughout his life. The father of plaintiffs has had his allotment; his children are not entitled to another.

This leaves for disposition the correctness of that part of the decree granting the affirmative relief prayed for by the United States against the plaintiffs, the heirs of the individual whose name was carried on the rolls as “John Tiger” and as “Do-saw-cher.” The plaintiffs challenge the right of the United States to pray for the relief granted, on the ground that the United States has no interest in the controversy. The point is not well. taken. The United States was a party to the agreement with the Creek Nation which provided for an equitable distribution of the tribal lands among the members of the Tribe, and officers of the United States were charged with the administra^ tion of that agreement; the proper administration of that agreement is a part of a “great governmental project, having for its object the social and industrial advancement of the Indians.” United States v. Allen (C. C. A. 8) 179 F. 13. Every member of the Tribe has an interest in preventing one member from getting more than his share of the tribal lands; the United States is charged with a responsibility to all the members of the Tribe, and has a right to come into its own courts in their interest. No pecuniary interest is necessary. Heckman v. United States, 224 U. S. 413, 32 S. Ct. 424, 56 L. Ed. 820; United States v. New Orleans Pac. Ry. Co., 248 U. S. 507, 39 S. Ct. 175, 63 L. Ed. 388, and cases therein cited. It is argued that the defendants may not interpose an equitable defense in an action at law. Equitable defenses may now be interposed in actions at law. Judicial Code § 274b (28 USCA § 398).

Coming now to the merits. The defendants rely in part upon the action of the Secretary of the Interior in removing the name of Do-saw-cher from the rolls, and the cancellation of the deeds by the Principal Chief and their surrender. The plaintiffs urge that such acts were ineffectual. Whether, under the circumstances of this ease and under the Creek Agreement, the Secretary lost jurisdiction prior to some act of the allottee indicating an acceptance of the allotment, is much mooted in the briefs, but need not be decided. For even if he had not lost jurisdiction, he may not act arbitrarily. Cornelius v. Kessel, 128 U. S. 456, 9 S. Ct. 122, 32 L. Ed. 482. The Secretary must give notice and an opportunity to he heard to those whose rights will be affected by the correction of the rolls or the cancellation of instruments. This he did not do. Brown v. Hitchcock, 173 U. S. 473, 19 S. Ct. 485, 43 L. Ed. 772; Garfield v. U. S. ex rel. Goldsby, 211 U. S. 249, 29 S. Ct. 62, 53 L. Ed. 168.

The point is, however, not now material. The heirs of Do-saw-eher are now in a court of competent jurisdiction. They have now had ample notice of the prayer of the government to cancel the deeds and eliminate the name from the rolls; they have had their opportunity to be heard. The simple question remains, Is there power in the court to strike Do-saw-cher’s name from the roll and cancel the deeds to him ?

We have no doubt of the existence of the power, and it. is one that has been exercised. Porter v. United States (C. C. A. 8) 260 F. 1. It would be a strange anomaly indeed if no power existed anywhere to correct such a manifest error as is disclosed by this record. John Tiger' cannot be awarded two allotments without a breach of the agreement between the Creek Nation and the United States. If he cannot have two allotments — and he cannot — and there is no power to cancel the deeds to him and reallot the lands, then the land must remain as tribal land, another result not contemplated by the agreement.

It is argued that the act of the Dawes Commission in enrolling Do-saw-eher was the determination of a quasi-judicial body that he was entitled to an allotment. This is true. A determination of the Dawes Commission, when acting within its jurisdiction, is subject only “to such attacks as eould successfully be made upon judgments of this ■character for fraud or mistake,” and such attacks must be supported by “full and convincing proof.” United States v. Wildcat, 244 U. S. 111, 37 S. Ct. 561, 564, 61 L. Ed. 1024; United States v. Atkins, 260 U. S. 220, 43 S. Ct. 78, 67 L. Ed. 224. Reliance is also placed upon United States v. Lena (C. C. A. 3) 261 F. 144, wherein it was held in substance that if a claim was made before the Dawes Commission that a duplication existed, and the Commission considered the matter and determined that no duplication in fact existed, that the determination of the Com- . mission cannot be impeached. In the ease at bar the Commission did not determine that no duplication existed; on the contrary, when its attention was called to the matter, it found .that a duplication did exist, and the record leaves no doubt of the correctness of that finding.

This court is not only bound by the decisions in the Wildcat and Atkins Cases, but is in thorough accord with the principles there announced. If there is to be any stability to Indian titles, the determination of the Dawes Commission as to matters confided to its jurisdiction cannot be collaterally re-examined on the ground that the Commission made a mistake in its determination. But that is not this case. The Commission in this case determined that the father of the plaintiffs was a member of the Tribe and entitled to an allotment. The mistake was in making two records of the one determination. Within the strict confines of the Wildcat and Atkins Cases, there is ample power in the court to correct this manifest error.

In the first place, the action of the Dawes Commission in making a second allotment to the same Indian is in violation of the agreement it was administering, is beyond its power, and is void. Courts of equity have power to set aside actions of administrative boards or of inferior courts which are in excess of their jurisdiction. United States v. Walker, 109 U. S. 258, 3 S. Ct. 277, 27 L. Ed. 927. Again, the Supreme Court of the United States in the Wildcat and Atkins Cases expressly held that determinations of the Dawes Commission were subject to attack for extrinsic fraud or mistake. It conclusively appears that John Tiger and Do-saw-cher were but two names for one individual. A determination that Do-saw-cher should remain on the rolls and be allotted land after he, under the name of Tiger, had already received his allotment, eould only be brought about by fraud or gross mistake. If the Commission intended to give two allotments to one Creek, it was fraud. But of course it did not so intend. It is entirely clear that its actions were the result of a mistake; not an intrinsic mistake in the decision of disputed facts or law in a matter presented to and determined by it, as in the Wildcat and Atkins Cases, but a mere clerical oversight in carrying one Indian on the rolls under two names. In the Atkins Case an actual controversy was presented and determined as to the existence of Tommy Atkins; a mistake in that determination is intrinsic, and does not void the determination. But no controversy was presented or determined here as to the existence of Do-saw-eher. He did exist. He was entitled to enrollment and allotment. But he was already enrolled, and already had his allotment under another name. The duplicate erirollment and allotment was not an intrinsic mistake in a determination, but an extrinsic mistake in making two records of one determination. Horton v. Stegmyer (C. C. A. 8) 175 F. 756, 20 Ann. Cas. 1134; Luikart v. Farmers’ Lumber Co. (C. C. A. 10) 38 F.(2d) 588. If such a mistake can not he corrected, then no power would exist to correct the error of a scrivener for the Commission who described a section, instead of a quarter-section, in an allotment deed. We cannot conclude that the government is so helpless. We therefore hold that the trial court properly corrected this manifest error, and entered a decree accordingly.

Affirmed.


source: Caselaw Access Project

author: PHILLIPS, Circuit Judge.

license: Public Domain

text:
    MASSACHUSETTS BONDING & INS. CO. v. CLYMER MFG. CO. et al.
    No. 359.
    Circuit Court of Appeals, Tenth Circuit.
    March 17, 1931.
    Carle Whitehead, of Denver, Colo. (Wm. E. Hutton, Julian P. Nordlund, and Albert L. Yogi, all of Denver, Colo., on the brief), for appellant.
    Kenaz Huffman, of Denver, Colo. (Frank E. Gove, of Denver, Colo., and Ira J. Wilson, of Chicago, Ill., on the brief), for appellees.
    Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.
   PHILLIPS, Circuit Judge.

Appellees brought suit against the Shot-Lite Corporation of America for infringement of a patent. On January 20, 1928, an interlocutory decree was entered therein adjudging the patent valid and the Shot-Lite Corporation guilty of infringement. On April 2, 1928, the Shot-Lite Corporation appealed from this decree. On April 28, 1928, it gave an appeal bond, with appellant as surety, in the sum of $750.00, conditioned as follows:

“Now, the condition of the above obligation is sneh, that if the said The Shot-Lite Corporation of America shall prosecute said appeal to effect, and answer all damages and costs, if it fail to make good its plea, then the above obligation to be void, else to remain in full force and virtue.”

Thereafter, the Shot-Lite Corporation dismissed sueh appeal and paid all the appellate court costs.

On April 30, 1930, appellees filed a motion in the patent infringement suit for judgment for the full amount of the bond, alleging that the costs taxed in the lower court were in excess of sueh amount and were unpaid. The district court gave judgment for the full amount of the bond. This is an appeal therefrom.

Section 869, title 28, USCA, provides:

“Every justice or judge signing a citation on any writ of error, shall, except in cases brought up by the United States or .by direction of any department of the Government, take good and sufficient security that the plaintiff in error or the appellant shall prosecute his writ or appeal to effeet, and, if he fail to make his plea good, shall answer all damages and costs, where the writ is a supersedeas and stays execution, or all costs only where it is not a supersedeas as aforesaid.”

