author: HOLMES, District Judge.

text:
    HARRISON v. HARRISON et al.
    (District Court, N. D. Mississippi, E. D.
    September 14, 1922.)
    No. 33.
    1. Removal of causes <@=37 — Parties to be rearranged according to real Interest in controversy, disregarding formal positions on pleadings.
    In determining jurisdiction for purpose of removal of cause on the ground of a controversy between citizens of different states, the court must disregard the formal positions of the parties as plaintiffs or defendants on the face of the pleadings, and rearrange them according to their real interest in the controversy.
    2. Removal of causes <@=48 — Two separable controversies, one at law, the other in equity, wholly between citizens of different states.
    Suit removed from state court, on its face by citizen of one state against citizen of same state and citizen of another state, held to involve two separable controversies wholly between citizens of different states, one of a legal nature over title, the other for accounting, besides seeking partition; interests of the citizens of the one state being identical.
    3. Removal of causes <§=48 — Something less than whole suit meant by “controversy.”
    Something less than the whole suit is meant by the term “controversy,” in Judicial Code, § 28 (Comp. St. § 1010), authorizing removal from state court of suit in which there is a controversy wholly between citizens of different states, and which can be fully determined as between them.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Controversy.]
    4. Removal of causes <@=l 16 — Blended suit separated into legal and equitable action, for purpose of trial, on removal.
    On removal from state court of blended suit involving legal title to land (defendant in possession claiming sole ownership, and the other defendant and plaintiff each claiming to own one-third), and for partition and accounting, it will be divided into legal action, to be tried first to jury, and suit in equity to be abated till dispute over title is settled.
    In Equity. Suit by James T. Harrison against Allen B. Harrison and another, removed from the chancery court of Lowndes county, Miss. Heard on motion to remand.
    Motion overruled.
    See, also, Harrison v. Lee, 3 F.(2d) 796.
    James T. Harrison, of Columbus, Miss., for complainant.
    Sturdivant, Owen & Garnett, of Columbus, Miss., for defendants.
   HOLMES, District Judge.

For the purpose of determining the question of jurisdiction, it is the duty of the court to disregard the formal positions which the parties occupy as plaintiff or defendants on the face of the pleadings, and to rearrange them according to their real interests in the controversy.

It is clear that the interest of Allen B. Harrison in the main controversy, which is over the title to the fee in the Buekhorn. plantation, is identical with that of the plaintiff, James T. Harrison, and that for the purpose of determining whether or not the suit embraces a controversy wholly between citizens of different states the two Harrisons, both citizens of Mississippi, should be aligned on one side, and the defendant Blewett Lee, a citizen of New York, on the other. The source of whatever right or title the Harrisons have is identical, and is antagonistic to the claim of'the nonresident defendant that he is the sole owner in fee of the land involved in the suit. This probably applies also to the controversy over the rents, issues, and profits of the Buekhorn plantation since the death of the testatrix, Mary D. Portwood, on April 21, 1915; but, if such is not the ease, then there is a separable controversy between James T. Harrison and Blewett Lee over the same.

' It is helpful to look at the allegations in the petition to remove to supply some facts not apparent on the face of the bill of complaint, but it is not necessary to do so, as it is apparent from the face of the complaint itself, in so far as there is any dispute between the parties, that James T. Harrison and Allen B. Harrison, both citizens of Mississippi, are aligned on one side of that dispute, and Blewett Lee, a citizen of New York, on the other, and to the extent that Allen B. Harrison is eliminated from any controversy between James T. Harrison and Blewett Lee there is a separable controversy between the latter two. Under no circumstances apparent upon the face of the record, or reasonably to be inferred therefrom, is there any identity of interest between the defendants, Allen B. Harrison and Blewett Lee, or any real controversy between Allen B. Harrison and James T. Harrison. It differs from Hanrick v. Hanrick, 153 U. S. 192, 14 S. Ct. 835, 36 L. Ed. 685, where “each and all of the defendants contested the rights which the plaintiffs asserted.”

It is true that the proceedings become adversary in their nature; with James T. Harrison on one side and Allen B. Harrison and Blewett Lee on the other, in so far as it is •sought to partite the property either in kind or by sale and a division of the proceeds. As to this feature of the proceedings it may be said that the interests' of all three of the parties are adverse to each other, that the hand of each is raised against the other, but this controversy over a division of the land or its proceeds cannot be reached and determined until the question of title is settled by the court. This court can administer the enlarged equitable remedies afforded by section 3525 and other .sections of the Code of 1906 only to the extent that in so doing the defendant is deprived of no right guaranteed to him by the Constitution of the United. States. A defendant in possession of land claiming title in a suit to dispossess him is guaranteed a jury trial in an action at law under the Constitution of the United States, and section 3525 of the Mississippi Code of 1906 cannot be construed to enlarge the equitable jurisdiction of the federal court to the extent of depriving the defendant of such a jury trial.

The suit as filed in the state court, and now sought to be removed, is of a blended (legal and equitable) nature and authorized by section 3525 of the Code of 1906. On the face of this suit there appears, first, the legal action over the controverted title, with the defendant Blewett Lee in possession, claiming the fee,. on one side, and the two Har-risons, out of possession, disputing Lee’s claim to the fee, and themselves claiming a third interest each, on the other side. Here is a controversy wholly between citizens of different states, and of a legal nature. On this issue the defendant Lee is entitled to a jury trial on the law side of the court, with James T. Harrison and Allen B. Harrison arranged as plaintiffs.

Second. There appears .on the face of the bill a suit in equity for partition and an accounting. Except as to defensive matters, which cannot be considered in determining jurisdiction, and eliminating the dispute over the title which must be settled in an action at law, it is apparent that the real and substantial controversy here is over the accounting. The complaint alleges that the respondent Blewett Lee has had the complete use and occupation of the premises since April 21, 1915, and has received all the rents and profits therefrom, and prays that he be made to account for the full term thereof for all said rents, and also to pay a fair valuation for the use and occupation of the premises in his possession.

The real controversy here presented is whether Lee has been in possession as alleged, and has received all the rents and profits from- the premises. If.this is true, aside from matters of defense which, as stated, cannot be considered now,-he is liable equally to the other two tenants in common, both of whom are citizens of Mississippi. Here, therefore, is another controversy wholly between citizens of different states, which is separate and distinct from the controversy for the partition of the land, either in kind or by a sale and division of the proceeds.

It is an unusual kind of separable controversy, in that all the parties to the suit are interested in it, and that one of the defendants becomes for jurisdictional purposes a plaintiff with respect to it, but remains a defendant with respect to the adversary proceedings for partition; yet it is well within the meaning of the term “controversy wholly between citizens of different states,” which either one or more of the defendants may remove under section 28 of the Judicial Code (Comp. St. § 1010). The term “controversy,” as so used, means something less than the whole suit — that is to say, the cause of action, included within the suit, which can be separated and disentangled-therefrom— and when so separated and distinguished is of such a character that a separate suit might have been brought thereon and complete relief afforded without the presence of others made plaintiff or defendant • in the original suit, or without the joinder of any other controversy which is not wholly between citizens of different states. In other words, the right of removal exists in a ease brought -in a state court in which there are two or more controversies or causes of action, capable of separation into two or more independent suits, one of which controversies is wholly between citizens of different states, and in, the absence of allegations of fraud the existence of a separable controversy must be determined by the state of the pleadings or record in the state court at the time of the application for removal, without reference to the petition for removal itself.

The proceedings for partition and accounting are separable, involving issues that turn on different principles of law and distinct questions of fact. If the partition proceedings are of such an adverse character that the interest of the resident defendant may be said to be opposed to the plaintiff, in that the former might not desire a partition, certainly the suit for an accounting is a separate and distinct controversy, as to which the interest of Allen Harrison must be regarded as identical with James T. Harrison and opposed to Blewett Lee.

The suit as filed in the state court embraced two controversies wholly between citizens of different states, one over the controverted title, of a legal nature, and the other over an accounting, of an equitable nature. Separate suits might properly have been brought thereon, one at law, and the other in equity. There was no waiver of the right to remove to the federal court by the nonresident defendant. This is clear from the brief of counsel and authorities there cited.

The motion to remand will be overruled, and the blended suit will be divided into (1) a legal action over the title; and (2) a suit in equity for partition and an accounting. The legal action will be transferred to the law side of the court and entered on the law docket. The parties may recast their pleadings in legal form, if they deem advisable. The suit in equity will be abated until the dispute over the title is settled in the action at law.

An order may be entered in accordance herewith. The attorneys for the nonresident defendant may draft such an order, and, after submitting same to the plaintiff, send to me for signature.


source: Caselaw Access Project

author: LEARNED HAND, District Judge.

license: Public Domain

text:
    WESTINGHOUSE ELECTRIC & MFG. CO. v. CUTTING & WASHINGTON RADIO CORPORATION.
    (District Court, S. D. New York.
    July 24, 1923.)
    Patents <@=>211 (I) — License to “manufacture7’ amt sell apparatus of licensee’s manufacture requires licensee to make apparatus by its own employees.
    Under license “to manufacture the apparatus and to sell the apparatus of licensee’s manufacture,” licensee canhot sell any other apparatus than what it “manufactures,” which requires construction and assemblage of parts by licensee’s own employees in its own factory, and does not authorize licensee merely to design work and have it done in factory of another company under supervision of its officer.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Manufacture.]
    In Equity. Suit by the Westinghouse Electric & Manufacturing Company against the Cutting & Washington Radio Corporation.
    Decree for plaintiff.
    Charles Neave and Stephen H. Philbin, both of New York City, for plaintiff.
    William H. Davis, of New York City, for defendant.
   LEARNED HAND, District Judge.

I agree that when a man has a license to make or sell, and probably also if his license be to make and sell, it is a matter of no moment who does the manufacturing. But that is not this case. Here the license was “to manufacture the apparatus and to sell the apparatus of the licensee’s manufacture.” In the face of this, nobody argues that the licensee may sell any other apparatus than what he manufactures. It may be hard on him that he should not, if he has no factory, but he should have thought of that when he accepted his license.

On this branch the controversy therefore centers on the meaning of the word “manufacture.” Normally, it ought to mean that the licensee should make the goods itself; that is, by its own employees. No 'doubt, the purpose was to insure its responsibility for the kind of work done. The mere sale of the goods would, of course, involve some responsibility; but clearly that was not enough. Armstrong wanted his licensee to do the work personally. It does^not seem to me a compliance with this requirement that the licensee shall design the work even though he constantly have an officer at the factory of another company to supervise the manufacture. I can interpret the language only as meaning that the construction and assemblage of the parts should he done by the licensee’s own employees and in its dwn fact-tory. Anything else would be, I think, a casuistical interpretation to put upon words which are usual and clear. Whether Armstrong’s purpose eould have been reached by a broader interpretation is not relevant when the words are plain.

There remains the question of sale. Here, too, the purpose of the provision is plain enough; it was to retain in Armstrong the whole market except that of the three classes described in the third article of the contract. That purpose, it seems to me, was not concerned with the legal and formal incidents of the business. The parties were not interested in whether title, strictly speaking, first passed to jobbers and then to amateurs and the like. They were, however, interested, that is, Armstrong was interested, in preventing the machines from getting into the hands of other users. In other words, the licensee had no right to give an unconditional title to jobbers, if thereafter he could not control their disposition of the machines. How it did its selling was of no consequence so long as it kept this control over the machines till they reached the user. I do not quite see how it could keep such control and give an absolute title, for conditions on an absolute title are generally treated as repugnant; but that I conceive to be a difficulty which the licensee must work out, if he chooses to sell to jobbers odtright. The contract means that in selling, the licensee shall retain legal power over the disposition of each machine until it reached the ultimate user. Any method of selling which insures that result seems to me within the purpose and fairly within the language of the license.

