author: BOOTH, Circuit Judge.

text:
    CONTINENTAL NAT. BANK & TRUST CO. et al. v. FULLERTON.
    No. 8894.
    Circuit Court of Appeals, Eighth Circuit.
    March 13, 1931.
    Henry Pitts, of Chicago, Ill., and A. P. House, of Little Rock, Ark., for appellants.
    Prank H. Sullivan, of St. Louis, Mo., and Walter G. Riddick and Charles T. Coleman, both of Little Rock, Ark., for appellee.
    Before KENYON and BOOTH, Circuit Judges, and REEVES, District Judge.
   BOOTH, Circuit Judge.

This is an appeal from a decree which adjudicated priorities between two mortgages as respects a certain derrick boat.

The facts are largely undisputed, and are substantially as follows: In 1923 the Thane Lumber Company was engaged in the manufacture and sale of lumber in Arkansas City, Ark. It purchased that year and put into use a steel barge costing about $8,500. In March, 1924, the barge was tied up near the mill, where high water and a storm caused it to sink. When the water subsided, in the summer of 1924, the barge became visible, and it was bailed out and caused to float in December of that year. It was then used as a material barge and work barge. It was also used as a crib in connection with an inclined track from the river to the mill. In the summer or fall of 1925, the barge was cut in two; one-half of it was sold for $1,500, and the other half was converted into a derrick boat. The work of so converting it was done during the period commencing in the fall of 1925 or the winter of 1925-1926 and ending in the summer of 1927. The cost of reconstruction was seventeen or eighteen thousand dollars.

November 1, 1924, the Thane Company executed a mortgage to the Continental National Bank & Trust Company and another, as trustees, to secure a series of. bonds amounting to $630,000. ' The mortgage was recorded January 10,1925. It covered lands, railroads, mill site, lumber and river equipment, fallen trees, and logs; and, among other property, “also all boats, barges and river equipment of every kind now or hereafter used or acquired for use by the Mortgagor in connection with its operations on the mortgaged property.” The mortgage also contained the following clause:

_ ... _ a “It will at its own expense do all things the Trustees or Bankers may deem necessary to keep this Instrument a first lien on any and all of the mortgaged property and will promptly and duly execute and deliver to the Trustees any instruments which the Trustees or Bankers deem advisable for better carrying out the true intent hereof. It will not create or attempt or suffer to be created any lien or charge whatsoever on the mortgaged property or on any part thereof prior to or of equal rank with the lien hereof, or whereby the lien or security hereof might be impaired.’

February 25, 1926, the Thane Company, as first Party, made a contract with S. H. Fullerton, C. W. Reighard, and Bradley Investment Company, as second parties, by which the Thane Company agreed to buy from the second parties certain stock of the Thane Company owned by them. Payment was to be made by promissory notes executed by the Thane Company. It was further agreed that the second parties should have an equitable mortgage on all lumber manufaet-ured by the first party to secure said notes; said mortgage, however, to be subject to a mortgage held by the Chicago Lumber & Coal Company on said lumber as manufactured by said first party.

The Chicago Lumber & Coal Company was the sales company of the Thane Lumber Company. By the contract between them, prior to February 25,1926, the Chicago Lumber Company agreed to advance $20 per thousand feet on all hardwood and cypress lumber No. 2, common or better, manufactured by the Thane Lumber Company, and take a mortgage thereon. j

Subsequent to the making of the contract of February 25, 1926, the Thane Lumber Company agreed with the Bradley Investment Company that the Chicago Lumber *& Coal Company should take out of the proceeds coming to the Thane Lumber Company from lumber sold $4 per thousand feet, and pay it to the Bradley Investment Company to applied on the indebtedness owing by the Thane Lumber Company to the Bradley Investment Company. This arrangement was carried out.

' On October 25,1927, the Thane Company executed a mortgage to the Bradley Investment Company (later assigned to appellee Fullerton), covering real and personal property, including the following:

„ ., „ , , . “A1f a11 boats’ bar^es and laver ment of, «Y®* kmd or befafter ^ed or acquired for use by the mortgagor m conneetion ^ its operation on the mortgaged Br0I)erfV ^
“And special mention and reference is made to toe * * * Derrick boat ‘Chestor.
“ * * * All lumber that the grantee may manufacture or have on its yards at its mill plant in Arkansas City which yard is known as Thane Lumber Company Lumber yard, but subject, however, to the advances made by the Chicago Lumber & Coal Company. * * * ”

The derrick boat Chester was the reconstructed boat here in controversy.

This mortgage also contained the follow- ■ e]ause. '

„ . . . * This mortgage is executed sub-3eot to tbe terals and conditions of the mortentered f*0 b®twe.en toe Thane Lumber Company and the Continental & Commercial Timst & Savings Bank, and Calvin Fentress) wbieb mortgage is dated November 1st, 1924, and filed for record m the circuit clerk’s office 111 Desha County.

Default having occurred in the. Bradley Investment Company mortgage, suit in equity was commenced to foreclose the same, The Continental National Bank & Trust Company et ah, as trustees under the mortSaSB of November 1, 1924, were made parties. They answered, and by cross-bill set up the mortgage of November 1, 1924, default thereunder, and prayed for appropriate retim-

November 23, 1928, the court entered a decree under the cross-bill, foreclosing the mortgage of November 1, 1924, and ordering a sale of the property covered by said mortgage, except the steel derrick boat here in controversy. As to said boat, the court said:

“ * * * That a certain steel derrick boat completed in the year 1927 now in possession of Thane Lumber Company be not sold and the priority of right to such boat of the aforenamed counterelaimants be hereinafter determined. * * * ” •

The sale as to the other property was duly confirmed

June 29, 1929, the court entered a decree in the Fullerton suit, foreclosing the mortnn , , oe .«ofv? j f ■ i gage of October 25,1927, and ordering-a sale 6«bM i , -a i. of the property covered by said mortgage. t f ♦ a xl ji n The decree contained the following:

UTri, ,. „ . ., r. v , ‘‘The question of priority of lien as to the derrick boat ‘Chester* as between the plaintiff ci tt TTi n «. j , v , i . . S. H. Fullerton and the countercomplainant, n t> i pm . n i • Continental Bank & Trust Company, having , ,, . , , . j i ' been this day heard and taken under advise- , . j? • i . • ,, ment is reserved for further consideration.”

The sale as to the other property was duly confirmed.

January 21, 1929, the Continental National Bank & Trust Company et al. filed a petition for a sale of the derrick boat.

February 19, 1930, a decree was entered containing the following:

“ * * * The court, after argument of counsel, being well and sufficiently advised, finds that the Continental Bank & Trust Company of Chicago, and Wm. P. Kopf, Trustees, are entitled to a first lien for $1500 on the derrick boat ‘Chester’, and that S. H. Fullerton is entitled to any balance arising from its sale, said amounts to be credited on the decrees in favor of said parties respeetively.”

A sale of the derrick boat and distribution of the proceeds were ordered.

The present appeal followed; a severance as to the Thane Lumber Company being duly had.

We.think it is set out that the mortgage of November 1, 1924, to the Continental National Bank & Trust Company by its granting clause covered the steel barge which at one tune was sunk but never abandoned; that said clause also covered, as a matter of law, any additions or repairs or alterations m said barge which did not amount to a change of identity.

We think it is also clear, under said facts, that as between the Thane Company and the Continental National Bank & Trust Company, and laying to one side any rights of the Bradley Investment Company, the mortgage of November 1, 1924, to the Continental National Bank & Trust Company, reason of the after-acquired property e^ause> covered all additions and alterations whicb converted the barge into a derrick bo£d:-

We pass to a consideration of the rights of the Bradley Investment Company in and derrick boat. Such rights must have their origin in (1) the contract of February l026’, (2) S0“6 Promise by the Thane L™ber Company to give to the Bradley Investment Company alien on the derrick boat; /ox v. r u ~ , oc 1f10(7 or (3) the mortgage of October 25, 1927, to ,, v> n -r a , ^ the Bradley Investment Company. J J

• As to the first (contract of February 25, nrt0/>N , j , , f 1926)’ xt ?(urPor1t.ed to ^8> “0t a mortgaf or an equitable lien on the barge or on the . . , 7 , , , . . v , . n derrick boat (which, according to counsel tor • .. v . , « ,.. * n « appellee was not thought of until the fall of , , , «-.it 1926), but merely an “equitable mortgage . n, ... , *\T 0 ^ ^ t>&* against all lumber No. 2, Common and Better.manufactured by party of the first part [Thane Lumber Company]” to secure the payment of an indebtedness to the Bradley Investment Company represented by certain notes.

