author: NETERER, District Judge

text:
    UNITED STATES v. SKINNER & EDDY CORPORATION.
    (District Court, W. D. Washington, N. D.
    May 8, 1925.)
    No. 9124.
    1. Pleading ©=34(l) — In construction of pleadings, allegations liberally construed with view to substantial justice.
    Under Rem. Code Wash. 1915, § 285, in construction of pleadings, allegations must be liberally construed, with view to substantial justice. ,
    2. Pleading ©=>214(2) — Demurrer admits facts well pleaded, and allegation that defendant knew another was acting for plaintiff is fact so admitted.
    Demurrer admits facts well pleaded, and allegation that defendant knew another was acting for plaintiff is statement of fact admitted by demurrer.
    3. United States ©=>126 — It being admitted that Emergency Fleet Corporation acted for United States in making contract, United States can sue thereon.
    It being admitted that United States Shipping Board Emergency Fleet Corporation, in contracting with shipbuilding corporation, acted on behalf of United States, United States may sue on contract made, of which statutes of United States and executive orders of President became a part.
    4. Principal and agent ©=>129 — Principal may sue on contract of his agent.
    Principal may sue on contract of his agent.
    5. United States ©=>135 — United States is real party in interest in suit involving property of Emergency Fleet Corporation.
    Legislation permitting President to dispose of property acquired by Emergency Fleet Corporation is an assertion that property belongs to United States, rendering it, under Rem. Code Wash. 1915, § 179, real party in interest in suit involving1 property of corporation.
    6. Equity @=»I12 — A court of equity, necessity appearing, can arrange parties plaintiff and defendant, and administer relief as their respective rights may require.
    A court of equity, necessity appearing, can arrange parties plaintiff and defendant, and administer relief as their respective rights may require.
    7. United States @=3126, 135 — United States may sue to recover overpayments made by Emergency Fleet Corporation, nor is corporation necessary party.
    Unde,r Shipping -Ajct Sept. 7, 1916, as amended by Merchant Marine Act 1920 (Comp. St Ann. Supp. 1923, §§ 8146%-8146%t), and Act June 15,1917, the United States, possessing contracts made by United States Shipping Board Emergency Fleet Corporation with shipbuilding corporation, being real party in interest, may sue corporation to recover over-payments made to it, nor is Fleet Corporation a necessary party.
    At Law. Action by tbe United States against tbe Skinner & Eddy Corporation. On demurrer to petition.
    Demurrer overruled.
    Suit of a civil nature at law is brought by the plaintiff to recover $7,536,432.08 as overpayment made to the defendant by the United States Shipping Board Emergency Fleet Corporation, plaintiff’s agent, on a series of war-time contracts entered into during the years 1917 and 1918. It is alleged that under Act Sept. 7, 1916, 39 Stat. 738 (Comp. St. §§ 8146a-8146r), known as “Shipping Act 1916,” the creation of a federal board was provided, to be appointed by the President, known as the United States Shipping Board; that commissioners were appointed and confirmed and the board organized in January, 1917, and has discharged the duties conferred by said act as amended by the Merchant Marine Act of 1920 (Comp. St. Ann. Supp. 1923, §§ 8146%-8146%t). Declaration of war April 6, 1917, is alleged, continuance of hostilities until November 11, 1918, and declaration of peace July 2, 1921, by “joint resolution of Congress,” “as announced by proclamation of the President issued November 4, 1921”; that the Shipping Board, pursuant to authority conferred, organized on the 16th of April, 1917, the United States Shipping Board Emergency Fleet Corporation, which has since existed; that by Act June 15, 1917, c. 29 (40 Stat. 182), the President was given power, among other things, to contract for ships and to delegate the authority conferred, and that on July 11, 1917, the President delegated to the United States Shipping Board Emergency Fleet Corporation power for the construction and completion of ships and purchasing and requisitioning of materials for ship construction ; that pursuant to such delegated authority the plaintiff’s agent entered into five written contracts with the defendant, known as supplemental contract No. 10 S. C. and contracts Nos. 175 S. C., 309 S. C., 324 S. C., and 447 S. C., and complaint further alleges the number of ships under each contract, the amount per ship, and sets out and attaches a copy of the contract and supplemental contracts; that the defendant knew it was dealing with the plaintiff, and that the corporate agent was acting solely on plaintiff’s behalf, and that the vessels were paid for by the plaintiff and were to become the property of the plaintiff; that during August, 1917, and.prior thereto for a time, the defendant was the owner of a steel shipbuilding plant in the city of Seattle and engaged in building ships for private owners; that on August 3, 1917, the plaintiff’s corporate agent, pursuant to delegated authority, acting for and on behalf of the plaintiff, requisitioned for the plaintiff all power-driven, cargo-carrying and passenger vessels above 2,500 tons dead weight, under construction in the yard of the defendant, and notice of such act was given to the defendant on that date; that plaintiff performed all contracts and agreements by accepting delivery of 65 vessels and paying in cash, materials, and credits the full purchase price, and in addition paid on account of the several contracts and agreements in cash, materials, and credits the further sum of $7,536,432.08, “for which sum no consideration has been received by the plaintiff.”
    “All payments and overpayments made to and received by defendant on account of its performance of said contracts and for completion of the requisitioned ships were from the funds of plaintiff, appropriated by Congress to be used for such purpose, and in accepting and receiving such payments and overpayments defendant well knew, at the date of receiving the same, that they were made from the funds of plaintiff.” Statements are made with relation to payments of various sums under the respective contracts, and by reason of the cancellation of contracts for certain ships covered by certain contracts set out, cancellation being authorized by the provisions of the contracts, and it is stated no labor had been expended on, and no materials had been used by the defendant for, certain of the ships at the time of the cancellation.
    The complaint sets out all these contracts in liase verba, tbe aggregate construction of 82 steel steamers, the number of ships that were constructed and delivered, the number of ships that were canceled pursuant to authority delegated by the President pursuant to Act June. 15,1917, and the payments that were made upon all of the ships covered by the contracts, including the ships which were afterwards’ canceled. It is alleged that the overpayment was $4,612,500, and recovery of this is sought under count 1. Count 2 seeks to recover $78,000 paid through error and mistake; count 3, for certain materials delivered and still unpaid for, in the amount of $803,000; count 4, materials, etc., sold and delivered and not paid for, $623,000; count 5, $3,235,000 is sought for rental for the shipbuilding plant alleged to have been leased to the defendant; count 6, $146,000 for conversion of certain tools and plant equipment; count 7, damages of $7,500 for injury to a derrick; count 8, $2,660.60 for certain charges and credits given the defendant and accepted by the defendant in writing; count 9, $9,263.43 for defects id workmanship in some of the ships; count 10, $60,-000 for 12 reciprocating engines furnished to the defendants, which, through error, were billed for $60,000 less than should have been; count 11, $113,000 paid through error and mistake for bonuses for predelivery of ships; count 12, $100,000 for liquidated damages for 4 ships not delivered on delivery dates; count 13, $69,000 for equipment which plaintiff paid for and was not supplied; count ,14, $1,622,000 paid through error and mistake on account of claims erroneously made and paid for. ' .
    To plaintiff’s complaint and each' cdunt thereof the defendant has interposed a demurrer, on the ground that the complaint does not state facts sufficient to constitute a cause of action, and that there is a defect of parties plaintiff, and also that several causes of action have been improperly united. The principal grounds of demurrer are based upon the proposition that the contracts pleaded are not contracts of the United States, but are contracts of the Fleet Corporation; no assignment is alleged from the Fleet Corporation to the United States. All of the contracts, except “10 S. C.,” dated May 28, 1917, recite that they are contracts “between Skinner & Eddy Corporation, * • * party of the first part, herein called the contractor, and the United States Shipping Board Emergency Fleet Corporation, * * * herein called the owner, representing, the United States of America, party of the second part.” (Italics mine.)
    The defendant contends 'that the contracts show on their face that they are contracts of the Fleet Corporation, and not contracts of the United States. All of the contracts, except contract No. 10, recite in the party clause: “The United States Shipping Board Emergency Fleet Corporation, * * * representing the United States of America, party of the second part.” Supplemental agreement, Contract No. 10 S. C., was entered into February 16, 1918, in which the corporation, “representing the United States of America, party of the second part (herein called the owner),” appears.
    Oliver P. M. Brown, Sp. Asst. Atty. Gen., and Clarence L. Reames, of Seattle, Wash. (Thos. P. Revelle, U. S. Atty., and John A. Frater, Asst. U. S. Atty., both of Seattle, Wash., Chauncey G. Parker, of Newark, N. J., MacCormac Snow, of Portland, Or., and Chas. E. Allen, of Seattle, Wash., of counsel), for the United-States.
    Louis Titus, of San Francisco, Cal., and George Donworth, of Seattle, Wash. (Hastings & Stedman, Donworth, Todd & Higgins and Wm. Edris, all of Seattle, Wash., of counsel), for defendant.
   NETERER, District Judge

