author: LEWIS; Circuit Judge.

text:
    F. W. WOOLWORTH CO. v. FEDERAL INV. CO.

    (Circuit Court of Appeals, Eighth Circuit.
    April 30, 1925.)
    No. 6706.
    I. Landlord and tenant @=>158 — Jury’s findings that plans and specifications for building submitted by tenant were final held binding in view of evidence.
    Jury’s findings that plans and specifications submitted by tenant and used by landlord in constructing building for tenant were final plans and specifications, within meaning' of lease contract, heldi conclusive, in view of evidence, in landlord’s action to recover of tenant cost of changes subsequently made.

      2. Landlord and.tenant <§=>158 — Landlord cannot ordinarily recover of tenant cost of improvements made during term.
    Ordinarily landlord cannot recover of tenant cost of improvements made during term, unless latter expressly agrees to pay therefor.
    3. Landlord and tenant <@=>158— Implied, constructive, or quasi contract on part of tenant to pay for changes in building being constructed for it held' sufficiently shown to go to jury; “implied contract.”
    Landlord, suing tenant to recover cost of changes made in building being constructed for tenant, after tenant had submitted final plans and specifications, held to have made question for jury, as to an implied,'constructive, or quasi contract on part of defendant to pay for such improvements; “implied contract” being ordinarily inclusive of both quasi or constructive contracts.
    [Ed. Note. — For other Hefinitions, see Words and Phrases, First and Second Series, Implied Contract.]
    4. Appeal and error <§=>1050(1) — Error in admission of testimony, if not waived by adverse party’s submission of like testimony, held not prejudicial.
    In landlord’s action to recover of tenant cost of changes in building being constructed for it, error in permitting witness for plaintiff to testify that he had assumed tenant would pay for changes, if it wanted them made, if not waived by defendant’s introduction of similar evidence to effect that it had expected building would be constructed according to specifications, and had not intended to pay for such improvements, held not prejudicial.
    In Error to the District Court of the United States for the District of Minnesota; William A. Cant, Judge.
    Action by the Federal Investment Company against the F. W. Woolworth Company. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    F. H. Stinchfield, of Minneapolis, Minn. (Jamison, Stinehfield & Mackall, of Minneapolis, Minn., on the brief), for plaintiff in error.
    Charles Burke Elliott, of Minneapolis, Minn. (Elliott, Doll & Coursolle, of Minneapolis, Minn., on the brief), for defendant in error.
    Before SANBORN and LEWIS, Circuit Judges, and POLLOCK, District Judge.

      Rehearing denied July 31, 1925.

   LEWIS; Circuit Judge.

In the main this action presents the issue as to which of the parties was liable to pay the cost of changes made in a building which the Federal Investment Company, plaintiff below, constructed for occupancy by the F. W. Woolworth Company as its tenant. The other claims made by the Investment Company, based on delay in completing the building because of the time taken to make the changes, will be pointed out later.

The Investment Co. held an option for a 99-year lease on premises fronting 46 feet on Nicollet Avenue, Minneapolis, on which there was an old building. Negotiations were carried on in the early part of 1921 between Mr. White, representing the Investment Co., and Mr. Miekler, representing the Woolworth Co., which resulted in a contract between the two companies, by the terms of which Investment Co. agreed to construct and did construct a new building on the premises to be occupied by the Woolworth Co., for a term of 25 years and 6 months at an agreed rental, the lease term to end, however, on May 1, 1947. The contract was in the form of a letter bearing date June 15, 1921, addressed by Woolworth Co. to Investment Co., to which was attached the proposed lease agreement. Both the letter and lease were prepared by the Investment Co. In this letter the Woolworth Co. said:

“ * * * "W"e hereby agree that if you wifi have constructed upon said premises, in the place of the present building, a two story and basement fireproof store building (substantially as per preliminary sketches heretofore submitted, and for which building we will submit complete working drawings and specifications), we will enter into a lease, effective from the date said building is completed, said lease to be according to the terms and conditions of the form hereto attached, and made a part hereof, the rental from the date of possession to be at the rate of $25,-000.00 per annum.
“The work of wrecking the present building (and the construction of the new building to begin on August 1, 1921, or as soon thereafter as it can be reasonably done, and to be completed and ready for occupancy on November 1, 1921, or as soon thereafter as the conditions then and there existing shall warrant, it being the intent that you shall use all due diligence in completing said building as rapidly as possible. >
“We agree to furnish you with completed working drawings and specifications from time to time as may be necessary in order not to delay the construction work of said building, and sufficient detailed drawings and spe’eifieations on or before June 25, 1921, so that you can get accurate figures on the cost of said new building.”

The Investment Co. put its acceptance of the proposal on the letter thus:

“F. W. Woolworth Company, Minneapolis, Minnesota. '
“We hereby accept the above proposition, subject to the completed plans for the building being satisfactory to us as to construction and costs.”

Woolworth Co.’s agent at Minneapolis sent this letter, with the lease attached, to Woolworth Co.’s New York office, where the letter was signed and the lease executed by the Woolworth Co., and it returned them to its Minneapolis agent. At the same time (June 27) it sent its Minneapolis agent this telegram, copy of which was delivered to Investment Co. on June 28th:

“Lease Nicollet Avenue and letter June fifteenth to Federal Investment Company signed and posted today but plans and specifications not approved as we have decided not to let off any office space and instead have salesroom on second floor and stock room in basement this revised scheme will work out more satisfactorily also will decrease cost of -construction posting letter today showing revised requirements so you can start detail plans and specifications.”

Before Investment Co. formulated the letter and proposed lease Woolworth Co. had its architect at Minneapolis prepare preliminary plans, mentioned in the letter of June 15th, for the building it desired, and submitted them to Investment Co. so that it could get an approximate estimate of what the building would cost. The estimates obtained were about $50,000.00. Then the letter and lease were delivered to Woolworth Co.’s agent. When Woolworth Co. signed the letter and lease at its New York office it had there a copy of the preliminary plans on which the Investment Co. had gotten the approximate cost of the new building. On receipt by Investment Co. of a copy of the telegram, quoted above, from the Woolworth Co.’s representative at Minneapolis, the Investment Co. took up its option on the premises, notified tenants in the old building to vacate and let a contract for the wrecking and removal of that building. Mr. Weaver, Woolworth Co.’s architect at Minneapolis, complying with directions in the telegram, began preparation of detailed plans and specifications for the new building, completed them, blue-printed nine sets of them and gave seven of those sets to Mr. White, president of Investment Co., about the last of July or first of August. On August 3d Mr. White wrote to six or seven contractors in the city to call at his office and get the plans and specifications for the new building, if •they eared to bid on the work, and said that aE bids must be in on August 17th. Mr. Hegg’s bid was accepted, and on August 22d he entered into a contract with the Investment Co. to construct the buüding, in accordance with those plans and specifications, for $50,850.00. After the plans and specifications “Were delivered to Investment Co., on which it took bids, changes were made in those plans and specifications by Mr. Weaver, at the request of Woolworth Co.’s New York office. Those changes were handed to Investment Co. and were made in the building, it paid the extra cost therefor, and it was to recover that cost that the Investment Co. sued in its first cause of action. The rental was to begin when the building was completed and Woolworth Co. took possession, and the second cause of action was for loss of rent, $1,716.67, during delay in completing the budding, because of the extra time taken in making the changes. Under the lease, in addition to $25,000.00 annual rental, which was to be paid in equal monthly in-staEments, Woolworth Co. also agreed to pay Investment Co. a fixed sum of $5,000.00 per annum in lieu of additional rent and taxes which might be assessed against the property during the term. The third cause of action was for recovery of a proportionate part, $424.66, of this sum during delay in making the changes. The budding was not complete for occupancy untd in February, 1922. Investment Co. paid the contractor $7,456.32 for making the changes, demanded payment of that and the other amounts sued for from Woolworth Co., which was refused, and thereupon brought this suit and recovered a verdict and judgment of $5,285.73 on October 24, 1923.

Before answering, however, defendant challenged the sufficiency of the complaint by demurrer; and the District Judge, in overruling the demurrer, said:

“The complaint is evidently framed upon the theory of an implied contract. It conforms to the requirements of such a pleading under the Minnesota practice. Lufkin v. Harvey, 125 Minn. 458, 147 N. W. 444, and cases therein cited. Whether there was in fact such a contract between the parties, must depend upon all of the facts and circumstances which may be disclosed by the evidence. Lombard v. Rahilly, 127 Minn. 449, 149 N. W. 950.”