Appellee contends that the money derived from the sale of lumber was not used by the Thane Lumber Company to pay the notes, but, instead, was used in constructing the derrick boat; and hence that the equitable mortgage on the lumber followed the proceeds and' attached to the derrick boat,

There are several reasons why this contention cannot prevail: First, there is no suffieient proof that the proceeds of lumber which should have been devoted to the payment of notes to the Bradley Investment Company were diverted to the building of the derrick boat. The evidence shows that there was 110 default in tbe payment of such notes until about November 1, 1926, and, meanwhile, a very considerable sum had been spent on the derrick boat. Second, there has been no sufficient tracing of the proceeds of the lumber> on which the Bradley Company had an equitable mortgage, into the derrick boah The evidence shows that the moneys gpent on the boat eame from tbe general funds of the Thane Lumber Company. The evi¿enee ¿oeg n0(; show that the only source of tbeS6 ral funds was £rom the sale of Iumber eovered by the equitable mortgage. The equitable mortgage covered certain speeifled classes of lumber only. What the sales were of other classes is not shown. Further, it appears affirmatively that the Thane Company received $1,500 from the sale of one-half of the steel barge; and that it was entitled to 3 per cent, commission on sales of lumber made by it to parties calling at Arkansas City. What the amount of revenue from these sources was does not appear, nor whether there were still other sources. Furthermore, even conceding that some of the proceeds of the lumber covered by the equitable mortgage were diverted from the payment of the notes secured by the mortgage, yet it appears that other expenditures were made by the Thane Lumber Company, during this period, amounting to upwards of $17,-000, in repairing docks and barges and in installing a water system. It is not shown that the diverted funds did not go into these several improvements instead of into the derrick boat; nor is the exact amount of funds claimed to have been diverted shown. The tracing of diverted funds into the derrick boat is, therefore, very far from being made out. But such tracing must be clear before the equitable mortgage would attach to the boat, even if appellee’s theory be correct. Pomeroy, Equity Juris. (3d Ed.) vol. 3, § 1058; Empire St. Sur. Co. v. Carroll County, 194 F. 593, 604 (C. C. A. 8); Macy v. Roedenbeck (C. C. A. 8) 227 F. 346, 353, L. R. A. 1916C, 12 and note, page 21; Zenor v. McFarlin, 238 F. 721, 724 (C. C. A. 8), and cas es cited; Central State Bank v. McFarlin, 257 F. 535 (C. C. A. 8).

Further, the arrangement above noted, by which the Bradley Investment Company received $4 per thousand feet of lumber, to be applied on the debt of the Thane Lumber Company, was a waiver of any equitable lien on the remaining proceeds.

Finally, if any of the proceeds of the lumber covered by the equitable mortgage went into the derrick boat, it was with the consent of the mortgagee, the Bradley Investment Company. Counsel for appellee says in his brief:

“Probably $5,417.36 of these funds were used before the Bradley Company discovered the diversion. A large part of the balance, $12,056.77, was used after Reighard complained of the diversion, but permitted such diversion to continue, under the assurance that the Bradley Company would have a first lien on the derrick boat, and that a mortgage covering it would be executed as soon as it was completed.” "

. . . In view of the foregomg circumstances, we think that the lien of the equitable mortgage en the lumber did not attach to the derrick boat.

Another contention of appellee is that the Thane Lumber Company promised that the Bradley Investment Company should have a lien on the derrick boat when completed, and that this promise was carried out by the execution of the mortgage of October 25, 1927. We think the evidence does not sustain the making of such promise; and, unless such promise was made, an equitable lien would not arise, under the circumstances here existing. 37 C. J. p. 315 et seq.; Westinghouse, etc., Co. v. Brooklyn, etc., Co. (C. C. A.) 263 F. 532; In re Interborough Consol. Corp. (C. C. A.) 288 F. 334, 349, 32 A. L. R. 932; Shooters Island Shipyard Co. v. Standard Shipbuilding Corp. (C. C. A.) 293 F. 706; Jackman v. Newbold, 28 F.(2d) 107,112, 62 A. L. R. 729 (C. C. A. 8).

in July or August, 1927, and before the execution of the mortgage of October 25, 1927, the derrick boat was completed and in use. It had, therefore, come under the mortgage to the Continental National Bank & Trust Company; and the mortgage of October 25, 1927, could attach only as a second mortgage. This was recognized in the mortgage itself, in the clause above quoted.

T In view of the foregoing, we think the court erred in not holding that the Continental National Bank & Trust Company had a grgj. j¡en on ¿¡errJck boat to the full amount of the indebtedness secured by its deed trust.

The decree is reversed, with instructions to enter a decree in favor of appellant in aecordance with the views herein expressed.


source: Caselaw Access Project

author: BRYAN, Circuit Judge.

license: Public Domain

text:
    SOUTHWESTERN BELL TELEPHONE CO. v. EAST TEXAS PUBLIC SERVICE CO.

    No. 5914.
    Circuit Court of Appeals, Fifth Circuit.
    April 3, 1931.

      Nelson Phillips, of Dallas, Tex., and J. Q. Mahaffey, of Texarkana, Tex. (Jos. W. Jamison, of St. Louis, Mo., C. M. Means, of Dallas, Tex., and J. J. King, J. I. Wheeler,. and C. E. Bryson, all of Texarkana, Tex., on ; the. brief), for appellant. ,
    James T. Casey, F. H. Prendergast and George Prendergast, all of Marshall Tex., £or appe};[ee
    Before BRYAN and POSTER, Circuit Judges, and DAWKINS, District Judge,

      Behearing denied May 4, 1331.

   BRYAN, Circuit Judge.

This was tort action begun by R. E. John-son against Company to recover damages for personal injuries sustained by him as a result of his coming into contact with a cable which was heavily charged with electricity. The cable was used b the service company £or the purpose of raising and lowering an eleetric light at a street intersection, and was not designed or intended as a conductor of electrie current. But it had become charged with electricity as a result of the cutting or breaking of a guy wire which theretofore had been , , Va. • , , fastened by the service company at one end to Qne ^ electrie H M £ol¿ and at the other end to a teiephone pole of the Southwestern Bell Telephone Company. The loose end of the guy wire fell down on the service company’s wires that were charged with electricity and thus eontaet was made with the -,, •, • •, ' i , . ■. ■, cable which was-used to raise and lower the , . ... , , T , , ., ... street ^ Jolmson; engaged m a conversation and standing on the street by the pole to which the cable was fastened by a metal hook about six feet above ground, inadvertently rested his hand ón the hook, and as he did so received the electric shock which injured him. ■ The service company impleaded -the telephone company, alleging that the latter had removed the guy wire from the telephone pole without notice to it, and had therefore been guilty of active negligence, whereas its own negligence in failing to dis-n °,1° S’ ., cover and remove the guy wire trom its

electric light pole was only passive. The

, trial resulted m a judgment m favor of Johnson against the service company, and a direct-

ed verdict m favor of the telephone company, . On appeal the judgment was affirmed by the Court of Civil Appeals. 300 S. W. 975. However, in the Supreme Court [6 S.W.(2d) 344] if. ^ in favor of Johnson as against the seryiee eom any; but reversed > sQ far ag it wag in £avor o£ the telephone Company_ Tbe cause was remanded for a new trial upon the issue whether the telephone company cut the guy wire, the Supreme Court holding that, if it did so without notice to’the1 service company, it would be liable for the amount of the judgment in favor of Johnson.