(after stating the facts as above). “In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties.” Section 285, Rem. Code Wash. 1915. See, also, Duryee v. Friars, 18 Wash. 55, 50 P. 583; McKinley v. Min. Hill Mining Co., 46 Wash. 162, 89 P. 495; Lawson v. Sprague, 51 Wash. 291, 98 P. 737; Bank of Metropolis v. Guttschlick, 14 Pet. 19, 10 L. Ed. 335; Childress v. Emory, 8 Wheat. 642, 5 L. Ed. 705.

The demurrer admits facts well pleaded, and the allegation of knowledge of the defendant that the Fleet Corporation was acting for the plaintiff is a statement of fact admitted by the demufrer. Fidelity & Deposit Co. v. Bank of Charleston (C. C. A.) 267 F. 367; Sullivan v. Iron Silver Mining Co., 109 U. S. 550, 555, 3 S. Ct. 339, 27 L. Ed. 1028; Tobin v. Seattle, 127 Wash. 664, 221 P. 583; Harris v. Halverson, 23 Wash. 779, 63 P. 549; Shannon v. Grindstaff, 11 Wash. 536, 40 P. 123. And, this fact being admitted, there ean be no question, if there could be without such knowledge, that the principal, the plaintiff, may sue for the contract of its agent, the United States Shipping Board Emergency Fleet Corporation. The statutes of the United States also entered into and' became a part of the contracts set out, as did also the executive orders of the President authorized by the provisions of law.

The decision of the Supreme Court in the Sloan, etc., Case, 258 U. S. 567, 42 S. Ct. 386, 66 L. Ed. 762, and allied cases, holding it to be a corporate entity, can have no relation to this issue because of the established relation disclosed by the record between the plaintiff, the Fleet Corporation, and the defendant. That a principal may sue on the contract of his agent has been repeatedly held. Stinson v. Sachs, 8 Wash, 391, 36 P. 287; First Nat. Life Assurance Society v. Farquhar, 75 Wash. 667, 135 P. 619; Campbell v. Gowans, 35 Utah, 268, 100 P. 397.

Whether there may be exception to contract No. 10 entered into prior to the Act of June 15, 1917, is not now material, because all of the other contracts are set out in count 1 and have the statement that the contract is entered into by the Fleet Corporation, “representing the United States of America.” Aside from the stipulation in the contracts, the Supreme Court, in the Lake Monroe Case, 250 U. S. at page 251, 39 S. Ct. 460, 63 L. Ed. 962, said that the Fleet Corporation was but an operating agency of the Shipping Board, financed with public funds. In the Sloan Case, supra, the court did not say that the Fleet Corporation was not an agent of the government, nor am I conscious of any case which would prevent the plaintiff, upon the allegations of the complaint under the demurrer, from maintaining this suit. See, also, U. S. v. Powers (D. C.) 274 F. 131; U. S. v. Gordin, 287 F. 565; U. S. v. Hodges (D. C.) 218 F. 87; Buffalo Union Furnace Co. v. U. S. S. B. E. F. Corp. (C. C. A.) 291 F. 23; State v. Williams (Wash.) 233 P. 285; Hunter v. U. S., 5 Pet. 173, 8 L. Ed. 86; Pine River Logging Co. v. U. S., 186 U. S. 279, 22 S. Ct. 920, 46 L. Ed. 1164; Utah Power & Light Co. v. U. S., 243 U. S. 389, 37 S. Ct. 387, 61 L. Ed. 791; Anderson v. Spriestersbach, 69 Wash. 393, 125 P. 166, 42 L. R. A. (N. S.) 176; Seattle National Bank v. Emmons, 16 Wash. 585, 48 P. 262; section 4, Merchant Marine Act June 5,1920.

The legislation permitting the President to dispose of the property acquired by the Fleet Corporation as he might direct is an assertion that the property belongs to the United States, and, if it is its property, it is the real party in interest. Section 179, Rem. Code Wash. See, also, United States v. Clallam County (D. C.) 283 F. 645, affirmed 263 U. S. 341, 44 S. Ct. 121, 68 L. Ed. 328. Justice Holmes, in affirming, said the plaintiff was merely the corporate instrumentality of the United States. U. S. Grain Corp. v. Phillips, 261 U. S. 109, 43 S. Ct. 283, 67 L. Ed. 552. U. S. v. Matthews (C. C. A.) 282 F. 266, is distinguished in this: That recovery was sought from Matthews for money paid through “its agent or governmental department,” the Fleet Corporation. There was no express contract declared upon, nor disclosed agency alleged.

This court, in U. S. v. Sloan Shipyards Corp., Anacortes Shipbldg. Co., Capital City Iron Works, et al., decision filed May 23, 1921 (not reported), in an action for the foreclosure of a bond or mortgage in the sum of $1,000,000 to secure damages in the event of default for like contracts for shipbuilding as in this ease, where the contracts were executed by the Fleet Corporation as in this ease, and the bond was taken to the Fleet Corporation, each reciting that the Fleet Corporation was “representing the United States of America,” held the United States could sue as the real party in interest, appointed a receiver, and took possession of the properties of the Sloan Shipyard Corporation and allied concerns, and sold all of the assets, amounting to many hundreds of thousands of dollars. The Fleet Corporation was made in that case a party defendant, and this court held that, all parties being before the court, the ultimate rights' of all parties could be protected by the decree, and a court of equity, necessity appearing, can arrange the parties plaintiff and defendant, and administer relief as their respective rights may require.

The plaintiff, possessing the contracts, being the real party in interest — see Kerr v. Watts, 19 U. S. (6 Wheat.) 550, 5 L. Ed. 328; Elmendof v. Taylor, 23 U. S. (10 Wheat.) 152, 6 L. Ed. 289; Mechanics Bank v. Seton, 26 U. S. (1 Pet.) 299, 7 L. Ed. 152,—may maintain this action. Under the Supreme Court holding in Erickson v. U. S., 264 U. S. 246, 44 S. Ct. 310, 68 L. Ed. 661, the Fleet Corporation is not a necessary party. Whether it may be a proper party is not before the court.