It will be noted that the condition of the bond complies with the statutory requirement for a supersedeas bond, rather than a cost bond.

Section 227a, title 28, USCA (44 Stat. 1261), reads as follows:

“When in any suit in equity for the infringement of letters patent for inventions, a decree is rendered which is final except for the ordering of an accounting, an appeal may be taken from sueh deeree to the circuit court of appeals: Provided, That such appeal be taken within thirty days from the entry of sueh deeree or from February 28, 1927; and the proceedings upon the accounting in the court below shall not be stayed unless so ordered by that court during the pendency of sueh appeal.”

Upon appeal to the Circuit Court of Appeals from an interlocutory deeree granting or continuing an injunction, the appellant is not entitled to a supersedeas as a matter of right, and it is within the discretion of the Circuit Court to grant or refuse it. In re Haberman Mfg. Co., 147 U. S. 525, 13 S. Ct. 527, 37 L. Ed. 266; Virginian Ry. Co. v. United States, 272 U. S. 658, 672, 47 S. Ct. 222, 71 L. Ed. 463; Lalance & Grosjean Mfg. Co. v. Habermann Mfg. Co. (C. C.) 54 F. 375; Timolat v. Philadelphia Pneumatic Tool Co. (C. C.) 130 F. 903. Furthermore, the bond was given more than sixty days after the interlocutory deeree was entered and it could not have operated as a supersedeas without an order of the court to that effeet. No such' order was made. Section 874, title 28, USCA. In their brief, counsel for appellees say that “it may be admitted that the bond is not a supersedeas bond but a plain cost bond on appeal.” We will, therefore, consider it as a cost bond and not as a supersedeas bond.

In Fidelity & Deposit Co. v. Expanded Metal Co. (C. C. A. 3) 183 F. 568, the court held that the phrase “all costs” in a cost bond on appeal included both trial and appellate court costs. Sueh conclusion is predicated upon the proposition that, since the phrase “all costs” in the condition provided for a supersedeas bond includes both trial and appellate court costs, the same words in the condition provided for a cost bond should be given the same meaning. This decision has been followed in Oehring v. Fox Typewriter Co. (C. C. A. 2) 266 F. 682, 12 A. L. R. 718; American Surety Co. v. United States (C. C. A. 5) 239 F. 680; Pacific Coast Casualty Co. v. Harvey (C. C. A. 9) 250 F. 952.

This, however, is contrary to the practice-in this circuit. The amount, of the cost bond is seldom fixed high enough to cover the costs in both the trial and the appellate courts. This is well illustrated by the instant case, where the amount of the bond was $750.00 and the trial court costs were $2,-493.61. A judgment or decree in the trial court includes the costs in that eourt. Such costs are merged in the judgment. They are collectible under the word “damages” in the supersedeas bond, which covers the entire money judgment, of which the costs are a part. Cranor v. School Dist., 81 Mo. App. 152, 154; Id., 151 Mo. 119, 52 S. W. 232; Schroeder v. Boyce, 127 Mich. 33, 86 N. W. 387, 388. Therefore, in order to construe a supersedeas bond as covering the costs in both the trial and the appellate courts, it is not necessary to construe the phrase “all costs” as covering trial court costs because, as stated, such costs are covered by the word “damages.”

It is our conclusion that the phrase “all costs,” in both supersedeas and cost bonds, includes only the costs in the appellate court. To hold otherwise would require the appellant, who elects to give a cost bond and not to supersede the judgment or decree, to give security for the trial court costs the same as in a supersedeas bond, and to remain subject to execution pending appeal for the enT foreement of such judgment as to costs. We do not think Congress intended to so penalize the right of appeal.

It is our conclusion that the bond in the instant case covered only the costs in the appellate court.

The cause is reversed and remanded with instructions to enter judgment for appellant.


text:
    LEWIS et al. v. REYNOLDS.
    No. 369.
    Circuit Court of Appeals, Tenth Circuit.
    March 17, 1931.
    Rehearing Denied April 20, 1931.
    N. E. Corthell, of Laramie, Wyo. (A. W. McCollough and M. E. Corthell, both of Laramie, Wyo., on the brief), for appellants.
    John R. Wheeler, Sp. Atty., Bureau of Internal Revenue, of Washington, D. C. (C. M. Charest, Gen. Counsel, and P. E. Miller, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., and A. D. Walton, U. S. Atty., of Cheyenne, Wyo., on the brief), for appellee.
    Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.
   PHILLIPS, Circuit Judge.

This is an action at law brought by Edgar Percy'Lewis and Richard F. Cooper, as trustees under the will of Arthur Francis Thomas Cooper, deceased, to recover $7,297.16 alleged to have been wrongfully collected as federal income tax assessed against the estate of Cooper for 1920.

On February 18, 1921, the administrator of such estate filed an income tax return for the period from January 1 to December 12, 1920 — a final settlement of the estate having been made on the latter date. In such return, deductions were claimed on account of the following expenditures made by the administrator: Attorney’s fees, $20,750; state inheritance tax, $16,870; publishing notices, $67.52; probate court fees, $26.00; and premium on administrator’s bond, $105.55. A personal exemption of one thousand dollars was claimed and the normal tax on the first four thousand dollars was computed at four per cent.

On November 24, 1925, the Commissioner determined the tax upon such return. He disallowed all of such deductions except the item of attorney’s fees. He determined that Cooper, deceased, was a non-resident alien of Great Britain and Ireland at the time of his death and, therefore, disallowed the exemption of one thousand dollars and computed the tax on the first four thousand dollars at eight per cent. He assessed a deficiency tax of $7,297.16. On March 21,1926, the trustees paid such deficiency assessment under protest.

On July 27,1926, the trustees filed a claim for refund of $7,297.16, based on the disallowance of such deductions and exemption and the computation of the normal tax at eight per cent, instead of four per cent.

A letter from the Commissioner to the trustees, dated May 18, 1929, stated that the payment of $20,750 for attorney’s fees was not allowable as a deduction from income, and set forth a corrected computation of the tax. In such computation, the Commissioner allowed the amount paid as inheritance tax as a deduction, allowed the personal exemption of one thousand dollars and computed the normal tax at four per cent. Such computation showed a total tax liability of $21,-946.96, and the tax theretofore assessed and paid as $20,379.77. Such letter further stated:

“Since the correct computation results in an' additional tax as indicated above which is barred from assessment by the statute of limitations your claim will be rejected on the next schedule to be approved by the commissioner.”

The trial court held that the claim for refund was properly denied and entered a judgment accordingly. The trustees have appealed. ■ • •

Counsel for the trustees contend that the Commissioner -yvas without authority to redetermine and reassess the tax after the statute of limitations had run' against the assessment, and that he was restricted in his consideration of the claim for refund, at the time of his decision, to a determination of whether the trustees were entitled to deductions of the specific items set up in the claim for refund.

Counsel for the collector contend that the Commissioner had the power, upon consideration of the claim for refund, to reconsider the entire assessment and to determine whether or not the trustees had overpaid the tax.

Section 284 (a) of the Revenue Act of 1926 (44 Stat. 66), section 1065 (a), title 26, USCA, in part provides:

“(a) Where there has been an overpayment of any income, war-profits, or excess-profits tax imposed by this Act (Feb. 26, 1926), the Act entitled 'An Act to provide revenue, equalize duties, and encourage the industries of the United States, and for other purposes,’ approved August 5, 1909, the Act entitled 'An Act to reduce. tariff duties and to provide revenue for the Government, and for other purposes,’ approved October 3, 1913, the Revenue Act of 1916, the Revenue Act of 1917, the Revenue Act of 1918, the Revenue Act of 1921, or the' Revenue Act of 1924, or any such Act as amended, the amount of such overpayment shall, except as provided in subdivision (d), be credited against any income, war-profits, or excess-profits tax or installment thereof then due from- the taxpayer, and any balance of such excess shall be refunded immediately to the taxpayer.”

Section 322 (a) and (b) (1) of the Revenue Act of 1928 (45 Stat. 861), section 2322 (a) and (b) (1) title 26, USCA, in part provides:

“(a) Authorization. Where there has been an overpayment of any tax imposed by this title, the amount of such overpayment shall be credited against any income, war-profits, or excess-profits tax or installment thereof then due from the taxpayer, and any balance shall be refunded immediately to the taxpayer.
“(b) Limitation on Allowance. — (1) Period of limitation. No such credit or refund shall be allowed or made after two years from the time the tax was paid, unless before the expiration of such period a claim therefor is filed by the taxpayer.”