While the case was pending for a new trial in the state trial court upon the issue thus made, it was removed by the telephone company to the federal District Court, on the ground of diversity of citizenship. It was shown without dispute that the service company, with the consent of the telephone company, originally placed the guy wire, that it had been attached to the telephone pole for a number of years, and that the telephone company removed its pole about forty days before the date on which Johnson was injured. Witnesses for the service company testified that the guy wire was in place within a month or two before the injury, that the wire appeared to have been cut recently, and that it was cut close to the telephone pole, The telephone company produced several witnesses who testified that when the telephone pole was removed there was no wire attached to it. Whether the telephone company caused the guy wire to be cut was therefore a question upon which the evidence was in conflict. At the close of all the evidence the telephone company moved for a directed verdict in its favor; but this motion was denied, and the jury returned a verdict upon which judgment was entered against the telephone company for the amount of the judgment recovered by Johnson against the service company. Upon tins appeal of the telephonq company, all assignments of error are leveled at the refusal of the court to give the requested peremptory instruction.

On the question of disputed fact whether the telephone company caused the wire to be cut, the case in our opinion was properly submitted to the jury. While it is true that there was no direct evidence that the guy wire was cut by the agents or servants of the telephone company, yet the circumstantial evidence, as to the presence of the guy wire intact and uncut, a short time before Johnson s injury, as to the freshness of the cut, as to the distance of the telephone pole from the point where the guy wire was severed, and as to the removal of the pole itself, was sufficient to support the inference that the guy wire had been cut by those acting for the telephone company. The direct evidence in favor of the telephone company was insufficient to overcome as a matter of law the circumstantial evidence adduced on behalf of the service company.

Assuming in favor of the verdiet that the telephone company caused the wire to be cut without notice to the service company, the legal question arises whether or not the service company is entitled to recover on the theory that its negligence was passive, and that the telephone company was the active Wrongdoer. That question is answered in the affirmative by the Supreme Court of Texas, not only by its opinion in this ease, but also in the eases of City of San Antonio v. Smith, 94 Tex. 266, 59 S. W. 1109; City of San Antonio v. Talerico, 98 Tex. 151, 81 S. W. 518. Whether we are bound in a removal ease, such as this is, by the decision of the Supreme Court of Texas before removal, it is not necessary to determine; for, as it seems to us, that decision and the two earlier ones just above cited correctly announce a rule of law which has the approval of the Supreme Court of the United States. The general rule is that there can be no contribution between joint tort-feasors, but to that rule there is a well-recognized exception to the effect that “one liable only on account of a breach of duty of care owing the plaintiff, but without active participation in a tort committed by another, may, whether in the original suit or by independent action, recover over against the active perpetrator of the wrong.” Shearman & Redfield on Negligence (6 Ed.) § 24b. Again, in section 301 of the same work, it is said: “Although the primary liability for injuries caused by a breach of corporate duty or the tortious acts of its agents rests on the corporation, its agents or third persons, who proximately caused the injury, are jointly liaj,je -^th it, and if it is obliged to pay damages for an injury so caused, it has a right 0f reeovery over against the actual wrongdoer.” This last statement of the rule is cited with approval by the Supreme Court in Washington Gaslight Co. v. District of Columbia, 161 U. S. 316, 16 S. Ct. 564, 40 L. Ed. 712. That was a ease in the District of Columbia, which was held ¡liable for an injury to a piaintiff who was injured byreason of a gas box on the sidewalk being ou£ 0£ repair; was permitted to recover over the gas company which was guilty of ¿he active wrongdoing. An earlier case involying the same principle of law was that of City of Chicago v. Robbins, 2 Black, 418, 17 L. Ed. 298. In the Supreme Court case first cited it was.said that the rale does not depend upon the peeuiiar or exceptional rigbts of munieipal corporations, but is generaJ in its nature; and the court .proceeds to cite with approval the ease of Gray v. Boston Gaslight Co., 114 Mass. 149, 19 Am. Rep. 324, which upheld the right of a prop-erty owner to recover the damages which he had been compelled to pay on account of a wire attached by the gas company to the chimney of the owner’s house. A case an-nouneing the same principle is that of the City of Astoria v. Astoria & Columbia River R. R. Co., 67 Or. 538, 136 P. 645, 49 L. R. A. (N. S.) 404. The doctrine underlying this apparent exception to the general rule is based on the principle that tort-feasors are not as between themselves in pari delicto. The service company was liable to Johnson , , ., i , , . , • , i only because it failed to maintain its cable in a safe condition, but that failure would not have resulted in the injury to Johnson but for the cutting of the guy wire by the telephone company and its failure to give notice to the service company that it had done so. As between the two companies, the telephone company was the actual wrongdoer.

The judgment is affirmed.


author: BRYAN, Circuit Judge. WALKER, Circuit Judge '

text:
    YOUNG et al. v. UNITED STATES.
    No. 5959.
    Circuit Court of Appeals, Fifth Circuit.
    April 10, 1931.
    WALKER, Circuit Judge, dissenting.
    John B. McNamara, of Waco, Tex., Edwin H. Grace, of New Orleans, La Sanford of Galveston, Tex and A. L. Cur tis, of Belton, Tex. Lovett, of Corsicana, Tex., on the brief), for appellants,
    John D. Hartman, U. S. Atty., of San Antonio, Tex.
    Before BRYAN, FOSTER, and WALKER, Circuit Judges.
   BRYAN, Circuit Judge.

The indictment in this case charges a conspiracy to sell, and possess for sale, utensils and substances, including com chops, sugar, fruit jars, and charred barrels, designed and intended for use in the unlawful manufacture of intoxicating liquor; and to manufacture, possess, sell, and transport intoxicating liquor for beverage purposes. The appellants, McDanid, Young, Coates, Lee, Franklin, and Campbell, were convicted as charged. Evid«nae for,the government tended to show that McBame1’ manger of a wholesale business at Corsicana, Tex sold large quantities of the above articles described m the indictment to Young and Coates, and made deliveries at the village or town of Young, where Young and Coates had adjoining retail stores, with n T ,, . 7 a connecting door, in the same building,

Young and Coates sold the articles purchased from McDaniel at retail. Lee, Franklin, and Campbell were among their customérs, and each of them made individual purehases but ther0 was n(> proo£ that tbey wer0 , T, , ,, , acting m concert. It was not directly shown ,, , n .. , J . tbat ^ of the arMes thus sold were used 111 connection with the manufacture of liquor, although there were many illicit distilleries in the neighborhood. The most that can be' claimed by the government is that the eircumstantial evidence was sufficient to show that McDaniel, Young, and Coates knew that the articles in question were being bought from Young and Coates by persons who intended to use them in connection with the unlawful manufacture of liquor.

are °Plmon £5mt tbis evldmf was ^sufficient to prove the conspiracy alleged. McDaniel, the seller, could not have been a c0conspirator with Young and Coates, the purchasers, upon proof simply that he made sales to them; and in turn Young and Coates, whether aeting individually or as partners, could not upon similar proof have been coconspirators with those who purchased from them at retail. There must have been a conspiracy to do something unlawful after the sales were made in order to sustain the indictment. United States v. Katz, 271 U. S. 354, 46 S. Ct. 513, 70 L. Ed. 986. In Edenfield v. United States (C. C. A.) 8 F.(2d) 614, there were three indictments, efh ?ont™S coufte; th® firft count charging a conspiracy to manufacture liq-nor, and the second to manufacture liquor without making a permanent record. Eden-field was convicted and sentenced on both counts of each indictment. The judgment was affirmed in toto by this court in a memorandum opinion, which, while recognizing the principle of law that there must be evidence Beyond proof of sale, stated that “the evidence for the government tended to show that plaintiff in error furnished to his codefendants copper and other materials to be used in making a still, as well as sugar and meal to be used in the manufacture of liquor.” The case was reversed by the Supreme Court because of the conviction on the second set of counts which charged conspiracy to manufacture liquor without making a permanent record, on the authority of the Katz Case, supra; and it was remanded to the district court for resentence on the first counts. 273 U. S. 660, 47 S. Ct. 345, 71 L. Ed. 827. It is to be con-n , ,, o , ,, , ,, ceded. therefore, that the evidence was held , ’ ' r\ . . t. ^ • ,, by the Supreme Court to be sufficient to susj. n i » *i • > , -r> n tam the first count of each indictment. But the record in Edenfield’s Case affirmatively shows, though the memorandum opinion does not, that he not only, made the sales, but, aft-i, , , ... er they were made, that he actively partici- ... . • r.1 .»ii • 1 i.pated in manufacturing the stiffs, m loca mg them m places where it was unlikely that they would be found, and m disposing of the hquor after it was manufactured; and so we held that the jury was authorized “to mfer an agreement to do what was actually done.