The changes in the plans appear to have been ordered in two communications from the New York office to Mr. Weaver, one of date July 30th and the other August 25th. They were made on the plans and specifications by Mr. Weaver, returned to New York and finally approved there late in September. Mr. Weaver testified that the plans and specifications -which he gave Mr. White the last of July or first of August were complete in all respects, that a contractor could complete the building from those plans and speq-ifieatións, and that the changes wel'e all made after he gave them to Mr. White, and some of them after the contract was made with Hegg. Mr. White admitted that he knew that whatever was done by the agents of Woolworth Co. at Minneapolis was subject to approval or disapproval by the New York office, but his position in behalf of Investment Co. was that in view of the terms of the contract, the statements in the telegram, supra, from Woolworth Co., the delivery to him of complete plans and specifications for the new building, on which to take bids for its construction, and the acceptance of Hogg’s bid, the status and relation of the parties to each other thereupon became fixed; that the Investment Co. bound itself in a contract with Hegg for the construction of the building for a named sum in accordance with the plans delivered to it; that the changes made were not further details in explanation of the plans that had already been sub-. mitted, but they were physical changes in the building itself, and that those changes added nothing to the value of the property but were made to suit the pleasure and convenience of Woolworth Co. He testified that they were all called to his attention by Mr. Weaver after the contract was made with Hegg; and that he had no recollection of any of these changes being called to his attention until after September 20th, which was the date stamped on the changed plans as the approval date by the New York office. Hegg testified that the first he knew of the changes to be made was on August 29th, when Mr. White wrote him on that date about some of them. The letter from White was introduced in evidence. Hegg said he procured the building inspector’s approval of the plans on October 4th, which then embodied most of the changes but not all of them. The plans and specifications had been revised up to that time, showing about 60 per cent of the changes. Other changes were made later. Mr. Weaver testified that the changes made, and here sued for, were embodied in two letters from the New York office, one of July 30th and the other of August 25th, and that both letters were shown to Mr. White shortly after they were received, and that work on construction of the new building had not then started. He made the changes by rewriting the specifications covering the subjects. In his opinion some of the changes cut down the expense and some added to the expense of construction, and there was in his judgment about an even balance between them. When he gave the seven copies of the plans and specifications to White he knew White got them for the purpose of getting bids on them, but he did not know that White was going to close a contract. They were complete sets of drawings and specifications for a complete building. After Weaver made the changes on the plans he gave to White corrected sheets showing the changes, and White directed Hegg to make them in the building. At no time while the building was under construction, nor until White demanded from Woolworth Co. payment for the changes in February, 1922, was anything said as to which party would pay for the changes, or be liable therefor. The changes were requested and made in the manner stated, without more. The evidence was in conflict as to whether the changes added to the permanent or sale value of the building. Plaintiff’s evidence was to the effect that the building was planned to suit defendant’s special needs, and it was not conveniently adaptable to other uses, that its useful life would not be but little, if • any more, than the lease term, and that the changes did not add to the property interests of the lessor; that of defendant was contra. Thus there was controversy between the parties, right determination of which rested in large part on parol, as to whether the plans and specifications, on which bids were taken and construction contract let, should be regarded as the final plans and specifications; and if they were it became a question of law whether the defendant was liable to plaintiff for the amount expended in making the changes at defendant’s request. It is admitted that working drawings are but amplifications of the plans and specifications, to be gotten out as construction progresses for a better and certain understanding by those who have the work in hand.

It will be observed that the contract (letter June 15th) provided that the building should be constructed “substantially as per preliminary sketches heretofore submitted,” that complete detailed plans and specifications would be furnished by the defendant at. an early date thereafter and that the plaintiff should “use all due diligence in completing .said building as rapidly as possible.” The preliminary sketches were sufficient, as. it turned out, to closely approximate the qost of the building, as shown by Hegg’s bid and contract, based on the complete set of plans. and specifications furnished to "White hy Weaver late in July or early in August. The preliminary sketches were at the New York office when the contract and lease were signed there on June 27th. The only changes that were suggested by the New York office at that time appear in its'telegram of that date quoted above, it said a letter was posted that day “showing revised requirements,” and that telegram closed with a direction to the Minneapolis office to start detailed plans and specifications. Mr. Weaver complied with that direction and prepared the detailed plans and specifications whieh he delivered to White late in July or the first of August. There was nothing in the contract or the telegram that suggested a right or claim on the part of Woolworth Co. to make changes in final plans and specifications. That would be not only an unreasonable attitude, but also in opposition to the intention and understanding of the parties as disclosed in the contract. The approximate cost of the building had been ascertained before the contract was executed, on the preliminary plans furnished by Woolworth Co., and the amount of rent was doubtless fixed on that basis. Those preliminary plans are not in the record, and barring the changes shown in the telegram, supra, it may be fairly inferred from the proof that they exhibited a building substantially as shown by the detail plans and specifications on which final bids were taken. The purpose of the Investment Co. to protect itself against changes from the kind of building shown in the preliminary plans that would substantially increase the cost of the building, is clearly disclosed by its acceptance of the letter of June 15th. And the Investment Co. withheld taking the first step in performance of its obligations under the contract until it had a copy of the telegram whieh showed changes that would be required by Woolworth Co. from the preliminary plans. That telegram also directed that detail plans and specifications be prepared by Woolworth Co.’s architect. It was reasonable to conclude therefrom that the detail plans and specifications were to be an embodiment of the preliminary plans plus the changes required in the telegram, and as thus prepared they would be the final plans and specifications. The claim, made by plaintiff in error, rests on the contention that the plans and specifications on whieh bids were taken were not the final plans and specifications because White knew that changes were being made in them, and also knew that nothing that the Minneapolis office did could be final until expressly approved by the New York office. But the facts on whieh the claim rests were in dispute, as has been seen; and the court submitted to the jury for determination whether, under the disputed facts, the plans furnished to White were the final plans. Treating them as the second set of plans and specifications because of the preliminary sketches that were furnished prior to June 15 th, the court on that question instructed the jury: “If the second set of plans and specifier tions whieh were delivered to Mr. White on or about July 27, 1921, were never definite1ly agreed upon as the plans and specifications to which the contract and lease between the parties should apply and if it was understood that they were tentative only and subject to changes, whieh should be satisfactory to plaintiff, and if the subsequent changes of those plans and specifications were made pursuant to that agreement, without objection from plaintiff, and if pursuant thereto Mr. White made charges in the building to conform thereto, then no recovery can be had. * * * If the plans and specifications delivered to Mr. White on or about July 27, 1921, then and thereby were or at that time became the accepted plans and specifications to which the contract applied and if the only remaining right on the part of the defendant in reference thereto was to reproduce certain matters of detail on a larger scale and thereby to furnish and provide more satisfactory drawings for the use of those engaged in the work of construction upon said building; if thereafter at- the request of the defendant said plans and specifications were changed in substantial particulars and if as a necessary result thereof the cost of the building to plaintiff was substantially increased, then plaintiff is entitled to recover, because if they once agreed upon the plans whieh were to be the measure of plaintiff’s duties, so far as construction was concerned — if the time came when all parties knew and understood that the building to be erected was to be a building in accordance with certain plans and specifications therefor, then those plans became the measure of their respective rights. Plaintiff knew that it was obliged to construct the building in accordance with ‘those plans and specifications. Defendant knew it was bound to accept such a building. If then thereafter and as the result of afterthought, the defendant suggests changes from those plans — changes of a substantial character and which would substantially increase the cost of construction, it was then bound to pay for the changes so made, and if that shall be your conclusion, your verdict will be for the plaintiff.”

The jury was further instructed, if it found for plaintiff on the first count, to deduct from the cost of the changes any increased value to the building at the end of the lease because of these changes. There was no request for separate verdict on each count, and no objection to the verdict rendered as on all counts. The verdict was in effect a finding that the plans and specifications on whieh bids were taken were the final plans and specifications within the purpose and meaning of the contract, considering the conduct of the parties toward each other under the situation surrounding them. That was an issue of fact, and its determination by the jury must be accepted under the circumstances of the ease; there were no exceptions to the court’s instructions on that subject or at all, further than it was and is contended that the court erred in overruling a demurrer to the complaint, in submitting the ease to the jury, and in.refusing to instruct a verdict for defendant. The argument here is that the facts, taken in the most favorable light for plaintiff, did not make a ease, either as pleaded or proven, that there was neither a quasi-contract nor an implied contract in fact by which defendant was bound to pay the cost of the changes, and hence there was no legal liability.

It is, of course, a sound principle that ordinarily a landlord cannot hold his tenant for the cost of improvements which the former may make during the term, unless the latter expressly agrees to pay for them. The reason for the rule is plain, and it is just; improvements become incorporated in the premises and redound to the landlord’s benefit. But here the parties were in disagreement whether the changes were of any benefit to the landlord, and whether they were not wholly or in part for the sole use and benefit of the tenant. On that issue of fact the verdict was for the plaintiff, and we are not convinced that it is without support under the pleadings and proof. In 13 C. J. 240, 241, 244, this will be found: “The term 'implied contract,’ however, as it is ordinarily employed, is broad enough to include both contracts implied in fact and quasi or constructive contracts.” In the former “an agreement in fact, creating an obligation, is implied or presumed from” the acts of the parties. “Contracts implied in law, or more properly quasi or constructive contracts are a class of obligations whieh are imposed or created by law' without regard to the assent of the party bound, on the ground that they are dictated by reason and justice, and which are allowed to be- enforced by an action ex contractu. They rest solely on legal fiction, and are not contract obligations at all in the true sense, for there is no agreement; but they are clothed with the semblance of contract for the purpose of the remedy, and the obligation arises not from 'consent, as in the ease of true contracts, but from the law or natural equity.” We think the plaintiff made a ease for the jury within the principle last stated.

One other alleged error is relied upon as ground for reversal. Over objection, Mr. White was permitted to testify that he assumed that Woolworth Co. would pay for the changes if they wanted them made. When the court overruled objection to this testimony it was announced that a like privilege would be granted to the defendant’s representatives in the transaction, and Mr. Micklér, as a witness in behalf of defendant, testified that he never had any expectation of paying for any of the changes whieh were made; and he gave as his reasons therefor that they Were to pay $25,000.00 rent, $5,-000.00 for taxes, and the building was to be built according to Woolworth Co.’s plans and specifications; that Mi-. - White did not discuss with him anything during the period of the building of the property until after it was built, and then handed in his bill. Testimony of the intention of the parties is immaterial in an action on a quasi or constructive contract; defendant having availed itself of the alleged erroneous ruling to introduce like testimony in its own behalf ought not to be permitted now to challenge the ruling made against it; but, conceding the action of the court to have been error not waived by the later conduct of defendant, still we'are clearly of opinion on a consideration of the whole ease that it was not prejudicial to the defendant and that the judgment ought not to be reversed on that ground.