The above quoted provisions clearly limit refunds to overpayments. It follows that the ultimate question presented for decision, upon a claim for refund, is whether the taxpayer has overpaid his tax. This involves a re-determination of the entire tax liability. While no new assessment can be made, after the bar of the statute has fallen, the taxpayer, nevertheless, is not entitled to a refund unless he has overpaid his tax.

The action to recover on a claim for refund is in the nature of an action for money had and received, and it is incumbent upon the claimant to show tha,t the United States has money which belongs to him. Champ Spring Co. v. United States (C. C. A. 8) 47 F.(2d) 1.

Since, in the instant ease, the trustees had not overpaid the tax, the claim for refund was properly denied.

Judgment affirmed.


author: HUTCHESON, District Judge.

text:
    HOGAN et al. v. UNITED STATES.
    No. 5991.
    Circuit Court of Appeals, Fifth Circuit.
    April 3, 1931.

      Edwin H. Grace and Edwin C. Hollins, both of New Orleans, La., for appellants.
    Philip H. Mecom, U. S. Atty., and Elmer A. Mottet, Asst. U. S. Atty., both of Shreveport, La., and A. W. Henderson, Sp. Asst. to Atty. Gen., for the United States.
    Before FOSTER, Circuit Judge, and HUTCHESON and SIBLEY, District Judges.
   HUTCHESON, District Judge.

On an indictment charging in the first count conspiracy to handle intoxicating liquors in violation of both the National Prohibition and the tariff laws, in the second count unlawful importation of intoxicating liquors, in the third count unlawful concealment thereof after importation, and in the fourth count unlawful transportation, ten defendants, appellants here, were convicted. Four were convicted on all four counts; four on counts 2, 3, and 4, while two, Bryan and Smith, were convicted on the conspiracy count alone.

Appellants complain of the action of the court below in overruling their motion to quash and their demurrers to the four counts of the indictment, while error is assigned to the ruling in all the counts, the brief argues only the error as to the conspiracy count submitting the point as to the other three counts without argument.

There is no merit in the attack on the conspiracy count. It is competent to charge,, and the indictment does charge, simply and clearly a single conspiracy to violate both the tariff and the prohibition acts, and proof as to either will support conviction. McDonnell v. U. S. (C. C. A.) 19 F.(2d) 801. Not only in the general charging part of the indictment, but in the statement of the overt acts, the conspiracy is fully and sufficiently alleged. Miller v. U. S. (C. C. A.) 300 F. 529; Hartson v. U. S. (C. C. A.) 14 F.(2d) 561; Tomplain v. U. S. (C. C. A.) 42 F.(2d) 203; Perry v. U. S. (G. C. A.) 39 F.(2d) 52; Wong Tai v. U. S., 273 U. S. 77, 47 S. Ct. 300, 71 L. Ed. 545.

Nor was there error in the court’s action on the other counts except the third. The third count failing to charge that the liquor in question had theretofore been unlawfully imported, and being therefore defective, the demurrer to this count should have been sustained. Hartson v. U. S. (C. C. A.) 14 F.(2d) 561.

This error is harmless, however, because the sentences imposed upon the defendants were less than might have been imposed upon the valid counts of the indictment.

The contention which the appellants mainly labor is that there was error in the admission of the evidence of the chief Government witness himself a eoeonspirator, as to conversations and transactions had in January and February, 1929, at Abbeville, La., with one of the defendants, Hogan, whom the evidence shows to have been one of the moving spirits in the conspiracy, as to shipments of liquor from Abbeville, appellants claiming that this was in effect an admission in proof of other crimes than those charged, and that it was therefore highly prejudicial to them.

The point is wholly without merit. While it is true that the indictment does charge in the conclusion of the stating part that “thereafter intoxicating liquors were to be transported to Gueydan, Louisiana, from which point they were again to be transported to various places,” the indictment is not and cannot be thereby limited to the particular Gueydan transaction referred to in the statement of overt acts; and in the substantive counts of the indictment. For not only is . the date of the beginning alleged as on or about April 1, 1929, of course immaterial as to fixing the starting time of the conspiracy, but the indictment expressly alleges that the conspiracy was begun and continued at Abbeville and Gueydan in the parish of Vermillion, at Lake Arthur, in the parish of Jefferson Davis, and in the parish of Cameron, state of Louisiana.

More than that, it continues alleging generally that the parties named in it conspired “to commit 'certain offenses against the United States; that is the offenses of unlawfully transporting into and unlawfully possessing within the United States intoxicating liquors,” and further, that “such scheme and conspiracy was to be carried out in substantially the following manner; that said defendants were to bring said intoxicating liquors into the United States at various places along the Southern coast of the State of Louisiana.”

In the light of the specific allegations in the indictment as to Abbeville, all of the elaborate structure of complaint which appellants have raised against the admitted evidence falls. Besides, had the indictment omitted the specific reference to Abbeville, the proof as showing the inception of, and' characterizing the relation to each other of the parties would be admissible against the objection urged, for if evidence is relevant to and admissible in proof of the offense in question, it is not rendered inadmissible because it might have a tendency to prove the commission of other offenses. Nielson v. U. S. (C. C. A.) 24 F.(2d) 802, 803; Haffa v. U. S. (C. C. A.) 36 F.(2d) 1.

Appellants also urge that the evidence is insufficient to support the conviction. While it is true that the evidence on the part of the United States consists largely of the.testimony of accomplices and eoeonspirators, not one syllable of evidence was offered by defendants in rebuttal, and the testimony, if believed, was ample to establish the guilt of each of the defendants.

The court, in a full, comprehensive, and fair general charge submitted the ease to the jury on the theories as well of the defendants as of the government, and no error either in the matter of the charges given or of those refused is shown.

Appellants make an additional point upon the introduction over their objection, of evidence in support of one of the overt acts charged in the conspiracy count, the attempted bribery of an officer to permit the handling of liquors through his parish. The admission of this evidence was not error. It was offered, not as proof of an independent offense, but as part of the arrangements undertaken for the effective carrying out of the conspiracy. It was germane to it, and while it may have suggested the commission of another offense, it was not offered for that purpose, nor is it objectionable as such because of that tendency. “The mere fact, if it be a fact, that such admitted testimony showed a minor conspiracy to commit an unlawful act other than those charged in the indictment, would not render such evidence incompetent, provided it tended to prove a necessary ingredient of the major conspiracy.” Haifa v. U. S. (C. C. A.) 36 F.(2d) 1, 3; Nielson v. U. S. (C. C. A.) 24 F.(2d) 802, 803.

Any relevant act tending to prove the general character and object of the conspiracy is admissible, even though it tends to prove the commission of a separate offense. Woodman v. U. S. (C. C. A.) 30 F.(2d) 482, 483; Martin v. U. S. (C. C. A.) 17 F.(2d) 973.

The ease of Cucchia v. U. S. (C. C. A.) 17 F.(2d) 86, cited by appellants, is not in principle opposed. That was a fact case, in which the court, after announcing the principle as above stated, held that the proof offered was not germane to the conspiracy charged, but related wholly to an independent offense.

Finding the record without reversible error, the judgment of the court below is affirmed.


author: WYMAN, District Judge.

text:
    WABASH R. CO. v. LEWIS et ux.
    No. 8870.
    Circuit Court of Appeals, Eighth Circuit.
    March 11, 1931.
    Paid M. Peterson, of Columbia, Mo. (Homer Hall, of St. Louis, Mo., and Boyle G. Clark and Nick T. Cave, both of Columbia, Mo., on the brief), for appellant.
    Don C. Carter, of Sturgeon, Mo., for appellees.
    Before STONE and GARDNER, Circuit Judges, and WYMAN, District Judge.
   WYMAN, District Judge.

This is an appeal from a judgment rendered by the United States District Court for the Central Division of the Western District of Missouri, in an action brought by the appellees, as plaintiffs below, against appellant, defendant below, for the recovery of $7,500 in damages alleged to have resulted to the residence property of the plaintiffs, situated at Columbia, Mo., by reason of the failure on the part of the defendant railroad company to construct and maintain necessary and proper ditches and openings along and through a certain embankment constructed and used by said railroad company for and as a roadbed for certain of its spur tracks.

The petition of the plaintiffs alleges, among other things, ownership in the plaintiffs of the property alleged to have been damaged; construction of the embankment or roadbed by the defendant; its failure and negleet to construct, maintain, and keep open suitable and necessary ditches and drains along said roadbed, and sufficient and necessary openings through and across said roadbed or embankment; and that by reason of said failure and negleet, on the 19th and 28th days of June in the year 1928, and on the 30th day of April and the 1st day of May, in the year 1929, waters, including surface waters, were gathered on the north and west side of said embankment, and were held and forced back, across, on, and over the property of the plaintiffs by reason of which the plaintiffs were damaged in the sum of $7,500.

The defendant, by way of answer, interposed a general denial.