This is entirely in accord with the rulings of Judge Mayer and Judge Bodine, so far as I can see. In each ease the De Forest Company was trying to avoid the contract by an obvious fetch, and there was no pretense that the machines were still subject to the control of the licensee after the sale. I agree with each of them, also, that the general custom of dealing in such goods, if there was any, as apparently there was not, would not affect this result. .The language of the contract is unequivocal, certainly if it be given the scope which I have allowed it. If it be understood more narrowly, nothing is left for any custom.

The only new issue introduced into this case, which was absent in the other two, is the supposed estoppel, practical construction, or modification of the agreement from the conduct of the parties before the beginning of tliis year. So far as this defendant is concerned, there was but one payment of royalties before October 1, 1921, and that a small one. The defendant had received notice by September 28th of Judge Mayer’s language in which he announced that licensees, indeed this very licensee, might not sell a machine “to somebody who in turn might sell it to these three classes.” I cannot agree that a single payment, even if made on the basis of a general right to sell to jobbers, is enough to modify the clear intent of the language actually used. What Armstrong may have done in the case of other licensees is not material in this ease. Hence it seems to me that the plaintiff is right in its present position.

As to a preliminary injunction, I am disposed not to push the relief to an extremity. The defendant may have some time to adjhst its business to the contract, considering the time that has elapsed. Different periods are proper for the two phases of the infringement. The defendant may have until September 1st to adopt some means of selling by which either it shall retain title to the machines until they reach the ultimate consumer; or, if any legal method can be devised, by which, though title pass, it shall control the disposition of each machine in the hands of the jobber, or other intermediate merchandiser, so as to insure its sale to one of the three classes prescribed within a reasonable period, or its return to the licensee.

As to manufacture, the defendant may have a period of six months within which to prepare itself to manufacture its product. During each of these periods, the defendant will be accountable for damages and profits upon all machines which it sells contrary to the conditions prescribed. It will remit bimonthly accounts of any such sold with the sales price and will give a bond for $10,000, with leave to the plaintiff to increase the same as the accounts may show it necessary.

As a condition of this- injunction, the plaintiff will furnish a bond of $10,000.


author: CALL, District Judge.

text:
    PAINTER v. PENN MUT. LIFE INS. CO.
    (District Court, S. D. Florida.
    March 24, 1923.)
    I. Cancellation of instruments <@=>37(6) — Bill to cancel release on life policy, on ground that release was procured by fraud, held sufficient.
    In suit to cancel release on life policy issued to complainant’s husband, bill alleging that complainant -was induced to execute release by false representations by defendant’s agent that settlement of policies in other companies would be made in full, and that insured’s vital organs, which had been removed and right_ to possession of which was then in litigation, would be returned, if complainant released policy issued by defendant, heldi sufficiently to allege fraud on motion to dismiss bill.
    2. Compromise and settlement <@=I9(1) — Equi« ty will not disturb settlement by parties, in absence of overreaching-by one of them.
    Equity will not disturb settlement of differences by parties, in absence of overreaching by one of them.
    3. Dismissal and nonsuit <©=73 — On motion to dismiss bill, allegations of bill must be taken as true.
    On motion to dismiss bill, allegations of bill must be taken as true..
    4. Equity <@=65 (2) — Beneficiary, executing release on life policy because of false representations by company's agent, held not in pari delicto in perpetration of fraud on other companies.
    Beneficiary of life policy, who was induced to execute release on policy issued by defends-ant by false representations that, if she executed release, policies issued by other companies would be settled in full under agreement between such companies, held, not in pari delicto in perpetration of fraud on other companies, so as to preclude her from seeking aid of equity to cancel release.
    5. Equity <@=264 — Allegations as to unauthorized removal of organs from body in bill to cancel release on life insurance policy for fraud immaterial, and stricken.
    In suit to cancel release on life policy executed by insured’s widow, on ground release was procured by fraud, allegations of bill relating to unauthorized removal of certain organs from insured’s body heldi immaterial, and will be stricken.
    6. Equity <@=264 — Allegations in bill to cancel release for fraud as to what took place on visit of insurer’s agent to insured’s office held immaterial, and stricken.
    In suit to cancel release on life policy executed by insured’s widow, on ground release was procured by fraud, allegations of bill as to what took place on first visit of insurer’s agent to insured’s office heldi immaterial, and will be stricken.
    7. Equity <@=264 — Allegations of bill to cancel release on life policy for fraud held not impertinent, and not stricken.
    In suit to cancel release on life policy executed by insured’s widow, on ground release was procured by fraud, allegations of bill relating to insured being Mason, and that complainant was induced to execute release by representations that agreement for settlement of policies in other companies in full had been brought about by certain Masons, heldi not impertinent, but tended to show that suspicions of complainant had been lulled because of her confidence in such fraternity,' and allegations will not be stricken.

      In'Equity. Suit by Martha S. Painter against the Penn Mutual Life Insurance Company. On defendant’s motions to dismiss bill and to strike certain portions thereof as immaterial and impertinent.
    Motion to dismiss denied. Motion to strike out certain portions of bill granted in part, and denied in part.
    Stewart & Bly, of DeLand, Fla., for complainant.
    W. M. Bostwiek, Jr., of Jacksonville, Ela., for defendant.
   CALL, District Judge.

The bill of complaint herein is brought for the purpose of canceling a certain release executed by the complainant on a certain policy on the life of her husband, issued by defendant on February 24, 1913, on the ground of fraud in procuring such release. After alleging the death of the insured, May 22, 1913, the bill alleges that the defendant had issued three policies on the life of Painter, one for $50,-000, one for $47,000, and one for $3,000. It then alleges:

That certain agents of defendant approached the complainant with an offer of settlement of all of these policies, and made certain representations, through which complainant was induced to execute the release on the $50,000 policy, which release is sought to be canceled in this suit. The representations, made by Thompson, that the writer of one of the policies was out of the city, and therefore Wm. Thompson was employed to make the proposition for settlement. That through the efforts of certain Masons an agreement had been brought about between all of the companies having policies on the life of Painter, except one or two, with reference to a plan for the settlement of all the policies. That Gill was one of the head men of the defendant, and had accomplished much in the arrangement with the other companies, and such agreement was in Gill’s hands. That, well knowing the desire of complainant to gain possession of the vital organs of her husband, which had been shipped to Baltimore, the suit then pending in that city over the possession of said vital-organs was controlled by defendant, and that such suit would be stopped by the defendant if the proposed settlement was consummated, and said vital organs would then be turned over to her possession. That if said proposition was accepted the other companies would pay in full the policies on the life of said Painter.

That writing, signed by said Thompson, was delivered to complainant as follows: “This is to certify that I am fully informed that the settling of the policies of E. O, Painter with the Penn Mutual will result in the following companies paying in full: Mutual Life, New York Life, Union Central, and Equitable Life; there being a written agreement to this effect which I have read. W. Thompson.” That said Thompson urged repeatedly a speedy decision, that the matter might be settled by noon of the day prior to the hearing of the suit in Baltimore over the possession of the vital organs of Painter.' That Gill, an agent of defendant, over the telephone vouched for the veracity and reliability of said Thompson.

The settlement proposed, and which the complainant, relying upon believing the representations of Thompson, accepted, was that defendant would pay in full a policy for $3,-000, would return the cash premium of $1,-160 paid by Painter on another policy, and return" certain premium notes given by Painter for premiums amounting to $2,331.20, and that oratrix and her daughter should execute releases of all the policies issued by the defendant on the life of Painter. This proposition was finally accepted, and the moneys paid by, and the premium notes surrendered by, the defendant, and the releases executed by complainant and her daughter. The bill then alleges that the companies mentioned would not pay said policies in full, but were defending the suits brought to enforce the payment of same; that the suit in Baltimore was not dismissed, but had been prosecuted to the Supreme Court of the United States, where it is still pending.

The prayer of the bill is for cancellation of the release, for an injunction, and for an accounting of what is due complainant on said policy. A motion to dismiss the bill was made by defendant on various grounds — •- want of equity; adequate remedy at law; facts alleged do not constitute fraud; the complainant was a party to the fraud, if any, on the other companies. There is also a motion to strike certain portions of the bill as immaterial and impertinent.

The motion to strike must be considered in the light that' the representations alleged were made by the defendant’s agents, that the complainant believed said representations to be true and, relying upon them, executed the release sought to be canceled, and that such representations were untrue and knowingly made for the purpose of inducing the complainant to enter into the settlement. :If these untrue representations constitute' a fraud, then the motion to dismiss should be denied.

Boiled down, the facts alleged in the bill show that this defendant, having policies aggregating $100,000, sent its agent to the complainant and her daughter to effect a settlement of all these, and in order to do so took advantage of the known desire to recover possession of the vital organs of the complainant’s husband, a suit about which was then pending in Baltimore, as well as the assurance that all other policies on the life of her husband would be paid in full, to induce her to execute the release in question, thus procuring the settlement of $100,000 of insurance for the payment of some $4,000 and the release of something under $3,000 of premium notes; the defendant being then in position to bring this about.

It does not seem to me that there can be two opinions on this matter. Of course, parties between whom differences exist may come together and settle such differences, and equity will not disturb such settlement, where there has been no overreaching by one of the parties; but in the instant ease, if the allegations are true, and for this hearing they must be taken as true, the things most important to be done by the defendant on its part in the settlement reached were not done. It would be highly inequitable to allow it to retain the fruits of the acts of its agents.

I do not think the contention that the complainant is in pari delicto in perpetration of a fraud on the other insurance companies is tenable. It was represented to her that the agreement had already been reached among the companies, and that the payment only awaited her acceptance of the offer of the defendant, and that this agreement had been brought about by intervention of Masons high in the councils of the order. Thus she cannot be said to come into equity with unclean hands.

A motion is also made to strike out certain portions of the bill. The bill at great length alleges the unauthorized autopsy and removal of certain organs of the deceased and the shipment of same to Baltimore for examination. I am at a loss to understand what bearing these facts can have on the decision of fraud vol non upon which this suit is based. The motion to strike that portion of the bill will be granted.

Nor. do I see that the allegations contained on- the seventh page of said bill, challenged by the motion of defendant, of what took place on the first visit of Thompson to the office of Okie C. Painter, can have any bearing upon the issues to be decided in this case. This motion will be granted.

The motions to strike out those portions of the bill relating to the deceased being a Mason, etc., can scarcely be said to be impertinent. The fact that complainant’s husband was a Mason, the confidence reposed in that fraternity, and the representations based thereon might have exercised, and probably did exercise, much influence in establishing a confidence in the representations of Thompson, and lulling to sleep any suspicions which might- have existed in the minds of the two women.

These motions will be denied.


author: MORTON, District Judge.

text:
    THE ESTHER M. RENDLE.