Affirmed.


source: Caselaw Access Project

author: KENYON, Circuit Judge. STONE, Circuit Judge

license: Public Domain

text:
    INVESTORS’ GUARANTY CORPORATION v. LUIKART et al.
    (Circuit Court of Appeals, Eighth Circuit.
    April 14, 1925.)
    No. 6747.
    1. Equity <§=>346 — Burden on plaintiff to show that he has no plain, speedy, and adequate remedy at law.
    Under Judicial Code, § 267 (Comp. St. § 1244), burden is on plaintiff, seeking to prosecute suit in equity, to show that he has no plain, speedy, and adequate remedy at law.
    2. Action <§=>30 — Distinction between legal and equitable actions is preserved in federal court.
    Distinction between legal and equitable actions is preserved in federal courts by virtue of Const. Amend. 7, giving right of jury trial in certain cases.
    3. Equity <§=>46 — Lega! remedy must be as certain, prompt, and efficient as that afforded by equity, to preclude suit in equity.
    .Under Judicial Code, § 267 (Comp. St. § 1244), remedy at law must be as prompt, certain, and efficient to attain ends of justice as that afforded by equity, to preclude suit in equity.
    4. Account <§=>14 — Where subject-matte'r cannot be fu.lly investigated at law, court of equity has discretion to decree accounting.
    Whenever subject-matter of suit at law cannot be fully investigated, a court of equity has discretion to decree an accounting, which is usually based on a need for discovery, complicated character of accounts, or existence of fiduciary or trust relationship.
    6. Account <§=>14 — Equity held without jurisdiction of suit by guaranty company against former manager and purchaser of bank, on ground that accounting was necessary.
    Where guaranty company, suing a former district manager and another, who had purchased bank from it, alleged that one defendant, while its district manager and president of bank involved, colluded with his codefendant purchaser of bank, exchanging good notes of company for worthless notes of bank, placing company’s indorsement guaranteeing payment on other notes held by bank, and that 24 suits had been instituted against plaintiff on such contracts of guaranty, 17 of which had gone to judgments against plaintiff, which were being enforced, and prayed an accounting, held, equity was without jurisdiction to grant accounting; transactions being separate and distinct, and not conflicting, there being no need for discovery, or any existence of fiduciary or trust relationship.
    6. Account <§=>14 — Assumption of jurisdiction .for purpose of avoiding multiplicity of suits held unwarranted.
    Where guaranty company, suing former district manager and another, who had purchased bank from it, alleged that its former manager, while also president of bank involved, colluded with his codefendant, intended purchaser of bank, exchanging good notes with plaintiff company for worthless notes of bank, placing company’s indorsement guaranteeing payment on other notes held by bank, and that 24 suits had been instituted against plaintiff on such contracts of guaranty, 17 of which had already gone to judgments against plaintiff, and prayed an accounting, held,, equity was unwarranted in assuming jurisdiction for purpose of avoiding multiplicity of suits, in view of Comp. St. Wyo. 1929, §| 5606, 5713, under which still pending suits against plaintiff could have been consolidated and tried as one as in equity.
    7. Equity <§=>43 — Assumption of jurisdiction on ground of fraud alleged is unwarranted, where money recovery only is sought.
    Fraud is insufficient ground for equity jurisdiction, where money recovery only is sought, or where fraud could be pleaded as complete defense at law.
    8. Equity <§=>46 — Equity’s assumption of jurisdiction of actions on ground of fraud held unwarranted.
    Where guaranty company, suing a former district manager and another, who had purchased bank from it, alleged that its former manager, while also president of bank involved, colluded with his codefendant, intended purchaser of bank, exchanging good notes of company for worthless notes of bank, placing company’s indorsement guaranteeing payment on other notes held by bank, and that numerous suits against plaintiff were being prosecuted on such contracts of guaranty, held, equity’s assumption of jurisdiction on ground of fraud was unwarranted, since plaintiff, by tendering back what it had received under contract of sale of bank, could have sued for cancellation thereof, or could have sued for damages by reason of fraud alleged.
    9. Quieting title <§=>28 — In federal court, there is no jurisdiction of bills quia timet, unless necessary to remove obstacles to- action in ejectment, or to avoid multiplicity of suits.
    In federal court, there is no jurisdiction of bills quia timet, unless their aid is required to remove obstacles that prevent a successful resort to an action in ejectment, or when: invoked td prevent multiplicity of suits on other equitable grounds of relief, nor can bills quia timet, or to remove cloud from legal title, be maintained by one not in possession.
    10. Quieting title <§=>28 — Assumption of equitable jurisdiction held unwarranted, on theory that suit was one to quiet title.
    Where guaranty company, suing former district manager and another, who had purchased bank from it, alleged that its former manager, while also president of bank involved, had colluded with intended purchaser, exchanging good notes of company for worthless notes of bank, placing company’s indorsement guaranteeing payment on other notes held by bank, and that 17 judgments on suits on such contracts of guaranty had been obtained against plaintiff, and were being enforced by execution on plaintiff’s land, and prayed accounting, and that bank be decreed to have no interest or claim in real estate involved, held* assumption of equity jurisdiction, on ground that suit was one to quiet title, was unwarranted, particularly in absence of any allegation that either plaintiff or defendants were in possession of the lands, or that they were unoccupied in view of Comp. St. Wyo. 1920, § 5989.
    11. Equity <8=43 — Damages sought held recoverable, if at all, in action at law.
    Damages sought by guaranty company from former district manager and purchaser of bank for fraud practiced helch recoverable, if at all, in action at law.
    12. Courts <§=3511/2 — Dismissal of suit for want of equitable jurisdiction held warranted.
    Under Judicial Code, §§ 274a, 274b (Comp. St. §§ 1251a, 1251b), where plaintiff, after ruling that suit was- not within equity jurisdiction, stood on bill and waived right to amend and transfer to law side of court, helch, dismissal was warranted, notwithstanding equity rule 22, directing transfer rather than dismissal.
    Appeal from the District Court of the United States for the District of Wyoming; T. Blake Kennedy, Judge.
    Suit by the Investors’ Guaranty Corporation against Edwin H. Luikart and others. From a decree of dismissal, plaintiff appeals.
    Affirmed.
    W. C. Mentzer, of Cheyenne, Wyo., and H. C. Brome and Thomas M. Hyde, both of Basin, Wyo.,-for appellant.
    A. C. Allen and O. N. Gibson, both of Riv-erton, Wyo., for appellees.
    Before STONE and KENYON, Circuit Judges, and SCOTT, District Judge.
   KENYON, Circuit Judge.

This appeal is from the order of the United States District Court for the District of Wyoming, dismiss^ ing a certain amended bill of complaint brought by the Investors’ Guaranty Corpora^ tion against Edwin H. Luikart, Osear W. Nicholson, and the Farmers’ State Bank of Riverton, Wyo. The bill is voluminous and involved. It was stipulated between the parties that the case should be set down for hearing and determination upon the point of law raised by the first defense set up in the amended answer, which is that the amended bill of complaint fails to state facts sufficient to constitute a valid cause of action in equity. A hearing was had upon this question, and the court held that the bill of complaint failed to state facts sufficient to entitle plaintiff - to the relief sought in equity, and disclosed that plaintiff had an adequate remedy' at law. The question here is therefore reduced to narrow limits, but requires a review of the amended bill.

Appellant is a corporation of the state of Utah, and will be herein designated as plaintiff. Defendant Farmers’ State Bank of Riverton is a banking corporation, organized under the laws of the state of Wyoming, and will be herein designated as defendant bank. The other defendants, Edwin H. Lui-kart and Osear W. Nicholson, are citizens of Wyoming, and will be termed defendants. Briefly the allegations of the amended bill are:

That plaintiff was a corporation dealing in real estate mortgages, stocks, bonds, etc., and during the latter part of the year 1917 or the early part of 1918 acquired the stock of defendant bank, and became the owner of it; that it was the owner of about 4,000 acres of agricultural land in the vicinity of Riverton; that during the period of time in which the transaction complained of took place Luikart was the managing officer of both corporations, being Western manager of plaintiff and president of defendant bank. The bill claims that he did' not faithfully serve both masters, but that with defendant Nicholson he conspired in January, 1921, to fraudulently purchase the defendant bank; that he managed the matter as far as plaintiff was concerned; that he advised the directors and stockholders to make the sale, and that through his advice and manipulation the defendant bank was sold .to Nicholson, he to pay plaintiff $5,000 in cash, and to deliver to it 50 shares of its common and 200 shares of its preferred stock; that he was also ,to assume stockholders’ liabilities and the rediscounts of the bank; that plaintiff on its part guaranteed certain bills receivable of the bank, amounting to about $93,000, all of which was set forth in a schedule attached to the complaint; that, at the time when plaintiff owned the capital stock of the bank, defendant Luikart exchanged a note of approximately $17,000, belonging to the defendant bank, for notes of an equal amount belonging to plaintiff; that the note belonging to the defendant bank was worth only $4,000, while the notes belonging to plaintiff, for which it was exchanged, were worth their face value. Other transactions in the exchange of notes were carried on by Luikart.

It is alleged that the other notes exchánged by the bank for the notes of plaintiff were worthless, while the notes secured in the exchange were worth their face value; that Luikart took from the treasri’y of appellant a certain hotel bond of the value of $3,000 and placed it among the assets of the bank; that he also placed on the notes set forth in Schedule B (being a large number) an in-dorsement of plaintiff guaranteeing payment, and it is claimed that, while he had express authority to make indorsements for rediscount purposes, he had no authority to make the same for any other purposes; that such indorsements were made without authority, or without consideration, or without the knowledge or consent of the officers or stockholders of plaintiff, other than Lui-kart and Nicholson, and that they were made in pursuance of the conspiracy to secure the bank; that in March, 1922, the defendant bank instituted in the district court of Fremont county, Wyo., 18 separate suits against plaintiff, aided by attachment, and levied on its real estate before referred to. All of these suits, excepting one, were founded upon the contracts of guaranty in question. Fifteen of them have been tried, and judgments obtained against plaintiff. Appeals were taken, but no supersedeas bond was given. Executions have been issued and the real estate of plaintiff sold upon execution.