The ease was tried to a jury, and at the conclusion of all of the evidence the defendant moved the court for a directed verdict in its favor, which motion was denied. The jury found for the plaintiffs and assessed their damages at the sum of $1,658.37. Judgment was thereafter entered accordingly, from which judgment the defendant railroad company has appealed to this court.

There is substantial evidence which tends to prove the following facts: William Lewis and Fanny Lewis are husband and wife, and for some ten or twelve years prior to the commencement of the action they owned and resided upon the property described in the petition, which consists of a certain lot or parcel of ground with a .two-story and basement frame dwelling house situated thereon, in the city of Columbia, Mo. Said residence property fronts west on a street known as Christian College avenue, which runs north and south in the city of Columbia. The main line tracks of the appellant railroad company run in a northerly and southerly direction, some distance east of the- Lewis property; and a street, known as Rogers street, runs in an easterly and westerly direction at some distance north of the Lewis property. The natural slope of the area between Christian College avenue and the main line railroad tracks and south of Rogers street is generally to the south. Some two or three years pri- or to the commencement of the action the appellant constructed a grade or embankment from a point on the west side of its main line tracks, at or near their intersection of Rogers street, and extending upon a curve east and south of the Lewis property in a southerly and southwesterly direction to a point on the east line of Christian College avenue, some distance south of the west line of the Lewis property. This grade or embankment was constructed and used as a roadbed for certain spur tracks or team’ tracks which branch off from the main line tracks, and in order to overcome the natural slope of the ground and maintain.the grade of the spur tracks at the -approximate level of the main line tracks, the height of the embankment increased from a height of about two feet at the point of its junction with the main line roadbed, to a height of some ten or twelve feet at its west end, directly south of the west line of the Lewis property. An inclined driveway was also constructed by means of an earth fill or grade some thirty or forty feet in width, which started at the approximate grade of the Lewis property and at a point near its south line, and extended south along the east line of Christian College avenue, increasing in height until it reached the level of, and connected at a right angle with, the roadbed or embankment at its west end.

Prior to the construction of this embankment, surface waters falling or flowing upon the area lying between Christian College avenue and the main line railroad tracks and south of Rogers street, flowed freely and naturally to the south and found their way into ■ a well defined natural water course known as Flat Branch, which was a stream some eight or ten feet in width, and six or seven feet in depth. No part of the area above referred to had ever been flooded or inundated as a result of inadequate drainage prior to the construction of said embankment within the memory of the witnesses. With the evident purpose of affording an outlet to the- south into Flat Branch, for surface waters finding their way onto the area above described, a drain tile, eighteen or twenty inches in diameter, was laid across the bottom of the embankment when the same was constructed at a point approximately south of the Lewis residence.

On the 19th and 28th days of June, 1928, and on the 30th day of April and the 1st day of May, 1929, the natural flow of surface waters falling or flowing onto the area lying north and west of the embankment above referred to was obstructed by said embankment, as a result of which said waters were impounded upon and overflowed a large part of said area, including the property of the appellees, which was inundated to a depth of from eight inches to a foot. When the water subsided, a large accumulation of mud, filth, and debris was left in the basement of the dwelling house and upon the lawn. As a result of these overflows, the foundation walls of said dwelling house settled and cracked; the basement floor was cracked and broken; windows and doors sagged and bound; the fireplace settled and was tom away from the wall and casing; and the dwelling house was damaged in other respects. Immediately after the 19th of June, 1928, the tile opening through said embankment was found to be filled with mud and debris.

Appellant contends that the court erred in denying its motion for directed verdict for the reason that there was no evidence that the overflow was caused by the failure to construct lateral ditches along or suitable openings through its roadbed, as required by section 9953, of the 1919 Revised Statutes of Missouri. This action was evidently brought under the section of the Missouri Statutes above referred to, which reads as follows:

“See. 9953. Ditches and drains — right of way to be kept clean. — It shall be the duty of every corporation, company or person owning or operating any railroad or branch thereof in this state, and of any corporation, company or person constructing any railroad in this state, within three months after the completion of the same through any county in this state, to cause to be constructed and maintained suitable openings across and through the right of way and roadbed of such railroad, and suitable ditches and drains along each side of the roadbed of such railroad, to connect with ditches, drains or watercourses, so as to afford sufficient outlet to drain and carry off the water, including surface water, along such railroad whenever the draining of such water has been obstructed or rendered necessary by the construction of such railroad.”

While there may be nothing in the record which tends to prove that the overflows resulted from any structural or mechanical defects in the ditches along, or the opening through, the roadbed, there is evidence from which the conclusion might reasonably be drawn that the opening through the embankment was insufficient in size to afford proper drainage of the area affected. There is also ample evidence to support a finding that the opening through the roadbed, regardless of its size, was not properly maintained. The statute under which the action was brought is regulatory in its nature, and it imposes upon the railroad company not only the duty of constructing suitable ditches along, and openings through, its roadbed, but also a continuing duty to maintain the ditches and openings after the same have been constructed. Manifestly, this statute, by its terms, makes it incumbent upon the appellant to keep the ditches along, and the openings through, its roadbed in repair and good working order so as to permit the free and unobstructed flow of surface waters through them, and thus afford proper and adequate drainage of the area lying north and west of the roadbed.

Appellant also contends that the evidence shows that the alleged damage to appellees’ property resulted from floods or overflows caused by excessive and unprecedented rainfall, and our .attention is directed to the fact that appellant requested the court to instruct the jury that they could not allow appellees anything for damages caused by a r.ain or overflow on the 28th day of June, 1928, and that a similar instruction was requested as to the rain or overflow occurring on the 1st day of May, 1929, and the court’s refusal to give these requested instructions is now assigned as error. It is argued that the only evidence having reference, to the 28th day of June, 1928, and the 1st day of May, 1929, is the record of the Weather Bureau, which shows that the rain occurring on the' 28th day of June, 1928, was unusual and unprecedented, and that appellant would not be liable for damages resulting from conditions which could not have been reasonably foreseen. It is also argued that there was no evidence that appellees sustained any damage as a result of rain or overflow occurring upon either of said last-mentioned dates.' It is true that there is evidence in the record which tends to prove that the quantity of rain precipitated on both June 19 and June 28, 1928, w.as «extraordinarily excessive and unprecedented in that locality, but it is equally true, notwithstanding the confused condition of the testimony, that there is substantial evidence in the record to the effect that while a heavy rain fell on eaeh of these dates, neither of the rainstorms was extraordinarily excessive or unprecedented. Each of several witnesses testified to their knowledge of previous rainstorms visited upon the vicinity which were of equal or greater volume and severity. The appellees’ 'witnesses, in the first instance, all testified as to rains and flood damage occurring on the 26th day of June, 1928, and the 29th day of April, 1929. After the records from the -office of the Weather Bureau were received in evidence, it appeared that there was no rain on either of the last-mentioned dates, but it also appeared that heavy rain fell on the 28th day of June, 1928, and that nearly an inch of rain fell on May 1, 1929. These witnesses were then recalled, and when their attention was called to the apparent discrepancy between their testimony and the records of the United States Weather Bureau, each of them testified that they might have been mistaken as to these dates. It is true that the witnesses, when recalled, did not specifically say that they had, in fact, been mistaken as to the dates and change their testimony in this regard', as perhaps they should have done; but in view of all of the facts and circumstances it was undoubtedly manifest to the court, the jury, and all concerned that the witnesses, when originally testifying, had, in fact, been mistaken as to these particular dates. There is nothing in the record, however, to indicate that their testimony was otherwise erroneous. The events detailed in their testimony occurred; the conditions related by them obtained; and as a result, appellees’ property was damaged. The important question in the ease was whether or not this damage was the result of the negligent act or omission on the part of the appellant, and the exact dates were of minor importance and material only to the end that appellant might be sufficiently advised as to the time of the alleged damage to enable it to intelligently answer the petition and prepare its defense. The credibility of witnesses, the interpretation of testimony, and the weight which shall be given to it, are matters to be considered and determined by the jury, and in view of the faets and circumstances disclosed by the record in this case, we feel that it was clearly proper to submit all of these questions to the jury, leaving it for them to say whether or not, under all of the faets, the evidence and circumstances in the case, the appellant was liable. We find no error in the aetion of the trial court in these regards.