There is no similar proof here, but the evidence stops with the sales. The conviction of the sellers cannot be sustained on the ground that they had knowledge of the intention of the purchasers to use the sugar and other articles in connection with the unlawful manufacture of liquor. One cannot be held as a member of a conspiracy upon proof merely that he had knowledge of, or negatively acquiesced in, a crime that was about to be committed; but, in order to fasten guilt upon one accused of being a coeonspirator, it is necessary to prove that he actively partieipated in the conspiracy charged. Bishop’s Criminal Law (9 Ed.) § 633; 5 R. C. L. 1065; McDaniel v. United States (C. C. A.) 24 F. (2d) 303. There was no evidence that Lee, Franklin, and Campbell were acting in concert; for all that appears, each was acting only for himself. The conspiracy charged was not proved against any of the appellants-

The judgment is reversed.

WALKER, Circuit Judge '

(dissenting), '

I am nable to concur in conclusions stated in the foregoimg opinion. There was the foregoing opinion There was evxdence tending to prove that the appellant Mc-Danl®1’ actm? £or a corporation °f which he "as tbe onager, in selling for that corporatlon appeUante Young and Coates large pities of sugar, com chops, p;e pain, fruifs 3™» and cbarr?d bafels> and f trans’ P°rtmg pnd dejivering those articles fre^ently ^ the nighttime, and the appellants Joung and Coate m buying and selling tbose things, acted in concert between themsal!e® and otber appellants for the purpose o£bnngfg about or f aeihtatmgviolations by cha^®d °£ tbe National Prohibition Aet by unlawfully manufacturing, possess- . “d transporting intoxicating liquor. Jbe mdlet“fnt and the evidence showed more £ban concerted action between the sellers and ^m ™lawfulftes- “ that they showed ***** *b! seIlef aüd acted m eof'f with others charged, for the purpose of ex- » ,, , & o, ^ fectmg the unlawful manufacture, posses- • , , ... « . , . ’ . sion, and transportation of intoxicating liquor '

Though such sales in which the applelant McDaniel paticipated and such purchases and sales by appellants Young and Coates , . 1-, , were not in themselves illegal, they were rendered illegal if such pats of a scheme participated in by those thre0 ns and otherg aeeuged to bring. about the unlawful manufaeture, possession, gaJ and transportation of intoxicating liq.uor Tboge things may have been rendered unlawful by the plan or concerted purpose in pursuance of which they were done. They were capable of being designed or done for an unlawful purpose. Danovitz v. United States, 281 U. S. 389, 50 S. Ct. 344, 74 L. Ed. 923. An act, harmless when done by one, may become a public wrong when done by many, acting in concert for an unlawful purpose. Grenada Lumber Co. v. Mississippi, 217 U. S. 433, 30 S. Ct. 535, 54 L. Ed. 826; Bedford, etc., Co. v. Stone Cutters Ass’n, 274 U. S. 37, 54, 47 S. Ct. 522, 71 L. Ed. 916, 54 A. L. R. 791. “No conduct has such an absolute privilege as to justify all possible schemes of which it may be a part. The most innocent and constitutionally protected of acts or omissions may be made a step in a criminal plot, and if it is a step in a plot, neither its innocence nor the Constitution is suffieient to prevent tbe punishment of the plot by law.” Aikens v. Wisconsin, 195 U. S. 194, 206, 25 S. Ct. 3, 6, 49 L. Ed. 154. The above-mentioned acts, as evidence adduced tended to prove, being bound together as parts of a plan or concerted scheme to bring about or facilitate violations of the National Prohibition Act (27 USCA), are tainted with the criminality of that plan. Swift & Co. v. United States, 196 U. S. 375, 396, 25 S. Ct. 2,76, 49 L. Ed. 518; Badders v. United States, 240 U. S. 391, 394, 36 S. Ct. 367, 60 L. Ed. 706. The conspiring which evidence tended to prove being directed to violations of the National Prohibition Act, everything done in pursuance of it was illegal, and all participants in the plot or scheme were guilty as conspirators. Ford v. United States, 273 U. S. 593, 620, 47 S. Ct. 531, 71 L. Ed. 793.

The decision in the case of Edenfield v. United States, 273 U. S. 660, 47 S. Ct. 345, 71 L. Ed. 827, had the effeet of affirming a conviction under counts of an indictment , • , , making charges similar to the charge made by the indictment in the instant ease, which charges were supported by evidence which, in my opinion, had no more tendency to support a charge made than the evidence in the instant ease. In that case a reversal was unsuecessfully sought because of the action of the trial court in giving an instruction to the jury to the effeet that, if Edenfield knew that the copper, sugar, meal, ami bran he furnished, in the quantities he furnished, were not usable, so far as he knew, except in the manufacture of liquor or the making of stills, and if he furnished those things with the knowledge that they were to be used for such purposes, then it was for the jury to determine as to whether, when he furnished those things to other persons accused, then knowing that those persons were going to use them in man-ufaeturing the liquor, that would constitute an agreement between him and those persons to violate the law against manufacturing liquor. It seems to me that the decision evidenced by the foregoing opinion is ineonsistent with that part of the decision in the case of Edenfield v. United States, supra, which had the effeet of affirming the conviction under counts of the indictment under which the accused was tried. The opinion in the ease of United States v. Katz, 271 U. S. 354, 46 S. Ct. 513, 70 L. Ed. 986, indicates that a charge of criminal conspiracy cannot properly be based on an agreement between the seller and buyer in a sale made for a criminal purpose, because such an agreement is an essential element of tbe sale itself, and the sale could not make a party to it guilty of a crime other than the one committed by the seller; but that opinion also indicates that the buyer and seller of things used in manufacturing intoxicating liquor properly could be charged with conspiring with others to bring about the unlawful manufacture of such, liquor by using those things, as the substantive offense conspired to be committed has an ingredient in addition to the sale, not requiring the agreement of two persons for its completion. A party to an agreement to bring about the commission of a crime is subject to be charged with criminally conspiring with others, though he was to do nothing in 'furtheranee of the agreement except to sell a thing intended to be used by another in committing the crime which was the object of the agreement.


author: SIBLEY, Circuit Judge.

text:
    CORY v. LOGAN COAL & SUPPLY CO.
    No. 5854.
    Circuit Court of Appeals, Fifth Circuit.
    April 1, 1931.
    Rehearing Denied April 24, 1931.

      Robert R. Milam, of Jacksonville, Fla., J. J. Lynch and Carter J. Lynch, both of Chattanooga, Tenn. (James J. Lynch, of Chattanooga, Tenn., Robert R. Milam and Milam, Mellvaine & Milam, all of Jacksonville, Fla., and Lynch, Bachman, Phillips & Lynch, of Chattanooga, Tenn., on the brief), £or appellant.
    Crawford and Huhp S. May,both of Jacksonville, Pla. (J. T. G. Crawford and Philip S. May, both of Jacksonville, Fla., on the for appellee.
    Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges,
   SIBLEY, Circuit Judge.