The amended bill further alleges that the judgments in these suits aggregated approximately $55,000, and the prices paid at sheriff’s sale under execution were $53,395; that two of the suits originally instituted in the District Court were transferred to the United States District Court for the District of Wyoming, and judgment rendered against plaintiff. In one of these suits plaintiff admitted liability on the note, but by way of counterclaim asked to recover from the defendant banl$ the value of the securities alleged to have been wrongfully transferred to it. The court rendered judgment against plaintiff on this counterclaim. The amended bill further alleges that on October 10, 1923, defendant bank instituted another suit against plaintiff in the district court of Fremont county, Wyo., to recover the sum of $15,000 on account of other alleged contracts of guaranty indorsed upon notes of third parties held by the defendant bank; that since filing the original bill of complaint defendant bank has commenced 5 additional suits on notes, alleged to be guaranteed by plaintiff, seeking to recover approximately $17,500; that since June 9, 1921, Luikart and Nicholson have owned all the stock of the bank and have been in exclusive control of its affairs; that no record on the books of plaintiff was ever made of the contracts of guaranty; that the various suits are based upon contracts of guaranty made by Luikart purporting to act for the plaintiff, but that he was without authority so to do; and that it was all done to permit Luikart and Nicholson to defraud appellant.

The bill alleges that plaintiff has no plain, adequate, and speedy remedy at law; asks for an accounting to be had and a multiplicity of suits avoided; alleges that Luikart and Nicholson should be required to pay what may be found due from plaintiff to the bank; and the bill concludes: “Wherefore plaintiff prays that an accounting be had between said plaintiff and' said defendant bank and defendants Luikart and Nicholson; that the amount, if any, due and owing from this plaintiff to said bank be ascertained; that the defendants Edwin H. Luikart and Oscar W. Nicholson be required to pay said sums and all thereof; that the said defendants Edwin H. Luikart and Oscar W. Nicholson be further required to reimburse this plaintiff for all expenses or liabilities incurred in and about the defense of the several suits brought by said bank against said this plaintiff; that the defendant bank be decreed to have no interest in or claim upon the real estate hereinbefore described or the shares of stock of the Arapahoe Ranch Company hereinbe-fore described, but that said property and all thereof be decreed to be property of this plaintiff; and that plaintiff have such other and further relief as may be just and proper in the premises.”

We have endeavored to analyze this lengthy and involved amended bill, to discover the basis for the claimed equitable cognizance of the suit. Evidently there is an attempt to state several grounds for equitable relief, viz.: (a) An accounting; (b) the prevention of a multiplicity of suits; (c) fraud; (d) quieting title to real estate, or removal of cloud thereon. The burden was on plaintiff to show that it had no plain, speedy, and adequate remedy at law. The distinction between legal and equitable actions is preserved in the federal courts, necessarily so by virtue of the constitutional requirement of the Seventh Amendment giving the right of jury trial in certain eases.

Section 267 of the Judicial Code (Comp. St. § 1244) is as follows: “Suits in equity shall not be sustained in any court of the United States in any case where a plain, adequate, and complete remedy may be had at law.” This statute is merely declaratory of long-established principles of equity jurisprudence. 21 C. J. p. 41, § 16; Hipp et al. v. Babin et al., 19 How. 271, 15 L. Ed. 633; Alger v. Anderson et al. (C. C.) 92 F. 696.

Equity has no jurisdiction where “complainant has a full and adequate remedy at law for the wrongs complained of.” United States v. Bitter Root Development Co., 200 U. S. 451, 472, 26 S. Ct. 318, 50 L. Ed. 550. 21 C. J. p. 40, § 15, states the doctrine as follows: “But, even in this common field, it is in the sound discretion of the chancellor whether or not he will assume jurisdiction in a particular ease, and, as a rule, he will not do so if the remedy at law is plain, adequate, and complete, unless there are some features of the case which make it more appropriate for- a court of equity than a law court to handle. This is practically and peculiarly so in those cases where the only thing sought is a pecuniary recovery.” Buzard v. Houston, 119 U. S. 347, 7 S. Ct. 249, 30 L. Ed. 451; Scott v. Neely, 140 U. S. 106, 11 S. Ct. 712, 35 L. Ed. 358; Curriden v. Middleton, 232 U. S. 633, 34 S. Ct. 458, 58 L. Ed. 765; Security Savings & Loan Ass’n v. Buchanan et al., 66 F. 799, 14 C. C. A. 97.

This remedy at law must be as certain, prompt, and efficient to attain the ends of justice as that afforded by equity. Williams et al. v. Neely et al., 134 F. 1, 67 C. C. A. 171, 69 L. R. A. 232; McMullen Lumber Co. v. Strother et al., 136 F. 295, 69 C. C. A. 433; Monmouth Inv. Co. et al. v. Means, 151 F. 159, 80 C. C. A. 527; Wright v. Barnard et al. (D. C.) 233 F. 329; Risty et al. v. Chicago, R. I. & P. Ry. Co. (C. C. A.) 297 F. 710; McConihay v. Wright, 121 U. S. 201, 7 S. Ct. 940, 30 L. Ed. 932; Walla Walla v. Walla Walla Water Co., 172 U. S. 1, 19 S. Ct. 77, 43 L. Ed. 341; Boise Artesian Hot & Cold Water Co. v. Boise City, Idaho, 213 U. S. 276, 31 S. Ct. 720, 55 L. Ed. 611; Castle Creek Water Co. v. City of Aspen, 146 F. 8, 76 C. C. A. 516, 8 Ann. Cas. 660.

Does the bill show any peculiar circumstances or claims especially cognizable in equity upon which complainant was entitled to relief which could not be secured at law? We turn first to the claim for an accounting. Wherever at law the subject-matter cannot be fully investigated, a court of equity has discretion to decree an accounting. 1 C. J. p. 612, § 56. The general rule is “that a proper case is presented when the remedies at law are inadequate.”

Equity jurisdiction for an accounting is quite generally, based on one of three grounds, viz.: (1) Need of a discovery;’ (2) complicated character of accdunts; (3) existence of fiduciary or trust relationship. The rulé is clearly stated, 1 C. J. p. 633, § 98, as follows: “The bill or complaint must take a ease calling for the exercise of the peculiar powers of a court of equity; that is to say, it must show either that no legal remedy exists, or that the legal remedy is not complete, or is not as efficient and practicable as the remedy in equity, as that a discovery is necessary, or that the accounts are mutual or complicated, or that a fiduciary relation exists between the parties.” London Guarantee & Accident Co., Ltd., v. Bell Telephone Co. of Buffalo (C. C.) 171 F. 278; Butler Bros. Shoe Co. v. United States Rubber Co., 156 F. 1, 84 C. C. A. 167.

While the jurisdiction of equity as to accounting has been much enlarged, and is generally concurrent with courts of law, not every controversy as to accounting is cognizable in equity. The mere existence of an account or the claim for accounting does not of itself confer jurisdiction in equity to the exclusion of law. Each particular ease must be determined by the facts peculiar to it, having in mind the’ adequacy or inadequacy of the remedy at law.

No discovery is prayed in this complaint, and no facts alleged upon which discovery could properly be had. The statement of 1 Pomeroy’s Equity Jurisprudence (4th Ed.) § 229, enunciates the doctrine as to discovery as follows: “In the first place, the rule is settled in those American courts which admit the general doctrine that when the action is one cognizable at law, in wMch the rights and remedies are legal, and which does not otherwise belong to the equitable jurisdiction, but which the plaintiff brings in a court of equity under the doctrine that a discovery of itself enables equity to extend its concurrent jurisdiction over the whole cause, he must allege that the facts concerning which he seeks a disclosure are material to his cause of action, and that he has no means of proving those facts by the testimony of witnesses or by any other kind of evidence used in courts of law, that the only mode of establishing them is by compelling the defendant to make, disclosure, and therefore that a discovery by suit in equity is indispensable. Without these allegations the plaintiff cannot avail himself of the doctrine, and obtain relief as a consequence of the discovery. Nor are these allegations a mere empty form, a mere fiction of pleading; they may be controverted, must be supported by proof, and, if disproved, the whole foundation for the equitable interference in the ease would fail.” See, also, Galion Iron Works Co. et al. v. Ohio Corrugated Culvert Co. et al., 244 F. 427, 157 C. C. A. 53.

The court in its memorandum opinion said: “Neither does there appear by the bill of complaint a situation in which an accounting could be sought in equity. The accounts are not complicated, but, on the other hand, the alleged obligations are well-defined and distinct, and the accounts are all on one side.” No mutual, intricate, or complicated accounts are shown by this bill, such as are necessary to support an accounting in equity. Hunton et al. v. Equitable Life Assur. Soc. of the United States (C. C.) 45 F. 661; Pittsburgh, C. & St. L. R. Co. et al. v. Keokuk & H. Bridge Co., 68 F. 19, 15 C. C. A. 184; American Spirits Mfg. Co. v. Easton et al. (C. C.) 120 F. 440; Peters v. Equitable Life Assurance Society of the United States (C. C.) 149 F. 290; Morris & Co. v. Whitley et al. (C. C.) 182 F. 286; Carey v. McMillan (C. C. A.) 289 F. 380.

Any recovery by plaintiff against the bank is based on certain promissory notes— a purely legal demand. There is nothing intricate nor complicated about them. There is no allegation for an accounting for profits realized by Luikart and Nicholson from their alleged fraudulent transactions. The question of recovery on these notes is one to be determined at law, and already has been determined as to 17 of them. There is no fiduciary relationship alleged as between plaintiff and the bank, and no allegation as to the other defendants for an accounting between them, as trustees, and plaintiff. Eor the reasons we have stated, we conclude that equity jurisdiction could not be sustained on the theory that the suit was one for an accounting.