Appellees] petition as originally drawn alleged the specific dates of the several inundations which resulted in the damage complained' of to - be the 19th and 26th days of June, 1928, and the 29th and 30th days of April, 1929. Witnesses for appellees, in their direct testimony, fixed these dates as the dates when the water overflowed appellee^! property. -After the records of the United States Weather Bureau office were offered and received in evidence, appellees’ witnesses were recalled, and each testified that he or she might have been mistaken as to the exact dates. Counsel for appellees, over appellant’s objection, was then permitted to amend the petition by changing the dates of the alleged inundations from the 19th and 26th days of June, 1928, to the 19th and 28th days of June, 1928, and from the 29th and 30th -days of April, 1929, to the 30th day of April and the 1st day of May, 1929. It is urged by appellant that the trial court erred in permitting this amendment. In support of this contention appellant argues that there was no evidence which could justify the amendment because the appellees’ witnesses did not fix the dates in the amended complaint as the dates of the particular inundations, but when they were recalled they merely stated that they might have been mistaken. While, as suggested above, the record in this regard is far from satisfactory] it is manifest that no prejudice resulted because of the amendment. There is no evidence that the appellant was taken by surprise,- or in .any way misled. The application to amend went to the wise discretion of the trial court, and in the absence of a showing of abuse of discretion, the court’s aetion will not be disturbed upon review. There was no error in permitting the amendment.

Upon the trial of the case the appellees called two contractors who were sworn and testified as expert witnesses. Appellant objected to certain hypothetical questions propounded to these witnesses, and the court’s action in overruling -these objections is now assigned as error. It appears by the record that the particular objections relied upon as a basis for the claim of error were very general in their terms. In fairness to the trial court and all parties concerned objections to hypothetical questions should specifically state the particular matters included in or omitted from the question which renders it objectionable, and had the objections in question been sufficiently definite in this regard, the defects in the questions might have been easily remedied at the time. But aside from this, the record discloses that the witnesses to whom these questions were propounded were cross-examined at length-by counsel for appellant, and the identical matters, the omission of which from the questions .appellant now contends rendered them objectionable, were supplied by such cross-examination. It follows that if there was error in overruling these objections, it was cured by the cross-examination and was in no way prejudicial to appellant. Travelers’ Ins. Co. v. Schenkel (C. C. A.) 35 F.(2d) 611.

In the course of the court’s charge to the jury the following language was used:

“The Court is going to say to you in discussing the evidence in this case, that the defendant contends that if the property was flooded at the times mentioned in the petition that it was due to an excessive, unprecedented rainfall. Gentlemen, I may say to you that nobody is responsible for an unprecedented or excessive rainfall unless it should appear that the negligence of the railroad company concurred, that is concurred, — I mean happened at the same time, the excessive rainfall and the negligence of the defendant in the ease all combined at the same time to cause the plain tiff injury, then plaintiff is entitled to recover.”

Appellant excepted to this portion of .the court’s instructions and now assigns it as error, and in support of its claim contends that there was no evidence of concurrent negligence in the record. Clearly, appellant is in error in this contention. It has already been observed that there was evidence from which the jury might have found the defendant negligent in its failure to construct adequate openings through its grade, as well .as in maintaining such opening after its construction. In view of the verdict it is manifest that the jury found such negligence. If the jury, under the evidence, believed that the rainfall was excessive, and, as defined by the court in its instructions, constituted an act of God, and that,'notwithstanding this fact, plaintiff’s property would not have been damaged but for the fact that the flow of the flood waters was retarded by reason of appellant’s negligence, then, manifestly, the negligence concurred in causing the damage. The rule is well settled that where rains are so unprecedented and the resulting floods so extraordinary that they are, in legal contemplation, an act of God, one obstructing the water flow will not be held liable, provided, however, that the so-called act of God is not only the proximate, but the sole cause of the damage. In other words, where an unprecedented flood is the cause of the damage, but the prior, coincident, or subsequent negligence of one obstructing the flow of flood waters so mingles with it as to be an efficient and co-operating cause, the obstructor will be held responsible because of his concurrent negligence. The instruction complained of was a proper statement of the law and was fully warranted by the testimony in the ease. Tranbarger v. Railroad, 250 Mo. 46, 156 S. W. 694; Chicago, etc., Ry. Co. v. McKone, 36 Okl. 41, 127 P. 488, 42 L.R. A. (N. S.) 709; Williams v. Columbus Producing Co., 80 W. Ya. 683, 93 S. E. 809, L. R. A. 1918B, 179.

It follows that the judgment appealed from should be, and is, affirmed.


author: REEVES, District Judge.

text:
    AMERICAN AUTOMOBILE INS. CO. v. CASTLE, ROPER & MATHEWS et al.
    No. 8880.
    Circuit Court of Appeals, Eighth Circuit.
    March 11, 1931.
    Rehearing Denied April 17, 1931.

      Ralph P. Wilson, of Lincoln, Neb., and John S. Marsalek, of St. Louis, Mo. (Allen, Moser & Marsalek, of St. Louis, Mo., and Burkett, Wilson, Brown, Wilson & Van Kirk, of Lincoln, Neb., on the brief), for appellant.
    C. Petrus Peterson, of Lincoln, Neb. (Peterson & Devoe, of Lincoln, Neb., on the brief), for appellees.
    Before KENTON and BOOTH, Circuit Judges, and REEVES, District Judge.
   REEVES, District Judge.

Appellant was the plaintiff and appellees the defendants in the trial court, and these designations will be used in the course of this opinion.

Plaintiff was engaged in' the automobile liability insurance business, and on August 23, 1927, issued its policy or contract of insurance to the corporate defendant, whereby it insured said defendant for the term of one year against liability arising from the use of its automobiles. On the 16th of September, 1927, an accident occurred which .formed the basis of a claim against the defendants. The automobile involved had been hired by, and was being used on behalf of, the corporate defendant.

On September 28th following, plaintiff caused to be attached to its said policy an indorsement which specifically covered hired automobiles “during the term thereof.” After this waa done, the plaintiff was notified of the accident and of the claim being made against the defendants. Thereupon, plaintiff canceled its policy and then filed its bill in equity to reform its terms while it was in force by striking from the hired ear indorsement the words “during the term thereof” and inserting therein the words “from the date of this endorsement.”

The object of such reformation was to relieve the company of apparent liability on account of hired ears used prior to the indorsement, which, it is averred, was in accordance with the actual agreement of the parties. Plaintiff alleged that- the language of the said indorsement was the result of a mutual mistake.

The defendants by answer, cross-bill, and counterclaim denied the limitations stated by plaintiff as to the coverage of the original policy, and averred that the original contract, consonant with the agreement of the parties, should have included hired automobiles. The defendants, therefore, sought to reform the policy to make it comply with their view of the original understanding of the parties. Moreover, the corporate defendant, having discharged the liability accruing against it because of the accident above mentioned, prayed recovery of the loss sustained; with interest, costs, and attorneys fees, upon the policy so reformed.

The chancellor below, upon the evidence, dismissed plaintiff's bill, reformed the policy in accordance with the cross-bill of the defendants, and allowed a money recovery in its decree for the loss sustained up to the limits of the policy. Plaintiff has appealed, claiming error in the dismissal of its bill, the reformation of the policy as prayed by the defendants, and the allowance of recovery for losses under the contract as reformed. These questions will be discussed, and statement of additional pertinent facts will be made in the course of the opinion.

1. The policy with its indorsements was obtained through the intermediation of O. G. Pierce Company of Lincoln, Neb. This was the business name of Mrs. Olga G. Pierce. She was engaged in the brokerage insurance business, and negotiated with the defendants relative to liability insurance. She solicited the insurance and obtained the policy through another brokerage office at Omaha, Neb., and thence through the regularly- licensed agents of the plaintiff, also of Omaha.' Nebraska statutes, section 7757, Compiled Statutes of 1922, in force at the time, provided in. relation to brokers as follows:

“Every * * * broker who shall solicit an application for insurance of any kind shall, in any controversy between the insured * * * and the company issuing any policy upon such application, be regarded as representing the company and not the insured.” ■

Section 7772 is supplemental, and fixes the status of all persons as agents for the insurer where such persons cause insurance contracts to be executed or receipt for the premiums on such insurance. Such statutes are recognized and enforced. 32 C. J. 1057; McMaster v. New York Life Insurance Co., 183 U. S. 25, 22 S. Ct. 10, 46 L. Ed. 64; Continental Life Insurance Co. v. Chamberlain, 132 U. S. 304, 10 S. Ct. 87, 33 L. Ed. 341.

It is obvious, therefore, that the O. G. Pierce Company was for all the purposes of this action the agent of the plaintiff. Stipcich v. Metropolitan Life Insurance Co., 277 U. S. 311, 48 S. Ct. 512, 72 L. Ed. 895. Her status was necessarily that of a soliciting agent. In Robinson v. Union Automobile Insurance Co., 112 Neb. 32, 198 N. W. 166, the Supreme Court of Nebraska defined the powers of a soliciting agent. This was done in construing said sections 7757 and 7772, supra. It was there held in, effect that the agent would have the right to agree with the insured in reference to the coverage of the policy, and that, if the policy when issued did not conform to the agreement of the parties, it became the subject of reformation.

Although the testimony of Mrs. Pierce, who testified for plaintiff, was vague and unsatisfactory, yet it tended to support the cross-bill of defendants to the effeet that hired automobiles should have been included in the coverage of the original policy.