    (District Court, D. Massachusetts.
    April 8, 1925.)
    No. 3006.
    1. Shipping <§=»I6 — Tug towing lighter to ship at sea held not making “foreign voyage.”
    A tug, enrolled and licensed for the coasting trade, held not to have “proceeded on a foreign voyage,” subjecting her to forfeiture under Rev. St. § 4337 (Comp. St. .§ 8086), by towing a lighter from a port to a vessel hovering at sea, from which the lighter was laden with liquor, and then towing her back to port; it not appearing whether the hovering! vessel was foreign or domestic.
    [Ed. Note. — For other definitions, see Words and Phrases, Foreign- Voyage.]
    2. Shipping 6— Licensed tug held not subject to forfeiture for mere-towing of lighter which traded with a ship at sea.
    A tug, licensed for the coasting trade, held not to have been employed in a trade other than that for which she was licensed, which subjected her to forfeiture under Rev. St. § 4377 (Comp. St. § 8132), by the towing of a lighter 20 miles to sea, where the lighter was laden from another vessel, and then towing her back to port.
    Forfeiture Libel. Information by the United States against the steam tug Esther M. Rendle. On exceptions to libel.
    Exceptions sustained, and libel dismissed.
    Laurence Curtis, 2d Asst. U. S. Atty., of Boston, Mass.
    Geo. L. Dilloway, of Boston, Mass., for defendant.

      Decree affirmed (C. C. A.) 7 F.(2d) —.

   MORTON, District Judge.

This is an information to forfeit the tug for making a foreign voyage under R. S. 4337 (U. S. Comp. Stats. 8086), and for doing business outside of that for which she was lieehsed under R. S. 4377 (U. S. Comp. Stats. 8132). It was heard on exceptions to the fifth clause of the libel. The facts for the purpose of these exceptions are assumed by both parties to be as therein stated.

The tug was enrolled and licensed for the "coasting trade.” She picked up an empty lighter at or near Provineetown, towed it to an unknown vessel hovering on the coast near Stellwagen Bank, where it was loaded with liquor, and then towed it back into Boston Harbor. It is not alleged in the information that the vessel from which the liquor was obtained was a foreign vessel, nor that the tug had any dealings with her except as stated.

The decisive question is whether the tug can be said to have made a “foreign voyage.” The statute in question has been in force, substantially in its present form, since 1793. Referring to it in The Eliza, 7 Cranch, 113, at 114 (3 I;. Ed. 286), decided in 1812, Chief Justice Marshall said: “The majority of the court is of opinion that the offense was not complete until the arrival of the vessel in a foreign port.” Mr. Justice Story so decided, sitting in this circuit. The Lark, Fed. Cas. No. 8,090; Taber v. U. S., Fed. Cas. No. 13,722. The situation on this coast during the Embargo Act and the War of 1812 was, in certain respects, similar to that now prevailing; and the decisions referred to are by no means obsolete. The government relies on The Alex Clark (D. C.) 294 F. 904, in which Judge Hand expressed views which are inconsistent with the cases referred to. The ease before him was one of an American vessel which provisioned a British liquor ship hovering on the coast and was herself trading with a foreign vessel. It is possible that an American vessel, which puts to sea with the intent of trading on the high seas with a foreign vessel and then returning here, might be held under this statute to have made a foreign voyage; but the contrary construction of the statute, which was made by able judges and has been recognized for about 100 years, ought not to be lightly disregarded, and should certainly be followed by a first instance court in the circuit where such decisions were made.

No such situation as Judge Hand had before him is here presented. The Rendle is not alleged to have had anything to do with the hovering vessel, nor is it alleged that the hovering vessel was a foreign vessel. The government’s contention that a foreign voyage is made every time an American vessel goes beyond the territorial waters of the United States seems to me quite untenable. A great deal of the coastwise trade goes far outside that limit. It would be surprising, and I think clearly wrong, to hold that everj coastwise vessel which brings coal from Virginia points to New England over the usual route makes an illegal foreign voyage and is subject to forfeiture. I find and rule that the Rendle did not make a “foreign voyage” within the meaning of the statute.

Nor do I think that the tug is forfeitable for having traded outside the employment for which she was licensed. The actual towing of a lighter 20 miles to sea is plainly within the ordinary work of a coast-wise tug. In The Dolphin (C. C. A. 1st Circuit, Jan. 6, 1925) 3 F.(2d) 1, it was held that a tug and tow are not to be regarded as one vessel for forfeiture purposes; and that a tug, which has towed a barge to a steamer on the high seas from which the barge was loaded with liquor, and had then towed the barge into port in this country, was not forfeitable by reason of the offense committed by the barge. The Rendle was not affected by the illegal purpose for which the lighter was being used.

Libel dismissed.


author: CAMPBELL, District Judge.

text:
    THE CAPITAINE FAURE.
    (District Court, E. D. New York.
    November 19, 1923.)
    Maritime Hens <@=>30 — Vessel held not liable for stevedoring services rendered charterer.
    Vessel helé not liable for stevedoring services rendered when it was under charter by charter party obligating charterer to pay for all stevedoring services, in view of failure to exercise reasonable diligence to ascertain authority of person at whose instance services were rendered to bind vessel therefor, under Merchant Marine Act 1920, § 30, subsec. P. (Comp. St. Ann. Supp. 1923, § 8146%ooo), by making inquiries of such person or of master of ship.
    - In Admiralty. Libel by the Mediterranean Stevedoring Company, Inc., against the steamship Capitaine Faure.
    Decree of disr missal.
    Decree affirmed 5 F.(2d) 1009.
    Byrnes & Stoneham, of New York City, for Jibelant.
    Burlingham, Veeder, Masten & Fearey, of New York City, for claimant.
   CAMPBELL, District Judge.

This is a suit in admiralty, and the libelant has filed a libel in rem against the steamship Capitaine Faure, etc., for stevedoring services rendered in loading a French vessel in the Harbor of New York, which is not the home port of said vessel.

Between the 5th day of May, 1923, and the 9th day of May, 1923, the libelant, at the request of Ferdinand H. Jaeger, performed certain work, labor, and services in loading said ship at Pier 46, Brooklyn, N. Y.

That during all of that time the said ship was under charter to one Reuben I. Cameron, of New York, by virtue of a charter party dated March 21, 1923, in and by which the charterer was obligated to pay for all stevedoring services.

Ferdinand H. Jaeger was not the owner of said vessel or a person authorized by the owner to contract for stevedoring services, nor was said Ferdinand H. Jaeger a person to whom the management of the vessel at the port of supply was intrusted, under the provisions of the Merchant Marine Act June 5, 1920 (41 Stat. 1005, subsection P of section 30 [Comp. St. Ann. Supp. 1923, § 8146ooo]).

The charter party or a certified copy thereof was at all the times alleged by the libelant, as the time of rendering stevedor-ing services, with the captain aboard said ship.

Ferdinand H. Jaeger never represented the owner, but was only engaged in securing cargo for the charterer, and could not by his statement bind the owner; but it is conclusively shown by the evidence in this suit that the libelants never inquired of the said Ferdinand H. Jaeger whether the said ship was under charter, of which said Ferdinand H. Jaeger was fully informed, and a copy of said charter party was in his possession, nor did the libelants make any inquiry of the captain, who could not only have informed them that the said ship was under charter, but could have exhibited the charter party or a certified copy thereof to the libelant, from which it would have been fully informed that the charterer alone was liable for the payment for its services.

The libelant was bound by section 30 of the Merchant Marine Act, supra, to exercise reasonable diligence to ascertain the authority of the person ordering the services to bind the vessel therefor, but libelant did not use reasonable diligence to ascertain whether the person ordering such services had authority to bind the vessel, but simply assumed without any inquiry that said Ferdinand H. Jaeger had such authority, when by inquiry either of him or the captain of the ship the required information could have been obtained.

The libel herein should therefore be dismissed. United States v. Carver, 260 U. S. 482, 43 S. Ct. 181, 67 L. Ed. 361, 1923 A. M. C. 47; The Awensdaw (C. C. A.) 289 F. 803, 1923 A. M. C. 505; The Thordis (D. C.) 290 F. 255, 1923 A. M. C. 581; The Susquehanna (D. C.) 3 F.(2d) 1014, 1923 A. M. C. 643.

A decree may be entered dismissing the libel, with costs.


author: PER CURIAM.

text:
    Mediterranean Stevedoring Company, Inc., Libelant-Appellant, v. Steamship CAPITAINE FAURE, Her Engines, etc.; Societe Navigation De Vapeur (France-Indo Chine), Claimant-Appellee.
    (Circuit Court of Appeals, Second Circuit.
    January 23, 1925.)
    No. 193.
    Appeal from the District Court of the United States for the Eastern District of New York.
    Byrnes & Stoneham, of New York City, for libelant appellant.
    Burlingham, Veeder, Masten & Fearey, of New York City (William J. Dean and Roscoe H. Hupper, both of New York City, of counsel), for claimant appellee.
    Before ROGERS, MANTON, and HAND, Circuit Judges.
   PER CURIAM.

Decree (5 F.[2d] 1008) affirmed.


text:
    George W. PRATHER, Appellant, v. Roy G. TELLIER and William Hoskins, Appellees.
    (Court of Appeals of District of Columbia.
    Submitted May 12, 1925.
    Decided June 1, 1925.)
    Patent Appeal. No. 1742.
    J. E. Stryker, of St. Paul, Minn., and A. V. Cushman, of Washington, D. C., for appellant.
    J. H. Lee, of Chicago, Ill., R. F. Steward and N. J. Jewett, both of Washington, D. C., and J. Q. Rice and M. C. Massie, both of New York City, for appellees.
    Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
   PER CURIAM.

Appeal from concurrent decisions of the Patent Office tribunals in an interference proceeding, which is one of a series of interferences, awarding priority to the party Tellier. The invention relates to the baking of suitable clay and the crushing of it to make it granular, for softening hard water. The issue here, as before the Patent Office, is one of fact, and the concurrent decisions of the three tribunals below, covering as they do almost 60 printed pages of the record, contain an exhaustive and satisfactory discussion of the evidence. A review of those decisions, in the light of the briefs, argument, and record, not only fails to disclose any error, but convinces us that the correct conclusion was reached. In these circumstances, it would.serve.no useful purpose again to review the evidence, and we therefore affirm the decision. Affirmed.


text:
    George W. PRATHER, Appellant, v. Roy G. TELLIER, Appellee.
    (Court of Appeals of District of Columbia.
    Submitted May 12, 1925.
    Decided June 1, 1925.)
    Patent Appeal. No. 1744.
    J. E. Stryker, of St. Paul, Minn., and A. V. Cushman, of Washington, D. C., for appellant.
    J. H. Lee, of Chicago, Ill., R. F. Steward and N. J. Jewett, both of Washington, D. C., and J. Q. Rice and M. C. Massie, both of New York City, for appellee.
    Before- MARTIN, Chief Justice, and ROBB and VAN ORS-DEL, Associate Justices.
   PER CURIAM.

This is another of the series of interferences mentioned in appeal No. 1742, just decided, — App. D. C. —, 5 F. (2d) 1010, and for the reasons stated in that appeal the decision here is affirmed. Affirmed.


text:
    George W. PRATHER, Appellant, v. Roy G. TELLIER, Appellee.
    (Court of Appeals of District of Columbia.
    Submitted May 12, 1925.
    Decided June 1, 1925.)
    Patent Appeal. No. 1745.
    J. E. Stryker, of St. Paul, Minn., and A. V. Cushman of Washington, D. G., for appellant.
    J. H. Lee, of Chicago, Ill., R. F. Steward and N. J. Jewett, both of Washington, D. C., and J. Q. Rice and M. C. Massie, both of New York City, for appellee.
    Before MARTIN, Chief Justice, and ROBB and VAN ORS-DEL, Associate Justices.
   PER CURIAM.