I think it is apparent from the complaint that the United States is the real party in interest, the Fleet Corporation, a corporate instrumentality, is a mere agent, with no beneficial interest, and that sufficient facts are stated in the several causes of action, and the demurrer to the several causes of action should be overruled.


source: Caselaw Access Project

author: NETERER, District Judge.

license: Public Domain

text:
    UNITED STATES v. OLMSTEAD et al.
    (District Court, W. D. Washington, N. D.
    May 13, 1925.)
    No. 9165.
    I. Conspiracy <@=23 — “Conspiracy” defined.
    A “conspiracy” is a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or some purpose, not in itself criminal or unlawful, by criminal or unlawful means.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Conspiracy.]
    2.. Conspiracy <@=27 — Not necessary to allege . or prove overt act at common law.
    In prosecution for conspiracy, at common law it was necessary neither to allege nor to prove an overt act.
    3. Conspiracy <@=43(6) — Indictment must fully and clearly set forth purpose of conspiracy and fneans intended to be used.
    Indictment for conspiracy to promote unlawful purpose must set forth that purpose fully and clearly and means intended to be used.
    4. Conspiracy <@=27 — Overt act is required - only to bring conspiracy within operation of statute.
    Gravamen of crime, under Rev. St. § 5440 (Penal Code, § 37 [Comp.'St. § 10201]), is the conspiracy; overt act being required only to bring it within operation of statute.
    5. Conspiracy <@=23 — No formal agreement necessary; not necessary that each co-conspirator have knowledge of all details.
    No formal agreement is necessary to constitute conspiracy, tacit understanding being sufficient; and it is not necessary that each co-conspirator have knowledge of all details of conspiracy or means to be used.
    6. Conspiracy. <@=33 — Elements of conspiracy • stated.
    Elements of conspiracy, under Rev. St. § 5440 (Penal Code, § 37 [Comp. St. § 10201]), are: (a) Act of two or more persons conspiring together; (b] to commit offense- against United States by defrauding United States'in any manner or for any purpose; (c) doing of act to effect object of conspiracy.
    7. Conspiracy <@=23 — Conspiracy is-continuing crime.
    • Conspiracy is a continuing crime, not renewable by other acts constituting several offenses.
    8. Conspiracy <@=41 — Party coming Into con- , spiracy at any stage is party to all acts of other parties; act of one is act of all.
    Party coming into conspiracy at any stage of proceedings with knowledge is party to all acts done by any party then or thereafter, in furtherance of common design, and act of one conspirator in furtherance of common design is act of all.
    9. Conspiracy <@=27 — Purpose of requiring overt act is to afford conspirators opportunity to abandon unlawful purpose.
    Purpose of requiring overt act, under Rev. St. § 5440 (Penal Code, § 37 [Oomp. St. § 10201]), is to afford a locus pcenitentiae, when conspirators may abandon unlawful purpose.
    10. Conspiracy <@=48 — Whether alleged overt act is such is question of fact for jury.
    Whether alleged overt act is such is question of fact for jury.
    11. Conspiracy <@=43(6) — Necessary allegations of indictment stated. ’
    Indictment for conspiracy need not charge substantive crime which is object of conspiracy with same particularity as if substantive crime were charged, but crime may not be charged by way of inference, but indictment must set forth accurately every ingredient of which offense is composed, to enable court to say whether facts are sufficient in law to support conviction, and must set forth facts and not law; but under Rev. St. § 1025 (Comp. St. § 1691), indictment may not be held insufficient for defects of form.
    12. Indictment and information <@=71 — Test of - sufficiency of indictment stated.
    Test of sufficiency of indictment is not whether it might be' made more certain, but whether it contains every element of offense, sufficiently apprises defendant of charge to be met, and shows with accuracy to what extent defendant may plead a former acquittal or conviction. ]
    13. Criminal law <@=197 — Judgment is bar to subsequent prosecution for any offense which could have been proved under indictment.
    Judgment is bar to subsequent prosecution for any offense which could have been proved, under indictment.
    14. Indictment and information <@=130 — Separate counts in indictment charge distinct offenses.
    Separate counts in indictment charge distinct offenses.
    15. Conspiracy <@=43(l) — Indictment must specially charge conspiracy.
    Conspiracy must be specially charged in indictment, and cannot be added to former acts done by one or more of conspirators in furtherance of conspiracy.
    16. Indictment and information <@=!25(l) — “Duplicity” defined.
    “Duplicity” is union of more than one cause of action in one count.
    . [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Duplicity.]
    17. Indictment and information <©=125(51/2)— Count not duplicitous for charging conspiracy to commit more than one offense.
    Count of indictment is not duplicitous because it charges object of conspiracy to have been to commit more than one offense against United States; conspiracy being unit, however varied its effect.

      18. Indictment and information <§=>130 — Counts in indictment for conspiracies under different statutes held properly joined.
    Counts charging conspiracies, under Rev. St. § 5440 (Penal Code, § 37 [Comp. St._§ 10201]), to violate National Prohibition Act and Tariff Act, each count charging distinct offense belonging to same class of offenses, held properly joined in one indictment, under Rev. St. § 1024 (Comp. St. § 1690).
    19. Indictment and information <§=>119 — Prolixity is not fatal to indictment. Prolixity is not fatal to indictment.
    20. Conspiracy <§=>43(l) — Indictment need not charge particular defendant with particular crime.
    Indictment for conspiracy need not charge particular defendant with particular crime.
    21. Conspiracy <§=>43(6) — Indiotmen.t for con* spiracy to violate National Prohibition Act and Tariff Act held sufficient.
    Indictment in separate counts charging conspiracy, under Rev. St. § 5440 (Penal Code, § 37 [Comp. St. § 10201]), to violate National Prohibition Act and Tariff Act, held sufficient.
    Criminal proceeding by the United States against Roy Olmstead and others. On defendants’ demurrers to indictment.
    Demurrers overruled.
    The indictment charges 90 defendants under four counts. Count 1 charges a conspiracy entered into about the 1st day of June, 1923, “ * ® * to violate the National Prohibition Act, * * * it being ‘® * the * 4 * object of said conspiracy to knowingly * “ * and unlawfully import, transport, and possess i: "i certain intoxicating * * * whisky * ® containing more than one-half of 1 per centum of alcohol by volume and fit for beverage purposes, * * * such possession being intended * ® * for the purpose of • ® * selling * * * in violation of the National Prohibition' Act,” and in violation of said act (Comp. St. Ann. Supp. 1923, § 1013814 et seq.) to maintain a common nuisance by selling whisky, etc., at named places. A number of overt acts are charged, the first of which is April 17, 1924.
    Count 2 charges conspiracy “ * * * to violate the National Prohibition Act, it being * * * the * ® * object of said conspiracy ® ® * to * * * • unlawfully barter, sell, deliver, and furnish certain intoxicating liquors * * * containing more than one-half of 1 per centum of alcohol by volume and fit for beverage purposes, ® * ® such bartering * * ® being ® * * prohibited by said act of Congress,” and charges' a number of overt acts.
    Count 3 charges conspiracy to violate “the Tariff Act, * '' ® it being *" * * the ® * * object to * ® * feloniously * * * defraud the revenue of the United States, to smuggle ® * * into the United States from British Columbia, Dominion of Canada, certain * ® ® intoxicating liquors fit for beverage purposes, containing more than one-half of 1 per centum of alcohol by volume; * " * that it was * 4 * the * * * object of said conspirators ® ® * feloniously not to declare or report the entry of the said prohibited merchandise,” charging a number of overt acts.
    Count 4 charges in substance conspiracy to defraud the revenue of the United States by smuggling into the United States, from British Columbia, intoxicating liquor fit for beverage purposes, containing the prohibited alcoholic content, without having obtained a permit, all in violation of law; that it was the purpose not to declare the entry of such merchandise.
    Each count of the indictment contains, after naming the defendants, the division, and district, the following: “ * * -- Then and there being, did then and there knowingly, willfully, unlawfully, and feloniously combine, conspire, confederate, and. agree together and with each other; and together with sundry and divers other persons to the grand jurors unknown, to commit certain offenses against the United States of America.”
    General and special demurrers have been presentéd to the indictment by many of the defendants upon the ground that the indictment does not allege sufficient facts, fails to particularize or identify the offense, fails to charge the particular defendant with any particular act, is vague and indefinite, that the indictment is bad for duplicity, and that counts 1 and 2 charge a conspiracy to violate the National Prohibition Act, and counts 3 and 4 the Tariff Act.
    Thos. P. Revelle, U. S. Atty., and C. T. McKinney, Asst. U. S. Atty., both of Seattle, Wash., for the United States.
    J. L. Pinch, of Seattle, Wash., for defendants Olmstead and others.
    Edward H. Chavelle and Joseph H. Griffin, both of Seattle, Wash., for certain defendants.
   NETERER, District Judge.

