author: DAVIS, District Judge.

text:
    SCHNURR v. MILLER et al. In re MILLER.
    No. 8909.
    Circuit Court of Appeals, Eighth Circuit.
    April 2, 1931.
    E, P. Donohue, of New Hampton, Iowa (M. E., Geiser and Geiser & Donohue, all of New Hampton, Iowa, on the brief), for appellant.

      M. 3?. Condon, of New Hampton, Iowa (W. A. Smith, of Dubuque, Iowa, on the brief), for appellee.
    Before KENYON and VAN VALKENBURGH, Circuit Judges, and DAVIS, District Judge.
   DAVIS, District Judge.

The referee in Bankruptcy of the Northern district of Iowa, Eastern division, on February 13, 1930, entered an order in the matter of Matthew V. Miller, bankrupt, denying the bankrupt’s claim for certain personal property as being exempt to a resident head of a family under the statutes of Iowa. The matter was taken before the District Court on a petition for review, where the action of the referee was reversed, with directions to permit the bankrupt to amend his schedules by claiming his exemptions. The trustee has brought the case here by appeal allowed by the District Court.

The troublesome question as to the proper method of perfecting an appeal in a bankruptcy matter is here presented. No motion to dismiss has been tendered, but this court is without jurisdiction to consider the merits unless the statutory method of appeal has been observed. If the appeal should have been allowed by the appellate court, and not by the trial court, then there is a lack of authority to review the case. Gate City Clay Co. v. Dickey (C. C. A. 8) 39 F.(2d) 581, 582; Stanley’s Incorporated Store No. 3. v. Earl (C. C. A. 8) 25 F.(2d) 458; Raich v. Olson (C. C. A. 8) 25 F.(2d) 865; Quarles v. Dennison (C. C. A. 10) 45 F.(2d) 585.

The question suggested is whether the case is a controversy arising in a bankruptcy proceeding and reviewable under the general appellate authority provided in USCA title 11, § 47 (a), as amended May 27,1926, or whether the case is one arising in a proceeding in bankruptcy and reviewable by an appeal “allowed in the discretion of the appellate court,” as provided in paragraph (b) of the above statute.

The pertinent statutes are:

USCA title 11, § 47:

“(a) * * * The circuit courts of appeal of the United States * * * in vacation, in chambers and during their respective terms, are invested with appellate jurisdiction of controversies arising in bankruptcy proceedings from the courts of bankruptcy from which they have appellate jurisdiction in other eases.
“(b) The several circuit courts of appeal * * • * shall have jurisdiction in equity, either interlocutory or final, to superintend and revise in matter of law (and in matter of law and fact the matters specified in section 48 of this title) the proceedings of the several inferior courts of bankruptcy within their jurisdiction. Such power shall be exercised by appeal and in the form and manner of an appeal, except in the eases mentioned in said section 48 of this title to be allowed in the discretion of the appellate court.”

USCA title 11, § 48:

“(a) Appeals, as in equity cases, may be taken in bankruptcy proceedings from the courts of bankruptcy to the circuit courts of Appeal of the United States * * * in the following cases, to wit: (1) From a judgment adjudging or refusing to adjudge the defendant a bankrupt; (2) From a judgment granting or denying a discharge; and (3) From a judgment allowing or rejecting a debt or claim of $500 or over. Such appeal shall be taken within thirty days after the judgment appealed from has been rendered, and may be heard and determined by the appellate court in term or vacation, as the case may be.”

The situation was summarized by this court in Gate City Clay Co. v. Dickey, supra, where it was said:

“It is plain from these provisions that section 47 (a) governs appeals covering 'controversies arising in bankruptcy proceedings,’ and that such appeals are not required to be allowed by the appellate court. It is also apparent that section 47 (b) governs appeals covering 'proceedings in bankruptcy,’ and that such appeals require an allowance by the appellate court, except in the eases mentioned in section 48.
“Before the amendment of 1926 (44 Stat. 664, 665) proceedings in bankruptcy, except those mentioned in section 48, were brought up for review by petition to revise; while those mentioned in section 48 were brought up by appeal. Now all are brought up by appeal.”

The distinction between “controversies arising in bankruptcy proceedings” and “proceedings in bankruptcy” has often been stated in the decisions. Taylor v. Voss, 271 U. S. 176, 46 S. Ct. 461, 70 L. Ed. 889; Deeley v. Cincinnati Art Publishing Co. (C. C. A. 6) 23 F.(2d) 920; Champlin Refining Co. v. Bailey et al. (C. C. A. 10) 36 F.(2d) 655; Ahlstrom v. Ferguson (C. C. A. 1) 29 F.(2d) 515; Foster v. McMasters (C. C. A. 8) 15 F.(2d) 751; Broders v. Lage (C. C. A.) 25 F.(2d) 288, 289. In the last-mentioned case this court said: “The phrase ‘proceeding in bankruptcy’ ineludes questions arising between the alleged bankrupt and his creditors,. commencing with the petition for adjudication, and ending with the discharge, and also includes the intermediate administrative steps, such as the election of trustee, allowance of claims, fixing of priorities, and proceedings relating to exemptions, sales, allowances, and other like matters, Which courts of bankruptcy dispose of in a summary way.”

The matter involved in the ease before us is the question of the allowance or rejection of the bankrupt’s demand to have certain property set aside to him as exempt under the statute of the state of Iowa. The setting apart to the bankrupt of property that is exempt under the local law is a usual proceeding in a bankruptcy case, an'd is disposed of in a summary manner. It is well understood that the act was designed and’intended to effect the administration of estates of bankrupts with all reasonable dispatch. Consequently, there are many orders entered in usual course that are not appealable as a matter of right, but only when allowed in the discretion of the appellate court. The determinations of courts of bankruptcy in the matter of exemptions are of this character. The courts have frequently decided that such orders constitute matters arising in “proceedings in bankruptcy,” as above defined. Ingram v. Wilson (C. C. A. 8) 125 F. 913; Duffy v. Tegeler (C. C. A. 8) 19 F.(2d) 305; Southern Engine & Pump Co. v. Pagel Elect. & Ice Co. (C. C. A. 5) 16 F.(2d) 268; Quarles v. Dennison, supra; Mason v. Hardy-Griffin-Sheff (C. C. A. 10) 45 F.(2d) 587; Collier on Bankruptcy, 13 Ed. page 842; In re Youngstrom, 153 F. 98 (C. C. A. 8).

Consequently, this appeal could only have been taken under section 47 (b) which required its allowance in the discretion of the appellate court, unless it is one of the instances mentioned in section 48, where the appeal may be allowed by the District Court. The Supreme Court has spoken directly on this subject in Holden v. Stratton, 191 U. S. 115, 24 S. Ct. 45, 48 L. Ed. 116, where it held that the demand of a bankrupt for' alleged exempt property does not constitute a “claim” as that term is used in section 48. Therefore the District Court was without authority to allow this appeal.

The appeal should be, and is, dismissed.


source: Caselaw Access Project

author: NORTHCOTT, Circuit Judge.

license: Public Domain

text:
    DARLING v. COMMISSIONER OF INTERNAL REVENUE.
    No. 3114.

    Circuit Court of Appeals, Fourth Circuit.
    April 13, 1931.
    WEBB, District Judge, dissenting.
    J. Winston Read, of Newport News, Ya., for petitioner.

      J. P. Jackson, Sp. Asst. to Atty Gen. (G. A. Youngquist, Asst. Atty. Gen., Sewall Key, Sp. Asst. Atty. Gen., and C. M. Char-est, Gen. Counsel, Bureau of Internal Revenue, and William E. Davis, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., on the brief), for respondent.
    Before NORTHCOTT, Circuit Judge, and WEBB and GLENN, District Judges. ■
   NORTHCOTT, Circuit Judge.

This petition is brought to review a decision of the United States Board of Tax Appeals rendered in an appeal to the board by petitioner from a decision of the commissioner proposing to assess additional income taxes against the petitioner in the amount of $10,800 on account of an alleged deficiency for the fiscal year ended June 30,1924.

In 1906’, petitioner and his associates purchased what was then known as the Radical Remedy Company, acquiring certain machinery, printing presses, formulas and recipes, and some material, paying $10,000 in cash for same. Petitioner took $3,000 worth of stock and paid for it at par, and afterwards advanced various sums to the corporation, for which sums stocks were . issued to him, amounting to $44,300. The name of the company was changed to Rydale1 Remedy Company, and manufactured twenty-five or thirty different articles under its trade-name. Large sums were spent in advertising, but the company never made any profits, and in 1918 ceased active operation, and efforts were made to dispose of the assets of the corporation. In 1924, the remaining property of the company was disposed of and the charter surrendered.

In 1918, the other stockholders abandoned hope of ever making a success of the business, and surrendered all property and claims to the petitioner to get what he could out of the company, in order to reimburse him for his investment and for a note of the company, which he had paid for $4,300.

In the income-tax return of the Rydale Company for 1919, signed by petitioner, as president, and by the treasurer, it was stated that, “This concern has done no business during the past year and is defunct; but the charter has not been surrendered.”

In the capital-stock tax return filed by the Rydale Remedy Company for 1920, under the heading “Eair value of total capital stock for the fiscal year determined by exhibit,” such fair value is reported as “nothing.”

In the company’s capital-stock tax return for the year 1921 and on page 1 of such return under the heading “Common stock outstanding June 30, 1920,” there is shown “$19,000,” under which is written “worthless.” On page 2 of the return the following is written across the face of the page:

“As reported last year this company has done no business since 1918.
“It is defunct.”

In the capital-stock tax return for the year 1922 the stock of the company is again reported as worthless; likewise in the capital-stock return for the year 1924.