Cory sued Logan Coal & Supply Cornpany at law upon three contracts for the sale of coal, seeking damages for the refusal to accept part of the coal. After an adverse ruling upon a demurrer to the original counts of tbe declaration, and a refusal to allow a replication to be filed to certain pleas, and after submitting his evidence under amended counts, Cory was defeated by a verdict directed for the defendant, and he appeals, his assignments of error being directed to the three rulings indicated,

Eaeb o£ the original counts sefc up a eontraet for tile purchase by defendant of a certain number of carloads of coal at a certain price per ton, but alleged nothing as bow many tons were in a carload. The allegations thereby entirely failed to set forth any certain contract or any basis for estimating damages. The demurrer was properly sustained. J

The amended counts alleged that, by a ™f0m °f long standing in the trade, and well known to both parties the carloads were to be from forty to sixty tons eaeh, and to average fifty tons. These allegations remove uncertainty from the contract on that seore and the necessary quantity basis fQr d es b tie dS&amoe between contraetSand. market price as set out in the bill of particulars. Eaeh amended count set up a different written contract, respectively dated July 14, 1920, July 27, 1920, and July 28, 1920, for a total of two hundred cars of coal at differing prices. The shipping date specified was “As fast as we can” on the first, “S°on as possible” on the other two. O&erwise the contracts are alike. The other fUegations of the counts are similar; quotln/ f™m the first count; Un(lei’ term® of said contract said coal was to be snipped by tbe plaintiff to the defendant at Jackson- ^ ag fagt as plaintiff was able to ship same; that in pursuance of said contract the plaintiff shipped to the defendant and the defendant accepted from the plaintiff twenty-four cars of coal; that thereupon although the plaintiff was shipping said coal as fast as was possible for him to do in accordance with the terms of said contract, the defendant notified the plaintiff not to ship any more of the said coal until it should advise him further to do so; that the plaintiff was at all times ready, able and willing to ship said coal in accordance with the terms of said contract, and thereafter repeatedly offered to ship, and tendered the balance of said coal, and repeatedly requested further instruetions from the defendant to ship same until March 11th, 1921, when defendant positively refused to accept or pay for the balanee of said coal.” Besides the general issue numerous traverses were filed, denying separately that the plaintiff shipped the coal as fast as it was possible for him to do so, that plaintiff was ready, able, and willing to ship the remainder, and that defendant notified him not to ship any more until further ad-7lsed t0, d0 ,so- during the trial of these issues, the plaintiff sought to file a replication to the pleas, the offered pleading being only an elaboration of the facts already alleged about the request to cease shipments until further notice. The court disallowed the replication to the pleas, but gave no reasons. The reason urged m argument is that the replication was a departure in pleading, an effort to set up a right of action arising by a. new contract or by a waiver, in lieu of that arising from performance as set forth in the declaration. We think no such departure was proposed because the same substantial facts were set up in the declaration. The prior performance of plaintiff is there alleged rather by way of inducement introduced by an “Although,” while the defendant’s request for delay is directly averred, The declaration goes more positively on the allegations of requested delay than on those of prompt performance. But, if both are to be considered as counted on, either being sufficient, and therefore properly to be made the subject of separate counts, the fault is the fault of duplicity, and to be reached at common law only by special demurrer. 1 Chitty, Pleading, 228. Pleading over instead of. demurring waives the defect. 1 Chitty, Pleading, 671. And the pleas, to be good, must answer both matters. 1 Chitty, Pleading, 228. In Florida, the special demurrer is abolished. Rev. Gen. St. 1920, § 2627, and duplicity is apparently to be reached by a motion for compulsory amendment if the defendant is embarrassed in his defense thereby. Section 2630. This remedy not having been followed, we think the duplieity, if any, in the declaration was waived. Had the so-called replication been offered as an amendment of the declaration, which in substance it was, it might have been allowable. As a replication, it was not in order, because offered as a reply to pleas which set up no new matter but merely traversed the allegations of the declaration. The plaintiff in such case must join issue on the traverse and prove the truth of his declaration. There was no error in rejecting the replication.

We think the plaintiff’s evidence tended to spstain tbe declaratioil and to sbow a ldo-bt to recover. The terms of the contracts flxing tbe time of sbipment; «As fast ^ we can„ and «Soon M possibie,” require eonstruction. We see no substantial difference ^ tbeir meaning. In contracts for the sale o£ merchandise, a time for delivery is usually &xei> and wben fixed; is of tbe essenee of tbe eontraet. if the contract is'silent, a reasonable time is supposed by tbe law to have been intended. In the present contracts a reasonabie time is not to be assumed because are not güent ag to tim6; Tbe lan^age used indicates a deliberate purpose not to flx a definite time, but, in recognition that tbere are or wiu be hindrances to delivery wHch wiu eauge del tbe struct is to be executed «As fast as we can” or “As soon as possible,” having reference to the hindrances, pbese hindrances are not stated in the contracts, but are made clear by the evidence of the circumstances under which the contracts were made. There was a coal miners’ strike in England, and a heavy demand for American coal, coupled with a shortage of coal cars, which were being apportioned to the mines, greatly restricting the power of the mines to make delivery on time. Plaintiff was a coal broker only and not a miner, and had no stocks of coal on hand, but bought at the mines in carload lots for direct shipment to his customers, having to take such sized cars as were allocated to the mines and were by the mines delivered on his orders. By reason of the shortage in ears and coal, the price on contracts for coal for future delivery was high; and “spot coal,” that is, coal already loaded on cars and ready to move, was much higher when it could be procured at all and was regarded in the trade as a separate thing from “contract coal.” The mines, of course, were tempted to sell their coal as “spot coal” rather than deliver it on their contracts. The consequence was that the brokers in contracting for future coal to cover their own contracts for future delivery (eontraet coal) were unable to name definite times for delivery of such coal, and were customarily wording their contracts like those in suit. This wording, construed in reference to the business involved and its circumstances, and those of the parties as above outlined, was intended to relieve the seller from delivery at any partieular time, but to require that he use diligenee and good faith in placing contracts, on his part to cover the coal and in securing prompt delivery of it to the defendant. Compare Pope v. Filley (C. C.) 9 F. 65; Virginia Iron, Coal & Coke Co. v. Woodside Cotton Mills Co. (C. C. A.) 6 F.(2d) 442; Christensen v. Gorton-Pew Fisheries Co. (C. C. A.) 8 F.(2d) 689; Albert v. Young, 80 Neb. 677, 114 N. W. 936; Williams v. Gridley, 110 App. Div. 525, 96 N. Y. S. 978.

This obligation did not extend to the buy-e u . „ ,el1 ., , , mg of “spot coal” to fulfill the contracts, * i for that was m the trade a distinct eommod- ., , , , , , lty, and not contemplated by the contracting parties.' This conclusion is fortified by the fact that, pending the execution of these contracts, the plaintiff sold and delivered to defendant a number of cars of “spot coal” at a higher price, with no contention that they should be applied on these contracts. Under this construction of the contracts, the evidence tended to show that, prior to September 28, 1920, plaintiff had exercised diligence and good faith, although a little less than half of the total number of cars had been delivered. The fact that more in proportion had been credited on the two contracts carrying the higher price does not rebut good faith, because no ultimate gain to the plaintiff or loss to the defendant could re-suit. Had the cars been credited on the cheaper contract, the purchase money then collected would have been less, but the damages now due would be correspondingly greater. Moreover, the defendant by payment without protest consented to the crediting as made.. The confessed inability to deliver all the coal prior to September 28, 1920, shown to be due to the hindrances above outlined, did not negative the plaintiff’s ability to deliver in accordance with the terms of the contracts; that is, as fast as possible. Complete delivery became possible in October, and was then offered by a request for shipping instructions, and continuously afterwards. The serious trouble comes with the admission that between July 14 and September 28, 1920, plaintiff had handled more than two hundred ears of contract coal, and had allowed much of it to be prorated to other customers having similar contracts. In a sense, it would have been possible to have delivered all this coal to the defendant, but the testimony is that the defendant knew when its contracts were made that plaintiff was a broker, having many customers with as much right to claim prompt delivery as the defendant, and that the plaintiff’s obligation to these would form some part of the extraordinary situation contemplated in agreeing to a delivery “as soon as possible.” Perhaps the customers ought to have been served, in the order of their contracts, but the evidence does not show that the defendant would'have thereby gotten more coal. So it might indicate want of diligence or good faith for the plaintiff to take on new contracts after having bound himself to the defendant, but that he did this does not appear. The bare fact that plaintiff applied the equitable rule of equality to all , • . 1 J . persons having, so far as appears, equal , . . . „ . claims to his diligence and good faith, does , ,, °e , , „ °, ,. ’ not as a matter of law defeat him. ■