The testimony of Charles H. Roper, who acted for the corporate defendant in such negotiations, was clear, positive, and satisfactory that the coverage of the original contract should have included hired automobiles.

The plaintiff relies on circumstances to support its claim that the hired ear indorsement was not to become effective as of the date of the original policy. These circumstances were gathered from the conferences of Mrs. Pierce with employees of the corporate defendant, wherein it was specifically mentioned that hired ears were not used by the corporate defendant, and the fact that in all the correspondence between O. G. Pierce Company and the Omaha-broker no reference was made to hired ears. Such correspondence specifically referred only to automobiles owned by the corporate defendant. Moreover, when the accident occurred, O. G. Pierce Company was notified by defendants. Mrs. Pierce thereupon obtained the hired ear indorsement, but neglected to advise her principal of the fact of the accident and probable claim. She delayed doing this till after the indorsement had been obtained and attached to the policy.

There was no evidence, however, that the corporate defendant or its agent knew anything about the correspondence of O. G. Pierce Company with her principal or of her failure to notify plaintiff of the accident or that there was collusion or bad faith on its part.

It was natural and proper for the agent of the corporate defendant to acquaint plaintiff’s soliciting agent with the facts of the accident and to' interpose a complaint on the limitation, if any, as to coverage of the original contract as evidenced by the policy. The defendant, Charles H. Roper, acting for his eodefendant, testified that he made such complaint to Mrs. Pierce after the accident, and that she at the time acquiesced in his suggestion that the policy was incomplete, in view of their negotiations, and voluntarily undertook to have it corrected. This she apparently did and delivered an amended or indorsed policy to the insured.

Upon the foregoing, the trial court was justified in dismissing plaintiff’s bill. Moreover, there was clear, convincing, and satisfactory testimony in support of the reformation of the policy in accordance with the prayer of the defendants. Philippine Sugar Estates Development Co. v. Government of Philippine Islands, 247 U. S. 385, 38 S. Ct. 513, 62 L. Ed. 1177; Mathis v. Hemingway (C. C. A.) 24 F.(2d) 951.

2. Plaintiff’s statement that the defendants would not have the right to recover on the policy as reformed for want of notice is untenable. The plaintiff waived notice and proofs of loss by denying liability on other grounds. Royal Insurance Co. v. Martin, 192 U. S. 149, 24 S. Ct. 247, 48 L. Ed. 385; Feis v. United States Insurance Co., 112 Neb. 777, 201 N. W. 558, 39 A. L. R. 1008. Moreover, there was no provision for forfeiture upon failure to give notice.

3. Though the parties stipulated for the waiver of a jury on the law question arising in the ease, yet, under equity rule No. 23 (28 USCA § 723), it was entirely permissible for the trial court to determine said matter “according to the principles applicable, without sending the ease or question to the law side of the court.”

The decree of the chancellor below is correct, and it is affirmed.


author: MeDERMOTT, Circuit Judge.

text:
    COMMISSIONER OF INTERNAL REVENUE v. MOORE, and three other cases.
    Nos. 202, 203, 205, 206.
    Circuit Court of Appeals, Tenth Circuit.
    March 14, 1931.
    Allin H. Pierce, Sp. Atty., Bureau of Internal Revenue, of Washington, D. C. (G. A. Youngquist, Asst. Atty. Gen., Sewall Key and Mr. John H. McEvers, Sp. Assts. to Atty. Gen., and C. M. Charest Gen. Counsel, Bureau of Internal Revenue, of Washington, D. C., on the brief), for petitioner.
    Hubert L. Bolen and D. B. Welty, both of Oklahoma City, Okl., for respondents.
    Before PHILLIPS and McDERMOTT, Circuit Judges, and KENNEDY, District Judge.
   MeDERMOTT, Circuit Judge.

The sole question involved on these appeals is whether the profit derived from the sale of certain oil stock should be charged into the income of the taxpayers for the year 1918, when the contract of sale was made, or whether it should be charged into the yeará in which the payments on the purchase price were actually received. The Board of Tax Appeals held that the entire profit was taxable in the year 1918, and, since the statute of limitations had run on the assessment of taxes for that year, that there was no taxable liability. The Commissioner appeals. The facts are not in dispute.

In the year 1918 the taxpayers owned 200 shares of the capital stock of the Garfield Oil Company, that being one-half of its issued capital; the other half was owned by the Exchange Oil Company, a subsidiary of the Sinclair Oil & Gas Company. In 1918 the' taxpayers undertook to negotiate a sale of their stock to the Exchange Oil Company. After some dickering, the parties agreed upon a sale price of $3,000,000, of which $500,000 was to be paid in cash, the balance to be paid by assigning 20 per cent, of the oil runs to the sellers until they had received $2,500,000, with the guaranty that such runs would equal at least $500,000 a year. Because of the greater financial responsibility of the parent Sinclair Company, it was agreed that that company should guarantee the deferred payments. The terms being agreed upon, it was left to the attorneys for the Sinclair Company to draw the papers. Such attorneys devised the plan of two contracts, one of them being an outright contract of purchase between the taxpayers and the Exchange Oil Company, by which the Exchange Company purchased the stock for $500,000 in cash and the delivery of oil and gas income certificates entitling the taxpayers or their assigns to 20 per cent, of the gross income of the Exchange Company, as and when received. The second contract was between the taxpayers and the Sinclair Company, by which the taxpayers purported to grant to the Sinclair Oil & Gas Company an option to purchase such certificates for the sum of $2,500,000. By that agreement the certificates, indorsed in blank, were delivered to a trustee named in the instrument. The taxpayers were to receive the income from the oil and gas certificates until such receipts equaled $2,500,000, when the Sinclair Company became the owner of such certificates. The Sinclair Company agreed that if in any one year the income from such certificates did not amount to the sum of $500,000, it would advance to the taxpayers the difference, without interest, and bound itself to purchase such certificates, five years from the date of the agreement, for a total consideration of $2,500,000. It is obvious that this is a firm contract of purchase, and not an option.

Reading these instruments together, as they must be, it is entirely clear that the taxpayers sold their stock for $3,000,000, $500,-000 in cash and $2,500,000 in deferred payments, the Sinclair Company binding itself to the extent of $500,000 a year for five years. The taxpayers could receive no more than $3,000,000 for their property in any event, and the Sinclair Company was firmly bound to pay that amount in any event. This is not only the clear purport of the writings when read together, but is also the undei'standing of the taxpayers. One of them testified that $3,000,000 “was the fixed price. There was no question about that. * * There was not any other view entertained by us but what we were receiving $3,000,000 as the purchase price for that property. * * * That was determined before we completed the sale.” The understanding of the taxpayers is further evidenced by the fact that, notwithstanding that their income tax returns were on a cash basis, they did not account for the entire profit on the sale in their 1918 returns, but accounted only for the $500,000 received that year, and in each of the five succeeding years accounted, for so much of the profit as was represented by the amounts received by them during the year in question.

Disagreement arose between the taxpayers and the Commissioner as to certain questions of depletion and other matters not here pertinent. During these negotiations with the Commissioner, the taxpayers maintained their original position that profits on the sale should be distributed over the five years. The negotiations with the Commissioner were so prolonged that the statute'of limitations ran upon any additional assessment for the year 1918. The taxpayers then contended that the sale was complete in 1918; that, in fact, no part of the purchase price of the stock sold was received in the years 1919 to 1923, inclusive, despite their returns to the contrary: that the transaction with the Exchange Oil Company was separate and distinct from the transaction with the Sinclair Company; that what they had in fact done was to exchange their stock in the Garfield Oil Company for $500,000 in cash and oil and gas income certificates which had a ready market value; that, under section 202 (b) of the Revenue Act of 1918 (40 Stat. 1060), the sale should be treated as an exchange of property; the contemporaneous transaction with the Sinclair- Company should be disregarded; and no part of the sale price should be charged to them for the years 1919 to 1923, inclusive. The statute having run on the 1918 assessment, the result of their contention, if sound, is that foui’-fifths of the profit from this sale escapes any taxation.