Petitioner claimed that in the year 1918, he contemplated claiming his loss in the company as a deduction from his income for that year, but that he was prevented from doing so by a government revenue agent, who checked up his return for 1918, and told him that he could not take the loss in 1918, until the business of the company was a closed transaction. In 1924, petitioner claimed this loss as a deduction from his income for that year. The Commissioner of Internal Revenue disallowed the amount of the deduction, and the Board of Tax Commissioners upheld the action of the commissioner, and this petition was filed.

The statute applicable to this issue is section 214 (a) (5) of the Revenue Act of 1924, 26 USCA § 955 (a) (5), which section provides as follows:

“Sec. 214. (a) In computing net income there shall be allowed as deductions : * * *
“(5) Losses sustained during the taxable year and not compensated for by insurance or otherwise, if incurred in any transaction entered into for profit, though not connected with the trade or business. * * * ”

Treasury Regulations applicable to the issue here involved provide as follows:

“Regulations 45.
“Art. 141. Losses — Losses sustained during the taxable year and not compensated for by insurance or otherwise are fully deductible * * * if (a) incurred in the taxpayer’s trade or business, or (b) incurred in any transaction entered into for profit, or (e) arising from fires, storms, shipwreck or other casualty, or from theft. They must usually be evidenced by' closed and completed transactions. * * * ”
“Art. 144. Shrinkage in Securities and Stocks — A person possessing securities, such as stocks and bonds, cannot deduct from gross income any amount claimed as a loss on account of the shrinkage in value of such securities through fluctuation of the market or otherwise. The loss allowable in such eases is that actually suffered when the securities mature or are disposed of. * * * ”

As we see it, the sole issue involved is whether the loss occurred in the year 1924. The Board of Tax Appeals found that it did not, nor do we see how it could have held otherwise. The loss claimed is for the money invested in the stock, and as far as the' evidence shows this was a total loss in the year 1918. In that year all the other stockholders abandoned hope and surrendered their interest to the petitioner. That petitioner realized the situation is shown by the return made by him for the company, as its president. What little assets were on hand were not sufficient to pay the liabilities of the company, and it was clear that nothing would be paid to the stockholders. The company never was a success, never paid any dividends, and to say that the loss on the stock did not occur until the year 1924, is not to be considered.

To allow a taxpayer to select the year in which to deduct a loss, and select a year (six years) after the loss has become apparent, would be clearly inconsistent with the law. There was ample evidence to support the findings of the Board of Tax Appeals that the loss did not occur in the year 1924. As has been repeatedly held by this court, findings of the Board of Tax Appeals, supported by evidence, will not be disturbed on appeal. Ox Fibre Brush Co. v. Commissioner of Internal Revenue (C. C. A.) 32 F.(2d) 42, 68 A. L. R. 696; Atlantic Coast Distributors v. Commissioner of Internal Revenue (C. C. A.) 33 F.(2d) 733; Guy v. Commissioner of Internal Revenue (C. C. A.) 35 F.(2d) 139; Anchor Co., Inc., v. Commissioner of Internal Revenue (C. C. A.) 42 F.(2d) 99.

The deduction should have been made by petitioner in the year 1918, when the stock became worthless.

“A loss may be said to be'actually sustained in a given year if, within that year, it reasonably appears that such stock has, in fact, become worthless.” Royal Packing Co. v. Commissioner (C. C. A.) 22 F.(2d) 536, 538.

Petitioner relies upon the case of United States v. White Dental Co., 274 U. S. 398, 47 S. Ct. 598, 71 L. Ed. 1120, but we are of the opinion that if this decision affects the instant case in any way it is against the contention of petitioner.

In Avery v. Commissioner (C. C. A.) 22 F.(2d) 6, 7, 55 A. L. R. 1277, the court was dealing with debts ascertained to be worthless, but the principles announced therein are applicable here; the court saying: “A man is presumed to know what a reasonable person ought to know from facts brought to his attention. A taxpayer should not he permitted to dose his eyes to the obvious, and to carry accounts on his books as good when in fact they are worthless, and then deduct them in a year subsequent to the one in which he must be presumed to have ascertained their worthlessness. To do so would enable him to withhold deductions in his less prosperous years, when they would have little effect in reducing his taxes, and then to apply the accumulation at another time to the detriment of the fisc. This would defeat the intent and purpose of the law.”

The 'contention of petitioner that he was prevented from taking the deduction in the year 1918, the year in which the loss occurred, by the advice of a revenue agent, cannot avail him. The government is not bound by the acts of the agents acting beyond the scope of their authority, and to allow revenue agents, who are assisting taxpayers for their convenience, to bind the government on a question of law, would be plainly and clearly improper.

The petitioner sustained the loss, and was entitled to deduction from his income at the proper time, but he cannot deduct it for the year 1924. . This may seem to work a hardship on the taxpayer, but the only thing that the court can do is to interpret the laws as they find them. The situation might appeal to the discretion of the Commissioner of Internal Revenue, if such discretion exists, to afford, to some extent, relief to the taxpayer, but as was said by Mr. Justice Stone in the case of Burnet, Commissioner, v. Sanford & Brooks, 282 U. S. 359, 51 S. Ct. 150, 152, 75 L. Ed.-, decided January 5, 1931: “The assessment was properly made under the statutes. Relief from their alleged burdensome operation which may not be secured under these provisions, can be afforded only by legislation, not by the courts.”

The action of the Board of Tax Appeals is affirmed.

WEBB, District Judge, dissents.


author: BUFFINGTON, Circuit Judge.

text:
    CERTAIN-TEED PRODUCTS CORPORATION v. PHILADELPHIA & SUBURBAN MORTGAGE GUARANTEE CO.
    No. 4432.
    Circuit Court of Appeals, Third Circuit.
    April 6, 1931.
    Emerson R. Newell, of New York City, for appellant.
    A. B. Stoughton, of Philadelphia, Pa., for appellee.
    Before BUFFINGTON and WOOLLEY, Circuit Judges, and THOMPSON, District Judge.
   BUFFINGTON, Circuit Judge.

In this case the court below dismissed a bill filed by the Certain-Teed Produets Corporation, whose products are roofing and other building materials, against the Philadelphia & Suburban Mortgage Guarantee Company, whose business is buying mortgages and reselling them with the added security of its guaranty of their principal and interest. The bill prayed the defendants be enjoined from its use of a slogan, “A guaranteed mortgage is a certainteed income.” No similarity or simulation of product is involved. No fraud, deception, or confusion in the minds of the public is shown or threaténed. After a study of the ease, we are satisfied the bill was rightly dismissed. The proofs, the pertinent decisions, and indeed the entire case is so fully and satisfactorily discussed in the comprehensive opinion of Judge Kirkpatrick, that a further one by this court could be but a labored effort to clothe in other words what he has-said. Accordingly we limit ourselves to adopting his opinion, which is printed in the margin, as our own, and so affirm the decree below.