This is another of the series of interferences mentioned in appeal No. 1742, just decided, — App. D. C. —, 5 F.(2d) 1010, and for the reasons stated in that appeal the decision here is affirmed. Affirmed.


text:
    George H. WIDNER, Appellant, v. Roy G. TELLIER and William Hoskins, Appellees.
    (Court of Appeals of District of Columbia.
    Submitted May 12, 1925.
    Decided June 1, 1925.)
    Patent Appeal. No. 1741.
    J. E. Stryker, of St. Paul, Minn., and A. V. Cush-man, of Washington, D. C., for appellant.
    J. H. Lee, of Chicago, Ill., R. F. Steward and N. J. Jewett, both of Washington, D. C., and J. Q. Rice and M. C. Massie, both of New York City, for appellees.
    Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
   PER CURIAM.

This is one of the series of interferences mentioned in Prather, v. Tellier, appeal No. 1742, just decided, — App. D. C. —, 5 F.(2d) 1010, and was disposed of on the same testimony and with the same result below. As we have adopted the reasoning and conclusion of the Patent Office in appeal No. 1742, it follows that the decision here must also be affirmed. Affirmed.


text:
    George H. WIDNER, Appellant, v. Roy G. TELLIER, Appellee.
    (Court of Appeals of District of Columbia.
    Submitted May 12, 1925.
    Decided June 1, 1925.)
    Patent Appeal. No. 1743.
    J. E. Stryker, of St. Paul, Minn., and A. V. Cushman, of Washington, D. C., for appellant.
    J. H. Lee, of Chicago, Ill., R. F. Steward and N. J. Jewett, both of Washington, D. C., and J. Q. Rice and M. C. Massie, both of New York City, for appellee.
    Before MARTIN, Chief Justice, and ROBB and VAN ORS-DEL, Associate Justices.
   PER CURIAM.

This is another of the series of interferences mentioned in appeal No. 1742, just decided, — App. D. C. —, 5 F.(2d) 1010, and for the'reasons stated in that appeal the decision here is affirmed. Affirmed.


text:
    In the Matter of the Application of Paul F. WILLIAMS.
    (Court of Appeals of the District of Columbia.
    Submitted May 12, 1925.
    Decided June 1, 1925.)
    Patent Appeal. No. 1747.
    J. H. Milans, and C. T. Milans, both of Washington, D. C., and A. M. Belfield, of Chicago, Ill., for appellant.
    T. A. Hostetler, of Washington, D. C., for Commissioner of Patents.
    Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
   PER CURIAM.

Appeal from a decision of the Patent Office rejecting claims 1 to 8 and 10 to 14, inclusive, of an application for patent covering an improvement upon appellant’s prior patent No. 831,815; the improvement consisting of a dummy or peg upon which the separable member of the pothead connector may be placed when disconnected, and a cap 'which fits either the body portion of the pothead connector or the dummy, so that the cap and the separable member are interchangeable. The Examiner disallowed all the claims then in the application. The Examiners in Chief, after considering the references, said: “The only thing which is not disclosed in the references is the idea of making the cap and the detachable element of the pothead interchangeable between the fixed element of the pothead and the dummy. If there is any invention in this, it is small; but we are disposed to give appellant the benefit of the doubt, in the absence of any reference.” They therefore allowed one claim and disallowed the others. On appeal the Assistant Commissioner affirmed the Board, “for the reasons set out in the decisions below.” Eor the same reasons, we affirm the decision of the Assistant Commissioner. Affirmed.


text:
    ABM. S. SEE & DEPEW, Incorporated, Appellant, v. FISHERIES PRODUCTS COMPANY, J. W. Holliday, Robert Ruark, John S. Weskett and Walter H. Neal, Receivers, and William M. Timmons, Appellees.
    (Circuit Court of Appeals, Fourth Circuit.
    March 10, 1925.)
    No. 2355.
    Appeal from the District Court of the United States for the Eastern District of North Carolina, at Wilmington.
    E. K. Bryan, of Wilmington, N. C., for appellant.
    Roimtree & Carr, of Wilmington, N. C., for appellees.
   PER CURIAM.

Case dismissed, under rule 20, per agreement of attorneys.


text:
    ALASKA STEAMSHIP COMPANY, Plaintiff in Error, v. Bernard McHUGH, Defendant in Error.
    (Circuit Court of Appeals, Ninth Circuit.
    June 8, 1925.)
    No. 4051.
    R. E." Robertson, of Juneau, Alaska, A. H. Ziegler, of Ketchikan, Alaska, and Bogle, Merritt & Bogle, of Seattle, Wash., for plaintiff in error.
    Wiek-ersham & Kehoe, of Juneau, Alaska, for defendant in error.
   PER CURIAM.

Upon the authority of Alaska Steamship Co. v. McHugh, 45 S. Ct. 396, 69 L. Ed. —, decided April 13, 1925, the judgment of the District Court of Alaska, Division No. 1, is reversed, and a new trial ordered, because of error by the District Court in its instructions to the jury, that the statute entitled “An act relating to liability of common carriers in the District of Columbia and territories, and common carriers engaged in commerce between the states and between the states and foreign nations to their employees” (chapter 3073, 34 Stat. 232), was applicable and controlling.


text:
    ALBERT LEA FOUNDRY CO., Appellant, v. AMERICAN GAS MACHINE CO., Inc.
    (Circuit Court of Appeals, Eighth Circuit.
    January 30, 1925.)
    No. 6905.
    Appeal from the District Court of the United States for the District of Minnesota.
    Amasa C. Paul, Richard Paul, and Maurice M. Moore, all of Minneapolis, Minn., for appellant.
    James F. Williamson, of Minneapolis, Minn., for appellee.
   PER CURIAM.

Appeal dismissed, without costs to either party in this court, per stipulation of parties.


text:
    Arthur B. ALLEN, Collector, etc., Plaintiff in Error, v. CARTAN & JEFFREY CO.
    (Circuit Court of Appeals, Eighth Circuit.
    January 28, 1925.)
    No. 6787.
    In Error to' the District Court of the United States for the District of Nebraska.
    James C. Kinsler, U. S. Atty., and George A. Keyser and Andrew £1. Scott, Asst. U. S. Attys., all of Omaha, Neb., for plaintiff in error.
    Myron L. Learned, of Omaha, Neb., for defendant in error.
   PER CURIAM.

Affirmed, with costs, without filing of opinion.


text:
    AMERICAN MANUFACTURING CO., Plaintiff in Error, v. Andrew BLASSIE.
    Circuit Court of Appeals, Eighth Circuit.
    January 30, 1925.)
    No. 6947.
    In Error to the District Court of the United States for the Eastern District of Missouri.
    Robert H. Merryman, of St. Louis, Mo., for plaintiff in error.
    Percy Werner, of St. Louis, Mo., for defendant in error.
   PER CURIAM.

Writ of error docketed and dismissed, with costs, per stipulation of parties.


text:
    R. H. ARNOLD, Doing Business as R. H. Arnold & Co., and Globe Indemnity Company, Plaintiffs in Error, v. UNITED STATES, for the Use of W. B. GUIMARIN & CO., and Williams-Hutson Lumber Company, Intervener. Defendants in Error.
    (Circuit Court of Appeals, Fourth Circuit.
    November 25, 1924.)
    No. 2309.
    In Error to the District Court of the United States for the Eastern District of South Carolina, at Charleston.
    Logan & Grace, of Charleston, S. C., and Wm. Henry White and Ellwood P. Morey, both of Washington, D. C., for plaintiffs in error.
    Frank G. Tompkins, of Columbia, S. C., and Whaley, Barn-well & Grimball, of Charleston, S. C., for defendants in error.
   PER CURIAM.

Order dismissing case at the cost of the plaintiffs in error filed.


text:
    W. I. BIDDLE, Warden, etc., Appellant, v. Isadore LUVISCH.
    (Circuit Court of Appeals, Eighth Circuit.
    February 17, 1925.)
    No. 6125.
    Appeal from the District Court of the United States for the District of Kansas.
    Al F. Williams, U. S. Atty., and W. W. Harvey, Asst. U; S. Atty., both of Topeka, Kan., for appellant.
    I. J. Ringolsky and M. L. Friedman, both of Kansas City, Mo., and L. S. Harvey, of Kansas City, Kan., for appellee.
   PER CURIAM.

Decree reversed, without costs to either party in this court, in accordance with opinion filed February 26, 1923.


text:
    W. I. BIDDLE, Warden, etc., Appellant, v. George WALT et al.
    (Circuit Court of Appeals, Eighth Circuit.
    February 17, 1925.)
    No. 6127.
    Appeal from the District Court of the United. States for the District of Kansas.
    Al F. Williams, U. S. Atty., and W. W. Harvey, Asst. U. S. Atty., both of Topeka, Kan., for appellant.
    Lee Bond, of Leavenworth, Kan., for appellees.
   PER CURIAM.

Decree reversed, without costs to either party in this court, in accordance with opinion filed February 26, 1923.


text:
    BLACK & HANSON CO., Appellant, v. M. SPIESBERGER & SON CO. et al.
    (Circuit Court of Appeals, Eighth Circuit.
    December 17, 1924.)
    No. 6672.
    Appeal from the District Court of the United States for the District of Nebraska.
    F. A. Mulfinger, Robert J. Webb, and Harold M. Kelley, all of Omaha, Neb., for appellant.
    Charles B. Keller, George D. Keller, Joseph B. Fradenburg, and Francis P. Matthews, all of Omaha, Neb., for appellees.
   PER CURIAM.

Appeal dismissed, • with ■costs, per stipulation of parties.


text:
    Bill BOSWELL, Plaintiff in Error, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    February 6, 1925.)
    No. 6956.
    In Error to the District Court of the United States for the District of Kansas.
    J. Q. A. Harrod, of Oklahoma City, Okl., for plaintiff in error.
    Al F. Williams, U. S. Atty., and Alton H. Skinner, Asst. U. S. Atty., both of 'Topeka, Kan.
   PER CURIAM.

Writ of error docketed and ■dismissed, without costs to either party in this ■court, on motion of defendant in error, under ■■rule 16-


text:
    Mrs. Hettie BOSWELL, Plaintiff in Error, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    February 6, 1925.)
    No. 6957.
    In Error to the District Court of the United States for the District of Kansas.
    J. Q. A. Harrod, of Oklahoma City, Okl., for plaintiff in error.
    Al F. Williams, U. S. Atty., and Alton H. Skinner, Asst. U. S. Atty., both of 'Topeka, Kan.
   PER CURIAM.

Writ of error docketed and • dismissed, without costs to either party in this ■ court, on motion of defendant in error, under rule 16.


author: HOUGH, Circuit Judge.

text:
    BOUKER CONTRACTING COMPANY, Libelant Appellee, v. Steam Tug P. R. R. No. 35, Her Engines, etc.; Pennsylvania Railroad Company, Claimant Appellant.
    (Circuit Court of Appeals, Second Circuit.
    March 2, 1925.)
    No. 232.
    Appeal from the District Court of the United States for the Eastern District of New Xork.
    Appeal from final decree (299 F. 608) in admiralty entered in the District Court for the Eastern District of New Xork.
    Bur-lingham, Veeder, Masten & Fearey, Chauncey I. Clark, and Ralph W. Brown, all of New Xork City, for claimant appellant.
    Foley & Martin, James A. Martin, and Geo. V. A. Mc-Closkey, all of New Xork City, for libelant ap-pellee.
    Before HOUGH, MANTON, and HAND, Circuit Judges.
   HOUGH, Circuit Judge.