To avoid a multiplicity of suits is a common ground of equitable jurisdiction. It is based on the theory of protecting complainant against vexatious litigation. Here it is to be observed that 24 suits have been brought and 17 disposed of. Seveh are now pending, so that the multiplicity has been somewhat reduced. Speaking of this cause for equity jurisdiction in Hale v. Allinson, 188 U. S. 56, 77, 23 S. Ct. 244, 252, 47 L. Ed. 380, the Supreme Court said: “It is easy to say it rests upon the prevention of a multiplicity of suits, hut to say whether a particular case comes within the principle is sometimes a much more difficult task. Each ease, if not brought directly within the principle of some preceding case, must, as we think, be decided upon its own merits, and upon a survey of the real and substantial convenience of all parties, the adequacy of the legal remedy, the situations of the different parties, the points to be contested, and the result which would follow if jurisdiction should be assumed or denied.” Watson et al. v. Huntington et al., 215 F. 472, 131 C. C. A. 520; Galion Iron Works Co. et al. v. Ohio Corrugated Culvert Co. et al., 244 F. 427, 157 C. C. A. 53; Carey v. McMillan (C. C. A.) 289 F. 380.

It is reasonably apparent, and is urged with force, that these 7 suits now pending could be joined under the Wyoming statutes; hence that equity would be merely awarding the same relief as provided by law. It is a fundamental proposition that “equity will not take jurisdiction for the purpose of awarding substantially the same relief that may be obtained at law.” Pomeroy’s Eq. Jurisprudence (4th Ed.) § 251%.

Section 5606 of the Compiled Statutes of Wyoming provides for’uniting causes of action under certain circumstances, and section 5713 of said Compiled Statutes of 1920 is as follows: “When two or more actions are pending in the same court, the defendant may, on motion and notice to the adverse party, require him to show cause why the same shall not be consolidated; and if it appears that at the time the motion is made the actions could have been joined, and if the court, or a judge thereof, find that they ought to be joined, the several actions shall be consolidated.”

■ Under the facts of this ease, the question of a multiplicity of suits not being raised until 17 of them had been disposed of and judgments rendered against plaintiff, 7 only now remaining, and further, in view of the Wyoming statute relating to consolidation thereof, we do not think that the question of a multiplicity of suits is sufficient to give the court jurisdiction to entertain this bill as one in equity. Town of Mt. Zion et al. v. Gillman (C. C.) 14 F. 123.

As to the question of fraud, upon which plaintiff bases claim to equitable jurisdiction, it may be said that, if there is a plain, speedy and adequate remedy at law, there is no concurrent jurisdiction in equity, and the courts have quite generally held that where a money recovery only is sought, and the amount can be recovered in a law action, the ground of fraud will not be sufficient in itself to maintain a bill in equity, nor will it be where the fraud as a defense at law can be pleaded in complete relief. 21 C. J. p. 109; Buzard v. Houston, 119 U. S. 347, 352, 7 S. Ct. 249, 30 L. Ed. 451; Manchester Fire Assur. Co. v. Stockton Combined Harvester & Agricultural Works (C. C.) 38 F. 378.

The bill alleges fraudulent conduct of Lui-kart and Nicholson, by virtue of which they secured a transfer of the bank from plaintiff to them, and augmented its assets by the wrongful transfer of securities from plaintiff to the bank. Were these the facts, then plaintiff could have tendered back what it had received under, the contract and sued for cancellation thereof, or it could have sued for damages sustained by reason of the fraud. As far as the complaint shows, there has been no attempt to cancel and rescind the contract transferring the bank from plaintiff to Nicholson.

One other ground remains for consideration, viz. the question of whether equitable jurisdiction can be sustained on the theory that this is an action to quiet title. The bill of complaint is most indefinite in that .there is no allegation that either plaintiff or defendants are in possession of, or that the premises are unoccupied. 5 Ruling Case Law, p. 642, § 10, says as to this: “It is the familiar doctrine of the federal courts that there is no jurisdiction of bills quia timet, unless their aid is required to remove obstacles that prevent a successful report to an action of ejectment, or when, after repeated actions at law, their jurisdiction is invoked to prevent a multiplicity of suits, or there are other specific equitable grounds of relief; that bills quia timet or to remove a cloud from a legal title cannot be maintained in such courts by one not in possession, because the law gives a remedy by ejectment, which is plain, adequate, and complete.” United States Min. Co. v. Lawson et al. (C. C.) 115 F. 1005; Whitehead v. Shattuck, 138 U. S. 146, 11 S. Ct. 276, 34 L. Ed. 873.

The bill alleges that judgments have been obtained against plaintiff in the state court and executions issued and the land of plaintiff sold. There was no supersedeas in said eases, although appeals were taken. The Wyoming statute on this subject is as follows:

“Sec. 5989. Reversal Not to Affect Sale.— Restitution. If a judgment, in satisfaction of which lands or tenements are sold, be thereafter reversed, such reversal shall not defeat or affect the title of the purchaser; but in such ease restitution shall be made by the judgment creditor of the money for which such lands or tenements were sold, with lawful interest from the day of sale.”

Therefore if the appeals result in a reversal of the judgments the title of the purchasers at execution sale will not be affected under the Wyoming law. Under the allegations of the bill and the applicable law of Wyoming, the contention as a basis of equitable jurisdiction that the bill seeks to quiet title is not sufficient.

The question of estoppel is raised by ap-pellees. As it is not involved in the question of the sufficiency of the complaint, wé do not discuss it.

We agree with the trial court that the amended bill fails to state facts sufficient to entitle plaintiff to the relief sought in 'equity, and discloses that plaintiff has an adequate remedy at law. While it is urged that equity has jurisdiction of this cause as an action for an accounting, or to prevent a multiplicity of suits, or on account of fraud, or to quiet title, the fact is that this case (whatever it may be called) is based on the alleged fraudulent acts of defendant Luikart in. conjunction with defendant Nicholson with relation to the transfer of securities from plaintiff to defendant bank, which acts plaintiff asserts have caused it damage, and for which damage it is seeking to recover. Such damages, however, are recoverable, if at all, in an action at law. United States v. Bitter Root Development Co., 200 U. S. 451, 26 S. Ct. 318, 50 L. Ed. 550; Curriden v. Middleton, 232 U. S. 633, 34 S. Ct. 458, 58 L. Ed. 765.

Plaintiff suggests in its brief that the order dismissing the bill was erroneous in any event; that under equity rule 22 a suit in equity that should have been brought at law must be transferred to the law side of the court and not dismissed. Said rule is as follows: “If at any time it appear that a suit commenced in equity should have been brought as an action on the law side of the court, it shall be forthwith transferred to the law side, and be there proceeded with, with only such alteration in the pleadings as shall be essential.”

In Pierce v. National Bank of Commerce in St. Louis (C. C. A.) 268 F. 487, 489, this court said: “Did the complaint state facts sufficient to constitute a cause of action, either at law or in equity, for if it stated a cause of action at law, this case should' have been transferred to the law side of the court, and there proceeded with. The fact that a complainant in equity has an adequate remedy at law is no longer sufficient ground for the dismissal of the suit.” United States v. Utah Power & Light Co. (D. C.) 208 F. 821; Equitable Trust Co. of New York v. Denver & R. G. R. Co., 250 F. 327, 162 C. C. A. 397.

If the bill stated a cause of action at law it would have been the court’s duty to transfer the ease to the law side, or if the plaintiff had asked permission of the court to file an amendment to the bill, or a substituted bill conforming the suit brought in equity to one at law it would have been the court’s duty to grant the same. Section 274a of the Judicial Code (Comp. St. § 1251a) provides as follows: “That in case ány of said courts shall find that a suit at law should have been brought in equity or a suit in equity should have been brought at law, the court shall order any amendments to the pleadings which may be necessary to conform them to the proper practice. Any party to the suit shall have the right, at any stage of the cause, to amend Ms pleadings so as to obviate the objection that Ms suit was not brought on the right side of the court. The cause shall proceed and be determined upon such amended pleadings. All testimony taken before such amendment, if preserved, shall stand as testimony in the cause with like effect as if the pleadings had been originally in the amended form.” Referring to tMs section, and also to section 274b of the Judicial Code (Comp. St. § 1251b), the Supreme Court said in Liberty Oil Co. v. Condon Nat. Bank, 260 U. S. 235, 243, 43 S. Ct. 118, 121, 67 L. Ed. 232: “To be sure, these sections do not create one form of civil action as do the Codes of Procedure in the states, but they manifest a purpose on the part of Congress to change from a suit at law to one in equity, and the reverse, with as little delay and as little insistence on form as possible, and are long steps toward Code practice.”

In view of the fact, however, that the amended bill does not state a cause of action at law, and further that plaintiff did not ask to be permitted to amend the same to conform to the proper practice, but stood on the bill, and waived its right to amendment there was nothing for the court to do but to dismiss the bill of complaint.

The ease is affirmed.

STONE, Circuit Judge

(concurring). I concur in the opinion of Judge KENYON, and wish to add only emphasis to one or two matters covered therein.

The bill does not deal with one legal transaction, but with many. These transactions are of different characters; they differ as to legal stages and conditions; they do, or may, differ as to many material facts. As to the suits wMch have gone to judgment, it is obvious that appellant has presented and litigated the very questions here sought to be raised. These questions are now before the Supreme Court of Wyoming and will be before this court if appellant has carried out its expressed intention of bringing here for ■ review the judgments in the two cases determined against it in the federal District Court. Where a party has thus had ample opportunity to present, and has presented, his contention to other courts of competent jurisdiction, it would lead only to confusion and conflict to permit these same contentions between the same parties and concerning these same matters to be again litigated. To grant the relief asked concerning the title to the land sold under execution would be to afford appellant the benefit of a supersedeas in litigation in the state court, where it had an opportunity to secure such and had not done so, and would be unjustifiable interference with the orderly processes of the state court. Other of the transactions are based on separate promissory notes given, and dealt with at different times.