       Kirkpatrick, District Judge.
      The corporate name of the plaintiff in this case is "Certain-Teed Products Corporation.” In 1912 the plaintiff’s predecessor, General Roofing Manufacturing Company, began to use the word "Certain-Teed” as a trade-mark, and had it registered. At that time the business Of the company was the manufacture and sale of roofing materials. Since then the business has been gradually expanded in volume, in territorial extent, and in variety of products, until at the present time the plaintiff manufactures and sells, in addition to roofing materials, linoleum and oilcloth, paints, varnishes, polish, beaverboard, plaster, including dental plaster and plaster of paris, and various other products more or less closely related to those named. From time to time as new products were added, the word "Certain-Teed” was used and registered as a trade-mark in connection with them. In 1917 the business of General Roofing Manufacturing Company was reorganized and the present corporate name, taken from the trade-mark, was adopted. The plaintiff sells its product in every state in the country, and its annual business amounted in 1929 to $30,009,000. Since 1917 it has averaged an annual expenditure of $500,000 for advertising, in all of which it stresses its corporate name and trade-mark.
      The defendant deals in guaranteed mortgage certificates, purchasing mortgages with its own funds and then selling fractional interests therein, evidenced by certificates and guaranteed as to principal and interest. Its business is limited to the city of Philadelphia and nearby territory. For about five years the defendant has been using, in connection \sith its advertising matter, the slogan, “A guaranteed mortgage is a certainteed income.” The slogan appears on its letterheads, on circulars, on calendars, and in street car advertising. A seal or device bearing the slogan is also printed upon the actual certificates of mortgages which the defendant sells, and the same device appears upon some of its letterheads and advertising matter. The defendant never uses the slogan except in connection with its own corporate name, and, in the advertising in which the slogan appears, the corporate name is featured much more prominently than the slogan. The defendant nowhere refers to its securities as "certainteed mortgages,” or "certainteed certificates," or the like.
      The defendant is not and up to the present time has not been in competition with the plaintiff in any sense of the word. It appears that the plaintiff has under consideration a plan for the financing of certain related businesses and also the financing of prospective purchasers of its products who wish to build or improve houses. This plan might involve the sale of securities to the public, in which case such securities might or might not be sold under the plaintiff’s name. That I think is about as far as the testimony on this point goes. The defendant, of course, has never had any intention of ever dealing in any of the manufactured products now sold-by the plaintiff.
      The plaintiff does not contend that section 16 of the Trade-Mark Statute of 1905 [15 USCA § 96] applies to this case, and in substance concedes that in this action he must stand upon his common-law rights.
      The issue here is the right to restrain the use of a coined word which is part of a corporate name, where the use complained of is a noncompeting and totally unrelated business, and is merely part of an advertising slogan. If the plaintiff’s position is sustained, rights in words would be carried further than in any reported case that has been brought to my attention. I do not suppose that this slogan is a particularly valuable asset to the defendant, or that it would suffer very much harm if it were restrained'from using it, but care must be taken not to allow that consideration to control the decision. The important question is the extent of the plaintiff's right. Upon that question certain general principles are well settled.
      First. The plaintiff has certain rights in the word “Certain-Teed” as a trade-mark merely, but these rights give him no* standing in this case to restrain the defendant’s use of it. "The mere fact that one person has adopted and used a trademark on his goods does not prevent the adoption and use of the same trade-mark by others on articles of a different description.” American Steel Foundries v. Robertson, 269 U. S. 372, 46 S. Ct. 160, 162, 70 D. Ed. 317. "There is no such thing as property in a trade-mark except as a right appurtenant to an established business or trade in connection with which the mark is employed * * * its [the trade-mark’s] function is simply to designate the goods as the product of a particular trader and to protect his good will against the sale of another’s product as his. * * * In truth, a trade-mark confers no monopoly whatever in a proper sense, but is merely a convenient means for facilitating the protection of one’s good-will in trade by placing a distinguishing mark or symbol — a commercial signature — upon the merchandise or the package in which it is sold.” United Drug Co. v. Rectanus Co., 248 U. S. 90, 97, 39 S. Ct. 48, 63 L. Ed. 141. It follows that a plaintiff 'cannot restrain the use of a word or symbol as a trade-mark merely, if the use is in connection with noncompeting and unrelated goods. " * * * Since its sole office is to indicate that the goods of the same general class to which it is attached emanate from a single source or reach the consumer through the same channels of trade * * * the proprietor of a trade-mark is without right to forbid or exclude the use of the same mark, words, or symbol by another upon goods of a'class and quality so different from those of the original user as to preclude the probability that purchasers will be misled into believing that the different articles spring from a common source.” Standard Oil Co. v. California Peach & Fig Growers, Inc. (D. C.) 28 F.(2d) 283, 284, 285 (The Nujol Case). See also Hanover Star Milling Co. v. Metcalf, 240 U. S. 403, 413, 36 S. Ct. 357, 60 L,. Ed. 713; Ainsworth v. Walmsley, L. R., 1 Eq. C. A. S. 518, 524.
       Second. The law of trade-marks, however, is but part of the law of unfair competition, and under that law, when a unique, coined, or fanciful word has been adopted as part of the corporate name, all authorities agree that the owner has rights which are considerably broader than his right in it as a mere trade-mark. “A corporate name seems •to fall more appropriately into the latter class. [That is, trade-names as distinguished from trademarks.] But the precise difference's not often material, since the law affords protection against its appropriation in either view, upon the same fundamental principles. [That is, the general law of unfair competition, the general purpose of which is to prevent one person from passing off his goods'* or business as the goods or business of another.] The effect of assuming a corporate name by a corporation under the law of its creation is to exclusively appropriate that name.” American Steel Foundries v. Robertson, supra.
       Third. While the adoption of a coined word as part of a corporate name is an exclusive appropriation of that name, it does not follow that he who has adopted it can restrain its use by all persons under all circumstances. The adopter’s rights against a subsequent user depend upon a further element — the likelihood of the use «producing confusion or uncertainty in the mind of .the public. "The general doctrine is that equity not only will enjoin the appropriation and use of a trade-mark or trade-name, where it is completely identical with the name of the corporation, but will enjoin such appropriation and use where the resemblance is so close as to be likely to produce confusion as to such identity, to the injury of the Corporation to which the name belongs. *. * * Judicial interference will depend upon the facts proved and found in each case. * * * But where less than the whole name has been appropriated, the right of registration will turn upon whether it appears that such partial appropriation' is of stich. character and extent that, under the facts of the particular case, it is calculated to deceive or confuse the public to the injury of the corporation to which the name belongs.” American Steel Foundries v. Robertson, supra, 269 U. S. 372, 46 S. Ct. 160, 162, 70 I». Ed. 317. In the foregoing the court was referring to the right of registration, but that depends upon the same principles as the right to restrain the use of the word by another. In every case brought to my attention in which the use of a word in a noncompeting business has been restrained, the plaintiff’s right has turned upon the presence of possible or likely confusion. Whether a remote possibility of such confusion is sufficient or whether there must be some reasonable probability is a question which will be discussed later. The point here is that the plaintiff’s right depends upon the element of confusion being present. Thus in Aunt Jemima Mills v. Rigney & Co. (C. C. A.) 247 F. 407, 409, L. R. A. 1918C, 1039, the court said: “It is said that even a technical trademark may be appropriated by any one in any market for goods not in competition with those of the prior user. * * * But we think that goods, though different, may be so related as to fall within the mischief which equity should prevent. Syrup and flour are both food products, and food products commonly used together. Obviously the public, or a large part of it, seeing this trade-mark on a syrup, would conclude that it was made by the complainant. Perhaps they might not do so, if it were used for flatirons.” Again in Wall v. Rolls-Royce of America, Inc., 4 F.(2d) 333, 334, the Circuit Court of Appeals for the Third Circuit said: ***** What would more naturally come to the mind of a man, with a radio tube in his receiving set, on which was the name ‘Rolls-Royce,’ with nothing else to indicate its origin, than for him to suppose that the Rolls-Royce Company had extended its high grade of electric product to the new, electric-using radio art as well.” In an earlier case in the same circuit (Akron-Overland Tire Co. v. Willys-Overland Co., 273 F. 674, 676), the plaintiff made automobiles and the defendant made tires, neither competing directly with the other. The court said: “* * * Yet the fact remains that the business of both is so connected with automobiles that the public, in buying the stocks, securities, and retread tires of the defendant company, by the use of the word ‘Overland’ in connection therewith, will, by such descriptive word, be led to believe it is buying property or articles owned or dealt in by the plaintiff or one of its subsidiary companies.” The British Kodak Case (Eastman Co. v. Kodak Cycle Co., 15 R. P. C. 105) was based upon the likelihood of confusion in the manufacturing of kodaks and bicycles.
      We may take it as settled, therefore, that the plaintiff’s rights, even where the word used by the defendant is part of the plaintiff’s corporate name, depend in some degree at least upon the likelihood of the public confusing either the goods of the plaintiff with the business of the defendant or the business of the plaintiff with the business of the defendant. As to the degree in which this element must be present I do not think the cases go as far as the plaintiff contends, namely a possibility of confusion of identity. If they did, it seems to me that it would be tantamount to giving the plaintiff the absolute right to restrain the use of the word under all circumstances and in connection with any business or any kind of goods. It is obvious that this is not the rule, or it would have been so stated long ago. I suppose there is always a remote possibility of some confusion arising from the use of the same word in connection with different businesses. But, in cases of this kind, the courts do not deal with possibilities, and in every case in which the defendant has been restrained there has been a reasonable likelihood of confusion existing, and I take this to be the real question.
      At this point the case calls for a fact finding, and from the record I am convinced that there is no reasonable likelihood of the defendant’s use of this word creating any confusion in the mind of the public or leading the public to believe that either his business or his securities are the business or securities of the plaintiff, and I so find. If it were necessary I would go further and say that there was no possibility of such confusion, taking that word as it is used in ordinary affairs of life and excluding contingencies which though remote and speculative may still be imagined as possible. My reasons for so holding are as follows:
      In the first place the character of the word itself must be considered. While I agree with the plaintiff that the word is coined, fanciful, and unique, not found in the dictionary, I emphatically disagree with his contention that it is meaningless. Undoubtedly the fact that it is a coined word gives the plaintiff more extensive rights than if it were a word of general usage even though part of its corporate name. The principle of the “Blue Ribbon” Case (Pabst v. Decatur [C. C. A.] 284 F. 110) does not apply; but even under this phase of the rule, the plaintiff’s rights are not as broad as they would be if the word had no meaning at all, as in the Aunt Jemima and Nujol Cases. The* word is clearly a contraction for the expression “made certain.” It could be used in ordinary conversation without the slightest doubt or confusion as to what was meant. A training school might offer its prospective student á “certainteed future,” or a sermon might be preached upon the subject of “certainteed salvation” without creating any great impression of incongruity. Note particularly that the defendant uses it in a sentence as a word with a meaning more readily understood than the plaintiff’s use. In fact it may be that the plaintiff’s use of it in connection with its products is what gives rise to the impression in his mind that it is meaningless. It is true that this contention might have been made in the Rolls-Royce Case, but there the defendant was selling his goods as “Rolls-Royce radio tubes.” He added that the tubes were “like their name, significant of quality.” There was thus a deliberate intent to trade upon the plaintiff’s name in connection with his goods themselves. Suppose in this case the defendant’s slogan had been “Our securities will give you a Rolls-Royce income.” Even so, there would have been more ground for the plaintiff’s position because the secondary meaning, if any, of the word “Rolls-Royce” is decidedly more remote and not as generally understood as the word “certainteed.”
      In the second place, I can see no evidence whatever of any fraudulent intent on the part of the defendant to appropriate something that does not belong to him. His explanation of the manner in which he hit upon the word is entirely reasonable. In fact, it seems to me it is one of those words which might easily have come to the minds of thousands of persons and have grown into ordinary English usage. The defendant did not sell his mortgages as “certainteed” mortgages. He did not use the word in its hyphenated form “Certain-Teed” in imitation of the plaintiff. His use of the slogan is comparatively unobtrusive, and is always coupled with a prominent display of his own corporate name. While it is true that this is not necessarily a defense, it bears upon the question of intent and also upon the likelihood of confusion. He simply used the word in a slogan as though it were an ordinary English word.
      The bill may be dismissed with costs.


author: JOHNSON, District Judge.

text:
    QUEEN v. COMMONWEALTH TRUST CO. et al.
    No. 4277.
    Circuit Court of Appeals, Third Circuit.
    April 15, 1931.
    John Duggan, of Uniontown, Pa., and J. Thos. Hoffman, Cornelius D. Scully, and Guy B. Hoge, all of Pittsburgh, Pa., for ap-. pellant.
    John M. Freeman, H. F. Stambaugh, and Watson & Freeman, all of Pittsburgh, Pa., for appellee.
    Before DAVIS, Circuit Judge, and JOHNSON, District Judge.
   JOHNSON, District Judge.