Before daylight on the morning of September 17, 1920, libelant’s tug No. 3 was making up a tow of two dumpers lying at the end of,Pier 41, a little below Red Hook. At the same time the No. 35 with a helper tug and tow of 21 boats came up the bay, intending to fasten the tow at a pier end, for distribution. The tide was ebb, but still slack along the pier ends. The helper tug cast off, and No. 35 slowly pulled her tow in towards Pier 40, where it fastened. Tug and tow had the regulation lights set and burning, and both No. 35 and her" helper blew “attention signals” as they approached the pier line. The object of these signals was to warn the men on the boats in tow to be ready to handle their lines'; but the blowing of whistles and the lighted tow slowly approaching the pier line gave any boatman the fullest warning that a scene of daily occurrence in New Xork harbor was to take place; i. e., the landing of an Amboy‘or Port Reading coal fleet. The approach of the flotilla to Pier 46 necessarily involved passage by Pier 41, at a distance not definitely shown by the evidence, but certainly great enough to insure the safety of the boats lying there, although the tow was probably “sagging in” slightly as it passed Pier 41. The No. 3 was so engrossed in preparing its.own tow that, having no lookout, her master at the wheel neither saw nor heard the approaching tow, but, while backing for his own purposes, his stern collided with the forward starboard corner of the starboard scow in No. 35’s hawser tier. This suit was brought to recover for injury to No. 3, the libel alleging faults all disproved, and of which but one need be noticed, viz. that No. 35 failed “to hold up its tow, and allowed it to crowd in upon and come into collision with” No. 3. It is dear to us that No. 35 was making a landing in the usual and proper way, endangering no other moored vessels; she did not permit or cause her tow to crowd upon or collide with any other vessel, but, on the contrary, collision was caused solely by No. 3 blindly backing into the tow. The case is one of special circumstances, and the sole cause of collision was the inattention of No. 3, and her negligence in failing to notice the lawful and usual approach of a large tow. Doubtless that tow was something of a nuisance to No. 3, and it would probably have delayed the make-up of No. 3’s tow, but that was neither reason nor excuse for backing into it. Decree modified, by directing that No. 3 be held solely at fault. Costs to appellant in both courts.


text:
    John BREW, Plaintiff in Error, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    January 6, 1925.)
    No. 6685.
    In Error to the District Court of the United States for the Western District of Oklahoma.
    B. C. Trice, of Pawhuska, Okl., for plaintiff in error.
    W. A. Maurer, U. S. Atty., and James A. Ingraham, Asst. U. S. Atty., both of Oklahoma' City, Okl.
   PER CURIAM.

Writ of error dismissed, without costs to either party in this court, on motion of defendant in error, under rule 24.


text:
    Roy BROOKS, Plaintiff in Error, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    December 3, 1924.)
    No. 6523.
    In Error to the District Court of the United States for the Western District of Oklahoma.
    H. C. Hargis, of Pawhuska, Okl., for plaintiff in error.
    James A. Ingraham, Asst. U. S. Atty., of Oklahoma City, Okl.
   PER CURIAM.

Writ of error dismissed, without costs to either party in this court, on motion of defendant in error, under rule 23.


text:
    Thomas BULGER, Libelant Appellee, v. NATIONAL LEAD COMPANY, Respondent Appellee, and Barge MARY ETHEL, etc., Timothy J. Donovan, Claimant Appellee, and Steam TUG MAHANOY, etc., Lehigh Valley Transportation Company, Claimant Appellant. Home Insurance Company, Libelant Appellee, v. Barge Mary Ethel, etc., Timothy Donovan, Claimant Appellee, and Steam Tug Mahanoy, Lehigh Valley Transportation Company, Claimant Appellant, and National Lead Company, Respondent Impleaded, Appellee, and Barge Thomas Bulger, etc., Thomas Bulger, Claimant Impleaded, Appellee.
    (Circuit Court of Appeals, Second Circuit.
    February 16, 1925.)
    Nos. 181, 182.
    Appeals from the District Court of the United States for the Eastern District of New York.
    Bigham, Englar & Jones, of New York City (Leonard J. Matteson and C. W. Hagen, both of New York City of counsel), for appellant.
    Macklin, Brown & Van Wyck, of New York City, for appellees Bulger and Home Ins. Co. William J. Mahar, of New York City (Horace L. Cheyney, of New York City, of counsel),
    Alexander & Green, of New York City (Henry E. Mattison and H. S. Ogden, both of New York City, of counsel), for appel-lee National Lead Co.
    Before ROGERS, HOUGH, and MANTON, Circuit Judges.
   PER CURIAM.

Decree (290 F. 458) affirmed.


text:
    CAMDEN FIRE ASSURANCE ASSOCIATION, Plaintiff in Error, v. UNITED STATES MANUFACTURERS’ EXPORT CORPORATION, Defendant in Error.
    (Circuit Court of Appeals, Second Circuit.
    February 16, 1925.)
    No. 197.
    In Error to the District Court of the United States for the Southern District of New York.
    Bigham, Englar & Jones, of New York City (Arthur W. Clement, of New York City, of counsel), for plaintiff in error.
    Duncan & Mount,, of New York City (John A. Me-Manus and Kenneth R. Thompson, both of New York City, of counsel), for defendant in error.
    Before ROGERS, HOUGH, and MANTON, Circuit Judges.
   PER CURIAM.

Judgment. affirmed.


text:
    CAPITOL PETROLEUM CO. et al., Plaintiffs in Error, v. PARA OIL CO.
    (Circuit Court of Appeals, Eighth Circuit.
    December 19, 1924.)
    No. 6377.
    In Error to the District Court of the United States for the District of Colorado.
    Stephen W. Ryan, of Denver, Colo., for plaintiffs in error.
    William W. Garwood and Omar E. Garwood, both of Denver, Com., for defendant in error.
   PER CURIAM.

Writ of error dismissed, with costs, per stipulation of parties.


author: BUFFINGTON, Circuit Judge.

text:
    UNITED STATES et al., Owners Steamship CASTLEWOOD, Appellants, v. John W. MASSEY, Trustee, etc., Newport News Iron Works, Appellee.
    (Circuit Court of Appeals, Third Circuit.
    June 12, 1925.)
    No. 3276.
    Appeal from the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.
    George W. Coles, U. S. Atty., of Philadelphia, Pin., and J. Frank Staley, of Washington, D. C.-, for appellants.
    Joseph W. Henderson, of Philadelphia, Pa., and Rumsey & Morgan, of New York City (Mark W. Maclay, of New York City, of counsel), for appellee.
    Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
   BUFFINGTON, Circuit Judge.

After argument and full consideration had, we are of opinion no error was committed by the court below. Its opinion is so full and satisfactory that nothing more could, or need be, said by this court in the way of restatement, and we therefore affirm the decree on Judge Thompson’s opinion (298 F. 184), simply adding that this is not a case where the account stated' is a creation of original liability, but of an account stated based on transactions between the parties involving asserted liability on the one hand and admitted liability on the other, and such account stated thereafter confirmed, acted upon, and unvoided. The repairs were maritime; the claim, by the advice of competent counsel, conceded to be just; the repairs accepted and approved by the defendants; and the vessel, fitted for its work, taken from the jurisdiction of the court below. Under such circumstances, a settlement and adjustment made by the parties, and which passed into an account stated and a large part thereof paid, should not be denied the stability and conclusiveness adjudged by the court below, for under all the authorities sudh a situation makes a sufficient basis for an account stated. The decree below is therefore affirmed.


text:
    CHICAGO, ROCK ISLAND & PACIFIC RAILWAY Co., Plaintiff in Error, v. Grace E. PRESSNELL, Administratrix, etc.
    (Circuit Court of Appeals, Eighth Circuit.
    March 9, 1925.)
    No. 6826.
    In Error to the District Court of the United States for the District of Nebraska.
    E. P. Holmes and Guy C. Chambers, both of Lincoln, Neb., for plaintiff in error. H. B. Baird, of Lincoln, Neb., and Bartos & Bartos, of Wilber, Neb., for defendant in error.
   PER CURIAM.

Writ of error dismissed, ■without costs to either party in this court, on motion of plaintiff in error and consent of defendant in error.


text:
    Will Ed CRAIN, Plaintiff in Error, v. UNITED STATES, Defendant in Error.
    (Circuit Court of Appeals, Fourth Circuit.
    October 23, 1924.)
    No. 2294.
    In Error to the District Court of the United States for the Western District of South Carolina, at
    Greenville. Bonham, Price & Poag, of Greenville, S. C., for ■ plaintiff in error.
    Joseph A. Tolbert, U. S. Atty., of Greenville, S. C.
   PER CURIAM.

Motion of defendant in error to dismiss writ of error for failure to print transcript of record, as required by section 4 of rule 23, filed in open court before WOODS, WADDILL, and ROSE, Circuit Judges. Order dismissing writ of error filed.


text:
    Jacob CRON, Plaintiff in Error (Defendant Below), v. Eda GROTJAN, as Administratrix of the Goods, Chattels, and Credits of the Estate of Charles Grotjan, deceased, Defendant in Error (Plaintiff Below).
    (Circuit Court of Appeals, Second Circuit.
    February 16, 1925.)
    No. 195.
    In Error to the District Court of the United States for the Eastern District of New York.
    Robert H. Carlton, for plaintiff in error. Humphrey J. Lynch, of New York City, for defendant in error.
    Before ROGERS, HOUGH, and MANTON, Circuit Judges.
   PER CURIAM.

Judgment affirmed.


text:
    Robert J. DELAHUNT, Plaintiff in Error, v. UNITED STATES, Defendant in Error.
    (Circuit Court of Appeals, Seventh Circuit.
    May 13, 1925.)
    No. 3498.
    In Error to the District Court of the United States for the Western District of Wisconsin.
    Stanley M. Ryan, of Janesville, Wis., for defendant.
    Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges.
   PER CURIAM.

Plaintiff in error was convicted and sentenced upon an indictment charging possession of intoxicating liquor in violation of the National Prohibition Act. His attack on the judgment centers upon the alleged unlawful search without warrant, and seizure of certain kegs of beer in an automobile of which plaintiff in error was in possession, the specific errors relied on being the denial of his motion for a return of the seized beer, and the admission of evidence obtained through the ■search and seizure. Brief for plaintiff in error’ was filed before the decision was handed down by the United States Supreme Court in Carroll and Kiro v. United States, 45 S. Ct. 280, 69 L. Ed. —, decided March 2, 1925, whereby it was definitely settled that, where officers have reasonable ground to believe that an automobile or other conveyance contains contraband liquor, they may lawfully stop and search' the conveyance, and seize any such liquor so found therein. There thus remains here only the question whether the record discloses facts wherefrom the officers had reasonable ground to believe that plaintiff in error had in his possession in this automobile such liquor. It will hardly be controverted that the record is fairly alive with facts and circumstances abundantly showing reasonable ground for the belief that this automobile did then contain unlawful, liquor, as the search disclosed. In this state of the record the judgment must be, and it is, affirmed.


text:
    John DOBRINICH, Appellant, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    January 24, 1925.)
    No. 6943.
    Appeal from the District Court of the United States for the Eastern District of Missouri.
    Willis H. Clark, of St. Louis, Mo., for appellant. Carroll W. Harlan, Asst. U. S. Atty., of St. Louis, Mo.
   PER CURIAM.