I can see no basis for legally combining them in a single bill in equity or in one petition at law. If these various matters had been lodged as different actions at law, there might be reasons of practical convenience to consolidate such actions for trial. If a single action at law for damages had been filed, and these various transactions treated as separate items of damage, there might possibly have been stated some common basis or ground for recovery. However, neither of these things was done, so the court could not hear the cause in equity, nor transfer it to the law side of the court.


author: JOHNSON, Circuit Judge. BINGHAM, Circuit Judge

text:
    BARRON v. UNITED STATES (two cases).
    (Circuit Court of Appeals, First Circuit.
    May 7, 1925.)
    Nos. 1766, 1767.
    1. Bankruptcy @=>492 — Conspiracy @=>28 — Officers of corporation may be indicted for conspiracy to conceal property of bankrupt from trustee, or for aiding and abetting corporation while bankrupt in concealment of assets.
    Officers of corporation may be indicted, under Rev. St. § 5440 (Comp. St. § 10201), for conspiracy to conceal property from the trustee in bankruptcy of corporation, or under Criminal Code, § 332 (Comp. St. § 10506), may be indicted for aiding and abetting corporation while a bankrupt in concealment of its assets.
    2. Bankruptcy @=>492 — Persons aiding and abetting bankrupt in concealment of assets from trustee are liable as principals.
    Though offense, under Bankruptcy Act, § 29b (Comp. St. § 9613), of concealing assets from trustee in bankruptcy, can only be committed by bankrupt, all who aid and abet in such concealment are liable as principals under Criminal Code, § 332 (Comp. St. § 10506).
    3. Bankruptcy @=>492 — Corporation may be guilty of offense of concealing assets from trustee in bankruptcy, though not subject to penalty.
    Corporation may be guilty, under Bankruptcy Act, § 29b (Comp. St. § 9613), of offense of concealing its assets from trustee in bankruptcy, though not subject to penalty prescribed.

      4. Bankruptcy <§=494 — Indictment for aiding and abetting bankrupt in concealment of its assets held not demurrable, as failing to allege time of such aiding and abetting.
    Indictment under Criminal Code, § 332 (Comp. St. § 10506), for aiding and abetting corporation, while bankrupt, in concealment of its assets, which alleged appointment of trustee on February 1st, concealment of assets by bankrupt on February 9th, and then alleged that defendant did aid and abet said corporation in concealment of property as aforesaid, helé not demurrable as not sufficiently alleging time of such aiding and abetting.
    5. Bankruptcy <§=>494 — Indictment for aiding and abetting bankrupt in concealment of assets held not defective for failure to allege where offense was committed.'
    Indictment under Criminal Code, § 332 (Comp. St. § 10506), for aiding and abetting bankrupt in concealment of" its assets, which alleged commission of offense of concealment by bankrupt to have been committed in District of Massachusetts, helé not demurrable for failure to aver where offense of aiding and abetting was committed.
    6. Criminal law <§=>304(1) — Court will take judicial notice that schedule in bankruptcy must be verified by person subscribing.
    Courts will take judicial notice of fact that schedule in bankruptcy under Bankruptcy Act, § 29b (Comp. St. § 9613), form of which is prescribed by General Orders of the Supreme Court of the United States, is to be verified by oath of party who has subscribed them.
    7. Bankruptcy <§=494 — Indictment, charging making of false oath to schedules filed in bankruptcy proceeding, sufficient, without allegation that schedules were subscribed by defendant.
    Indictment under Bankruptcy Act, § 29b (2), being Comp. St. § 9613, for making false oath to schedule filed by bankrupt corporation, helé sufficient, without allegation that schedules were subscribed by defendant.
    8. Witnesses <§=>246(I) — Court’s questioning of notary public, who took defendant’s oath in prosecution for having made false oath to schedules filed in bankruptcy, held not error.
    In prosecution for having made false oath to schedules filed by bankrupt corporation, where notary public called by state was obviously an unwilling witness and made evasive answers, it was not error for court to call his attention sharply to certificate which he had signed and ask him whether the statement over his signature was true or not.
    9. Criminal law <§=>322 — That notary taking oath to schedule performed his duty, and that certificate speaks truth, presumed, in absence of contrary evidence.
    That notary public taking oath to schedule in bankruptcy filed under Bankruptcy Act, § 29b (2), being Gomp. St. § 9613, in form prescribed by General Orders of Supreme Court, performed his duty, and that certificate speaks truth, will be presumed, in absence of evidence to contrary.
    10. Bankruptcy <§=495 — Admission of evidence as to acts of defendant’s employee, in prosecution for having aided and abetted bankrupt corporation in concealing its assets, held not reversible error.
    In prosecution for having aided and abetted corporation in concealing, while a bankrupt, part of its assets from trustee, where there was evidence that employee of defendant under defendant’s direction had removed merchandise from bankrupt’s stockroom stored it in cottage, ánd that later he took such merchandise from cottage and started for another place, and on the way was arrested and later indicted for breaking and entering cottage it was not reversible error under Act Feb. 26, 1919 (Comp. St. Ann. Supp. 1919, § 1246), to permit him to testify that he first stated to chairman of creditors’ committee what he had done, as bearing on issue whether he had stolen the goods and secreted them.
    11. Criminal law <§=l 170(4) — Excluding answer to question which has been previously put and answered is not error.
    Excluding answer to question ■ which has been previously put and answered is not error.
    12. Bankruptcy <§=495 — In prosecution of corporation president for aiding and abetting corporation in concealing assets from trustee, admission of evidence as to corporation’s delinquency in payment of debt not reversible error.
    In prosecution of corporation’s president for having aided and abetted bankrupt corporation in concealment of its assets from trustee in bankruptcy, admission of testimony as to difficulty which corporation'Creditor had in collecting note, and as to' unfulfilled promises of payment by defendant, helé not reversible error.
    13. Bankruptcy <§=496 — In prosecution for having aided and abetted in concealment of corporate assets from trustee, requested instructions held unwarranted by evidence.
    In prosecution of corporation president for having aided and abetted corporation in concealing assets from trustee in bankruptcy, requested instructions to acquit, if trustee at instance of his appointment had knowledge of such concealed assets or of such concealment, heldÍ unwarranted by evidence.
    14. Bankruptcy <§=496 — Refusal of requested instruction, in ■ prosecution for aiding and abetting in concealment of assets of bankrupt, not error.
    In prosecution of corporation president for having aided and abetted corporation in concealment of its assets from trustee in bankruptcy, denial of requested instruction that defendant was under no personal obligation to disclose to trustee whereabouts of assets of corporation, and that mere silence did not amount to aiding and abetting alleged concealment, held't not error.
    Bingham, Circuit Judge, dissenting.
    In Error to District Court of the United States for the District of Massachusetts) James M. Morton, Judge.

      Joseph Barron was convicted of aiding and abetting a corporation in concealing, while a bankrupt, part of its assets from its trustee in bankruptcy, and for having made false oath to schedules of bankrupt corporation, which as its president he subscribed ánd caused to be filed in bankruptcy court, and he brings error.
    Judgment affirmed in each ease.
    Elisha Greenhood, of Boston, Mass., for plaintiff in error.
    George R. Farnum, Asst. U. S. Atty., of Boston, Mass. (Harold P. Williams, U. S. Atty., of Boston, Mass., on the brief), for the United States.
    Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
   JOHNSON, Circuit Judge.

In one of these eases the plaintiff in error, hereinafter called the defendant, was indicted for aiding and abetting the Barron Furniture Company in concealing, while a bankrupt, part of its assets from its trustee in bankruptcy; and in the other case he was indicted for having made a false oath to the schedules of .the Barron Furniture Company, which, as its president, he subscribed and caused to be filed in the bankruptcy court. He was convicted under both indictments, and sentenced to serve terms of imprisonment to run concurrently.

The Barron Furniture Company, a corporation having its usual place of business at Brockton, in the District of Massachusetts, was adjudicated a bankrupt January 11, 1923, upon an involuntary petition.

The defendant was the president of the corporation, and it is not in dispute that the signatures to the schedules of assets, “Barron Furniture Company, Joseph Barron, President,” were written by him. Upon schedule B-2, at the right of the words, in print, “Stock in trade in business of-at,” appeared in writing the following:

“Furniture uncertain; retail at 69 Centre St. and at storehouse, 18 Plymouth St., Brockton.”

The defendant made oath to these schedules before I. Manuel Rubin, a notary public, on the 6th day of February, A. D. 1923, as appears from the certificate, in the usual form, of the said Rubin.

The evidence disclosed that two truck loads of furniture, trunks, draperies, and carpets, all of the value of about $2,500, were removed in December, 1922, upon two different occasions, from the store of the Barron Furniture Company at Brockton, to a cottage at Wareham, Mass., by one Ward-well and one Nye, who were in the employ of the furniture company. Wardwell testified that he and Nye did this by direction of the defendant on each occasion.

Demurrers were filed to both indictments, which were overruled, and the errors assigned are the overruling of these demurrers, exceptions to the admission, and the exclusion of evidence, and the denial of requests for rulings. The demurrer in each ease is general, except that to the “aiding and abetting” indictment, which avers that it does not show “when or where” the defendant “aided and abetted.”

In support of the demurrer to the indictment for aiding and abetting, it is contended that, under section 29b (1) of the Bankruptcy Act (Comp. St. § 9613) only the bankrupt can be convicted of the crime of concealment of assets, and that not even an officer who aids or abets a bankrupt corporation in the concealment of its assets is indictable; and, in support of this contention, United States v. Lake (D. C.) 129 F. 499, and Field v. United States, 137 F. 6, 69 C. C. A. 568, are cited.

In United States v. Rabinowich, 238 U. S. 78, page 86, 35 S. Ct. 682, 684 (59 L. Ed. 1211), the court said:

“It is at least doubtful whether the crime of concealing property belonging to the bankrupt estate from the trustee, as defined in section 29b (1) of the Bankruptcy Act, can be perpetrated by any other than a bankrupt or one who has received a discharge as such.”

This statement was not necessary to a decision of the case. Since this obiter dictum, the courts in several circuits have decided that, upon the weight of authority and of reason, the officers of a corporation may be indicted under section 5440 (Comp. St. § 102Q1) for conspiracy to conceal the property of a bankrupt from the trustee in bankruptcy. Cohen v United States, 157 F. 651, 85 C. C. A. 113; United States v. Young & Holland Co. et al. (C. C.) 170 F. 110; United States v. Freed (C. C.) 179 F. 236; Roukous et al. v. United States, 195 F. 353, 115 C. C. A. 255; Conetto v. United States, 251 F. 42, 163 C. C. A. 292; Frankfurt v. United States, 231 F. 903, 146 C. C. A. 99.