This is an action of assumpsit to recover from the Commonwealth Trust Company and the Commonwealth Real Estate Company commissions with interest on a contract for the sale of property of the Western Allegheny Railroad Company, and for the sale of certain mineral and mining property of the North Penn Coal Company. The case came on for trial before the court and a jury, and by direction of the court a verdict was rendered for the defendants. A motion for a new trial was refused and judgment entered for the defendants, and from this order an appeal has been taken to this court, and by agreement of the parties two judges alone sat at the argument in this court.

The evidence offered and received and the evidence offered but rejected by the court tended to show that the Commonwealth Trust .Company owned a large block of the stock of the North Penn Coal Company, and the North Penn Coal Company owned the entire stock of the Western Allegheny Railroad Company, and the Commonwealth Trust .Company owned all of the stock of the Commonwealth Real Estate Company, a subsidiary company, and the two companies had their offices together.

A. J. Kelly was president and general manager of the Commonwealth Real Estate Company and for years its managing head in the purchase, sale, and management of the property of the company whose directors held no regular or formal meetings and kept no minutes. This company, through Kelly, sold real estate for the Commonwealth Trust Company, and Kelly on previous occasions sold real estate for the Commonwealth Real Estate Company through other parties and split the commission. Kelly was not only president of the Commonwealth Real Estate Company but at the same time a director of the Commonwealth Trust Company.

John S. Herron, president of the Commonwealth Trust Company, informed Em-met Queen, the plaintiff, a real estate agent, who sought to sell the properties in question, that A. J. Kelly had full authority to give prices, terms, and commissions for the sale of the properties in question, and Herron introduced Queen to Kelly, who agreed with Queen that if Queen should sell the properties for $3,000,000, or such sum as the two companies would accept, they would pay him the sum of $250,000 commission, or if he would sell either of the properties they would pay. him commission on the property sold of $125,000.

Queen entered into negotiations for the sale of the property which resulted in the sale of the same to the Pennsylvania Railroad Company and the Commonwealth Trust Company received the proceeds of the sale, either in its own right or as trustee.

We are of opinion that all of the evidence which tended to show relationship between the Commonwealth Trust Company and the Commonwealth Real Estate Company and their course of dealings with each other and through Kelly, president and general manager of the Real Estate Company, should have been received and it was error to reject such evidence and give binding instructions for the defendant.

In Egbert v. Sun Co. (C. C.) 126 F. 568, the court held: “A corporation is bound by a contract of employment made in its name and behalf by its president, who largely controlled the management of its business, and was apparently acting within his authority.” What Dallas, Circuit Judge, delivering the opinion of the court, said in that case is applicable here: “ ‘Undoubtedly the board of directors is generally the governing and controlling body of a corporation; and therefore, except with its assent, express or implied, a corporation cannot incur a contractual obligation. Salem Iron Co. v. Lake Superior Consol. Iron Mines, 112 F. 241, 50 C. C. A. 213. But it is equally well settled that ‘corporations are liable for the acts of their servants while engaged in the business of their employment, in the same manner and to the same extent that individuals are liable under like circumstances.’ And, indeed, it has been perceived that, for the enforcement of fair dealing by corporations, they should be held to this liability with especial stringency, inasmuch as, by reason of their intangible nature, they are incapable of acting otherwise than through the agency of natural persons, and those who deal with them in good faith, without having any reason to suspect any defect of authority on the part of those acting for them, ought not, after involving themselves in onerous engagements, to be told that the apparent and asserted authority upon which they had relied as being adequate to bind the corporation, was defective or irregular. Merchants’ Bank v. State Bank, 10 Wall. 644, 645, 19 L. Ed. 1008.”

It is obvious that Kelly, who was a director of the Commonwealth Trust Company and the president and general manager of the Commonwealth Real Estate Company and a director in the North Penn Coal Company, had apparent authority to bind the defendant if the evidence offered was to be believed. He was intrusted with large operations of the Commonwealth Real Estate Company, which consisted of buying and selling real estate, and the making of contracts with the plaintiff which appear to have been within the scope of his authority.

We are not deciding the merits of this case, but we do hold that the trial court should have received the evidence offered to show the relationship of the two defendants and their course of dealing with each other and with Kelly and should have received the testimony as to the contract between Kelly and Queen for the selling of the property in question and should not have given binding instructions for the defendant but should have heard all of the plaintiff’s case and for failing to do so the judgment of the court below should be reversed.

And now, March 30, 1931, the judgment of the District Court is reversed, and a new trial is ordered.


text:
    GRANT et al. v. UNITED STATES.
    No. 4507.
    Circuit Court of Appeals, Third Circuit.
    April 15, 1931.

      Winne & Banta, of Hackensack, N. J., for appellant Grant.
    Geo. E. Cutley, of Jersey City, N. J., and Walter G. Winne, of Hackensack, N. J., for appellants.
    Phillip Forman, U. S. Atty., and Douglas M. Hicks, Asst. U. S. Atty., both of Trenton, N. J.
    Before DAVIS and THOMPSON, Circuit Judges, and JOHNSON, District Judge.
   JOHNSON, District Judge.

An information was filed on September 26, 1928, by leave of court against William Sullivan, Hyman Trinkler, Edward Grant, and Joseph Kelly, containing four counts charging all the defendants with possession of intoxicating liquor on September 1, 1928, and the sale of intoxicating liquor on August 31, 1928, and September 1, 1928, and with maintaining a nuisance in September, 1928, at 433 Summit avenue, Jersey City, N. J. Kelly and Sullivan pleaded guilty to the information and were sentenced. Grant and Trinkler pleaded not guilty and were tried before the court and a jury and a verdict of guilty on all four counts was rendered, whereupon sentence was pronounced, from which an appeal was taken to this court. The errors assigned may be classed under three heads: First, the refusal of the trial court to quash the search warrant and suppress the evidence obtained thereby; secondly, the refusal of the court to quash the information in the case; and, thirdly, the refusal of the court to direct a verdict of not guilty.

The District Court was warranted in refusing to, quash the search ^arrant and suppress the evidence and in refusing to quash the information. A more serious question arises on the cpurt’s refusal to direct the jury to render a verdict of not guilty on the ground that the evidence was insufficient to convict the defendants.

The evidence is undisputed that the property located at 433 Summit avenue is a three-story frame building known as the Carrell building, on the corner of Sip and Summit avenues, Jersey City, N. J., containing a cigar store on the comer, a barber shop, shoe shining shop, electrical contracting, shop, and other tenants occupied the building, besides the restaurant and barroom which are 'combined in one room. Prohibition agents of the government bought liquor in this barroom •on August 31st from Sullivan and in September from Kelly. On the first occasion 'Grant was present in the restaurant. One of the agents was acquainted with Grant, and, when he approached the entrance to the restaurant, Grant opened the door and admitted him. Grant was seen in the restaurant a number of times but always in his street clothes. During that summer when his family was at the seashore, Grant took his meals at this restaurant when he was in Jersey City. The government’s testimony showed that, if any one spoke to Grant, he replied, “Not in the light of an ownership.” On one occasion Grant reprimanded Kelly for permitting some one to be in the restaurant who did not belong there, but this, room in which the restaurant and barroom were conducted seems to have been the headquarters of a club to which Grant and many others belonged. At another time, Grant opened some packages lying upon the bar, looked at them, and tied them up again. On another occasion he objected to the placing of some beer barrels in the yard which he rented for storage of his pipes; he being an electrical contractor with rented rooms on the floor above the barber shop, having in his employ at times as many as three hundred men. The testimony also shows a bank book used for a savings account of Grant’s son left in the possession of Trinkler in the cigar shop and found in the restaurant.

The testimony against Trinkler showed that he ran a eigar store and at the suggestion of one of the agents, took the agents to the back door of the barroom, leaving them there, and soon thereafter the agents were admitted to the saloon. Trinkler had a .key to one of the doors that had to be entered before reaching the saloon. A buzzer was connected by a push button running from the cigar store counter to the saloon. Trinkler was never seen in the saloon.

There is no evidence of ownership or connection with the saloon on the part of Grant or Trinkler. All of this evidence is as consistent with innocence as with guilt, and is not sufficient to convict these defendants. Any innocent individual might have done all the things done by Grant and Trinkler. The whole case against these defendants does not rise above suspicion.

What was said by Judge Sanborn in Salinger v. United States (C. C. A.) 23 F. (2d) 48, 52, applies to this case: “Unless there is substantial evidence of facts which exclude every other hypothesis but that of guilt, it is the duty of the trial judge to instruct the jury to return a verdict for the accused, and, where all the evidence is as consistent with innocence as with guilt, it is the duty of this court to reverse a judgment against the accused.” Murphy v. U. S. (C. C. A.) 21 F.(2d) 509, 512; Benn v. U. S. (C. C. A.) 21 F.(2d) 962, 963; United States v. Dibella (C. C. A.) 28 F.(2d) 805; De Gregorio v. U. S. (C. C. A.) 7 F.(2d) 295; Vernon v. U. S. (C. C. A.) 146 F. 121, 123; Union Pacific Coal Co. v. U. S. (C. C. A.) 173 F. 737, 740; Sullivan v. U. S. (C. C. A.) 283 F. 865, 868; Wright v. U. S. (C. C. A.) 227 F. 855, 857; Willsman v. U. S. (C. C. A.) 286 F. 852, 856; Haning v. U. S. (C. C. A.) 21 F.(2d) 508.