A conspiracy is a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means. Pettibone v. U. S., 148 U. S. 203, 13 S. Ct. 542, 37 L. Ed. 419.

In prosecutions for a conspiracy at common law it was neither necessary to aver nor to prove an overt act. Bannon v. U. S., 156 U. S. 468, 15 S. Ct. 467, 39 L. Ed. 494. An indictment for a conspiracy to promote an unlawful purpose must set forth that purpose fully and clearly, and must set forth the means intended to be used. Commonwealth v. Hunt, 4 Metc. (Mass.) 111, 38 Am. Dec. 346. The gravamen of the crime covered by section 5440, R. S. (section 37 Penal Code [Comp. St. 10201]), is the conspiracy; the overt act being only required to bring it within the operation of the statute. Hyde v. Shine, 199 U. S. 62, 25 S. Ct. 760, 50 L. Ed. 90; Dealy v. U. S., 152 U. S. 539, 14 S. Ct. 680, 38 L. Ed. 545; Pettibone v. U. S., supra; U. S. v. Hirsch, 100 U. S. 34, 25 L. Ed. 539. No formal agreement is necessary; a tacit understanding is sufficient, and it is not essential that each eoeonspirator have knowledge of the details of the conspiracy or the means to be used. Williamson v. U. S., 207 U. S. 449, 28 S. Ct. 163, 52 L. Ed. 278.

The elements of the conspiracy under the section supra are (a) the act of two or more persons conspiring together; (b) to commit an offense against .the United States by defrauding the United States in any manner or for any purpose; (e) the doing of an act to effect the object of the conspiracy. U. S. v. Cassidy (D. C.) 67 F. 698.

Conspiracy is defined as a continuing crime, not renewable by other acts constituting several offenses. U. S. v. Kissel, 218 U. S. 601, 31 S. Ct. 124, 54 L. Ed. 1168. Any party coming into a conspiracy at any stage of the proceedings with knowledge is regarded as a party to all the aets done by any of the other parties, then or afterwards, in furtherance of the common design (U. S. v. Cassidy, supra; Thomas v. U. S., 156 F. 897, 84 C. C. A. 477, 17 L. R. A. [N. S.] 720), and an act of one conspirator in furtherance of the common design is the act of all (Bannon v. U. S., supra; Evans v. U. S., 133 U. S. 589, 14 S. Ct. 934, 38 L. Ed. 830).

The purpose of the overt act is to afford a locus pcenitentiae, when either or all the conspirators may abandon the unlawful purpose. U. S. v. Britton, 108 U. S. 205, 2 S. Ct. 525, 27 L. Ed. 703; Hyde v. Shine, supra. And whether the alleged overt act is such is a question of fact for the jury. U. S. v. Biggs (D. C.) 157 F. 264; Marrash v. U. S., 168 F. 225, 93 C. C. A. 511. It is not necessary to allege in the indictment what acts were done to effect the object of the conspiracy (U. S. v. Benson, 70 F. 591, 17 C. C. A. 293; U. S. v. Boyden, Fed. Cas. No. 14,632), nor set out all the means agreed upon to carry it forward. If one or more - means alleged to be used are proven, it is sufficient. Jones v. U. S., 179 F. 584, 103 C. C. A. 142; Olsen v. U. S., 133 F. 849, 67 C. C. A. 21; U. S. v. Cassidy, supra. The indictment need not charge the object of the conspiracy, the substantive crime, with the same particularity as if the substantive crime rather than the conspiracy is the offense charged. Taylor v. U. S. (C. C. A.) 2 F.(2d) 444. The settled rule of pleading requires that the crime may not be charged by way of inference, but set forth accurately every ingredient of which the offense is composed, to enable the court to say whether the facts are sufficient in law to support a conviction (U. S. v. Cruikshank, supra; Blitz v. U. S., 153 U. S. 308, 14 S. Ct. 924, 38 L. Ed. 725), and may not be held insufficient if in form only. Section 1025, R. S. (Comp. St. § 1691). . .

The indictment must set forth facts, not the law. U. S. v. Nixon, 235 U. S. 231, 35 S. Ct. 49, 59 L. Ed. 207. The true test of the sufficiency of the allegations of an indictment is not whether it might have been made more certain, but whether it contains every element of the offense and sufficiently apprises the defendant of the charge to be met; whether it shows with accuracy to what extent the defendant may plead a former acquittal or conviction (Cochran et al. v. U. S., 157 U. S. 286, 15 S. Ct. 628, 39 L. Ed. 704; Armour Packing Co. v. U. S., 209 U. S. 83, 28 S. Ct. 428, 52 L. Ed. 681; Jones v. U. S., supra), and a judgment is a bar to subsequent prosecution for any offense which could have been proved under the indictment (Miller v. U. S. [C. C. A.] 300 F. 529).

Separate counts in an indictment charge distinct offenses, or because the pleader, having in mind but one offense, varies the statement in the several counts as to the manner or means of its commission, in order to avoid at the trial the acquittal by reason of a lack of harmony between the allegations in the bill and the facts as they may appear at the trial, and each count is in form a distinct charge of the separate offense. Dealy v. U. S., 152 U. S. 539, 14 S. Ct. 680, 38 L. Ed. 545. The conspiracy must be specially charged, and cannot be added to former acts done by one or more of the conspirators in furtherance of the conspiracy. U. S. v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588; U. S. v. Hess, 124 U. S. 483, 8 S. Ct. 571, 31 L. Ed. 516; Pettibone v. U. S., supra.

This court, in United States v. Ault, 263 F. 800, at 802, said: “It has been uniformly held that to offend against a law of the United States is to offend against the United States. The gravamen of the crime charged is the conspiracy. At common law the crime was completed when the conspiracy was formed, and it was unnecessary to state the particular means by which the object was to be carried forward; the felonious intent being charged, the means to effect the enterprise was a matter of evidence upon the trial; the bare combination and agreement -constituted the crime. 2 Bish. Criminal Practice, §§ 207, 208; 2 Bish. Cr. Law, 171-175, 191, 193, 198. Section 37 requires' more than the mere agreement before the combination is brought into operative effect (Hyde v. Shine, 199 U. S. 62, 25 S. Ct. 760, 50 L. Ed. 90), and that is the overt act. Only one overt act need be established. Jones, v. U. S., 179 F. 584, 103 C. C. A. 142; U. S. v. Cassidy (D. C.) 67 F. 698; U. S. v. Burkett (D. C.) 150 F. 213. The object of the statute in requiring an overt act is to afford a locus pcenitentise, giving opportunity for meditation and abandoning of the enterprise (U. S. v. Britton, 108 U. S. 199, 2 S. Ct. 531, 27 L. Ed. 698; Hyde v. Shine, supra); nor is it necessary that the conspiracy should be successful (U. S. v. Cohn [C. C.] 142 F. 983; U. S. v. Curley, 130 F. 4, 64 C. C. A. 369). The vitalizing agency is the overt act to effect its object.”

The indictment is not duplicitous. Duplicity is the union of more than one cause of action in one count. Jackson v. Rundlet, 13 Fed. Cas. 247, No. 7,145. There is no merit in the claim that the conspiracy charged in each count was the commission of more than one offense. The conspiracy is a unit, however varied its effect. Frohwerk v. U. S., 249 U. S. 204, 39 S. Ct. 249, 63 L. Ed. 561; Brewing Co. v. U. S. (C. C. A.) 206 F. 386; Knoell v. U. S., 239 F. 16, 152 C. C. A. 66; Anderson v. U. S. (C. C. A.) 273 F. 20. Nor is the indictment objectionable because causes are improperly joined. The conspiracy charged in each count is a distinct offense, and belongs to the same class of crimes, and under the statute may be joined. R. S. § 1024 (Comp. St. § 1690); Pointer v. U. S., 151 U. S. 396, 14 S. Ct. 410, 38 L. Ed. 208; Chadwick v. U. S., 141 F. 225, 72 C. C. A. 343; Hartman v. U. S., 168 F. 30, 94 C. C. A. 124.