Appeal docketed and dismissed, without costs to either party in this court, on motion of appellee, under rule 16.


text:
    William H. EDWARDS, Collector of Internal Revenue, Second New York District. Plaintiff in Error (Defendant Below), v. CHILE COPPER COMPANY, Defendant in Error (Plaintiff Below).
    (Circuit Court of Appeals, Second Circuit.
    February 16, 1925.)
    No. 177.
    In Error to the District Court of the United States for the Southern District of New York.
    William Hayward, U. S. Atty., of New York City (Thomas J. Crawford, Asst. U. S. Atty., of New York City, of counsel), for plaintiff in error.
    Root, Clark, Buckner & Howland, of New York City (Arthur A. Bal-lantine, Carroll A. Wilson, and George E. Cleary, all of New York City, of counsel), for defendant in error.
    Before ROGERS, HOUGH, and MANTON, Circuit Judges.
   PER CURIAM.

Judgment affirmed, on the opinion of Judge Learned Hand in the court below (294 F. 581).


text:
    Harrington EMERSON, Samuel D. I. Emerson, Juliet M. Emerson, and Walter J. Power, trading as Engineers’ Mutual Investment, Petitioners, v. R. Bayly CHAPMAN, Trustee in Bankruptcy of the Estate of the Spanish-American Cork Products Company, a Corporation, Bankrupt, Respondent.
    (Circuit Court of Appeals, Fourth Circuit.
    December 19, 1924.)
    No. 2315.
    Petition to Superintend and Revise, etc. Proceedings of the District Court of the United States for the District of Maryland, at Baltimore, in bankruptcy.
    E. P. Keeeh, Jr., of Baltimore, Md., for petitioners. Myer Rosen-bush, of Baltimore, Md., for respondent.
   PER CURIAM.

Case entered dismissed at the cost of the petitioners, under rule 20, in accordance with agreement of attorneys.


text:
    In the Matter of the ENTERPRISE BRASS FOUNDRY, a Corporation, Bankrupt.
    (Circuit Court of Appeals, Ninth Circuit.
    June 1, 1925.)
    No. 4258.
    Appeal from the District Court of the United States for the Northern Division of the Western District of Washington.
    For opinion below, see 293 F. 69.
    Thos. P. Revelle, U. S. Atty., and C. T. McKinney, Asst. U. S. Atty., both of Seattle, Wash., for appellant. Winter S. Martin and Ray M. War-dall, both of Seattle, Wash., for appellee.
    Before HUNT and RUDKIN, Circuit Judges, and BOURQUIN, District Judge.
   PER CURIAM.

Reversed, on authority of In re West Coast Rubber Corporation (C. C. A.) 290 F. 160, affirmed by the Supreme Court under date of April 13, 1925, 45 S. Ct. 386, 69 L. Ed. —. •


text:
    ERIE FOOD PRODUCTS CO., Plaintiff in Error, v. INTEROCEAN MERCANTILE CORP., Defendant in Error.
    (Circuit Court of Appeals, Sixth Circuit.
    June 10, 1925.)
    No. 4399.
    In Error to the District Court of the United States for the Northern District of Ohio.
    Before DENISON, DONAHUE, and KNAPPEN, Circuit Judges.
   PER CURIAM.

We affirmed a judgment for the Interocean Company against the Erie Company (299 F. 71, q. v.), but gave leave for the trial court to entertain a motion for new trial, based on newly discovered evidence. That motion was made and denied. We allowed a writ of error to review that denial, and we did so because in some cases, exceptional in theory and very rare in practice, such denial may be, not an exercise, but an abuse, of discretion, and thus subject to review by this court. At the same time we suggested that, if it was made entirely clear that there was some permissible ground for denying the new trial motion, we would dismiss the writ of error as not presenting any substantial controversy. Such a motion to dismiss has now been made. Passing the questions of laches, of the sufficiency of the proofs to show that the sugar was not loaded before September 1st, and of the meaning of “shipped,” we find that the plaintiff bought from brokers in Java a large quantity of sugar, to be shipped in July and/or August. In their-purchase contract it was provided that the bill of lading should be proof of the shipment date. Whan plaintiff sold part of this same sugar to defendant, limited to the same shipment date, and since plaintiff would have no control over or knowledge of the facts as to shipment, it protected itself by a similar provision that the relative bills of lading should be proof of the date of shipment. If there was any falsity in these bills, plaintiff did not know it, and had nothing to do with it; and in these circumstances and in the absence of any fraud by plaintiff, the agreed proof must be taken as conclusive. Colonial Co. v. Interocean Co. (C. C. A. 3) 296 F. 316, 318. The denial of the motion for new trial was too plainly right to justify holding this writ of error for regular hearing. It will be . dismissed.


text:
    G. F. GROHE-HENRICH & CO., Plaintiff Appellant, v. GUARANTY TRUST CO. and Brown Brothers & Co., Defendants Appellees.
    (Circuit Court of Appeals, Second Circuit.
    March 2, 1925.)
    No. 258.
    Appeal from the District Court of the United States for the Southern District of New York.
    Kellogg, Emery, Inness-Brown & Cuthell, of New York City (Dean Emery and Henry G. Hotchkiss, both of New York City,” of counsel), for appellant.
    Appleton, Butler & Rice, of New York City (Lee J. Perrin and Edwin T. Rice, both of New York City, of counsel), for respondent.
    Before HOUGH, MANTON, and HAND, Circuit Judges.
   PER CURIAM.

Order affirmed, with costs.


text:
    Ernest GILBERT, Plaintiff in Error, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    December 3, 1924.)
    No 6513.
    In Error to the District Court of the United States for the Western District of Oklahoma.
    E. T. Barbour, of El Reno, Okl., for plaintiff in error.
    James A. Ingraham, Asst. U. S. Atty., of Oklahoma City, Okl.
   PER CURIAM.

Writ of error dismissed, without costs to either party in this court, on motion of defendant in error, under rule 23.


text:
    Robert L. HATCH, Plaintiff Appellee, v. MOROSCO HOLDING COMPANY, Inc., Defendant Appellee, and Edward Margolies, Appellant.
    (Circuit Court of Appeals, Second Circuit.
    March 2, 1925.)
    No. 255.
    Appeal from the District Court of the United States for the Southern District of New York. Appeal from order in equity entered in the District Court for the Southern District of New York.
    See, also, 296 F. 516.
    Nathan Burkan, of New York City (Isadore Shapiro, of New York City, of counsel), for appellant.
    F. Wright Moxley, of New York City, for appellee.
    Before HOUGH, MANTON, and HAND, Circuit Judges.
   PER CURIAM.

The order appealed from is a plain violation of section 265 of the Judicial Code (Comp. St. § 1242), in that it contains an injunction staying proceedings in a state court in a matter which has no relation to bankruptcy and which does not interfere in any way with the custody, care, and distribution of the property in the hands of the court below under and by virtue of the bill. It is therefore directed that the order be reversed, with costs. A direction will, however, be included in our mandate, and in the order to be entered thereupon, that should any judgment be entered in said action in the state court; such judgment shall not be taken to be a liquidation of any claim filed or capable of being filed under the judgment creditors’ bill herein, or as in any way affecting the right of the receiver to contest the claim so reduced to judgment de novo. Nothing, however, in our mandate shall be taken to prevent the court below permitting liquidation of Margolies’ claim by suit in the state court, should it prefer so to do.


text:
    John HENDERSON, Plaintiff in Error, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    January 6, 1925.)
    No. 6682.
    In Error to the District Court ,of the United States for the Western District of Oklahoma.
    B. C. Trice, of Pawhuska, Okl., for plaintiff in error.
    W. A. Maurer, U. S. Atty., and James A. Ingraham, Asst. U. S. Atty., both of Oklahoma City, Okl.
   PER CURIAM.

Writ of error dismissed, without costs to either party in this court, on motion of defendant in error, under rule 24.


text:
    John HENDERSON, et al., Plaintiffs in Error, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    January 6, 1925.)
    No. 6683.
    In Error to the District Court of the United States for the Western District of Oklahoma.
    B. C. Trice, of Pawhuska, Okl., for plaintiff in error.
    W. A. Maurer, U. S. Atty., and James A. Ingraham, Asst. U. S. Atty., both of Oklahoma City, Okl.
   PER CURIAM.

Writ of error dismissed, without costs to either party in this court, on motion of defendant in error, under rule 24.


text:
    Andrew HOUSER, Plaintiff in Error, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    December 15, 1924.)
    No. 6642.
    In Error to the District Court of the United States for the Western District of Oklahoma.
    Fred Tillman, of Pawhuska, Old., and Orban C. Patterson, of Miami, Fla., for plaintiff in error.
    W. A. Maurer, U. S. Atty., and J. A. Ingraham, Asst. U. S. Atty., both of Oklahoma City, Okl. ,
   PER CURIAM.

Writ of error dismissed, without costs to either party in this court, on motion of defendant in error.


text:
    A. J. JOHNSON, Plaintiff in Error, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    December 1, 1924.)
    No. 6880.
    In Error to the District Court of the United States for the Western District of Oklahoma.
    J. Earl Smith, of Ponca City, Okl., for plaintiff in error.
    W. A. Maurer, U. S. Atty., of Oklahoma City, Okl.
   PER CURIAM.

Writ of error docketed and dismissed, without costs to either party in this court, on motion of defendant in error, under rule 16.


text:
    Fred JORDAN, Plaintiff in Error, v. UNITED STATES, Defendant in Error.
    (Circuit Court of Appeals, Fourth Circuit.
    April 16, 1925.)
    No. 2375.
    In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston.
    J. Raymond Gordon, of Charleston, W. Va., for plaintiff in error.
    B. J. Pettigrew, Asst. U. S. Atty., of Charleston, W. Va.
   PER CURIAM.

Order docketing and dismissing case under rule 16 filed.


text:
    Alfred KURTZ et al., Appellants, v. Ferdinand E. ENGLISH et al.
    (Circuit Court of Appeals, Eighth Circuit.
    January 9, 1925.)
    No. 6926.
    Appeal from the District Court of the United States for the Eastern District of Missouri.
    Tobias A. Keppler, of New York City, and Edward E. Longan, of St. Louis, Mo., for appellants.
    Ralph Kalisk, of St. Louis, Mo., for appellees.
   PER CURIAM.

Appeal docketed and dis-. missed, with costs, on motion of appellees, under rule 16.


text:
    LACLEDE GAS LIGHT COMPANY, Appellant, v. BARRETT COMPANY.
    (Circuit Court of Appeals, Eighth Circuit.
    February 26, 1925.)
    No. 6929.
    Appeal from the District Court of the United States for the Eastern District of Missouri.
    Isaac H. Lionberger, of' St. Louis, Mo., for appellant.
    Daniel N. Kirby, of St. Louis, Mo., for appellee.
   PER CURIAM.