Under the facts in this ease, the judgment of the District Court must be reversed.


author: THOMSON, District Judge.

text:
    HEINER v. DIAMOND ALKALI CO.
    No. 4428.
    Circuit Court of Appeals, Third Circuit.
    April 9, 1931.
    Louis E. Graham, U. S. Atty., and John A. McCann, Sp. Asst. U. S. Atty., both of Pittsburgh, Pa. (C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and E. O. Hanson, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., of counsel), for appellant.
    Maynard Teall, William A. Seifert, William Wallace Booth, and Smith, Shaw, McClay & Seifert, all of Pittsburgh, Pa., for appellee.
    Before BUFFINGTON and THOMPSON, Circuit Judges, and THOMSON, District Judge.
   THOMSON, District Judge.

The question before us is, whether certain income and profits taxes for 1917 were collected in violation of the statute of limitations.

The taxes for 1916 and 1917, which were returned in 1918, were duly paid. In 1924, additional taxes of over $6,000 were assessed for 1916, and over $600,000 for 1917. Plaintiff filed a claim in abatement, which, in 1927, was rejected as to the 1916 taxes; the 1917 taxes being reduced to $269,451.93.

In May 1927, the plaintiff, under protest, paid these taxes and brought this suit to recover them back. The court entered judgment for the plaintiff for the amount of its claim, with interest, from which this appeal is taken.

It is now conceded by the appellee that the tax and interest for 1916 were lawfully collected, and that the judgment appealed from must be reduced by that amount.

The right to recover the 1917 taxes, with interest, is the question to be determined. That question must be answered by determining whether section 611 of the Revenue Act of 1928 (26 USCA § 2611) applies to the facts of this case. If so, the plaintiff can not recover.

The controlling facts of the case are these: Beginning in 1922, the plaintiff filed four different waivers as to assessment and collection of the 1917 taxes. Afterwards, on February 1, 1924, it filed another, being the last of such waivers. This waiver was signed by the commissioner on February 11, 1924, and expired on March 25, 1925. The plaintiff also filed numerous protests and briefs beginning on April 6, 1924, and extending to September 10, 1926, for the purpose of persuading the commissioner that the additional taxes and interest for the years 1916 and 1917, should either be greatly reduced, or not collected at all. Through this procedure, the plaintiff succeeded in greatly reducing the amount of the additional taxes assessed for 1917.

The sections of the Revenue Act of 1928, namely, sections 607, 611, and 612 (26 TJSCA §§ 2607, 2611, and § 2612 note), are relevant, and determinative of the question here. Section 1106 (a) of the Revenue Act of 1926 (26 USCA § 1249 note), by which the statute of limitations against the United States in respect to any internal revenue tax, not only barred the remedy, but- extinguished the liability, was repealed by section 612 of the act of 1928. Sections 607 and 611 must be read together, as the latter modifies the former. By section 607, any tax assessed and paid (whether before or after the enactment of the act), after the expiration of the period of limitation properly applicable thereto, shall be considered an overpayment and shall be credited or refunded to the taxpayer, if claim therefor is filed within the period of limitation for filing such claim.

Section 611 relates to claims which are stayed by a claim in abatement. The section reads as follows: “If any internal-revenue tax (or any interest, penalty, additional amount, or addition to such tax) was, within the period of limitation properly applicable thereto, assessed prior to June 2, 1924, and if a claim in abatement was filed, with or Without bond, and if the collection of any part thereof was stayed, then the payment of such part (made before or within one year after the enactment of this act) shall not be considered as an overpayment under the provisions of section 607, relating to payments made after the expiration of the period of limitation on assessment and collection.”

The claim in question here seems to come squarely within the provisions of section 611. The tax in question was assessed prior to June 2, 1924, within the period of limitation (as extended by the waivers), properly applicable thereto; and a claim of abatement was filed and the collection of a part thereof was stayed. It therefore follows that the payment of such part, although made before the enactment of the act, cannot be considered as an overpayment under the provisions of the section.

The collection of the tax being legal, judgment should have been entered in favor of the defendant.

The judgment is reversed, with directions to proceed in accordance with opinion,


author: FOSTER, Circuit Judge.

text:
    ÆTNA INS. CO. v. HOUSTON OIL & TRANSPORT CO.
    No. 5812.
    Circuit Court of Appeals, Fifth Circuit.
    April 21, 1931.

      J. Newton Rayzor, of Houston, Tex. (Royston & Rayzor, of Houston, Tex., on the brief), for appellant.
    Carl G. Steams, of Houston, Tex. (Fulbright, Crooker & Freeman, of Houston, Tex., on the brief), for appellee.
    Before BRYAN and FOSTER, Circuit Judges, and DAWKINS, District Judge.
   FOSTER, Circuit Judge.

Appellee, the Houston Oil & Transport Company, filed a libel in admiralty to recover on an insurance poliey issued by appellant, the ¿Etna Insurance Company, covering the loss of the tug Minnie R. • by fire to the amount of $7,500. The suit was brought on behalf of appellee, the Peden Iron & Steel Company, and the Guaranty Trust Company, mortgagees, named as payees in the poliey of insurance, and on behalf of the City Bank & Trust Company, successor to the Guaranty Trust Company. A decree was entered in favor of appellee for the full value of the policy with interest. This appeal followed.

There is no material dispute as to the facts. The policy No. 61,660, on the A. I. A. inland form, was issued to the Houston Oil & Transport Company, with a clause stating simply, “On account of whom it may concern, loss, if any, payable to Peden Iron and Steel Co. and Guaranty Trust Co. or order.” Of itself the poliey covered any loss of the vessel from fire and the perils of harbors and other waters within the limits of navigation permitted, within one year from February 14, 1928. The poliey contained a clause which, so far as material, was as follows: “Warranted by the assured that the said vessel shall at all times during the continuance of this poliey * * * shall at all times have a competent watchman on board, except that when the vessel is laid up and out of commission she shall be in charge of a competent watchman.”

And another clause, as follows: “It is understood and agreed that no custom, usage or waiver of any kind shall affect, control or void any warranty or condition of this poliey, unless these insurers shall signify their consent thereto by endorsement hereon in writing.”

Also, written into the poliey was this clause: “Notwithstanding anything herein contained to the contrary, this insurance warranted covering the risk of fire only, as per form attached.”

In conformity to the last-quoted clause, attached to the poliey was a rider, rather complete in itself, limiting the poliey to loss by fire only and limiting the vessel to the use and navigation of 'Texas Gulf coastwise waters and all inland tributaries thereto. Another rider was also attached which contained clauses permitting ten gallons of gasoline to be on board, permitting the charter of the vessel, and extending the policy to cover the expense of removal to a port of repair, in the event of damage by fire, and also containing the following printed clause: “All clauses and conditions in this poliey to which this form is attached at variance with or in conflict with the above are hereby waived and declared void.” Both riders contained the statement “attached to and made part of policy No. 61,660 of the Aetna Insurance Company.”

A condition of the policy was that no petroleum or petroleum products or any explosive could be carried as cargo unless by special agreement in writing. Nothing was said in the policy relative to the right of the owner to charter the vessel.

In July, 1928, the tug was laid up in Irish Bend, 18 miles from the city of Houston, at a point about 500 feet from the Houston ship channel. Two barges and a launch belonging to appellee were also laid up at the same place. The tug was totally destroyed by fire which started on the morning of September 23, 1928, some time between 4 and 6 o’clock. On the day before the. fire, Mr. Kelly, the president of the Houston Oil & Transport Company, visited the vessel. She had a watchman, who may be considered competent,' on board, but he was granted permission by Kelly to absent himself and go to Houston to procure supplies and elothing. He left with Kelly about 4 o’clock in the afternoon of September 22 and did not return until 8 o’clock the following morning, by which time the tug had been entirely destroyed. Kelly understood that the watchman would return not later than 1 or 2 o’clock in the morning but did not give him any orders as to the time of returning. Testimony was offered to show that it was the general custom in the port of Houston for watchmen of laid-up vessels to absent themselves for the purpose of getting necessary supplies and elothing. The proof falls short of showing any such general custom of the port. The place where the tug was laid up was isolated with no telephone handy, no houses near by, and no one was in the vicinity when the fire occurred. The tug had several fire extinguishers, more than the usual number, in good order, on board, and the watchman habitually slept on her when he was there.

Appellant defended on the ground that the watchman warranty of the policy had been breached. Appellee denied any breach of the warranty and raised the points that the riders attached to the policy contained the whole contract and the watchman clause was not effective; that as the loss was payable to mortgagees, recovery could not be effected by any act of the owner; that the breach of warranty was waived by retention of the premium until after suit. The District Court, as appears by an opinion in the record, while discussing the questions raised, did not find it necessary to decide any of them except as to the breach of warranty. As to that he held that the warranty had not been breached.

It is well settled that an insurance contract may consist of several separate documents and if possible they must be construed together. But a clause written in, an indorsement, or a rider inconsistent with the provisions of the printed poliey must prevail. And if any part of the contract is ambiguous, it must be construed strongly against the insurer. However, a contract of marine insurance must be interpreted in the light of practical, sound common sense. Peters v. Warren Ins. Co., 14 Pet. 99, 10 L. Ed. 371.

It is evident that in this case the policy and the two riders must be construed together to form one contract. The poliey issued before the vessel was laid up, but, as a time policy, it was intended to cover the vessel whether laid up or in commission. The watchman warranty was very material to the risk. In fact, the presence of a watchman would be more likely to prevent loss by fire when the vessel was laid up than loss from perils of the waters or fire when the vessel was in commission and manned by a full crew. It is inconceivable that an insurer would enter into a contract waiving this essential provision. Certainly that conclusion could not be reached unless clearly shown by endorsement on the poliey in some way. The riders do not expressly waive this warranty and there is nothing in them inconsistent therewith. It may be said that this was the practical construction given the poliey by appellee by employing a watchman.