The indictment is prolix, but that is not fatal. Measured by the requirements of approved authority, the indictment, I think, sets out the necessary elements, the confederation and agreeing together and with each other to do the prohibited thing, the-manner in which it was to be done, and the-object to be attained, and the overt acts committed by one or more of the parties charged.. It is not necessary to charge a particular defendant with a particular act, and the identity of the particular offense I think is sufficiently particularized. See, also, Rulovitch v. U. S. (C. C. A.) 286 F. 315; Schliefer v. U. S. (C. C. A.) 288 F. 368; Miller v. U. S. (C. C. A.) 300 F. 529.

What is said applies to the general and special demurrers of all defendants, and all are overruled.


author: JAMES, District Judge.

text:
    UNITED STATES v. INVADER OIL CORPORATION et al.
    (District Court, S. D. California, S. D.
    April 28, 1925.)
    1. Grand Jury @=»36 — Searches and seizures <S=j7 — Issuance of subpoenas duces tecum to
    • persons in charge of organizations being investigated for violating postal laws held, proper.
    Where post office inspectors had made reports that persons in control of certain organizations were probably violating the postal laws by reason of fraudulent practices, the government, having elected to bring such prosecutions as the evidence to be developed might warrant in certain district, could cause clerk of court of such district to issue subpoenas-duces tecum, requiring such persons to appear before the grand jury and produce their records, though grand jury had not entered on investigation of specific charge, such subpoenas-not constituting a violation'of Const. Amends* 4, 5.
    2. Grand jury <§=v>26 — Duty to make investigations stated.
    It is the duty of the grand jury to make investigations, where that arm of the government charged with the duty of conducting criminal prosecutions presents evidence to it under the belief, based on reasonable grounds, that ths-criminal laws have been violated.
    3. Evidence <©=v82 — Grand jury presumed tc act in accordance with law.
    It will be assumed, on motion to quash subpoenas duces tecum, that the grand jury will not act other than as the law prescribes and permits.

      4. Grand jury '<§=>36 — Keepers of records of trust organizations could be required by sub-pconas duces tecum to produce records before grand jury.
    Keepers of records of trust organizations, having interests offered as investment opportunities to the public, could be required by subpoenas duces tecum to produce records for investigation before grand jury.
    5. Joint-stock companies and business trusts <§=>10 — Keepers of records of trust organizations may be cqmpelled to permit holders of
    ' shares to examine records, though trust instrument does not concede right.
    Keepers of records of trust organizations, having share interests offered as investment opportunities to public, may be compelled by law to permit holders of shares to examine records, though trust instrument does not concede the right.
    In Equity. On motion of the Invader Oil Corporation and others to quash subpoenas duces tecum issued by Clerk of District Court, requiring movants to appear before the grand jury and produce their records.
    Motion denied..
    ■ Samuel W McNabb, U. S. Atty., and J. Edwin Simpson, Asst. U. S. Atty., both of Los Angeles, Cal.
    W. I. Gilbert, of Los Angeles, Cal., for respondents.
   JAMES, District Judge.

Subpoenas duces tecum were heretofore issued by the clerk of this court, requiring the respondents named in the above title to appear before the grand jury in session at the present term and produce their records. All of the respondents except Owenwood Pool No. 3 are resident in the state of Oklahoma. Owenwood Pool No. 3 is a resident of the state of Texas. Respondents have appeared and moved, to quash the subpoenas. This particular form of attack is not so expressed in the case of the Oklahoma respondents, but the name given it is not important. The objections mainly urged have to do with constitutional rights, of respondents as they are reserved in the Eourth and Eifth Amendments;

In terms the subpoenas are broad enough to require the production of all of the records having to do with the business of respondents. The demand is, without question, as respondents’ counsel have termed it, “most broad and sweeping.” As to whether, in view of the facts as presented by the government, that demand so exceeds the limits of proper investigation as to amount to unreasonable search, may be first considered. That question is always a judicial, one. The government has shown, by affidavits of post office inspectors, that matters were reported which, gave notice to the department to which they belong that probable violations of the postal laws had been committed by reason of fraudulent practices of the management in control of all respondent organizations; that searches and examination of the records of the Oklahoma organizations and of that at Port Worth, Tex., had been partially made, the most of it by force of a subpoena issued out of the federal courts and stipulations following the issuance thereof; that the entire number of respondents were constituted under one general control, represented by the corporate organizations named and the Owenwood Oil Corporation of Texas; that the syndicates and the pool referred to were subsidiaries; that a complete examination of all of the records of the organizations was not permitted to be had, and that the inspectors and auditors were obstructed in their efforts to obtain access , to all of such records, some of them being withheld because of the claim, technically made, that they were not designated in the subpoena; that the subpoenas both in Texas and Oklahoma were finally vacated at the instance of the government; that, having elected to bring such prosecutions as the evidence to be developed might warrant in the District Court of the Southern District of California, the subpoenas were caused to be issued here. The fact further is claimed, and the affidavits tend to so show it, that the transactions of the respondent corporate organizations are so intermingled and concerned with the operations of the subsidiaries that the true, conditions respecting the alleged fraudulent transactions are not reflected by the records of such corporate organizations. No effectual denial is submitted as to the facts just summarized; and even though that matter stood upon a conflict in the showing as between the government and respondents, the conflict would not be here resolved, so as to interfere with the proper investigation and prosecution of offenses under the criminal statutes.

It is the duty of the grand jury to make investigations, where that arm of the government charged with the duty of conducting criminal prosecutions presents evidence to it under the belief, based upon reasonable grounds, that the criminal laws have been violated. Necessarily it is the grand jury that is acting, and a subpoena can only have the effect of requiring the production before that body of witnesses and documents. There is no authority in the court to direct that exhibits be delivered to investigators,, although the grand jury, having before it a witness suitably qualified, may cause such witness to make his examination and report the facts; all the while the custody of the records so produced being that of the grand jury. Being apprised fully of its rights and duties, it will be assumed here that the grand jury will not act other than as the law prescribes and permits. <

That the grand jury has not entered upon the investigation of some particular and specific charge affords no reason for holding that a subpoena requiring a witness to give testimony generally in behalf of the government should be quashed. Wilson v. U. S., 221 U. S. 361, 31 S. Ct. 538, 55 L. Ed. 771, Ann. Cas. 1912D, 558. In Wheeler v. U. S., 226 U. S. 478, 33 S. Ct. 158, 57 L. Ed. 309, the court considered a case where the subpoena called for “all the cashbooks, ledgers, journals, and other books of account * * *, and all copies of letters and telegrams of Wheeler & Shaw, Incorporated.” The grand jury was there investigating whether Wheeler and Shaw had, by means of the corporation, used the mails to defraud. The claim that the subpoena was too broad, and that Wheeler, if required to produce the books and documents, would be denied his constitutional right not to furnish evidence against himself under compulsion, was rejected.

In Norcross v. U. S., 209 F. 13, 126 C. C. A. 155 (9th Cir.), contentions almost identical with those here were made under similar facts. Among the objections urged was one now emphasized — that the documents were wanted primarily for examination by postal inspectors and not by the grand jury. The court held that the respondent was properly adjudged in contempt for refusing to obey the subpoena.

In the Wilson Case, 221 U. S. 361, 31 S. Ct. 538, 55 L. Ed. 771, Ann. Cas. 1912D, 558, the right of an individual not to be compelled to give evidence implicating him in a criminal act was fully recognized, but it was pointed out that the production of books of a corporation by an individual in his representative capacity as an officer constituted no invasion of that right. The witness would be compelled to produce the records, but could stop short of giving any oral testimony as to entries made by him, or other acts in connection therewith, which might show his own crime. The court tested the question by declaring: “But the physical custody of incriminating documents does not of itself protect the custodian- against their compulsory production. The question still remains with respect to the nature of the documents and the capacity in which they are held. It may yet appear that they are of a character which subjects them to the scrutiny demanded and that the custodian has voluntarily assumed a duty which overrides his claim, of privilege”- — cited also in Essgee v. U. S., 262 U. S. 151, 43 S. Ct. 514, 67 L. Ed. 917.