The Board of Tax Appeals sustained the contention of the taxpayers, and held that the transaction with the Exchange Oil Company was “complete in itself. * * * There were two transactions, each separate and distinct from the other and each giving rise to income.” With this holding we cannot agree. The first contract, considered separately, does not express the agreement of the parties. If the Board of Tax Appeals is correct, the sale price of the stock was an unascertained and unaseertainable amount, with $500,000 as a minimum, and that sum plus 20 per cent, of all the oil recovered under the leases as a maximum. But all the evidence is that the sale was bottomed on a fixed price of $3,000,000, of whieh $500,000 was to be paid in cash and the balance in deferred payments. This was the original agreement which the attorneys for the Sinclair Company were instructed to, and whieh they did, reduce to writing. That two contracts were drawn (o effectuate that purpose cannot change the substance of the transaction. See O’Meara v. Commissioner, 34 F.(2d) 390, where this court construed two writings as reflecting but one transaction. Taxation is a practical matter, and the courts uniformly penetrate the form to get at the substance. Tyler v. United States, 281 U. S. 497, 50 S. Ct. 356, 74 L. Ed. 991, 69 A. L. R. 758; Chicago, M. & St. P. Ry. v. Mpls. Civic Ass’n, 247 U. S. 490, 38 S. Ct. 553, 62 L. Ed. 1229; Schoenheit v. Lucas (C. C. A. 4) 44 P.(2d) 476; Tsivoglou v. United States (C. C. A. 1) 31 F.(2d) 706; Phillips v. Gnichtel (C. C. A. 3) 27 F. (2d) 662.

That leaves for determination the legal question of whether the entire profit on the sale should be charged to the year 1918, or whether it should be distributed through the years in whieh the purchase price was paid. The property involved is personal property; the sale was not one made by one regularly engaged in the sale of personal property on the installment basis, but was a casual sale; the buyer was responsible financially.

Section 213 (a) of the Revenue Act of 1918 (40 Stat. 1065), defines gross income as including profits arising from sales of personal property, and provides:

“The amount of all such items shall be included in the gjoss income for the taxable year in whieh received by the taxpayer, unless, under methods of accounting permitted under subdivision (b) of section 212, any such amounts are to be properly accounted for as of a different period.”

Article 42, Treasury Department Regulations 45, promulgated under this act, provides :

“The rule prescribed is that in the sale or contract for sale of personal property on the installment plan, whether or not title remains in the vendor until the property is fully paid for, the income to be returned by the vendor will be that proportion of each installment payment which the gross profit to be realized when the property is paid for bears to the gross contract price. * * * If the vendor chooses as a matter of consistent practice to treat the obligations of purchasers as the equivalent of cash, such a course is permissible.”

The taxpayers were on a cash basis of accounting, and, in line with the statute above quoted, they did return the profits from this sale “in the gross income for the taxable year in which received by the taxpayer,” proportioning the profit in accordance with the quoted regulation. Conceding, for the argument, that the statute and regulation afforded the taxpayers the election of treating the obligations of the purchaser as the equivalent of cash, the taxpayers otherwise elected; they may not now change that election, particularly since the result would be to throw all of the profit into a year where collection is barred by limitations. Lucas v. St. Louis National Baseball Club (C. C. A. 8) 42 F.(2d) 984; Rose v. Grant (C. C. A. 5) 39 F.(2d) 340; Alameda Investment Co. v. McLaughlin (C. C. A. 9) 33 F.(2d) 120; Holmes on Federal Income Tax (6th Ed.) 1278.

Another point is worthy of notice. Section 212 (d) of the Revenue Act of 1926 (26 USCA § 953 (d), is made retroactive by section 1208 of the same act (26 USCA § 953a). That section, and the regulation promulgated thereunder (Reg. 69, art. 42), permits the distribution of profits on a sale on deferred payments in the ease of “casual sale * * * for a price exceeding $1,000 * * * if the initial payments do not exec. 3 one-fourth of the purchase price.” The section defines “initial payments” as cash or property other than; evidences of indebtedness of the purchaser. The case at bar falls within the four comers of this , retroactive statute.

The taxpayers argue that the transaction is governed hy section 202 (a) of the Revenue Act of 1918, which provides that, where property is exchanged for other property, the property received in exchange shall “for the purpose of determining gain or loss be treated as the equivalent of cash to the amount of its fair market value, if any.” It is argued that they received in exchange for their stoek certain oil and gas income certificates, which, coupled with the agreement of the Sinclair Company to purchase, had a ready market value. But we do not regard the transaction as an exchange of their stock for the income certificates, but rather as a sale on deferred payments. The taxpayers never had any dominion over such certificates —they did not “receive them” — for by the very transaction of their issuance they passed to the Sinclair Company hy a contract of sale. Reliance is had upon Fesler v. Commissioner (C. C. A. 7) 38 F.(2d) 155, and similar cases, which hold that, where property is exchanged for negotiable bonds or other property which may he readily liquidated, the profit is realized and taxable, under section 202 (a). The facts do not bring this ease within the doctrines there announced, for this is not an exchange of property, but a sale on deferred payments. On the other hand, it was held hy the Second Circuit in Bedell v. Commissioner, 30 F.(2d) 622, 624:

“But if land or a vehattel is sold, and title passes merely upon a promise to pay money at some future date, to speak, of the promise as property exchanged for the title appears to us a strained use of language, when calculating profits under the income tax. Section 202 (b) of the Act of 1918 provided for an exchange of property and made the profit depend upon ‘the amount of its [the property received] fair market value, if any’ — a phrase which was amended in the law of 1921 (42 Stat. 227) to ‘readily realizable market value.’ There is a difference between the two, but it is absurd to speak of a promise to pay a 'sum in the future as having a ‘market value,’ fair or unfair. Such rights are sold, if at all, only by seeking out a purchaser and higgling with him on the basis of the particular transaction. Even if we could treat the case as an exchange of property, the profit would be realized only when the promise was performed.”

See, also, Foulke on Taxation, c. 18, “Installment Sales,” and cases there cited; Davis v. United States (C. C.) 46 F.(2d) 377; O’Meara v. Commissioner (C. C. A. 10) 34 F.(2d) 390.

In Eisner v. Macomber, 252 U. S. 189, 40 S. Ct. 189, 64 L. Ed. 521, 9 A. L. R. 1570, the government urged that the recipient of a stoek dividend had received taxable income, because the stockholder may sell the shares acquired by the stoek dividend. The Supreme Court said that he might if he could find a buyer, but if and when he did sell, the profit realized was taxable income. The Supreme Court then said, at page 213 of 252 U. S., 40 S. Ct. 189, 195:

“Tet, without selling, the shareholder, unless possessed of other resources, has not the wherewithal to pay an income tax upon the dividend stoek. Nothing could more clearly show that to tax a stoek dividend is to tax a capital increase, and not income, than this demonstration that in the nature of things it requires conversion of capital in order to pay the tax.”

It is so in this case. In 1918 the taxpayers had not realized all the profit from this sale. The profit was realized as they received 'the deferred payments. Aside from the $500,000, they received nothing in 1918 but a share in oil produced in later years and an agreement of the Sinclair Company. While the Sinclair Company was then, and now is, a solvent corporation, the fact still remains that the taxpayers did not realize the profit from the sale in 1918, hut realized the profit during the ensuing years; and it is the general contemplation of the statutes that a tax shall he levied on profits which are realized and not deferred. If the contention of the taxpayers is sound, one who sells his farm to a responsible buyer on payments deferred over twenty years must account for the entire profit during the year of the sale. He has not actually received that profit; he has received no income out of which to pay the tax; the statute and the regulations give him the right to spread the tax; to deny him the right would, in our opinion, result in a hardship to taxpayers generally.

The causes are therefore reversed and remanded for further proceedings in accordance with this opinion.


text:
    TODD et al. v. UNITED STATES.
    NO. 5958.
    Circuit Court of Appeals, Fifth Circuit.
    April 4, 1931.
    Rehearing Denied May 5, 1931.

      Morris M. Givens and C. J. Hardee, both of Tampa, Fla., for appellants.
    W. P. Hughes, U. S. Dist. Atty., of Jacksonville, Fla.
    Before FOSTER, Circuit Judge, and HUTCHESON and SIBLEY, District Judges.
   HUTCHESON, District Judge.

In this case, upon the trial of an indictment joining three counts, one against Chevis, one against Todd, and one against Todd and Day jointly, Chevis was acquitted, and Todd and Day found guilty as charged.

The first count charged in substance that on the 8th day of October, 1929, at Tampa, Hillsborough county, Fla., one T. M. Chevis had in his unlawful possession one pint of whisky; the second that Pirl Todd did, on the same day and in the same place, have in his possession intoxicating liquors, to wit, 59 bottles of home-brew beer, containing one-half of 1 per cent, and more of alcohol by volume fit and intended for use for beverage purposes, while the third count charged that, on the same day and in the same city and county, Pirl Todd and Leo Day did “unlawfully, willfully and knowingly maintain a common nuisance, that is to say, a certain one story frame building, located at 713 Morgan Street, city, county and district aforesaid, where intoxicating liquors containing % of 1% of alcohol by volume were then and there unlawfully kept for sale and sold for beverage purposes.”