Appellee relies upon the case of New York & P. R. S. S. Co. v. Ætna Ins. Co. (C. C. A.) 204 F. 255, to sustain the contention, that the rider formed the whole contract and superseded the terms of the policy, including the watchman clause. That case is not in point, as it appears that the rider contained a clause substituting its terms and conditions for those of the policy and providing that the latter were thereby waived. The same may be said of other cases cited on this point. No such condition appears in the riders involved in this case. We need not review the other decisions cited by appellee. Policies of marine insurance are governed by the general admiralty law. In construing them we prefer to follow the decisions of the federal courts and other admiralty courts and to put aside decisions of state courts where they are in conflict. We conclude that the watchman clause was not waived and was in full force when the, fire occurred. Shamrock Towing Co. v. American Ins, Co. (C. C. A.) 9 F.(2d) 57; Ætna Ins. Co. v. Sacramento Stockton S. S. Co. (C. C. A.) 273 F. 55.

Federal courts look to the laws of England for guidance in matters of marine insurance and follow them unless, as a matter of policy, a different rule has been adopted. Queen Ins. Co. v. Globe Ins. Co., 263 U. S. 487, 44 S. Ct. 175, 68 L. Ed. 402. With regard to express warranties there is no difference that we are aware of. The watchman clause in this case was an express warranty. The English rule is that express warranties are to be literally complied with. Amould on Marine Insurance (11th Ed.) § 630. The federal courts have generally adopted this rule. In perhaps the first reported American decision, Ogden v. Ash, 1 Dall. 162, 1 L. Ed. 82, it was held that a warranty of this kind must be strictly complied with, and in Shamrock Towing Co. v. American Ins. Co., supra, a case dealing with the watchman warranty, the rule of literal compliance was adopted and applied. With this ruling we agree.

This requires the consideration of whether the warranty was breached in this case. Under the warranty the insured was obligated to employ a competent watchman and to keep him in charge of the vessel at all times within the life of the policy. It was not necessary that the watchman should be actually on board the vessel. However, within the meaning of the policy, the term “watchman” clearly implies one who is in a position to see and that he should be in close proximity to the vessel in his charge at all times in order, if possible, to prevent her destruction by the peril insured against. It may be conceded, for the purpose of argument, that if a watchman was employed and was habitually in the immediate vicinity of the vessel, an absence for a short period for a good reason would not necessarily constitute a breach of the warranty, but this conclusion would depend upon the facts of the particular case. It would not be a compliance with the warranty to employ a watchman and then immediately withdraw him, thereby leaving the property unguarded, nor to permit him to so locate himself that the property would not be under his observation at all. Absence for from 9 to 16 hours with permission of the insured amounts to a withdrawal of the watchman. It would have been easy for appellee to have arranged to send the watchman his necessary supplies and clothing or to have provided a substitute during his absence. In this case it is reasonable to presume that had the watchman been at his post he would have discovered the fire in time .to extinguish it with the means at hand before any considerable damage had occurred. We conclude that the warranty was breached in this instance and that the breach materially contributed to the loss.

In support of the contention that, as the loss was payable to mortgagees, a breach of the warranty on the part of the assured could not affect the recovery, appellee relies upon section 4931, Revised Civil Statutes of Texas and various decisions con-' struing such clauses. The policy covered the vessel on navigable waters of the United States without as well as within the state of Texas. It was a maritime contract, and therefore governed by the general admiralty law and not by the law of Texas. Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900; Peters v. Veasey, 251 U. S. 121, 40 S. Ct. 65, 64 L. Ed. 180; Union Fish Co. v. Erickson, 248 U. S. 308, 39 S. Ct. 112, 63 L. Ed. 261. The laws of Texas have no application to the case. There is considerable conflict in the decisions on the question of recovery by mortgagees. Undoubtedly the clause may be so drafted as to make the loss payable to an assignee in any event, but such is not the ease here. The rule supported by the weight of authority is that where the clause is in simple terms, as appears in the policy in suit, the assignee is merely appointed agent of the insured to receive the money and he is bound by any act of the insured that would forfeit- the policy. St. Paul Fire & Marine Co. v. Ruddy (C. C. A.) 299 F. 189, and authorities cited therein. The contention is untenable.

The contention that there was a waiver because of retention of the premium is also without merit. The unearned part of the premium was tendered before the case terminated. It is not suggested that the amount was insufficient. Of course, if the insurer receives the premium with notice of the breaeh, and the insured is thereby induced to believe that the policy remains in force, a waiver may be predicated upon the retention of the premium. That is not the ease presented here, as the premium was m> doubt received in the usual course of business and before the loss occurred. The retention of the premium to constitute a waiver must amount to a'n estoppel. There is nothing shown in this ease that would warrant that conclusion. Globe Mutual Life Ins. Co. v. Wolff, 95 U. S. 326, 24 L. Ed. 387.

Entertaining the above views, it follows that the judgment appealed from must be reversed, and the case remanded with instructions to dismiss the libel.

Reversed and remanded.


author: BRYAN, Circuit Judge.

text:
    EVANS et al. v. FIRST NAT. BANK & TRUST CO. OF OKLAHOMA CITY.
    No. 5937.
    Circuit Court of Appeals, Fifth Circuit.
    April 28, 1931.
    Royall G. Smith and Robt. T. Neill, both of San Angelo, Tex., R. L. Ball and A. W. Seeligson, both of San Antonio, Tex., and Robert B. Caldwell, of Kansas City, Mo. (Ball & Seeligson, of San Antonio, Tex., Smith & Neill, of San Angelo, Tex., and Mc-Cune, Caldwell & Downing, of Kansas City, Mo., on the brief), for appellants.
    C. 0. Harris, L. B. Harris, and M. E. Sedberry, all of San Angelo, Tex., and W. F. Wilson, of Oklahoma City, Okl. (Harris, Harris & Sedberry, of San Angelo, Tex., and Wilson & Wilson, of Oklahoma City, Okl., on the brief), for appellee. •
    Before BRYAN and FOSTER, Circuit Judges, and HUTCHESON, District Judge.
   BRYAN, Circuit Judge.

The appellee bank brought two suits in. replevin to recover possession of certain cattle upon which it held mortgages which authorized it to take possession of the cattle if the mortgagor should sell, or attempt to sell, them without its consent. The first suit, known as cause 218, claimed 250 head, and the second suit, known as cause 219, claimed 295 head, of cattle. Appellants Evans and Callan were partners. Callan for his firm purchased the cattle involved in each suit from Jesse C. Moore, the mortgagor. They gave forthcoming bonds upon which the other appellants, Baker and White, were sureties. The suits were consolidated, and the trial resulted in the following verdict:

We, the jury, find for the plaintiff in Count 218, 125 head cattle at $70.00 per head........ $ 8,750.00
In Count 219, 295 head cattle at $90.00 per’head........26,550.00

There was judgment for appellee which followed the form of the verdict, in that it kept separate the amount of recovery allowed in- each suit. Appellants contend that the trial court erred in refusing to direct a verdict in their favor in cause 218, and in refusing to grant their request to charge the jury in cause 219 to find in their favor if they believed that Callan purchased the cattle while they were in J ohnston county, Okl., in good faith and for valuable consideration, without actual or constructive notice of appellee’s mortgage.

Jesse C. Moore owned or held under lease 15,000 acres of land in Oklahoma which he' used as a pasture for cattle. Some of "the pastures were in Pontotoe county, others in Johnston county, and still others in Murray county. Pontotoe county on the east and Murray county on the west had a-common boundary north of Johnston county, which was bounded by Pontotoe on the north and by Murray on the west.

In the winter of 1928-1929, the appellee bank held mortgages executed by Moore on about 4,500 head of cattle to secure loans of approximately $200,000; and at the same time the Stockyards Loan Company of Kansas City, Mo., held mortgages executed by Moore on about 4,800 head of eattle to secure loans also of approximately $200,000. In April, 1929, the Stockyards Company made an investigation, examined the public records of Pontotoc county, and for the first time learned of the mortgages held by the bank. It also ascertained that there were not more than 6,000 head of cattle in Moore’s pastures in the, three counties. It thereupon demanded and received from Moore enough cattle to pay off his indebtedness to it.

Callan, one of the appellants here, was employed by the Stockyards Company to inspect their loans upon cattle. With full knowledge of the facts above recited, he bought from Moore the cattle involved in these two suits and shipped them to Texas. The. Stockyards Company credited Moore with the amount of the purchase price agreed upon by him and Callan.

The 250 head involved in cause 218 were claimed by the bank under its mortgage from Moore executed in November 1928. That mortgage described 1,035 “white-face yearlings,” branded with a stripe or bar, and located in Pontotoe county. The Stockyards ■Company also held a mortgage of about the •same date on 1,510 head of “coming one year ■old” Hereford cattle, located in Johnston county and in Murray county.

The 295 head of cattle involved in cause 219 were claimed by the bank under its mortgage dated in 1927 upon 1,095 head of white-face calves bought from Williams and Shelton, and located in Pontotoe county. The Stockyards Company held a mortgage on 1,177 “coming one-year old” white-face, cattle located in Johnston county. The eattle covered by each mortgage were also described as being branded with a stripe or bar. No distinction between Hereford and white-face cattle is made in the testimony. The testimony warranted the jury in concluding that these eattle had within a few days before shipment been driven from Pontotoe county and kept together in J ohnston county; that they were identified after shipment to Texas as being the eattle in Pontotoe county that were mortgaged to the bank.