And the particular form of the organization, as being incorporated or not, seems to furnish no reason for extending the privilege of the record keeper. It is claimed that the syndicates named and Owenwood Pool No. 3 are trust organizations of a private nature; It fairly appears that these trusts have share interests (whether so called or not) which are offered as investment opportunities to the public. Except that a single trustee is vested with great powers, and is made practically immune from any right in the investors to have his disposition of their property questioned during a term of 20 years, the organizations are in their nature commercial associations. The trust instrument does concede the right, which the law would compel in any event, to the investors to examine the records. As such associations, subsidiary to and operated apparently under the controlling genius of the companies corporate, it ought not to be considered that these records are beyond the reach of compulsory examination by the grand jury.

I am of the opinion that the command of the subpoenas should be obeyed. Under the oral evidence heard, and the matters shown by affidavit, all of the records called for may be reasonably necessary in order to enable the jury, or its experts, to uncover the suspected fraudulent acts. In that case the demand is not too sweeping. Erom what has been said, it also follows that no right of any of the respondents, secured to them by the Fifth Amendment, will be infringed.

The motion to quash the subpoenas, on all of the grounds stated, is overruled. Re-' spondents are required to be and appear before the grand jury in the Federal Building in Los Angeles at the session of said jury to be held on May 1, 1925, there to render obedience to the subpoenas in all things as required, with leave, nevertheless, to apply for a. modification of this order, in the event that a binding stipulation is entered into, assuring to the government a full inspection and examination of all of the books and records required to be produced, at the places where such records are kept. All legal exceptions are allowed to this order.


author: TUTTLE, District Judge.

text:
    HANNAN v. SLUSH et al.
    (District Court, E. D. Michigan, S. D.
    April 20, 1925.)
    No. 438.
    1. Wills @=692, 693(1) — Will empowering tenant to appropriate part of property without jeopardizing object of trust, construed.
    Under will creating trust for payment to wife of specified amount monthly, bequeathing property when freed from trust to such charitable institutions as wife might in her will ap1 point, and empowering wife in her lifetime to devote portion of property to charitable institutions if in the judgment of the trustees this could be done with entire safety, keeping in mind the object of the trust, the wife could not irrevocably appropriate property to charity during her lifetime, if immediate effect would jeopardize object of trust, though trustees then decided that appropriation . could be made at some future time without jeopardizing trust.
    2. Powers <§=16 — Instruments creating powers are to be strictly construed.
    Instruments creating powers are to be strictly construed.
    3. Powers @=32 — Must be executed in mode prescribed by donor.
    When a certain mode of executing a power is prescribed by the donor, donee has no authority to execute such power in any other mode and any attempt so to do is void.
    4. Judgment @=670 — Consent decree dismissing widow’s suit to set asido election to take under will held not res judicata in her subsequent suit to set aside exercise of power of appointment.
    Consent decree dismissing widow’s suit to set aside election to take under will held not res judicata as to validity of her execution of power of appointment in subsequent action to set aside instrument of appointment, though, as a part of the general relief prayed in the first suit, she asked that court set aside instrument of appointment, since first suit was brought in her individual capacity to redress personal wrong, while second suit was instituted in her capacity as donee of the power.
    5. Judgment @=720 — Judgment not res judi-cata in subsequent suit involving different cause of action except as regards questions actually presented, litigated, and decided.
    A judgment is not res judicata in a subsequent suit involving a different cause of action except as regards questions actually presented, litigated, and decided between same parties in such former suit.
    In Equity. Bill by Luella Hannan against Matthew Slush and others. Decree for plaintiff.
    See, also, 283 F. 211.
    Alfred Lucking, of Detroit, Mich., for plaintiff.
    Thomas G. Long, of Detroit, Mich., for defendants.
   TUTTLE, District Judge.

This is a bill to-construe a will and to construe and set aside a certain so-called instrument of appointment purporting to have been executed pursuant to said will. The jurisdiction of the court is-properly invoked on the ground of diversity of citizenship.

The plaintiff is Luella Hannan, who is the-widow of William W. Hannan, deceased, a-legatee under the will of said deceased, and a donee of certain trust powers created by said will. The will, which was duly executed December 18, 1916, gave lump sum legacies-to various persons, aggregating approximately $1,000,000, and also provided for the payment, by testamentary trustees, of' $2,500 monthly to the plaintiff during her life. It also created in the plaintiff certain powers of appointment of the residue of the estate to charity under conditions which will be hereinafter set forth in proper detail. The deceased, who was a resident of the city of Detroit and county of Wayne, died December 24,1917. At that time his estate was of the value of approximately $4,000,000. The will was duly probated in the probate court of said county February 13, 1918. About the first of December, 1918 (the exact date being in dispute, uncertain, and immaterial for the purposes of this ease),, plaintiff executed a written instrument purporting to be an appointment, pursuant to» the powers conferred on her as donee by the-terms of the will, of the sum of $2,500,000» to certain trustees therein named, for the establishment and maintenance of a public-auditorium for the people of Detroit. At the time of the execution of this instrument, the value of the estate was approximately $4,000,000, out of which there was due and unpaid about $1,000,000 in legacies and about $500,000 in state inheritance taxes; so that the payment at that time of the sum so appointed would have exhausted the entire estate and no source would have remained from-which the plaintiff’s aforementioned monthly stipend under the will could have been paid. This instrument, which will be hereinafter more fully referred to, was filed in said probate court February 18, 1919, indorsed with the approval of the testamentary trustees hereinafter mentioned. On December 16, 1918, plaintiff signed an election to take under said will, which election was duly filed in said probate court.

On \October 14, 1919, plaintiff filed in this court a bill of complaint, against the trustees under the will and under the appointment mentioned, seeking to set aside her- said election on the ground that its execution by her had been procured fraudulently and wrongfully and while she was mentally incompetent to understand or know what she was doing. The bill, which will be referred to again later, also (and clearly as merely incidental to the setting aside of the election, which was obviously the main object of the bill) asked that said appointment be set aside on the same grounds. On May 26, 1921, while the bill last mentioned was pending in this court, plaintiff and the other surviving testamentary trustee under the will of the deceased entered into an agreement for the settlement of the suit so pending, by the terms of which plaintiff in her personal, individual capacity, received the sum of $400,-000 in addition to her monthly legacy of $2,-500 and agreed to withdraw her claim to take otherwise than under the will. Certain provisions were also included with reference to the appointment, which will be mentioned later. Shortly thereafter in accordance with the terms of said settlement agreement, a consent decree dismissing said bill was entered by this court, reciting that “the parties to this cause having come into court, by their respective counsel, and it appearing to the court that the subject-matter in this suit has been adjusted and settled by the parties, therefore, by the consent of counsel for plaintiff, on motion of counsel for defendants, it is ordered, adjudged, and decreed, that this cause be, and the same is, hereby dismissed.” Thereafter, plaintiff commenced the present suit for the purpose of setting aside the aforesaid so-called instrument of appointment on the ground that its execution was in excess of the power created by the will on which it purports to be based, and that such execution was and is beyond the scope of such power and void, for reasons to be now discussed. The suit was referred, on bill and answer, to the master in chancery of this court, who, after hearing evidence and arguments, filed a lengthy report containing findings of fact and conclusions of law and recommending the entry of a decree in favor of plaintiff. To this report the defendants have filed exceptions on which the cause is now before the court. Unless plaintiff is now barred, by the former consent decree already referred to, from maintaining her present suit (a question to be hereinafter considered), the validity of the appointment in question depends upon the proper construction of the language of the will conferring on plaintiff such powers of appointment as she possesses. The will first provides for a trust for the payment of the various legacies specifically mentioned in the will (aggregating, as already indicated, nearly $1,000,000), and the further payment, out of the invested funds of the estate, which are to remain in the hands and under the control of the testamentary trustees for that purpose, of the stated monthly installments of $2,500 to the plaintiff during her life. The will then proceeds with the following language:

“When said property is freed from said trust (whether it is freed at the death of my wife, Luella Hannan, or whether a part is freed then and a part of it at the later death of said Clay A. Greene), I bequeath the same to such charities for the people of the city of Detroit, and such charitable institutions in the city of Detroit (and by ‘charities’ I mean any form of public benefit, by no means excluding public parks and playgrounds) as my wife, Luella Hannan, may in her will appoint. She may give all to one charity or to one charitable institution or she may distribute the same among several charities or charitable institutions in such proportion as to her seems wise. If my said wife shall desire, during her lifetime, to devote a portion of said property to any of the charities or charitable institutions above described, and if in the judgment of the two remaining trustees this can be done with entire safety (keeping in mind the object for which the trust is created) she shall have the right to do so; and to justify the appropriation of money or property' in this contingency, there shall be filed in the probate court a proper written instrument, signed by said wife and approved by each of the other trustees.
“If my wife shall fail, either entirely or partially, to designate, as hereinbefore required, to what charity or charitable institutions said property shall go, then I bequeath said property to the endowment fund of the Children’s Aid Society of Detroit.”