If, however, the plaintiff’s conduct before September 28, 1920, be found to be a breach of his obligation, nevertheless on that date defendant, without any expression 0f discontent at the slowness of delivery or 0f any purpose to discontinue the contracts, wrote plaintiff that it was “advising all shippers to discontinue shipments until further notice on áceount of an embargo impending at Jacksonville, therefore I must ask that you ¿0 not ship any more coal until I advise you.” Coal previously sent was paid for without complaint. On October 15th plaintiff asked for shipping instructions, as the mines were pressing to deliver. Defendant replied: “Account of congestion and possible embargo eannot give shipping instructions at the present time.” Coal had then become plentiful, and the price was falling, and plaintiff continued to seek to delivér until on March 11, 1921, when the contracts were repudiated by defendant. Under this evidence, uncontradieted and unexplained, it must be concluded that, if the defendant on September 28,1920, had a right to discontinue the contracts because of delay, it waived the right and elected to continue them, and requested a further delay until it should advise otherwise, This invited, if it did not require, the plaintiff to maintain his arrangements to deliver the coal sold, and prevented his reselling it to save himself from loss by a falling market, Whether on principles of waiver, election, or promissory estoppel (Williston on Contracts, §§ 856, 683, 688, 691), it is plain that the defendant cannot, after maintaining this position till the coal market broke, then change front and claim that the contracts were at an end on September 28th. See Christensen v. Gorton-Pew Fisheries Co. (C. C. A.) 8 F.(2d) 689; Pitch Pine Lumber Co. v. Wood Lumber Co., 57 Fla. 140, 48 So. 993; Mizell v. Watson, 57 Fla. Ill, 49 So. 149. If there be a commingling of two causes of action in the declaration, and if the proof fails as to one, the court may not ignore the other which the evidence supports: Page v. Page, 43 Wash. 293, 86 P. 582, 6 L. R. A. (N. S.) 914, 117 Am. St. Rep. 1054. A verdict should not have been directed for the defendant.

Reversed for further proceedings.


text:
    GOODMAN v. LANE, Deputy Prohibition Administrator.
    No. 8836.
    Circuit Court of Appeals, Eighth Circuit.
    March 9, 1931.
    Rehearing Denied April 15, 1931.
    William G. Boatright, of Kansas City, Mo. (I. J. Ringolsky and Harry L. Jacobs, both of Kansas City, Mo., on the brief), for appellant.
    Claude E. Curtis, Asst. U. S. Ally., of Kansas City, Mo. (William L. Vandeventer, of Kansas City, Mo., on the brief), for appellee.
    Before KENYON and BOOTH, Circuit Judges.
   BOOTH, Circuit Judge.

This is an appeal from a decree dismisshig a bill in equity on the ground of lack of jurisdiction.

The bill was filed February 10, 1930, and alleged, in substance, the following faets: Plaintiíf is a eitizen of the state o£ Missouri and a resident of Kansas City, in that state. Defendant is a Deputy Prohibition Administrator of the United States for the district which includes! Kansas City. Plaintiff is a member of the Kansas City Athletic Club, whieh is a private club having a club building located in Kansas City reserved exclusively for members and guests. Plaintiff had made reservation of a room at said club and a table in the dining room for himself and wife arid guests for the evening of December 31, 1929. They arrived at the club about 11:45 p.m. and checked in, in accordance with the usual custom, and were standing in a portion of the lobby of the club, which was reserved for members and their guests. Plaintiff was holding in his arms a package containing four bottles and contents^ his own property. The battles were securely and completely wrapped in paper and tied with a string so that the contents of the package could not be seen or observed. While plaintiff and his party stood in the lobby of the club, a prohibition agent of the United States, Lashbrook by name, a subordinate of defendant, forcibly took the package from plaintiff, and thereupon arrested plaintiff and caused him to be taken to the city hold-over and locked up for the night. The next morning, he was released on a cash bond conditioned that he report back to the hold-over January 2. He reported at that time, and was taken to the office of the United States Marshal, where he was confined until taken before the United States Commissioner the same day. The complaint before the Commissioner was made and sworn to by Lashbrook, and charged plaintiff with unlawfully transporting and possessing intoxicating liquor on December 31, 1929. Plaintiff pleaded not guilty. The Commissioner, after a hearing, dismissed the transportation charge, but held plaintiff and bound him over on the possession charge for action by the grand jury. Plaintiff was ad-nutted to bail. The United States Attorney for the district informed plaintiff that he would seek an indictment against plaintiff before the grand jury, which was to convene February 17, on charges both of transportation and possession; and that, upon a trial, conviction of plaintiff would be sought on both charges. The United States Attorney further stated that he would endeavor to obtain such indictment and conviction through the use, as evidence, of said bottles and the contents thereof, and that defendant .was keeping said bottles and contents for the purpose of producing the same at such times and places as requested by the United States Attorney for said purposes. Lashbrook, when he took said bottles from plaintiff’s person and possession, had no warrant for the arrest or search of plaintiff or any knowledge or information justifying the making of a search or an arrest; nor did he have any , „ i n • i 1 i 1 .1 t warrant tor a search ot said club building or for the arrest of any persons therein. Lash-1 ___ biook was not a member of said club nor a guest OX a. member at the time of the oeeurrence. Lashbrook delivered said bottles t,, í.aa1j?ta 1 j-i* it and the contents to defendant, who still had them at the time of filing the bill.

The bill further alleged tbat Lashbrook, in taking said bottles from plaintiff, in arresting plaintiff, and in entering the part of said club reserved exclusively for members and i-r • ,, -3 ♦ii „n j • . i their guests, acted illegally and in Violation of the Fourth and Fifth Amendments to the Constitution of the United States. The « ,, , „ .. ,/TTT1 prayer of the bill was as follows: “Wherefore, plaintiff prays that defendant be ordered and directed to return said bottles and contents to plaintiff; that he and his subordinates be enjoined from taking said bottles and contents before any grand jury, petit jury or court or from testifying of how or where or by what means or from whom or at what time and place same were obtained, or of the contents thereof; that the use of said bottles and contents as evidence against plaintiff be suppressed and that, pending final judgment herein, temporary injunction and restraining order issue against defendant, and for such other relief as may be just and equitable.”

Defendant- moved to dismiss the bill. stating as grounds:

K(l) Plaintiff’s petition does not state sufficient facts to constitute a cause of action.

“(g) Plaintiff’s'petition, on its face, shows that this court has no jurisdiction in this cause.

(í(3) plaintiff has M ad te remedy at Iaw and is not entitled the relief ^ e¿t f , „ ™ '

. The order and deorfe ^missing the bill ls se^ oufcln margin.

The present appeal followed on February 17, 1930. Application was made the same day to the trial court for an order preserving the status quo pending the appeal, but this was denied.

Notice was at once given to the Assistant United States Attorney that a similar application would be made to this court. Arrang-ement was made with one of the judges of this court for hearing said application at 3 p. m., February 17. The United States Attorney was notified between 1 and 1:30 of the time fixed for the hearing, and said he -would appear. Hearing was had at the time fixed. An Assistant United States Attorney was present. At the conclusion of the hearing, the judges indicated a desire to consider the matter for a short while and suggested that, of eourse, nothing would be done meanwhile. The Assistant United States Attorney said that he had nothing to do with that matter, and was thereupon told by the court to inform the United States Attorney that nothing should be done until the court had passed on the application. Thereupon, counsel left the court’s chambers. About fifteen minutes later, the Assistant United States Attorney returned and stated that he had been advised that the matter had already been presented to the grand jury. The court direeted a written return to be made the next morning. A return was made, showing that the matter had been presented to the grand jury between the hours of 1 and 2 o’clock p. m., February 17, that Lashbrook appeared and testified, and that the grand jury voted an indictment which later was returned and docketed in the office of the clerk of the District Court.- The hearing in this court was thereupon continued until February 20, at which time neither counsel appearing, the application was denied.