In Roukous v. United States, 195 F. 353, 115 C. C. A. 255, this court declined to follow Field v. United States, 137 F. 6, 69 C C. A. 568, which was' cited by the defendant in the instant ease in support of his contention that the defendant, as an officer of the bankrupt corporation, cannot be indicted for aiding and abetting the concealment of its assets, and stated at page 356 that it yielded to the determination in Cohen v. United States, supra.

In several eases it has been decided that an officer of a corporation may be indicted under section 332 of the Criminal .Code (Comp. St. § 10506) if he has aided and abetted the corporation, while a bankrupt, in the concealment of its assets from its trustee.

In Kaufman v. United States, 212 F. 613, at page 617, 129 C. C. A. 149, 153 (Ann. Cas. 1916C, 466), a case which arose in the second circuit, an officer of a corporation was indicted and convicted of aiding and abetting the corporation in concealing the assets from its trustee, and the court said:

“It may be conceded that defendant could not he convicted under section 29h of the Bankruptcy Act. That section applies only to one who has knowingly or fraudulently concealed while a bankrupt or after his discharge.’ As the defendant is not alleged ever to have been a bankrupt, the section is without application to him. It was held, in Field v. United States, 137 F. 6, 69 C. C. A. 568, that the present or past bankruptcy of the person accused was an indispensable element of the offense created by that section. The defendant, however, is mistaken in supposing that the principle announced in the Field Case is so far applicable to his ease as to require this court to set aside his conviction. He loses sight of the fact that his own conviction is not under section 29b of the Bankruptcy Act, which was under discussion in the Field Case, but is under section 332 of the Criminal Code.
“The offense with which the defendant is charged is that he aided and abetted the Daisy Shirt Company while the said company was a bankrupt knowingly and fraudulently to conceal from the duly qualified trustee property belonging to the estate in bankruptcy.”

The court also said, at page 617 (129 C. C. A. 153):

“There is no distinction in principle between the Cohen Case, supra, and the ease at bar. The fact that in the Cohen Case the indictment was for conspiracy under section 5440 of the Revised Statutes, while in this case-the indictment is based on a concealment of assets, is a distinction without a difference so far as the principle involved is concerned.”

In Wolf et al. v. United States, 238 F. 902, 152 C. C. A. 36, a case which arose in' the Fourth Circuit, the officers of a corporation were indicted for aiding and abetting in the concealment of the corporation’s property when a bankrupt and the court declined to follow United States v. Lake (D. C.) 129 F. 499, and Field v. United States, 137 F. 6, 69 C. C. A. 568, and expressed itself as better satisfied with the reasoning of later cases.

In Reinstein et al. v. United States (C. C. A.) 282 F. 214, parties other than the bankrupt, which was a partnership, were indicted for aiding and abetting the bankrupt in the concealment of its assets, and the court said, at page 216:

“It is equally obvious that Reinstein, on the story believed by the jury, aided, counseled, and probably procured the commission of the act of concealment. He is therefore a principal, within Penal Code, § 332 (Comp. St. § 10506).

In this case certiorari was denied. 260 U. S. 722, 43 S. Ct. 12, 67 L. Ed. 481.

Section 332 of .the Penal Code (Comp. St. § 10506) is as follows:

“See. 332. Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands,' induces, or procures its commission, is a principal.”

While under section 29b of the Bankruptcy Act the offense of the concealment of assets from a trustee in bankruptcy can only be directly committed by the bankrupt, all who aid or abet the, bankrupt in such concealment are by virtue of section 332 made liable as principals.

A corporation may be guilty of the offense of the concealment of its assets Under section 29b of the Bankruptcy Act, although it may not be subject to the penalty prescribed. It was so held in Cohen v. United States, supra, which cites United States v. Van Schaick et al., 134 F. 592.

The Cohen Case was followed by this court in Roukous v. United States, supra. In the Kaufman Case, supra, the Court of Appeals in the Second Circuit reaffirmed its decision in the Cohen Case.

It also was urged in support of the demurrer that the indictment does not aver when the alleged aiding and abetting occurred, whether before or after the appointment of the trustee. The indictment alleges that the adjudication of the corporation was on January 11, 1923, the appointment of a trustee on February 1st following, and the concealment of assets by the bankrupt on February 9th. It then alleges that the defendant “did aid and abet said corporation in the concealment of said property as aforesaid.” The alleged aiding and abetting relates back to the concealment, which was alleged to be February 9th.

Although the property alleged to have been concealed was alleged to have been taken from the store of the Barron Furniture Company in Brockton in December, 1922, yet, its concealment was continued until after the adjudication and the appointment and qualification of the trustee; and therefore the concealment in which the defendant is alleged to, have aided and abetted continued after the adjudication and appointment and qualification of the trustee. Reinstein v. United States (C. C. A.) 282 F. 214; Conet-to v. United States, 251 F. 42, 163 C. C. A. 292; Kaufman v. United States, 212 F. 613, 129 C. C. A. 149, Ann. Cas. 1916C, 466; Warren v. United States, 199 F. 753, 118 C. C. A. 191, 43 L. R. A. (N. S.) 278; Glass v. United States, 231 F. 65, 145 C. C. A. 253.

As the commission of the offense of concealment of assets by the bankrupt is alleged to have been committed in the District of Massachusetts, it is immaterial that it is not alleged in the indictment where the defendant aided and abetted in the commission of the offense, as by such aiding and abetting he became liable as a principal by virtue of the statute. There was therefore no error’in-overruling the demurrer to the indictment for the concealment of assets.

The demurrer to the indictment for taking a false oath in bankruptcy proceedings was based upon the fact that in the indictment there was no allegation that the defendant had subscribed the schedule of assets to which he made oath as president of the corporation. The indictment alleges, in substance, that the defendant, as president of the corporation, in relation to a proceeding in bankruptcy, unlawfully, knowingly, and fraudulently did make a false oath before I. Manuel Rubin, a notary public, having authority to administer an oath in said proceeding to said Barron; that “a certain written declaration theretofore and thereafter filed in said District Court, purporting to be a schedule of said the Barron Furniture Company^ property, was a statement of its estate, both real and personal, according to the acts of Congress relating to bankruptcy”; and, in substance, that the defendant did not believe that the property set forth and shown in said written declaration included all the assets of the said Barron Furniture Company; that it possessed and owned a large amount of property not set forth and shown in said declaration, which was well known to the defendant; and that the written declaration to which the defendant made oath was one to the truth of which, in said proceedings in bankruptcy, he was required by law to make oath.

We take judicial notice of the fact that the schedules in bankruptcy, the form of which is prescribed by General Orders of the Supreme Court of the United States, which have the force of law, are required to be verified by the oath of the party who has subscribed them, and we think the indictment was sufficient without an allegation that the schedules were subscribed by the defendant.

Section 29b (2) makes a person liable to punishment upon conviction of the offense of having “made a false oath or account in, or in relation to, any proceeding in bankruptcy.” Such false oath may be made, even where there is no written declaration to be subscribed, -but where it has been made in any proceeding in bankruptcy.

The indictment contains a sufficient allegation that he made, a false oath and that this was in a proceeding in bankruptcy. This proceeding was described with sufficient precision to apprise the defendant of the nature of the charge against him. There was no error in overruling the demurrer to this indictment.

It is assigned as error that the court called the attention of the notary to his certificate and asked this question: “Yon observe that you have made a statement there over your signature as a notary public. Is that statement true or not?” The witness answered : “I believe it is true.”

The witness then read the certificate, and was asked by the court: “Now, having read that, can you tell what the oath was that you administered to Barron?” The witness answered: “No; I cannot tell the exact words; the substance would be that the statement he had made and that he had set out in the schedules — that the schedules were true.”

The defendant objected to the introduction in evidence of the certificate of the notary, Rubin, as a notary public, and asked the court to exclude that portion of the schedules from the evidence.- His request was denied, and exception was taken, and the schedules, including the certificate, were offered in evidence.

The notary testified that he was counsel for the Barron Furniture Company, and prepared the schedules because of a telephone call from another lawyer, and that, as a result of this call, the defendant came to see him, and his subsequent dealings were with the defendant, except for information that he got from the clerk of the corporation. It is evident that he was not a willing witness for the government, and we think there was no error in the court’s calling his attention to the words of his certificate in asking directly whether it was true or not, and thaj; his answer to the question of the court was evidence of the truth of the statement in the certificate to be considered by the jury.

While the notary testified that he had no present recollection of the form of oath which he administered to the defendant, yet, as the form is one prescribed by the General Orders of the Supreme Court which govern bankruptcy proceedings, and the notary a public official, authorized by law to administer such oath, it will be presumed, in the absence of any evidence to the contrary, that he correctly discharged his duty, and that his certificate states the truth. It was because of the evasive answers of the notary that the court called his attention sharply to the certificate which he had signed, and put to him the question to which objection was made. We think the certificate and the answer of the notary were admissible.

One Wardwell, in the employ of the bankrupt corporation, testified that he, in the month of December, 1922, upon two occasions, with one Nye, by the defendant’s direction, removed certain merchandise from the store of the Barron Furniture Company at Brockton to a cottage at Wareham, and at the end of his direct examination he was asked to whom he first told this story, and was allowed to answer, over the plaintiff’s objection, to which an exception was saved, and this is assigned as error. It is argued that this was merely an attempt to bolster up the credibility of the witness and obviously inadmissible.

The record contains but a fragmentary part of the testimony which was taken, but that part discloses .that the witness Ward-well later went with a truck to the cottage at Wareham, removed a substantial part of the merchandise which had been stored there and started for Brockton; that on his way there he was arrested by the police in Bridge-water and indicted for breaking and entering the cottage. The record also states that “the cross-examination of Wardwell and other goverinent witnesses proceeded on plain intimation that Wardwell or Nye, or both, had taken the merchandise in question, either from the store or from trucks they drove for the corporation while they were in its employ, and removed them directly or indirectly to said cottage.” It also appears from a statement of the presiding judge in his charge that the defendant Barron furnished bail for Wardwell in the criminal proceeding against him.