It will be observed from the verdict that the jury found for appellee as to half the 250, head of eattle described in cause 218. We are of opinion that the court erred in refusing to give the peremptory, instruction requested by appellants as to those cattle. Appellants had a mortgage on calves, or cattle coming one year old in November, 1928. Appellee’s mortgage, also taken in November, 1928, described the cattle covered by it as yearlings, which, according to the testimony, means that they were calves in 1927, the preceding year. So far as appears from the testimony, the bank held no mortgage on eattle that were calves in 1928.

As to the cattle involved in cause 219, we are of opinion that the court did not err in refusing to charge the jury as requested by appellants. The cattle described in the mortgages, both of the bank and of the Stockyards Company, were of the same breed and age and carried the same brand; but they were capable of identification by reference to the county in which they were located. If the cattle had not been mixed, there would have been no difficulty in ascertaining those that were included in the bank’s mortgage. Appellants cannot possibly succeed on the theory that they did not have constructive notice of all the bank’s mortgages. Callan and other representatives of the Stockyards Company knew that they were taking cattle which fitted the description of the bank’s mortgage, and they were familiar enough with the situation to put them on inquiry as to whether the cattle were in, or belonged in, Pontotoc county. The lien of the bank’s mortgage was not lost by the temporary removal for pasturage purposes of cattle from Pontotoe county across the line into Johnston county. That mortgage was re-, corded in Pontotoc county, and was a good! lien in Johnston county for 120 days. Okla-! homa Compiled Statutes 1921, § 7651.

Although the cases were consolidated for trial, the verdict shows the amount of dam-| ages found by the jury in each case. There} is therefore no need to order a new trial of cause 219, but it is remanded for a proper' separate judgment. The judgment in cause 218 is reversed, and that cause is remanded for a new trial.


text:
    MARYLAND CASUALTY CO. v. HODGE.
    No. 5793.
    Circuit Court of Appeals, Fifth Circuit.
    April 25, 1931.
    M. Nagle and Maury Kemp, both of El Paso, Tex. (E. R. Smith, of El Paso, Tex., on the brief), for appellant.
    R. K. Gillen arid Ben H. Gallagher, both of Dallas, Tex. (Caldwell, Gillen, Francis & Gallagher, of Dallas, Tex., on the brief), for appellee.
    Before BRYAN and FOSTER, Circuit Judges, and DAWKINS, District Judge.
   FOSTER, Circuit Judge.

Appellee, hereafter referred to as plaintiff, brought suit in a state court to set aside an award of the Industrial Accident Board of Texas, and, alleging total disability resulting from injury to his eyes, prayed for a lump sum settlement under the provisions of the Workmen’s Compensation Law of Texas (Rev. St. 1925, art. 8306, § 15). The suit was removed to the District Court by appellant, hereafter referred to as defendant. Appellant defended on the grounds that plaintiff had failed to file bis claim with the board within six months after the accident, as was required by the statute; that he had been paid in full for his injuries, and had executed a release; that his injuries were not permanent, and resulted from pre-existing tracoma. The suit Was tried to a jury, and resulted in a verdict for plaintiff, on which judgment was entered in the sum of $5,411.27. From that judgment this appeal is prosecuted. The questions presented are raised’by assignments of error running to the action of the court in striking out .the evidence as to the release and refusing to direct a verdict for defendant.

The following material facts are not in dispute: Plaintiff was an oil field worker employed as a roustabout at Crane, Tex., by the Pecos Oil Company, a subscriber to the Texas Compensation Laws, for whom defendant had written a policy of indemnity. On December 17, 1927, he was connecting a two-inch pipe, called a riser, that goes out from the bottom of the derrick floor, which was in the line of his duties. While he was connecting the pipe, the well made a “head,” and oil,, rust, and gas coming out through the riser struck him in the face. His eyes were affected, and he suffered great pain. He was-taken home and given treatment by his sister,. who had had training as a nurse. The next day he was treated by Dr. Stewart of Crane, and spent three days in his hospital. He then went to the hospital of Dr. Cook in Crane, and received further treatment. He next went to Dallas for treatment, and, while there, called on the defendant’s agent, Mc-Dermott. He received treatment from other doctors. The medical testimony is in conflict as to the extent and probable continuance of plaintiff’s injury, but it clearly preponderates to the effect that in his left eye there was practically no vision and that his right eye was only from 20 to 25 per cent, normal. There was testimony from the doctors to the effect that his condition could have been caused by the accident, and would probably get worse, and also other testimony tending to show that his injury from that source would be temporary and that his eyes showed evidence of pre-existing tracoma. On the whole, however, the question of his total permanent disability was clearly for the jury. It was not error to deny a directed verdict.

While in Dallas plaintiff executed a release to defendant on a standard form, and was paid a total of $77.90 by McDermott on January 10, 1928. His weekly compensation would have been $15.58. McDermott testified that plaintiff signed the release, and that before he did so it was read to him. On the other hand, plaintiff testified that he could not see what was in the document, that he thought it was a receipt for money advanced, and did not know it was a release. In charging the jury, the court excluded the release from their consideration on the ground that it was neither alleged nor shown that the release had ever been approved by the Industrial Accident Board or any court of competent jurisdiction. The Workmen’s Compensation Law of Texas, section 14 of part 1, art. 8306, Revised Civil Statutes, provides that no agreement by an employee to waive his rights to compensation under this act shall be valid. Other parts of the same article provide that such questions shall come under the jurisdiction of the board. The amount paid the plaintiff in settlement was no more than he would have been entitled to as weekly compensation. It is plain that the settlement was without adequate consideration, and void under'the law. Farris v. U. S. Fid. & Guar. Co. (Tex. Civ. App.) 251 S. W. 612. It was not error to exclude it from the consideration of the jury.

It was stipulated that plaintiff made claim for compensation to the Industrial Ae.eident Board on June 30, 1928, that he made claim to the defendant within six months following December 17, 1927, the date of the accident, and that the defendant and the Pecos Oil Company, his employer, had" notice and knowledge of the accident and injuries within thirty days following December 17, 1927. The Workmen’s Compensation Law, section 4a of article 8307, Revised Civil Statutes of Texas, provides for notiee to the employer and insurer within thirty days of the happening of the accident, and that a claim for compensation shall be made within six months after the occurrence. But the said section also provides that for good cause the board may in meritorious eases waive strict compliance with the limitations as to notiee and the filing of the claim before the board. The requirements as to notiee were complied with, but the claim was filed a few days too late. However, as the board entertained it, it must be presumed that that irregularity was*waived. The Texas courts have liberally construed the statute in favor of workmen, and have held that informal notiee of injury and demand for compensation is sufficient. Texas Employers’ Ins. Ass’n v. Tabor (Tex. Civ. App.) 274 S. W. 309, affirmed by the Commission of Appeals, 283 S. W. 779; Texas Employers’ Ins. Ass’n v. Wonderley (Tex. Civ. App.) 16 S.W.(2d) 386. It is apparent from the provisions of the statute and the just cited eases that a substantial compliance with the provisions as to notice and filing of the claim is all that is required. Plaintiff’s action was not barred by the few days’ delay in presenting his claim to the board.

In the course of the trial, plaintiff testified that before he was employed by the Pecos Oil Company he worked for the Gulf Production Company, doing similar work, and that at the time he went to work for the latter company he was given a physical examination, part of which was directed to his eyes. An objection to this testimony was overruled. As the testimony did not go to the extent of telling what condition of his eyes .the examination showed, it was not objectionable, and the error in admitting it, if any, was harmless.

The record presents no reversible1 error.

Affirmed.


author: STONE, Circuit Judge.

text:
    CURRAN v. COMMISSIONER OF INTERNAL REVENUE.
    No. 8822.
    Circuit Court of Appeals, Eighth Circuit
    April 6, 1931.
    Bernard J. Thole, of St. Louis, Mo., for appellant.
    S. Dee Hanson, Sp. Asst, to Atty. Gen. (G. A. Youngquist, Asst. Atty. Gen., Sewall Hey, Sp. Asst, to Atty. Gen., and C. M. Char-est, Gen. Counsel, Bureau of Internal Revenue, and Allin H. Pierce, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., on the brief), for appellee.
    Before STONE and GARDNER, Circuit Judges, and WYMAN, District Judge.
   STONE, Circuit Judge.

This is a petition to review a redetermination of the Board of Tax Appeals sustaining a deficiency of $26,876.67 in the individual income taxes of petitioner for the year 1921.