Appellee advances the proposition that equityhas no jurisdiction to stay criminal proceedings; cites authorities to that effect; admits that there are exceptions to the general rule; but contends that the case at bar is not within the exceptions. All this may be conceded, but it is not decisive, because the present ease is not one in which equity is invoked to stay criminal proceedings. The relief here asked, apart from return of the property, is that the defendant be enjoined from making use of certain evidence in any criminal proceedings against appellant. This is quite different from staying criminal proeeedings. The .relief asked'is somewhat-broader in scope, but of the same character as that asked in the usual motion in criminal eases to suppress evidence. The jurisdiction of equity to prevent the use in evidence of property illegally seized and/or to order a return thereof is well established. Such jurisdietion was involved or recognized in the following eases: Burdeau v. McDowell, 256 U. S. 465, 41 S. Ct. 574, 575, 65 L. Ed. 1048, 13 A. L. R. 1159; Cogen v. United States, 278 U. S. 221, 49 S. Ct. 118, 73 L. Ed. 275; United States v. Hee (D. C.) 219 F. 1019, 1021; Petition of Barber (D. C.) 281 F. 550; Friedman v. Yellowley (D. C.) 290 F. 248; Sims v. Stuart (D. C.) 291 F. 707; Dowling v. Collins (C. C. A.) 10 F.(2d) 62; Applybe v. United States (C. C. A.) 32 F. (2d) 873, rehearing denied (C. C. A.) 33 F.(2d) 897; United States v. Gowen (C. C. A.) 40 F.(2d) 593, reversed on other points, Go-Bart Imp. Co. v. United States, 282 U. S. 344, 51 S. Ct. 153, 75 L. Ed. -; United States v. Mahon (D. C.) 42 F.(2d) 571; Dock v. Dock, 180 Pa. 14, 36 A. 411, 57 Am. St. Rep. 617; Pressed Steel Car Co. v. Standard Steel Car Co., 210 Pa. 464, 60 A. 4.

Burdeau v. McDowell, supra, was a suit. brought by McDowell against Burdeau, a special assistant to the Attorney General of the United States, to obtain return of certain books and papers, and to enjoin Burdeau and officers of the Department of Justice from usings them in criminal proceedings against him. No use had yet been made of the books ana papers. It appeared that the books and papers had been obtained from McDowell -wrongfully by a third person who had turned them over to Burdeau. No question was raised that a suit in equity was the proper procedure, and the court said: “We do not question the authority of the court to control the disposition of the papers.” And in the dissenting opinion, it was said: “That the court would restore the papers to plaintiff if they were still in the thief’s possession is not 9ue®fr°nad.

, In Dowling v. Collins, supra,_ a smt to obtain return of property, consisting of liqsel?Led> and to suppress use of it as evidenee> * appeared that, prior to the «ranmencement of the suit, plaintiffs had made a motion to the same effect m a criminal action f1 ^ieh were defendants. The motion tad been denied. It was held that the order dei™ *he motion m criminal case was ^al, and, not having been appealed from, was binding on defendants and barred relief 111 equity suit. The practice of bringing a sult 111 e9ulty was recognized,

In Cogen v. United States, supra, the s°le question was as to appealability of the order denying motion for return of papers a:n-d suppression of evidence. The papers bud been taken from the person of defendant without a warrant. The application was made after indictment and before trial. In the discussion .in the Supreme Court, the ease of Dowling v. Collins, supra, is referred to as an instance of plenary suit.

In United States v. Gowen, supra, the court said, 40 F.(2d) loc. cit. page 598: “In Matter of Behrens [(C. C. A.) 39 F.(2d) 561], supra, we held that, when forfeitable property is seized and held by prohibition offleers, the legality of their seizure was to be determined in the forfeiture .proceedings, not on summary motion for an order directing return of the property. Where, as here, the property consists of papers held for evidence not for forfeiture, the legality of the seizure cannot be so determined. On general prineiples it would seem that replevin, unless some statute forbids it, or a bill in equity, since temporary relief is sought against a threatened use of information contained in the parpers, would be the appropriate remedy. See United States v. Casino, 286 F. 976, 978 (D. C. S. D. N. Y.); Sims v. Stuart, 291 F. 707, 709 (D. C. S. D. N. Y.); Applybe v. United States, 32 F.(2d) 873 (C. C. A. 9), rehearing denied (C. C. A.) 33 F.(2d) 897. We may assume, without the necessity of so deciding in the present ease, that section 934, Rev. St. (28 USCA § 747), forbids replevin, and that a bill in equity will lie to recover possession of papers illegally held by prohibition officers. See Sims v. Stuart, supra; 27 USCA § 45; Maryland v. Soper, 270 U. S. 9, 46 S. Ct. 185, 70 L. Ed. 449.”

Under certain circumstances, a summary motion may be made in the United States District Court which has control of the preparatory and preliminary acts and steps lead-mg up to a criminal prosecution of the owner of the property. The full and complete js , ^ ^ üe a j -L t- ,. • relief, however, afforded by sueh motion is equitable in character. It consiste in enjoining the officers from making use of the property as evidence, and in ordering the property restored to its owner. See Go-Bart Importing Co. v. United States, 282 U. S. 344, 51 S. Ct. 153, 75 L. Ed. -. That case, however did not. Rnld tVint a nlernro- Rill in ever, cua not noia tnat a plenary bill m equity was not a proper method of procedure.

It is to be noted that, m the case at bar, the bill alleged ownership by plaintiff of the proper tv seized For the nurnose of deter property seizea. r or me purpose 01 aeter mining the jurisdiction of the court, this allegation must be taken as true.

It is to be further noted that the prop-L , . , ,, „ . J , . 1/110 4 1 erty was being held for evidentiary purposes only; that the remedy by replevin was obviously inadequate, even if that remedy was open; that the remedy provided by the National Prohibition Act (27 USCA) and the Espionage Act (40 Stat. 2L7) for vaca tion of a warrant improperly issued and for return of urouertv was not arvDliciilYIp for 77 pxüpeiby was nos appncaoie, xor the reason that no warrant had issued; that tha relief sought was not incidental to- anv , • _________. ir t\* i • i n f tnal or other proceeding m the Distnct Court, for no sueh trial or proceeding was pending in that court; that the defendant, appellee, , , , ’ -1 • Ji „ nad not appeared m the proceedmgs before the Commissioner.

T . In view of all the facts in the ease, we think that, under the authorities above cited, remedy by bill in equity was proper, and that the court had jurisdiction to entertain such bill.

Appellee urges that such procedure by bill in equity would tend to hamper and delay greatly criminal prosecutions. Even if this ■were true, it would afford no reason for denying litigants the right to make use of well-recognized methods of procedure. But we think the fear is not well grounded. Such fear is not stressed in the cases.

The questions of return of property ilbgaily seized, and/or the suppression of the same as evidence, are presented to the courts b7 various methods of procedure. There is no. uniformity throughout the several cireu4ts, and oftentimes not within the same cireuit- Independent petitions, either before or after criminal proceedings are started, summary motions or petitions in criminal eases after indictment or information, indepelldent bills in equity, *are all recognized by fte eo.urts as proper. The practitioner wiu doubtless cb00S6 the method which best suits Mg paxtieular case. Delays may arise any method of procedure. But as criminal . , . . , . •, cases are given precedence in the tnal and ,, , & ^ , ,, aPPf ate courts, doubtless bills in equity relfted to f111 case8 eould precedence. But however this might be, the jurisdiction of the federal equity court cannot be made to depend upon such eonsiderations.

„ „ . . .. We, of course* express no opinion on the merits ox the bill.

Appellant requests this court to direct the trial court to dismiss the indictment returned against him in view of the fact that the proceedings before the grand jury and the returning of the indictment were had while application was being made to this court for an order preserving the status quo pending the appeal. Appellant insists that the indietment was procured by tactics which must be considered in disregard and in defiance ef the jurisdiction of this court.

The United States Attorney denies this charge and states that the ease of appellant was presented to the grand jury in the ordinary course of procedure, and that the Assistant United States Attorney who presented it to the grand jury had no knowledge of the application to this court for an order to preserve the status quo pending appeal We shall aeeept the statement of the United States Attorney and shall consider the matters complained of as due to lack of co-ordination among the Assistant United States Attorneys. Nevertheless, the outcome was prejudicial to the appellant in his efforts to protect his alleged rights.

We do not think it necessary to direct toe District Court to dismiss the indictment. We feel confident that, upon the going down of toe mandate in this case, the United States Attorney will recognize the impropmety of proceeding further under the present indictment, and will take the proper steps to have it dismissed.

The decree dismissing the bill for want of jurisdiction must be reversed

It is so ordered.

      on the 14th day of February, 1930, comes plaintiff, by his attorneys, Ringolsky, Friedman, Boatright & Jacobs, and in person and comes defendant in person and by Wm, L. Vandeventer, United States District Attorney and Claude E. Curtis, As!jiatant United States District Attorney, for the purpose of taking up and hearing plaintiff’s application for a temporary injunction and the parties agree in open court and with the consent of the Court that the case may be tried on its merits at this time; thereupon defendant asked and was granted leave to file a motion to dismiss; thereupon same is presented to the court and argued by councourt 18 of opinion that has 110 jurisdiction.
      “It is, therefore, ordered that the motion to dismiss be and is hereby sustained and plaintiff’s bill is dismissed without prejudice to his right to move in any proper manner to suppress evidence in any criminal proceeding or to pursue any other or different remedy that may be properly available to him, to all of which plaintiff is allowed his ex-ceptiona.”