The instrument executed by the plaintiff purporting to appoint the $2,500,000 in question was in the following form and language:

“I, Luella Hannan, widow of William W. Hannan, late of Detroit, Michigan, under and by virtue of power given me by the will of my said husband, duly probated in the probate court of Wayne county, Michigan, and ■with the consent and approval of Flavius L. Brooke and Matthew Slush, executors and trustees under the said will,
“Do hereby appoint and direct the conveyance, assignment and transfer by the trustees under the will of Wiliam W. Hannan, deceased, at such time or times, in such installments and at such valuations as may unanimously be determined by Flavius L. Brooke, Matthew Slush and myself, the said Luella Hannan, the trustees named in said will, of the property to be selected by said trustees from the property held in trust by them under said will to the amount and value in the aggregate of two and one-half million dollars ($2,500,000); said conveyance, assignment and transfer to be made to Luella Hannan, Matthew Slush, Flavius L. Brooke, Ralph L. Polk and William L. Carpenter, and their successors, as trustees and in trust in perpetuity, to use and devote the property so transferred and the income thereof for the purpose of acquiring a site for and building and maintaining thereon a public auditorium for the people of the city of Detroit, which shall be open to public use under such rules and regulations and upon such terms and conditions as said trustees or their successors may from time to time determine, and the said auditorium shall be called ‘Han-nan Memorial Hall.’
“Should any of said trustees herein named fail to accept said trust, die, resign or become otherwise incapacitated, the vacancy shall be filled by the circuit court for the county of Wayne, in chancery, or any court succeeding to its powers, upon the nomination of the remaining trustees.
“I authorize said trustees or their successors, under the direction and with the approval of the circuit court for the county of Wayne, in chancer jt, or of any court which may succeed to its powers, to organize a corporation wherein said trustees and such other person or persons as they may select shall be corporators to succeed to their trust hereunder and to the title to the trust property, and upon such organization they shall convey' the trust property to said corporation and turn over to it their trust.
“Said trustees are hereby empowered to sell and convey any and all of the trust property coming into their hands under this trust. They shall use so much of the proceeds thereof as in their judgment is needed for the acquisition of said site and the erection of said building. The balance of the proceeds shall be invested and reinvested from time to time in such form or forms, not excluding sound public utility and industrial securities, as the trustees or tEeir successors may select. The corpus of said remaining fund and the income arising therefrom shall be used by s¿id trustees or their successors as in their discretion will best carry out the general purpose of this trust.
“No rent shall be exacted for the use of said building and no charge shall be made for admission, except such as in the judgment of said trustees or their successors may be needed (having in view the condition of the trust fund from time to time) to carry out the purpose of this charitable trust.
“Said trustees and their successors are hereby vested with all authority and powers needed or proper to carry out the object of this trust.
“In witness whereof I hereunto set my hand this 7th day of November, 1918.”

The only act or statement of the testamentary trustees indicating their approval of said instrument consisted in the following certificate signed by said trustees, indorsed on the appointment, and filed therewith in the probate court:

“We, Flavius L. Brooke and Matthew • Slush, executors and trustees under the will of William W. Hannan, deceased, having examined the foregoing appointment and direction executed by Luella Hannan, do hereby approve the same.”

The settlement agreement already mentioned contained the following clause:

“With reference to the appointment of Luella Hannan, regarding $2,500,000 out of the residue of the estate of William W. Han-nan, deceased, filed on February 18,1919, in the probate court for the county of Wayne, in estate or file No. 70,357 aforesaid, it is hereby agreed that the fund of $2,500,000* shall be deemed to have been appropriated out of said estate to the purposes set forth in said appointment as of January 2, 1921. The aforesaid fund shall not actually be segregated and set apart at this time, but, nevertheless, shall be deemed to have been segregated as of said date, and shall be entitled from said date to its share of the net earnings of the estate in the proportion which it bears to the entire estate. The segregation and selection of the properties which shall constitute said trust fund of $2,500,000 shall be made by the unanimous action of the trustees of the estate of William W. Hannan and when they see fit. If any provisions hereof shall be deemed to be in anywise inconsistent with the terms or provisions of said appointment, the said appointment is to that extent modified and amended hereby. Inasmuch as said Luella Hannan is of the opinion that the proposed form of memorial is not the most desirable, it is agreed that nothing in this paragraph shall prevent the trustees named in the aforesaid appointment of Luella Hannan regarding $2,500,000 out of the residue of the estate of William W. Hannan, deceased, from making further efforts to arrive in good faith at an appropriate form of memorial and from an agreement upon the same in substitution for the memorial described in said appointment, but unless so changed or modified the appointment so made shall continue in full force and effect.”

Efforts to agree on a form of memorial other than that described in said appointment were thereafter made between plaintiff and said trustees, but were unsuccessful. No action has been taken in the execution or furtherance of the appointment involved, other than mere bookkeeping entries, by the trustees as contemplated by the last-quoted' language of the settlement agreement. Plaintiff alleges in the eighth paragraph of her bill in this cause that' at the time she signed the document purporting to exercise the power of appointment in question, “only a trifling portion of the legacies specified in said will of her husband had been paid, and at the present date only about one-quarter in amount of said legacies has been paid”; and that “said sum of $2,500,000 could not then and cannot now with safety be devoted to the purposes mentioned in said” document. In the eighth paragraph of their answer to said bill, the defendants state that they “admit the averments in paragraph 8 of plaintiff’s bill of complaint,” but that they do not admit that “no part of said $2,500,000 could with safety be devoted to the purposes of the trust of” said appointment. In the ninth paragraph of her said hill, plaintiff alleges that “the financial situation of the estate has always been such that no substantial part of said two and one-half million dol-' lars could he used for such purpose.” In the ninth paragraph of their said answer, the defendants deny that “no substantial part of said $2,500,000 could be used for the purpose of said appointment”; although they “admit that the circumstances have been such that it would have been unwise to so use them.” I am satisfied that the following finding of fact contained in the report of the master is correct:

“At the time of the execution of said appointment and at the time of the making of said settlement agreement and of the entry of the said consent decree thereunder, and at the time of the filing of the hill herein, the payment of said sum of $2,500,000 thereunder could not, either in the judgment qf the trustees under said will or in fact, have been then immediately and actually made with entire safety to the payment of the legacies and.the other objects of the trust created by said will; and it was not at any of the times just mentioned, contemplated by plaintiff or by said trustees that the payment of said sum could or would be made, if ever, until some indefinite future time.”