The United States established by the uncontroverted testimony of its witnesses, the defendants offering no proof, that there were two small buildings, with a space six or eight feet between, one numbered 713 Morgan street, known as Leo Day’s place, the other known as the tire shop; that the rear of the tire shop and of 713 Morgan street were connected by a shed; that Day owned and maintained 713 Morgan street ostensibly as a taxi stand; but that it had long had the reputation of being a place where into^icating liquors were commonly sold; that the place had been under more or less constant observation; that many persons had been seen, especially at night, going into Day’s place; ears had been seen to drive up and drive away, while one MeMurray had been arrested in connection with some liquor in a garbage can in a vacant lot back of the place; that Day had on that occasion advised the officers that MeMurray was working for him at 713 Morgan street; that he (Day) was in the bootlegging business, and everybody knew it; that MeMurray was his man; and that he would plead him guilty.

There was no direct proof as to whether Day owned, or did not own, the “tire shop” building, but the proof was ample to sustain the conclusion that he had control at least of the back part of it, where the liquor was found. One of the government’s witnesses testified:

“I never at any time found liquor, wine, beer, or any intoxicating liquor, in the place at 713 Morgan Street; the^ do not keep liquor in that place. It is in a frame building to the south of it. I found the liquor or the beer in the rear of the tire place to the south of it where the little locked room was. There is a little walkway between the two buildings wide enough for a man to walk through. It is a separate building, but there is a shed that goes back that connects both of them.”

There was testimony that Day and Todd had been frequently seen hanging around this place. The testimony as to the occurrences on October 8th, when the arrests out of which this indictment grew were made,, is to the effect that prohibition officers, having seen Chevis stop in front of "Day’s place, 713 Morgan street, and Todd, the waiter, come out of there, talk to Chevis, go back into the building, go around behind and to a little shed room in another building about eight feet back of 713 Morgan street, and come out with a bottle partly wrapped which he gave to Chevis, had accosted Chevis and seized the bottle, which proved to be whisky; that immediately thereafter, seeing Todd, the waiter, who, after delivering the bottle to Chevis, .had gone back to the little room at the rear, come out of there and go into 713 Morgan street with a bottle in his hand, he had followed him in in time to see him throw the bottle out of the window, and to see the broken bottle and contents on the ground. This bottl'e also had' contained whisky.

Having arrested Chevis and Todd, he then went back to the little building whence he had seen Todd twice emerge, and entering, seized 59 bottles of intoxicating beer.

Day and Todd have appealed, urging reversible error in overruling their joint and several motions for bill of particulars and to quash, their demurrers to the indictment for misjoinder and indefiniteness, and their objections to the introduction in evidence of the liquors seized, because seized without probable cause as to them.

From the statement of the evidence above, it is clear that, though ordinarily it is not good practice to join in an indictment counts charging distinct offenses against separate defendants, U. S. v. McConnell (D. C.) 285 F. 164, the action of the court in this case cannot be assigned as prejudicial error, not only because a motion to quash is ordinarily addressed to the discretion of the court and is not the subject of review by an appellate court, Gay v. U. S. (C. C. A.) 12 F.(2d) 433, and because, if there was misjoinder, the objection was not well taken by demurrer, but ¿must be by motion to compel an election, Optner v. U. S. (C. C. A.) 13 F. (2d) 11; Etheredge v. U. S. (C. C. A.) 186 F. 434, but also because, though the indictment does contain separate counts as to separate defendants, the matters charged in reality constitute but one series of transactions, and the facts relied upon for the conviction of Chevis in the first, and Todd in the second, count, are the same facts relied upon for the conviction in the third count of Todd and Day, Davis v. U. S. (C. C. A.) 12 F.(2d) 253.

It is also apparent that the .court did not err in overruling the demurrers and motions to quash for want of definiteness and certainty, Maceo v. U. S. (5th C. C. A.) 46 F.(2d) 788; Husty v. U. S., 282 U. S. 694, 51 S. Ct. 240, 75 L. Ed.-, Feb. 24, 1931; and that its action in refusing the motion presented on the day before the trial for bill of particulars was an exercise of its discretion, which presents no reviewable error, Wong Tai v. U. S., 273 U. S. 77, 47 S. Ct. 300, 71 L. Ed. 545.

It is also .apparent that there was no error in the action of the court in admitting in evidence the bottle of whisky seized from Chevis,- that broken in Day’s place, and the 59 bottles of - home-brew beer found in the little tire shop.

As to the first bottle, it, when seized, was not in the possession of appellants, but of Chevis, and neither of them can complain of the invasion of Chevis’ constitutional rights, while as to the bottle broken in Day’s place, and the beer seized in the adjoining tire shop, the officer had right to seize them as incident to the lawful arrest of Todd, whom he had actually apprehended in an overt yiolation of the law.

In addition to these assignments, appellants present and urge most vigorously three others — that the court erred in refusing their motion to direct a verdict, because, as a matter of law, the proof at best for the government showed merely the taking of orders for whisky at 713 Morgan street, but that none was kept for sale or sold there; or, if there was an issue as to that point, that the court erred in the submission of the issue to the jury, both in refusing to give the charge which appellants requested and in charging as the court did.

Appellants cite Heitman v. U. S. (C. C. A.) 5 F.(2d) 887; Hattner v. U. S. (C. C. A.) 293 F. 381, to the effect that the government, having in the indictment specifically described the place where the alleged nuisance was maintained, must prove the place as laid; and Miller v. U. S. (C. C. A.) 300 F. 529, to the effect that, where the evidence at most establishes that a place which is used by one ostensibly for the carrying on of a legitimate business is also used by him as an office from which directions are given as to carrying on a liquor business elsewhere, or in which he sometimes received payments for liquor, the liquor being kept at some other place, and sold to purchasers without ever being on the premises, proof of nuisance is not made out.

We agree with appellants that, having laid the nuisance at 713 Morgan street, the government was required to prove it substantially as laid. We do not agree that it has failed to do so.

On the evidence, we think the proof amply supports the conclusion that a nuisance was being committed at 713 Morgan street as laid in the indictment. The evidence, direct and circumstantial, shows not only that the office of 713 Morgan street was used for the purpose of receiving orders and taking payment for intoxicating liquors sold there, but also that the liquors stored in the premises adjoining at the rear were in effect sold and kept for sale .at the number charged. Cached immediately at the rear, adjacent to and within eight or ten feet of it, in a little shed room shown to have been in the possession- and control of the appellants, in connection with 713 Morgan street, it was in effect delivered from the place where it was ordered. In addition, the proof amply supports the finding that at least some of the liquors stored in the little shed room for sale were carried into 713 Morgan street and through it for the purpose of delivery, and that all of the contact of the public with the liquors and their traffic and transactions in them were in effect carried on in and in front of that number.

There is abundant proof that the little shed room in the back of and adjoining 713 Morgan street was in the possession of, and used by, the appellants in their liquor enterprise as part and parcel of it, and, in the absence of controverting proof, it must be held that this in effect was so, and that the evidence amply supports the conviction on the nuisance count of the indictment.

It remain's only to inquire whether there was error prejudicial to the appellants in the way in which this count was submitted to the jury.

It is claimed that there was error in refusing the charge requested, to the effect that, if the jury found that no liquor was actually kept for sale or sold at 713 Morgan street, they should find the defendants not guilty, even though they believed that orders for liquors were taken there, and it is also claimed that there was error in the affirmative charge of the court that, “if the jury found that orders were taken there and money paid at 713 Morgan Street for the delivery of intoxicating liquors from other premises, it was immaterial that any intoxicating liquors were actually kept there, for under such circumstances intoxicating liquors would be constructively kept there.”

Considering these charges, that refused and that given, as we must, not as abstractions, but as applied to the faets in this case, we think it plain that no error was committed. The law looks to the substance, not to the form; that is satisfied here. The statute denounces as well the sale as the keeping for sale. Assuming, therefore, without deciding, that, if the facts here were like those in the Miller Case, orders for liquor being taken at one place, and deliveries being made from a place not immediately contiguous, but entirely different in location, proof of nuisance would not be made out, and that it would have been error for the court, under such facts, to fail to so charge, such a ease is not presented here. Here all of the liquors were cached in an immediately adjoining and connected unnumbered building entirely under the control of the 'defendants, and all of the transactions were made in front of or in the numbered,office, where the deliveries, though beginning at the adjoining shed, were completed. Under these circumstances, the numbered office would in effect be the place where liquors were kept for sale and sold, even though no liquors were actually stored in the place, or no manual deliveries took place inside of it.

The court charged the jury generally that, if orders were taken and money paid in the premises for the delivery of intoxicating liquors from other premises the nuisance charge would be made out. The charge must be construed in the light of the evidence in the case. So construed, it in effect tells the jury that, if 713 Morgan street was a place where purchases and sales of liquors were negotiated, moneys paid therefor, and deliveries effected from a store of liquors maintained in the shed adjoining it in the rear, the place would be a common nuisance, although no liquors were actually kept in storage there. This charge fully satisfied the law.

There being no reversible error, the judgment is affirmed.