We cannot say, without all the evidence before us, whether it was material as bearing upon the question of whether Wardwell had stolen the goods and secreted them to show that he had stated what he had done to the chairman of the creditors’ committee, as he testified. It does not appear when this statement was made by him nor how soon after the goods were taken to the cottage at Wareham. We cannot say that, if he disclosed what he had done soon after he had taken the goods to Wareham, it would not have tended to show that he had not stolen them. The presiding judge, who had heard all the previous testimony and the claims made by defendant, had far better opportunity to judge of the admissibility of this testimony than is afforded us by the very fragmentary record in the ease. But, if this testimony were technically inadmissible, it was, as the case developed, of little or no importance. At any rate on this record we cannot hold it reversible error. Act of February 26, 1919, 40 Stat. 1181 (Comp. St. Ann. Supp. 1919, § 1246),

The defendant also assigned as .error that a question asked of the witness Ward-well was excluded. The question was: “Haven’t you told some one that some accusation had been made against Barron on a subject very dear to you?” The witness had previously been asked this question on cross-examination: “Mr. Wardwell, isn’t that the truth that some one, either a detective or a creditor, made to you a serious accusation against Barron with reference to a subject very dear to you?” And he answered: “No, sir.” The question having been already put and answered, there was no error in excluding its repetition.

It is also assigned as error that the government was allowed to introduce evidence of a conversation between the defendant and one Warren, early in December, 1922, in which Warren testified that he had correspondence with the defendant about a matured note, and a few days after its maturity had an interview with the defendant in his office and asked what he was going to do about it. The defendant replied that he had mailed him a check “last night,” but on the next day, not having received the check, he called the defendant by telephone and told him that he had not received it; that defendant replied that he had just talked with his bookkeeper, and that she had the cheek there and would mail it, but that he had never received the cheek; that he again called the defendant by telephone, who replied that he would mail the cheek, and the witness told him not to do that — that he would send down for it. The defendant did not testify in either case. The only effect of the testimony to which exception was taken was" that it might possibly have affected the credibility of the defendant had he testified.

As all the testimony is not before us, we cannot judge, as could the presiding judge, whether this testimony had such reference to other testimony that had been taken, or to other aspects of the case, as to make it admissible. It may have been material to show that the bankrupt corporation, which was, in effect, really the defendant, who used the corporation as an instrumentality of doing business, was in a failing condition on the 1st of December, the very month in which these goods were alleged to have been spirited away from the Brockton store, and that the defendant was then assisting and aiding the corporation in preparing for bankruptcy. We do not think the verdict should be set aside for this alleged error.

The defendant requested the ruling, which was not given, and to which exception was taken:

“If, at the instant of his appointment, the trustee had information that the merchandise in question was where it then was, there was no concealment from the trustee, and the defendant must be acquitted.”

And also:

“If defendant thought the trustee, when appointed, had such knowledge, there was no such concealment.”

The requests were correctly refused, because not applicable to the facts disclosed by the evidence.

The trustee testified that, about a' week before he was appointed as trustee, he heard the rumor that there was some property of the bankrupt corporation at the cottage at Wareham, but that he did not go down- to investigate the truth of this rumor until February 18th, nearly three weeks after his appointment. There was then no evidence that the trustee knew that this merchandise was in the cottage at Wareham at the time of his appointment.

It is also assigned as error that the court refused to instruct the jury that the “defendant was under no personal obligation to disclose to the trustee the whereabouts of any assets of the corporation, and his mere silence did not amount to aiding and abetting the alleged concealment.”

It was the duty of the defendant, as the president of the bankrupt corporation, to. include in its schedule of assets all of its property, real and personal. If he had failed to do so, and remained silent in regard to the removal of the goods to Ware-ham, it was for the jury to decide whether, by this failure and silence, the defendant was guilty of willfully and knowingly aiding and abetting the corporation in the continuing concealment of assets. In re Bacon (D. C.) 205 F. 545.

The judgment of the District Court is affirmed in each ease.

BINGHAM, Circuit Judge

(dissenting). I regret that I am unable to agree to the opinion of the court. It seems to me that, in the interest of justice and fair -trial, the judgment and verdict should not be sustained, for the reason, if for no other, that incompetent and highly prejudicial testimony was introduced by the government' and. allowed to be considered by the jury. This testimony bore upon the charges made in both indictments.

In the first indictment the defendant was charged with having aided and abetted the Barron Furniture Company, a bankrupt corporation of which he was president, in concealing a large amount of its assets from the trustee, and in the second indictment with having made a false oath to the schedules of the bankrupt’s assets.

It appeared in evidence that a very substantial amount of furniture belonging to the Barron Furniture Company had been taken, prior to the filing of the petition in bankruptcy against it, to Wareham, and stored in a. cottage there. These are the goods which it is alleged in the first indictment the defendant aided the Barron Furniture Company in concealing, and are the same goods that it is alleged in the second indictment were omitted from the schedules of the assets of the Barron Furniture Company, to which the defendant made oath.

One Wardwell, a witness for the government, and who had been in the employ of the Barron Furniture Company, testified that on two occasions in December, 1922, about Christmas time, he and one Nye, by the defendant’s direction, took the furniture in question from the store of the Barron Furniture Company at Brockton to Wareham, where they stored it in a cottage; that they entered the cottage by means of a key which Nye had, and with which the witness opened the door. During the direct examination of this witness, and at the end thereof, the United States attorney asked this question: “To .whom did you first tell this story of furniture?” (meaning the story about taking the furniture to the cottage at defendant’s direction) , and was allowed to hive it answered, subject to the defendant’s exception. The answer was, “Mr. Warren,” who later testified as a witness for the government. It further appeared that on February 18, 1923, in the nighttime,' Wardwell went with a truck to the cottage, entered it, and removed a substantial part of the furniture stored there; that on his way back to Brockton he was intercepted at Bridgewater by the police, and thereafter arrested and indicted for breaking and entering. In the cross-exam-inatidn of Wardwell and other government witnesses, it was plainly intimated that Wardwell or Nye or both had taken the furniture in question, either from the store of the Barron Furniture Company, or from a truck they drove while in the employ of the company, and removed it to the cottage, and that on the night of February 18th Ward-well was removing it from the cottage to some other place.

The charge of the court to the jury is included in the bill of exceptions. In it the court told the jury that it did not seem to him there was “any doubt that a very substantial amount of goods were taken out of the store of the Barron Furniture Company and moved down to Wareham, Mass., and stored in this cottage on Sea street. Just when that was done is a matter which depends on the evidence of Wardwell, hut he says it was done during December, and before apparently the bankruptcy petition against the company was filed. The ease really turns, both cases, as I think you will find, on whether you are satisfied beyond reasonable doubt that these goods were moved down there with Barron’s knowledge and assent, and as part of the scheme in which Barron was engaged. * * * The real crux of the matter is, Are you satisfied that Barron was concerned in that spiriting away and concealment of the goods ? * * * ”

“So, I think you will find that both indictments turn around one question, Are you satisfied that Barron knew about this movement of goods to Wareham, in December, and that he was a party to it, and that his purpose was to defraud the creditors of the Barron Furniture Company?

“Much depends on Wardwell’s story, and Wardwell is a witness whose testimony a lawyer would, say does not carry much weight. He is a self-confessed criminal. * * * ”

“Two things are possible, either that Wardwell’s story is true, and that Barron was preparing against a fraudulent bankruptcy, which is the government’s charge here, or that Wardwell and Nye were stealing the goods on their own account.

“Wardwell, of course, says that the first is the fact. We may readily believe that Ward-well would not be above the second. *' * * ”

In the bill of exceptions, which was duly approved by the District Judge, and following the setting forth of the matters relied upon by the defendant as errors occurring during the course of the trial, appears the following:

“The foregoing is'a statement of all the’ evidence in the ease material to a determination of any exception saved or ruling requested.”

Now it is apparent from the foregoing that Wardwell was a self-confessed criminal; that the government’s case, so far as there was evidence implicating the defendant, depended almost wholly upon the testimony of Wardwell; that, if the jury disbelieved his testimony, its case would fall; and that it was very material to the government that his testimony should be believed. As an aid in this direction he was allowed to testify that he first told Warren this story about. the furniture having been taken to the cottage at the defendant’s direction. This was a plain attempt to bolster up the credibility of the witness. It was pure narration of a past occurrence, and was clearly inadmissible. It was not only inadmissible, but was highly prejudicial.

The bill of exceptions clearly sets forth the situation under which the evidence was admitted, and, to render the matter doubly certain that we have before us all the evidence essential to a proper consideration of the question, it contains the statement above quoted, that the record embraces “all the evidence in the case material to the determination of any exception saved or ruling requested.”

The court in its opinion seeks to carry the idea that “it does not appear when this statement was made by him (Wardwell), nor how soon after the goods were taken to the cottage at Wareham”; that, “if he disclosed what he had done soon after he had taken the goods to Wareham,” they could not say that “it would not have tended to show that he had not stolen them.” But the burden was on the government to make it appear that the testimony in question, which it was offering, was competent. This it failed to do. There was no claim by the government that the statement of Wardwell was made under circumstances that would render it admissible as a part of the res geste, and there is no evidence showing that it was made at the time he removed the furniture to the cottage, or was so closely related in time that his statement could be found to be a part of the res gestee, and not mere narration of a past event. There can be no question but that, under the circumstances presented in this case, the testimony was material and highly prejudicial. It was of the essence of the government’s case that Ward-well be believed; he was a self-confessed criminal; and to carry conviction that his testimony as to removing the furniture at the defendant’s direction was true, the government was permitted to show that, after the removal of the furniture, he first told Warren that he removed it at the defendant’s direction.