The particular language of the will by which the validity of the instrument of appointment must be tested is the following sentence already quoted: “If my said wife shall desire, during her lifetime, to devote a portion of said property to any of the charities or charitable institutions above described, and if in the judgment of the' two remaining trustees this can be done with entire safety (keeping in mind the object for which the trust is created) she shall have the right to do so.” More specifically and as applied to the facts in the present ease, there is presented the question as to the proper construction of the clause, “if in the judgment of the two remaining trustees this can be done with entire safety (keeping in mind the object for which the trust is created).” Clearly, the “object” of the trust just referred to is the payment of the debts and legacies of the testator, including the payment of $2,500 monthly to the plaintiff. This power, therefore, conferred on plaintiff as donee, of devoting a portion of the estate to charity if she “shall desire during her lifetime,” is qualified and limited hy the condition that it can be exercised only if it can be done without endangering the object of the trust just mentioned. Whether, at any particular time (aside from the question what that time shall be), it can be done “with entire safety,” is a question confided to the sound judgment of these trustees. So much is plain. The dispute as to the meaning of this language relates to the precise time as of which this question of safety is to he determined. Did the testator intend that his wife should have the power, if she should “desire during her lifetime to devote a portion of said property to” any of the charities mentioned, to make such devotion only if, in the judgment of said trustees, “this (namely, the devoting of such property) can be done” at the' very time when she should so desire without then endangering the object of the trust? Or, did the testator intend that his wife should have the power to irrevocably appropriate property to charity during her lifetime by merely expressing, during her lifetime, a desire that such property should be so appropriated to charity, even if such desire could not then he carried into effect because if it were given immediate effect it would jeopardize the object of the trust, and even if the trustees decided, at the very time when it was unsafe to then carry out such desire, that later it could be done with entire safety? These, in the final analysis, seem to me to be the ultimate questions involved in this connection. After careful thought, I reach the conclusion that the first of the questions just stated should be answered in the affirmative and the second in the negative. It would seem that unless the decision of the trustees concerning the safety of such'a devotion were not confined to the question whether it would be safé for the widow to make such a donation at' the time when she desired to do so, the safeguard evidently designed by the testator to protect his widow from herself would be largely, if not entirely, frustrated. Such a purpose ought not to be imputed to the testator unless it is more clearly expressed than appears here. The main object of this will is manifestly to insure ample protection to the wife of the testator during her lifetime and to provide for charity only at her death, except in the contingency, carefully safeguarded, as it was apparently designed to be, referred to in the clause now under consideration. It is an elementary principle of the law of powers that instruments creating such powers are to be strictly construed, and that, when a- certain mode of executing a power is prescribed by the donor, the donee has no authority to execute such power in any other mode, and any attempt so to do is void. An examination of the will involved here makes it clear that the testator intended, and attempted to express that intention by the words employed, that the payment of the fixed monthly amounts provided for his widow should not be impaired nor jeopardized by any diversion of the trust estate to charity, even though she herself might so desire. She was permitted to designate the charitable beneficiaries to which she might desire to appoint the residue of such estate at the time of her death; and such appointment could take effect only then, that is, only by a will— with one exception. Evidently foreseeing that before her death she might desire to devote a portion of the estate to charity and that such a devotion might not in any way endanger her own interests under the will, the testator was willing to allow' her that privilege, provided that her power in that respect was so modified and limited that she could exercise and effectuate it only at a time when such a donation could be made with entire safety to her. Having in mind the solicitude of the testator for his wife, so apparent throughout his will, it could not have been his intention to permit her to bind herself (even if she should be temporarily overcome or persuaded by her own generosity) by any action which' in substance and effect constituted an irrevocable promise to make a donation to charity at some future time, which donation could not be presently made with entire safety to her own legacy. I am satisfied that, in 'view of the facts and circumstances disclosed by this record, that would be the very situation here presented if the contentions of the defendants were sustained and the so-called instrument of appointment were held valid. I conclude that even if the defendant herself were willing, she would not have the power to confirm (as she was without power to originally execute, or later, by the settlement agreement mentioned, to ratify) such instrument, which I hold to be in excess of the power created, and therefore void.

It is further urged by defendants that the consent decree, dismissing the former suit commenced by the same plaintiff in this court, is res adjudicata and operates as a bar to the recovery of the relief here sought. I cannot agree with this contention. A careful examination of the pleadings in the former suit, together with a consideration of the surrounding facts and circumstances, satisfies-me that, in substance, essence, and effect, the cause of action involved in that suit differed from the cause of action on which the present suit is based. The bill in the first suit was brought by plaintiff in her individual capacity, for the purpose of redressing an alleged personal wrong and injury. It rested upon, and sought to enforce, the claim that plaintiff, while physically and mentally incompetent to understand her rights and the facts in relation thereto, had been, through deception and fraud, deprived of her right to take the share in her husband’s estate, to which she was entitled under the Michigan statutes of descent and distribution, and had been wrongfully induced to sign what purported to be an election to waive her statutory rights and to accept in lieu thereof the provisions for her contained in t*he will of her husband. She sought to obtain whatever relief was necessary to recover the property to which she claimed to be entitled as an heir of her husband under the statutes mentioned. That was the gist and substance of the claim and cause of action on which that suit was based. It is true that, as a part of the general relief prayed, she asked that the court set aside the aforesaid instrument of appointment which she had executed. That reference, however, to the appointment was obviously merely in-

eidental to the allegations forming the true description and basis of the claim and cause of action involved, just stated, and prompted solely by the notion that in' order to obtain the complete relief to which she was entitled it was desirable to repudiate and renounce said appointment as possibly inconsistent with her assertion of her said claim. There is nothing in the record in that suit or in the present record relative thereto which indicates that plaintiff was then claiming any right, in any capacity, or of any nature other than just stated, nor that she there alleged any wrong or sought any form or kind of relief, other than as just indicated. Moreover, that suit appears to have been considered and treated by all interested parties as involving only the elements referred to, and it was regarded and disposed of on that theory alone. The present suit is, in substance, essence, and effect, of an entirely different character. It proceeds upon quite a different theory. Considering the entire record and observing the duty of a court of equity to look through form to substance, I cannot fail to see that the issues here presented are wholly different from those inherent in the former suit. The present bill is not based upon any cause of action belonging to plaintiff as an individual, and prays no relief for her own personal benefit. It is manifestly brought by the plaintiff in her capacity as a donee of the power conferred on her in trust for the benefit of the appointees which she, as such donee, may represent. The only right which plaintiff asserts is the right to exercise the trust powers created in her by the will of the donor of such power in accordance with the provisions of such will, unhampered by the instrument, which she alleges is invalid, but which the defendants contend is valid and deprives her of the right to make such other appointments as she desires. The only wrong on the part of the defendants which she alleges is their action in interfering with her claimed right- to exercise, as donee thereof, the trust power sought by her to be executed. The only form of remedial relief which she seeks is such as will enable her to so exercise such power for the benefit of the appointees thereof. I have given careful consideration to the arguments (rather technical as they seem to me to be) on .this branch of the ease. I cannot, however, avoid the conclusion that the rights of the plaintiff, the duties of the defendants, .the breach of such rights and duties, and the remedies and relief involved in the two suits in question are so distinct and different in their essential character that a court of equity should recognize that such suits are based upon essentially different causes of action, within the meaning of the settled rule of res adjudieata to the effeet . that a judgment rendered in a suit involving a certain cause of action is not res adjudi-cata in a subsequent suit involving a different cause of action, except as regards questions actually presented, litigated, and decided, between the same parties, in such former suit. Cromwell v. Sac County, 94 U. S. 351, 24 L. Ed. 195; Troxell v. Delaware, Lackawanna & Western Railroad Co., 227 U. S. 434, 33 S. Ct. 274, 57 L. Ed. 586; Vicksburg v. Henson, 231 U. S. 259, 34 S. Ct. 95, 58 L. Ed. 209; Fellows v. National Can Co. (D. C.) 276 F. 309; Privett v. United States, 261 F. 351 (C. C. A. 8). The contention of the plaintiff in this respect must be sustained and that of the defendants overruled.

The conclusions thus reached are sufficient to dispose of the issues involved, and there is therefore no occasion to determine or consider any other questions discussed by the parties or by the master. A decree will be entered confirming the report of the master in accordance with the terms of this opinion, and overruling all exceptions filed to such report by the defendants in so far as they are inconsistent with the views hereinbefore expressed.