This deficiency assessment results from a payment, by way of credit on indebtedness, which came to petitioner through the form of a dividend declared by the Con P. Curran Printing Company on January 15, 1921. The position of the Commissioner is that the above payment to petitioner was a dividend from the above corporation while the contention of petitioner is that it came as his portion of the payment for a valuable building conveyed by him to the corporation. The findings of fact by the Board of Tax Appeals are as follows:

“Findings of Fact.
“The petitioner is a resident of Normandy, Missouri. Until 1920 he owned the entire common capital stock of the Con P. Cur-ran Printing Company, a corporation, and, with his wife, owned the building occupied by the corporation’s business. Prior to 1920, the petitioner had borrowed from the corporation until,- 1920, he owed the corporation $298,598. The petitioner made a verbal agreement with his wife, that if she died before he did, he would divide his interest in the corporation and the building with their children. She died in May, 1920, and thereafter, in August, 1920, pursuant to the agreement the petitioner gave the children 49' per cent, of the stock of the corporation and retained 51 per cent.
“On October 9, 1920, the petitioner deeded the building to the corporation, the deed reciting a consideration of $100. The building and ground originally cost the petitioner $261,000. Later he made various additions. Before the transfer of the property to the corporation, the petitioner sought to have the corporation pay him $400,000 fot the property. Discussions were had with other officers of the corporation who objected that the corporation could not make a capital expenditure of that amount and that it was not necessary that the corporation own the building. The petitioner was insistent that he have some money to divide with his children and it was finally agreed that the corporation would pay and he would take $150,000 for the property. The petitioner then executed and delivered the deed to the property which was recorded October 13, 1920. Ño payment was made to the petitioner on account of the transfer of the property in 1920. On January 15,1921, at the regular annual meeting of the Board of Directors of the corporation, the following resolution was adopted:
“After the reading and discussion of the Annual Report, Mr. F. W. Corley addressed the chair and expressed the belief that in view of the transfer of the building to the Company, the declaration of a dividend was justified, and that the amount of $150,000 if decided upon as the amount of the dividend, be credited on the books of the company, to the holders of the Common Stock, on the basis of their holdings.
“The amount so credited to the stockholders of record, to earn interest at the rate of 61/2% per annum, payable quarterly, and that this dividend, so credited on the books of the Company to said Common Stockholders, cannot be withdrawn, either in part or in whole, except on order of the management.
“Mr. F. W. Corley then made the motion that a. dividend be declared of $150,000.00 and the amount pro-rated to the holders of the Common Stock, on the basis of their holdings, and that the prorated amounts be credited on the books of the Company, said amounts to bear interest at the rate of 6%% per annum, and that these credits can only be withdrawn on the order of the management.
“This motion was seconded by Mr. John F. Curran, and upon a vote being taken was found to have carried unanimously.
“The secretary was instructed to notify the stockholders of this credit, by letter, accordingly.
“The petitioner’s share of the $150,000 dividend was $76,500, which amount was credited against his indebtedness to the corporation. The petitioner did not include the amount of $76,500 as income in his return for 1921. The respondent, in determining the deficiency for that year, treated the amount as a dividend received in 1921.
“At the time of the resolution of January 15, 1921, the corporation had earnings accumulated in its surplus account in excess of the amount of the dividend. On its return for 1921 the corporation reported $150,-000 as a cash dividend.”

Upon these findings the Board proceeded as follows:

- “Opinion.
“Siefkin: The only issue remaining in this proceeding is one of fact. The corporate action taken indicates that a dividend was declared in 1921 and that the petitioner’s portion of that dividend, $76,500 was credited to him by application against indebtedness. All of the documentary evidence points to the amount being a dividend and the respondent has so taxed it to the petitioner.
“The petitioner contends here, however, that his purpose and that of the corporation, which he controlled, was not to receive or declare a dividend but was to receive or pay for certain real estate transferred to the corporation by the petitioner in 1920.
“We are convinced from all the evidence that the petitioner intended that the corporation should pay $150,000 for the property. We also believe that the petitioner was satisfied with the action as taken by the corporation in declaring and paying the dividend. The evidence does not convince us that the steps taken by the corporation, according to the documentary proof, misstated the facts.' Except for the difference in the tax imposed, this very dispute, it did not matter to the petitioner how he was paid. Either way his indebtedness to the corporation was reduced by $76,500 — and that was all he expected to get, and the testimony that he intended to sell the property (for'a price out of which he would get $76,500) does not show that what the corporation did in 1921 was not the thing it purported to be. We are unable to say that the respondent’s action was erroneous.”

There is no dispute that this payment to petitioner by the corporation was in the form of a corporation dividend, although the dividend was hedged about with restrictions which are entirely unusual. The theory of a dividend is that it shall be payable only from net earnings which are or will be ready for actual distribution at a definite date provided for in the resolution declaring the dividend. But here, although the actual net earnings of the corporation at the time this dividend was declared were sufficient to pay it, there was no definite date set for payment, but, on the contrary, the amount of the dividend was to be merely credited on the corporation books, to bear interest (payable quarterly) and could not be withdrawn, “except on order of the management.”

The form of a transaction is unquestionably pertinent evidence as to what the transaction really is, yet it is not always controlling. This is illustrated by the well-recognized rule that a deed, absolute in form, may be shown to be a mortgage. This same principle is true in applying the revenue statutes unless there is some forbidding expression or necessary implication in the particular statute. When this statute seeks to tax income as derived from corporate dividends, obviously, it means income derived from corporate earnings which accrue to the stockholder solely because of his relation as such to the corporation. It has no design to so tax money paid to the" taxpayer as the purchase price of property. The form is not conclusive evidence that the payment really and essentially and solely was a corporate dividend. Doyle v. Mitchell Bros. Co., 247 U. S. 179, 183, et seq., 38 S. Ct. 467, 62 L. Ed. 1054. Even the evidentiary force of form is weakened where, as here, the transaction includes elements unusual or opposed to a transaction which the form would ordinarily or necessarily represent.

Under the evidence (fairly represented by the findings) the Board might have concluded either that there was a gift to the corporation and a real dividend or that there was a sale, and a purchase payment which took the form of a dividend. Either view would have been substantially supported by the evidence and, therefore, not dis- * turbed here. The Board found there was a sale. It finds that “it was finally agreed that the corporation would pay and he would take $150,000.00 for the property. The petitioner then executed and delivered the deed to the property which was recorded October 13, 1920. No payment was made to the petitioner on account of the transfer of the property in 1920.” The findings following the quotation just made- leave no doubt of the view of the Board that this “dividend” for $150,000 declared January 15, 1921, was really in payment of this purchase price. In this connection there is a significant statement in the opinion of the Board on the findings as follows: “We are convinced from all the evidence that the petitioner intended that the corporation should pay $150,000 for the property. We also believe that the petitioner was satisfied with the action as taken by the corporation in declaring and paying the dividend.” We think the findings must be construed as being that the property was sold to the corporation, and that payment therefor was through the medium of this “dividend.” Further, it may be said that, once given the finding that this transaction was a sale, there is no support in the evidence for any view as to the dividend, except that it was in payment therefor.

Upon such findings, the Board could not properly affirm the action of the Commissioner that this payment to petitioner was taxable as a dividend. The payment was, except in bare form, no dividend, but it was really a payment for property purchased at what the evidence shows was less than its real value.

It follows that the decision of the Board of Tax Appeals should be and is reversed and set aside, and the case remanded, with instructions to determine the tax in controversy in accordance with the view herein expressed.


author: VAN VALKENBURGH, Circuit Judge.

text:
    MANN et al. v. UNITED STATES.
    No. 8913.
    Circuit Court of Appeals, Eighth Circuit.
    April 13, 1931.

      Turner W. Bell, of Leavenworth, Kan. (Stephens Owen, of St. Joseph, Mo., on the brief), for appellants.
    Chet A. Keyes, Asst. U. S. Atty., of Kansas City, Mo. (William L. Vandeventer, U. 5. Atty., of Kansas City, Mo., on the brief), for the United States.
    Before KENYON and YAN YALKENBURG-H, Circuit Judges, and DAYIS, District Judge.
   VAN VALKENBURGH, Circuit Judge.

The defendants were convicted for conspiracy to violate the National Prohibition Act (27 USCA) and various revenue laws of the United States. . The manner in which said conspiracy was to be effected, and the overt acts committed in furtherance thereof, are.stated and set out with sufficient dearness and detail. Conviction resulted. The brief of appellants is a confused and incoherent jumble of argument and citation, constructed in absolute defiance of, or indifference to, the explicit rules of this court. Because of this, the conception of counsel for appellants respecting the errors assigned upon which they place reliance is elusive and difficult to discover. Eor this default appellants’ appeal is subject to dismissal under rule 24; and it may be well to admonish the Bar of this court that such drastic action will be taken if counsel persist in ignoring the substantial provisions of that rule. However, in the instant case, we have preferred to search the record to ascertain whether any possible miscarriage of -justice has resulted.

The assignments of error, fourteen in number, reduced to their ultimate intendment, are:

1. That the indictment is indefinite as to place and venue; that for this reason it charges no offense; that the District Court was without jurisdiction, and a demurrer should have been sustained.
2. That the evidence was insufficient, was inconsistent with guilt, and that a demurrer should have been sustained.
3. Error in the admission of evidence including leading questions by counsel for the government.
4. Errors in the instructions of the court.
5. Error in overruling the motion for new trial.

Taking up these specifications in their order we find:

1. The indictment charges that the offense was committed in the St. Joseph Division of the Western District of Missouri, upon an island in the Missouri river twelve miles southwest of St. Joseph, Buchanan eounty, Mo. This satisfies the requirements of venue and jurisdiction. If appellants desired further information for any purpose, their remedy was apparent. Neither demurrer of any kind nor application for bill of particulars is found in the record. This specification is without merit.
2. With respect to the point urged under this number, it is sufficient to say that substantial evidence in support of the verdicts and judgments is abundant and ample.
3. This assignment is not sustained by any portion of the record brought to the attention of the court. Rule 11 of this court provides that “when the error alleged is to the admission or to the rejection of evidence, the assignment of errors shall quote the full substance of the evidence admitted or rejected.” Rule 24 provides that the. brief “shall quote such evidence with the rulings thereon, giving pages of the printed record where it occurs.” No attempt was made to satisfy the requirements of either rule.
4. No authorized charge of the court appears in the record. Counsel for appellants tender what is thus described: “Court’s charge to the jury as furnished by the reporter, but which is not approved.”

It was stated in oral argument that this copy of the charge, furnished by the reporter, is so full of errors, either in taking or transcription, that the court refused to approve it. A casual inspection is sufficient to support this statement. However, this assignment of error may be dismissed, in view of the following colloquy at the close of the charge: >■

“The Court: Do the defendants desire any further instructions or to except to those given?
“Mr. Owen (for defendants): No further instructions and no exceptions.”

This leaves nothing to be reviewed under this specification.

5. It should be unnecessary to repeat that no error can be predicated upon the refusal of the court, in the exercise of discretion, to sustain and grant a motion for new trial.

No reversible error appearing, the judgment below is affirmed.