Appeal dismissed, without costs to either party in this court, per stipulation of parties.


text:
    Louis LAVINE et al., Plaintiffs in Error, v. UNITED STATES, Defendant in Error.
    (Circuit Court of Appeals, Third Circuit.
    May 2, 1925.)
    No. 3187.
    In Error to the District Court of' the United States for the District, of New Jersey;
    John Rellstab, Judge. J.. Irving Davidson, of Trenton, N. J., for plaintiffs in error.
    Before BUFFINGTON, WOOL-LEY, and DAVIS, Circuit Judges.
   PER CURIAM.

No principle of law is involved in this case. The two assignments of error question th'e court’s sustaining objections-to two questions asked in cross examination. There was no error in the court’s ruling, and-we therefore affirm the judgment below.


text:
    LIGGETT & MYERS TOBACCO CO., Plaintiff in Error, v. Marguerite WOODSMALL, now Marguerite Burrows, a Minor, etc.
    (Circuit Court of Appeals, Eighth Circuit.
    December 22, 1924.)
    No. 6756.
    In Error to the-District Court of the United States for the Eastern District of Missouri.
    M. F. Watts, William R. Gentry, and Robert A. Holland, Jr., all of St. Louis, Mo., for plaintiff in error.
    Percy Werner, T. W. Strubinger, and James T. Strubinger, all of St. Louis, Mo., for defendant in error.
   PER CURIAM.

Reversed, with costs, and remanded, with directions to grant a new trial, per stipulation of parties.


text:
    LIVERPOOL & LONDON & GLOBE INSURANCE COMPANY, LIMITED, OF LIVERPOOL, et al., Plaintiffs in Error, v. MART WATERMAN COMPANY, Inc., Defendant in Error.
    (Circuit Court of Appeals, Second Circuit.
    March 2, 1925.)
    No. 265.
    In Error to the District Court of the United States for the Eastern District of New York. Writ of error to a judgment entered upon the verdict of a jury in the District Court for the Eastern District of New York.
    See, also, 287 F.,267.
    Fox & Weller, of New York City (Julius M. Mayer, Robert J. Fox, and Robert P. Schur, all of New York City, of counsel), for plaintiffs in error.
    Rounds, Schurman & Dwight, of New York City (Charles E. Hughes, Jr., Thomas L. Ennis, and Cyrus B. Austin, Jr., all of New York City, of counsel), for defendant in error.
    Before HOUGH, MANTON, and HAND, Circuit Judges.
   PER CURIAM.

Judgment affirmed, with costs.


text:
    LOCAL NO. 280, JOURNEYMAN TAILORS’ UNION OF AMERICA, et al., Appellants, v. Jacob W. SILVERSTEIN et al.
    (Circuit Court of Appeals, Eighth Circuit.
    December 10, 1924.)
    No. 6636.
    Appeal from the District Court of the United States for the Eastern District of Missouri.
    Edward W. Foristel, James T. Roberts, and Harvey B. Cox, all of St. Louis, Mo., for appellants.
    Walter H. Saunders, Bernard Greensfelder, Joseph H. Grand, and H. C. Whitehill, all of St. Louis, Mo., for appellees.
   PER CURIAM.

Appeal dismissed, at costs of appellants, per stipulation of parties.


text:
    H. W. LOEB et al., Appellants, v. John W. SPARKS.
    (Circuit Court of Appeals, Eighth Circuit.
    April 28, 1925.)
    No. 7031.
    Appeal from the District Court of the United States for the District of South Dakota.
    M. F. Watts, William R. Gentry, Forest P. Tralles, and Irvin V. Barth, all of St. Louis, Mo., for appellants.
    W. G. Rice, of Deadwood, S. D., Norman T. Mason, of Los Angeles, Cal., and E. W. Martin, of Hot Springs, S. D., for appellee.
   PER CURIAM.

Appeal docketed and dismissed, with costs, per stipulation of parties, ■etc.


text:
    LOGAN COUNTY COAL CORPORATION, a Corporation, Plaintiff in Error, v. CHESAPEAKE & OHIO RAILWAY COMPANY, a Corporation, Defendant in Error.
    (Circuit Court of Appeals, Fourth Circuit.
    November 12, 1924.)
    No. 2284.
    In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston.
    Brown, Jackson & Knight, of Charleston, W. Va., for plaintiff in error.
    Fitzpatrick, Brown & Davis, of Huntington, W. Va., for defendant in error.
   PER CURIAM.

Consent order dismissing case filed.


text:
    Lewis LONG, Plaintiff in Error, v. UNITED STATES, Defendant in Error.
    (Circuit Court of Appeals, Fourth Circuit.
    April 24, 1925.)
    No. 2342.
    In Error to the District Court of the United States for the Western District of North Carolina, at Charlotte.
    T. L. Kirkpatrick, D. B. Smith, and John J. Parker, all of Charlotte, N. C., for plaintiff in error.
    F. A. Linney, U. S. Atty., of Charlotte, N. C., C. A. Jonas, Asst. U. S. Atty., of Lincolnton, N. C., F. C. Patton, Asst. U. S. Atty., of Charlotte, N. C., and T. J. Harkins, Asst. U. S. Atty., of Asheville, N. C.
   PER CURIAM.

Order dismissing case per joint agreement of parties filed.


text:
    Wilson MARSHALL, Appellant, v. Steamship MAASDAM, Appellee (in Forma Pauperis).
    (Circuit Court of Appeals. Fifth Circuit,
    April 14, 1925.)
    No. 4481.
    Appeal from the District Court of the United States for the Eastern District of Louisiana;
    Rufus E. Foster, Judge. Van Burén Harris, of New Orleans, La. (James AVilkinson, of New Orleans, La., on the brief), for appellant.
    AVal-ter Carroll, of New Orleans, La. (Geo. H. Ter-riberry, Frazer L. Rice, AY. W. Young, and Jos. M. Rault, all of New Orleans, La., on the brief), for appellee.
    Before WALKER and BRYAN, Circuit Judges, and BARRETT, District Judge.
   PER CURIAM.

Appellant, while climbing up a Jacob’s ladder, which extended from the deck to the hold of the steamship Maasdam, on which he was employed as a longshoreman to assist in unloading cargo, fell and was injured. He libeled the steamship for negligence. Testimony in his behalf tended to show that the rope on one side of the ladder became untied, as a result of which the ladder collapsed and caused him to fall. On the other hand, evidence for the steamship was to the effect that the ladder did not become untied and give way, but that appellant missed his footing and fell. The District Judge expressed the opinion that the weight of the evidence was with the ship, but, as all the testimony was taken by deposition, we have made our own examination, and have reached the conclusion' that the great preponderance of the evidence sustains the contention that the ladder did not become untied and collapse, as alleged in the libel. Other defenses were interposed, but it is unnecessary to consider them. The decree is affirmed.


text:
    Maggie Clark McCLURE et al., Plaintiffs in Error, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    December 15, 1924.)
    No. 6899.
    In Error to the District Court of the United States for the Western District of Oklahoma.
    F. W. Files, of Paw-huska, Okl., for plaintiffs in error.
    J. A. In-graham, Asst. U. S. Atty., of Oklahoma City, Okl.
   PER CURIAM.

Writ of error docketed and dismissed, without costs to either party in this court, on motion of defendant in error, under rule 16.


text:
    William H. MAXWELL and Globe Indemnity Company, Plaintiffs in Error, v. UNITED STATES, Defendant in Error.
    (Circuit Court of Appeals, Fourth Circuit.
    February 11, 1925.)
    No. 2268.
    In Error to the District Court of the United States for the Southern District of South Carolina, at Charleston.
    Judgment of District Court (3 F.[2d] 906), affirmed.
   PER CURIAM.

Writ of error from Supreme Court allowed.


text:
    Robert E. MENAUGH, Plaintiff in Error, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    December 8, 1924.)
    No. 6890.
    In Error to the District Court of the United States for the Western District of Missouri.
    O. H. Rucker and Rader & Rader, all of Kansas City, Mo., for plaintiff in error.
    H. L. Don-nelly, Asst. U. S. Atty., of Kansas City, Mo.
   PER CURIAM.

Writ of error docketed and dismissed, without costs to either party in this court, on motion of defendant in error, under' rule 16.


text:
    John G. MILLER, Appellant, v. REED, FEARS & MILLER, Inc., Appellee.
    (Circuit Court of Appeals, Third Circuit.
    May 6, 1925.)
    No. 3288.
    Appeal from the District Court of the United States for the Eastern District of Pennsylvania;
    J. Whitaker Thompson, Judge. William A. Schnader, of Philadelphia, Pa., for appellant.
    Arthur G. Dickson, of Philadelphia, Pa., and Devine & York, and John H. Devine, all of Boston, Mass., for appellee.
    Before BUFFINGTON, WOOLLEY and DAYIS, Circuit Judges. '
   PER CURIAM.

This case involves two questions, one of fact whether there was an agreement of sufficient consideration and properly limited in time and locality between these parties for one party to keep out of business. We agree with the court’s finding of fact that there was such an agreement and that it was legally enforceable. The second question is as to the construction and effect to be given such agreement. We agree with the court’s holding in that regard. As no principles of law or matters of concern beyond this particular agreement are here involved, and as the entire matter has been fully and satisfactorily discussed in the lower court’s opinion (2 F.[2d] 280), we now restrict ourselves to stating the decree below is affirmed.


text:
    Dan MORIARITY et al., Plaintiffs in Error, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    March 2, 1925.)
    No. 6504.
    In error to the District Court of the United States for the District of Minnesota.
    William J. Quinn, of St. Paul, 'Minn., for plaintiffs in error.
    Lafayette French, Jr., U. S. Atty., and Leland W. Scott, Asst. U. S. Atty., both of St. Paul, Minn.
   PER CURIAM.

Reversed, without costs to either party in this court, on confession of error by defendant in error.


text:
    NEW ENGLAND OIL & PIPE LINE CO., Appellant, v. R. T. ROSS et al.
    (Circuit Court of Appeals, Eighth Circuit.
    December 16, 1924.)
    No. 6651.
    Appeal from the District Court of the United States for the Western District of Oklahoma.
    J. P. O’Meara and M. H. Silverman, both of Tulsa, Okl., for appellant.
    John P. Hiekam and Wilcox & Swank, all of Stillwater, Okl.-, for appellees.
   PER CURIAM.

Appeal dismissed, with costs, per stipulation of parties.


text:
    J. L. NEWLAND et al., Plaintiffs in Error, v. SUPERIOR OIL CORPORATION.
    (Circuit Court of Appeals, Eighth Circuit.
    January 20, 1925.)
    No. 6751.
    In error to the District Court of the United States for the Western District of Oklahoma.
    John A. Fain, of Law-ton, Old., for plaintiffs in error. ■
    Roger S. Sherman, A. A. Davidson, and Preston C. West, all of Tulsa, Old., for defendant in error.
   PER CURIAM.

Writ of error dismissed, with costs, per stipulation of parties.


text:
    NEW YORK CENTRAL RAILROAD COMPANY, Defendant, Plaintiff in Error, v. Frank P. CHISHOLM, Administrator, Plaintiff, Defendant in Error.
    (Circuit Court of Appeals, First Circuit.
    June 12, 1925.)
    No. 1637.
    In error to the District Court of the United States for the District of Massachusetts;
    Elisha H. Brewster, Judge. Lowell A. Mayberry, of Boston, Mass. (George L. Mayberry and Walter F. Levis, both of Boston, Mass., on the brief), for plaintiff in error.
    William H. Lewis, of Boston, Mass. (William F. Kane, of Boston, Mass., on the brief), for defendant in error.
    Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
   PER CURIAM.