      Godat v. McCarthy (D. C.) 283 F. 689; Cabitt v. Potter (D. C.) 293 F. 54; Voorhies v. United States (C. C. A.)299 F. 2751 Levin v. Blair (D. C.) 17 F. (2d) 151. In re Oryell (D. C.) 28 F.(2d) 639.

       Amos v. United States, 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654; Cogen v. United States, 278 U. S. 221, 49 S. Ct. 118, 73 L. Ed. 275; Brock v. United states, 12 F.(2d) 370 (C. C. A. 8); Johnson v. United States, 12 F. (2d) 374 (C. C. A. 8) Giles v. United States (C. C. A) 284 F. 208. Reyff v. United States (C. C. A.) 2 F.(2d) 39.

       Burdeau v. McDowell, 256 U. S. 465, 41 S. Ct. 574, 65 L. Ed. 1048, 13 A. L. R. 1159; Petition of Barber (D. C.) 281 F. 550: Friedman v. Yellowley (D. C.) 290 F. 248; Sims v. Stuart (D. C.) 291 F. 707; Dowlins T. Collins (C. C. A.) 10 F.(2d) 62.
      other eases along the same or similar lines or procedure are: Go-Bart Importing Co. v. United States v. MounDay (D. C.) 208 F. 186; United States v. Rykowski (D. C.) 267 F. 866; United States v. Kelih (D. C.) 272 F. 484; Connelly v. United States (D. C.) 275 F. 509; United States t. Alexander (D. C.) 278 F. 308; United States v. Descy (D. C.) 284 F. 724; United States v. Mattingly, 52 App. D. C. 188, 285 922. United states v. Vigneaux (D. C.) 288 F. 977; United States v. Dziadus (D. C.) 289 F. 837; Margie v. Potter (D. C.) 291 F. 285; United States v. Jensen (D. C.) 291 F. 668; United States v. Madden (D. c.) 297 F. 679; United States v. Gaitan (D. C.) 4 F.(2d) 848; United States v. Burns (D. C.) 4 F.(2d) 131; United states v. Smith (D. c.) 23 F.(2d) 929; Berkelhammer v. Potter (C. C. A.) 23 F.(2d) 375; Fabri v. United States (C. C. A.) 24 F.(2d) 185; In re Herter (D. C.) 30 F.(2d) 968, affirmed (C. C. A.) 33 F.(2d) 400; United States v. Slusser (D. C.) 270 F. 818.


author: WILBUR, Circuit Judge.

text:
    WEEDIN, Com’r of Immigration, v. YEE WING SOON.
    No. 6336.
    Circuit Court of Appeals, Ninth Circuit.
    March 30, 1931.
    Anthony Savage, U. S. Atty., and Hamlet p. Dodd, Asst. U. S. Atty., both of Seattle, Wash. (John F. Dunton, U. S. Immigration Service, of Seattle, Wash., on the brief), for appellant.
    Stephen M. White, of San Francisco, Cal., and Hugh C. Todd, of Seattle, Wash., for appellee.
   WILBUR, Circuit Judge.

The appellee claims to be the son of Yee K a eitizen of the United gtates of ^ CMnese raee. Appeliee was born in China &nd applied &r entry ^ ^ United gtates A ü 26 1930 aecompanied by bis ap j d fath Tee Kam. It is coneeded that y, ^ relationsHp 0f father and son exists M elaimed by the ,applicant and by Ms al. leg’ed. father that he is an American eitizen and entitled to admission as such. Appellee was ordered deported by the immigration authorities and was released by the District Court upon habeas corpus proceedings. The immigration commissioner appeals from this decision. The record shows a considerable number of discrepancies between the testi“°7,of the appeüee and two previously landed sons of Yee Kam. The appellee relies upon the- proposition that the witnesses are in accord upon such a multitude of details concerning their home and village and family life as to convince any reasonable man of the truth of their testimony as to their relationship. Appellee, while admitting that to? evidenee shows discrepancies between toe testimony of the father and the alleged son, claimed that such discrepancies are those reasonably to be anticipated in toe testimony of truthful witnesses. At the outset it must be coneeded that there is complete accord in the testimony upon such a multitude of details as would hardly he expected if the claim of relationship did not exist. Indeed, such a complete accord would hardly be anticipated if the relationship did exist unless there was some previous conference between the witnesses to refresh their memory upon the numerous details upon which they might reasonably expect to be examined.

in the ease at bar, we have a multitude of agreements upon a great variety of details in the testimony which are quite consistent with the claimed relationship and point with great emphasis to the truth of the claim. On the other hand, we have a discrepancy that is diffieult if not impossible to reconcile with the alleged relationship. That discrepancy we will state in the language of the immigration authorities:

“The alleged father testifies that his moth- * er died last year in his house, the claimed i * ,i . ini house of this applicant; that she had been .. . . , . , ** £ 9 to i living m his house for some time before her , ii it , t , ,i , ... .. , death; that he and the son who this applicant . . 9 . , . ,, , . , ,y . claims to be were m that house at the time „ , 1 . . , , i . ,, of her death, which occurred early in the • \ -i . . -, i morning; and that two feasts attended by . , , & \ , « . ., . ... J eight or ten guests from neighbonng villages were held m the day of the funeral. The apv , , .«/i .-i Y r.» , i -1 plicant testifies that his paternal grandmoth- * er died, not m his house, but in the house ,. , TTT. tt i 4.1 i. • . i his brother wing Hok; that prior to her death she always lived in Wing Hok?s house and never in his own; that he was not present when she died or in the same house where she died; that her death occurred about noon; and that no feasts were held and no one came from a neighboring village on the day of the funeral. This disagreement is sharpened by the testimony of the alleged brother that his paternal grandmother never lived in his house "

In considering this discrepancy, which is clearly shown by the testimony, it should be noted that the applicant was living with his father, in their home at the time of the death of the grandmother; that he was then nearly twenty years old; and that the incident oecurred less than a year before appellee and his father were examined by the immigration authorities. It is difficult to see how there could be such a discrepancy between the testimony of the father and son if they were living together at the time of her death as they both testify. There is hardly any room for serious claim of forgetfulness or mistake, as the appellee testified definitely as to the fact of the grandmother’s death and the time of it. He remembers the circumstances attending the funeral and identifies her place of burial in accord with the testimony of the alleged father. On the other hand, the diserepancies as to whether or not there was a clock in the house, and whether or not the father carried a watch, taken alone, might well be disregarded as too trivial to justify the See.retary of Labor in his order. It is difficult to understand why the father and son, so re- ^ livinf “ their bome’ sh°^d disa^’ee “ *o whether the one dog about the h°us® was ,yhlte ”blaf- Thevffiage in h aPP®l e® and h\s allefed fatber elalnaed to have beaded consisted of nine houses; the ^atbef tes.tlflfd that were two water buffal°e®.f tbe village belonging to two of the inhabitants thereof, while the son testified ^ere were none.

There are other discrepancies in the testimony which we will not pause to enumerate , i, , , except to say that one related to ownership * t , , X ,, * n * ¿i* w ox nee land by the father and the cultivation 7 _ ,, , , thereof by the mother and son and showed, *•„„„„ * , 1, , ,, , , ¿ disagreement which could hardly be expected *«¿7 T • j , j., . , ^ . if the claimed relationship did exist. In view * .1 .,A ,, ., ,, , of these discrepancies it cannot be said that ____ the proceedings before the immigration au,t _ 0 * . m, •, * thonties were unfair. The order of the Dis-, . , c . rPiPasÍTle. armPnPP rpW7.,prl uiiA/u v_/ulllu -Lcicdoiiji; auuciiee is x&vGrssQ, .. , 0 , , , 9 with directions to quash the wnt of habeas corpus, and remand the appellee to the cus-u -u Fi tory from whence he was taken,