Having considered the questions involved in this- case, and having certified to the Supreme Court the following question of law arising on the facts stated in the record: Has the administrator of an employee of a common carrier, who receives an injury in a foreign country resulting in his death, the employee and the common carrier being at the time .engaged in foreign commerce and both citizens of the United States, a right of action under the federal Employers’ liability Act (U. S. Comp. St. §| 8657-8665), or must he rely on the law or statute of the foreign country where the alleged act of negligence occurred or the cause of action arose? And the Supreme Court (45 S. Ct. 402, 69 L. Ed. —) having answered the said question as follows: “The administrator had no right of action based upon the federal Employers’ Liability Act. The carrier was sub-' ject only to such obligations as were imposed by the laws and statutes of the country where the alleged act of negligence occurred; the administrator could not rely upon the others” — it follows that the judgment of the District Qourt must be reversed, the verdict set aside, and the case remanded to that court for further proceedings. The judgment of the District Court is reversed, the verdict set aside, and the ease remanded to that court for further proceedings, not inconsistent with this opinion, with costs to the plaintiff in error.


author: BRYAN, Circuit Judge.

text:
    NORTH RIVER INSURANCE COMPANY, Plaintiff in Error, v. WILSON & TOOMER FERTILIZER COMPANY, Defendant in Error. PHŒNIX INSURANCE COMPANY, Plaintiff in Error, v. WILSON & TOOMER FERTILIZER COMPANY, Defendant in Error. ST. PAUL FIRE & MARINE INSURANCE COMPANY, Plaintiff in Error, v. WILSON & TOOMER FERTILIZER COMPANY, Defendant in Error. UNITED STATES FIRE INSURANCE COMPANY, Plaintiff in Error, v. WILSON & TOOMER FERTILIZER COMPANY, Defendant in Error. NIAGARA FIRE INSURANCE COMPANY, Plaintiff in Error, v. WILSON & TOOMER FERTILIZER COMPANY, Defendant in Error. ST. PAUL FIRE & MARINE INSURANCE COMPANY, Plaintiff in Error, v. WILSON & TOOMER FERTILIZER COMPANY, Defendant in Error. AUTOMOBILE INSURANCE COMPANY, Plaintiff in Error, v. WILSON & TOOMER FERTILIZER COMPANY, Defendant in Error. GENERAL FIRE ASSURANCE COMPANY, Plaintiff in Error, v. WILSON & TOOMER FERTILIZER COMPANY, Defendant in Error. STERLING FIRE INSURANCE COMPANY, Plaintiff in Error, v. WILSON & TOOMER FERTILIZER COMPANY, Defendant in Error. AUTOMOBILE INSURANCE COMPANY, Plaintiff in Error, v. WILSON & TOOMER FERTILIZER COMPANY, Defendant in Error.
    (Circuit Court of Appeals, Fifth Circuit.
    March 21, 1925.)
    Nos. 4353-4362.
    In Error, to the District Court of the United States for the Southern District of Florida.
    Daniel MacDougald, of Atlanta, Ga., and W. E. Kay, Thos. B. Adams, and Reuben Ragland, all of Jacksonville, Fla. (Spalding, MacDougald & Sibley, of Atlanta, Ga., Kay, Adams & Rag-land, of Jacksonville, Fla., and Underwood, Pomeroy & Haas, of Atlanta, Ga., on the brief), for plaintiffs in error.
    Robert R. Milam and George C. Bedell, both of Jacksonville, Fla. (Arthur Y. Milam, B. R. Milam, and G. W. Milam, all of Jacksonville, Fla., on the brief), for defendant in error.
    Before WALKER and BRYAN, Circuit Judges, and DAWKINS, District Judge.
   BRYAN, Circuit Judge.

It was stipulated ,by counsel that the above eases should abide the result of the writ of error in Hartford Fire Insurance Company v. Wilson & Toomer Fertilizer Company (No. 4352) 4 F.(2d) 835, this day decided and affirmed. Accordingly the judgments herein are affirmed.


text:
    John H. OBER, Trustee, etc., Appellant, v. SPITZER-RORICK TRUST & SAVINGS BANK, Trustee, et al.
    (Circuit Court of Appeals, Eighth Circuit.
    December 1, 1924.)
    No. 6881.
    Appeal from the District Court of the United States for the Eastern District of Oklahoma.
    Taylor, Chasnoff & Willson, of St. Louis, Mo., for appellant.
    Tracy, Chapman & Welles, of Toledo, Ohio, and Breckinridge & Bostick, of Tulsa, Okl., for appellees.
   PER CURIAM.

Appeal docketed and dismissed, without costs to either party in this court, per stipulation of parties.


author: PAGE, Circuit Judge.

text:
    In the Matter of O’GARA COAL COMPANY, Bankrupt. CHICAGO TITLE & TRUST COMPANY, as Receiver of La Salle Street Trust & Savings Bank, Appellant, v. Frank G. GARDNER, as Trustee in Bankruptcy of O’Gara Coal Company, Appellee.
    (Circuit Court of Appeals, Seventh Circuit.
    May 1, 1925.
    Rehearing Denied May 21, 1925.)
    No. 3497.
    Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.
    Hiram T. Gilbert, of Chicago, Ill., for appellant.
    O. D. Stern, of Chicago, Ill., for appellee.
    Before EVANS, PAGE, and ANDERSON, Circuit Judges.
   PAGE, Circuit Judge.

This court, in Re O’Gara Coal Co., Chicago Title & Trust Co. v. Gardner, 278 F. 509, and the Supreme Court in Gardner, as Trustee, etc., v. Chicago Title & Trust Co., as Receiver, etc., 261 U. S. 453, 43 S. Ct. 424, 67 L. Ed. 741, 29 A. L. R. 622, had under consideration the two claims here in question, and those opinions sufficiently state the facts. In reversing this court, the Supreme Court ordered: “The bankruptcy court may allow the bank’s claim for such sum only as may seem to the court to be owing above the value of the security (section 57e), and may withhold dividends upon that sum until the debt due to the trustee has. been paid. Western Tie & Lumber Co. v. Brown, 196 U. S. 502, 511.” Thereafter the referee entered the following: “Order claim of William C. Niblack, receiver of La-Salle Street Trust & Savings Bank, be allowed for $2,105.07; collateral held by claimant to be surrendered to trustee on payment of claim.” The referee’s certificate to the court, on petition for review of that order, shows that the referee in no way considered the security or its value. The court, on review, considered only the referee’s certificate. Because of the failure to follow the mandate of the Supreme Court, the order of the bankruptcy court is reversed, with direction to follow that mandate.


text:
    PENNSYLVANIA FIRE INSURANCE CO., Plaintiff in Error, v. Leah MILES.
    (Circuit Court of Appeals, Eighth Circuit.
    February 10, 1925.)
    No. 6810.
    In Error to the District Court of the United States for the Eastern District of Missouri.
    John S. Leahy, Walter H. Saunders, and Lambert E. Walther, all of St.. Louis, Mo., for plaintiff in error.
    Harry Newman, Francis M. Curlee, and Charles M. Hay, all of St. Louis, Mo., for defendant in error.
   PER CURIAM.

Writ of error dismissed, without costs to either party in this court, per stipulation of parties.


text:
    Morris PERCANSKY, Plaintiff in Error, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    December 10, 1924.)
    No. 6634.
    In Error to the District Court of the United States for the District of Minnesota.
    For opinion below, see 298 F. 991.
    Erling Swenson, of Minneapolis, Minn., for plaintiff in error.
    Lafayette French, Jr., U. S. Atty., of St. Paul, Minn.
   PER CURIAM.

Writ of error dismissed, without costs to either party in this court, under rules ,23 and 24.


text:
    Max POTTASH et al., Plaintiffs in Error, v. BIRDS-HEILGERS-IRONSIDES, Inc., Defendant in Error.
    (Circuit Court of Appeals, Third Circuit.
    May 28, 1925.)
    No. 3280.
    In Error to the District Court of the United States for the .Eastern District of Pennsylvania;
    Charles L. McKeehan, Judge. B. D. Oliensis and Francis Shunk Brown, both of Philadelphia, Pa., for plaintiffs in error.
    Covington &i Moesel, of New York City, and Kirchner, Mitchell & White, of Philadelphia, Pa. (George B. Covington, of New York City, of counsel), for defendant in error.
    Before BUFFINGTON and WOOLLEY, Circuit Judges, and MORRIS, District Judge.
   BUFFINGTON, Circuit Judge.

In the court below, the plaintiff, a corporate citizen of the state of New York, brought suit and recovered a verdict against the partnership of Pottash Bros., citizens of Pennsylvania. The action was for the contract price of 225 bales of burlap sold by plaintiff to defendants by three several written contracts. On entry of judgment the defendants sued out this writ of error. The first, and indeed the principal, question raised is as to the existence of any contract between the parties. Without entering into minor details, it suffices to say the proofs tended to show that after some preliminary negotiations between the parties a sale of the burlap was agreed upon and the plaintiffs, who did business in New York, reduced the agreement to writing under date of April 29, 1920, and forwarded the same by mail to the defendants at Philadelphia. The defendants’ proofs as to what followed was that, on May 1st, Max Pottash, the defendant who acted for the firm in the matter, signed the contracts and wrote a letter of acceptance, and put them on his desk intending to examine further into them before sending them. He says he did this because he discovered that they contained an “alongside” clause, namely, “The ‘alongside’ clause inserted in bills of lading at Calcutta shall govern shipments under this contract.” On the following Monday, May 3d, Pottash took up the matter, and then, and the following days, had some telephone talks with the plaintiff’s broker, and on May 12th wrote plaintiff. All of this culminated in plaintiff telegraphing defendants on May. 15th: “Cancel objectionable clause in contract sign and send it on also please send letter of credit.” On the same day Pottash took up the form of the contract with a view to striking out the objectionable clause, but discovered that one set of the signed duplicate contracts were missing. Evidently they had been sent to the plaintiff, for on May 17th it wired Pottash: “Disregard our telegram May fifteenth. Contracts are here. See your letter May first about letter credit and please send on.” Pottash was the sole witness for the defendants, and he produced no one to give any explanation as to when, how, and by whom the contracts and acceptance came to be sent to the plaintiffs, and in addition thereto-there was proof on the latter’s part that during the subsequent dealings between the parties-no mention or contention was made by the defendants that the signed contract was not in force, and that they never heard of such contention by the defendants until suit .was-brought. Under such proofs, we think it was .the duty of the court to submit to the jury the question whether there was a consummated! contract between the parties. Such submission it made, and in the fact of submission and the language employed to so do we find no error. After the burlap arrived, was tendered the defendants, and refused, it was arranged that, without prejudice to either' party’s rights, it should be sold. This was done, and some-$40,000 realized. The controversy, therefore, narrowed itself to the right of the plaintiff to-recover the difference between the amount so-realized and the contract price. Without entering into details, we .think the court in its-charge and disposition of points fairly submitted to the jury the defendants’ contention and the proofs bearing thereon that the defendants-were not liable at all for such balance; that,, if liable at all, the plaintiff had not obtained the market or fairest price, and had not done its full duty in selling under the stipulations. The verdict of the jury determined those points, and,, finding no error, the judgment based on its verdict is affirmed.