author: SANBORN, Circuit Judge.

text:
    KEMPNER et al. v. GODDARD GROCER CO.
    (Circuit Court of Appeals, Eighth Circuit.
    April 30, 1925.)
    No. 6721.
    1. Sales <§=3181(11) — Failure of purchaser of sugar to give shipping instructions, excusing seller's nondelivery within time specified, held not established.
    Where contract for purchase and sale of sugar, consisting of broker’s bought and sold notes, contained definite shipping instructions, which were not revoked or modified, heldi, failure of buyer to furnish shipping instructions, excusing seller from shipping within time specified by contract, was not established.
    2. Sales <§=>88 — Failure of court to submit issue whether shipping instructions, in addition to those clearly given in contract, were contemplated, not error.
    Where contract for purchase and sale of sugar contained definite shipping instructions, and was free from ambiguity and uncertainty, failure of court to submit to jury questions whether parties intended that shipping instructions other than those contained in contract should be given as condition precedent to shipment by seller was not error.
    3. Contracts <§=>176(1)— It is province of court to construe plain terms of written contract and deduce therefrom intent of parties.
    It is province of court to construe plain terms of written contract and deduce therefrom intent of parties.
    4. Sales <§=385(2) — Engine trouble, incapacitating refinery, held not to excuse nondelivery of sugar, in absence of evidence showing inability to deliver actually resulted.
    Engine trouble, incapacitating seller’s refinery, heldi insufficient to excuse nondelivery of sugar, under provision of contract that seller should not be liable for nondelivery caused by strikes, destruction, or other unavoidable casualty, in absence of evidence that such trouble in fact affected seller’s ability to deliver.
    5. Contracts <§=3278(1) — He who commits first substantial breach of contract cannot maintain action against other contracting party for subsequent failure to perform.
    He who commits first substantial breach of contract cannot maintain action against other contracting party for latter’s subsequent failure to perform.
    In Error to the District Court of the United States for the Eastern District of Missouri; Charles B. Faris, Judge.
    Action by I. H. Kempner and others, as trustees, against the Goddard Grocer Company. Judgment for defendant, and plaintiffs bring error.
    Affirmed.
    Thomas L. Philips, of St. Louis, Mo. (Baker, Botts, Parker & Garwood, of Kansas City, Mo., on the brief), for plaintiffs in error.
    John H. Holliday, of St. Louis, Mo. (Samuel W. Fordyce, Jr., Thomas W. White, and Bennett C. Clark, all of St. Louis, Mo., on the brief), for defendant in error.
    Before SANBORN and LEWIS, Circuit Judges, and POLLOCK, District Judge.
   SANBORN, Circuit Judge.

The plaintiffs in this action, who were and are engaged at the city of Sugar Land, in the state of Texas, in refining and selling sugar, in April, 1920, sold to the defendant, a corporation of the state of Missouri doing business in the city of St. Louis, 6,600 bags of refined granulated sugar at specified prices to be delivered in the state of Missouri at places named during the months of May and June, 1920. The Meinrath Brokerage Company, a broker, was authorized by the plaintiffs to sell this sugar for them, and by the defendant to buy this sugar for it, and their contract of sale and purchase is in writing, and is evidenced by the bought and sold notes or memoranda of the contract of sale, and the shipping instructions, duly dated, signed, and sent about April 23, 1920, by the broker to the respective parties in the usual way of making such sales and contracts through brokers. Thorn v. Browne, 257 F. 519, 523, 524, 168 C. C. A. 469; Gettys v. Newburger (C. C. A.) 272 F. 209, 214, 215.

The plaintiffs brought this action to recover $48,769.35 damages for the breach of this contract on the ground that the defendant refused to take and pay for 3,000 bags of this sugar shipped by them to St. Louis and tendered to the defendant at St. Louis in July and August, 1920. The defendant denied its liability to take' or pay for this sugar on the ground that the contract required the plaintiffs to deliver these 3,000 bags of sugar in St. Louis in June, 1920, and they had failed to do so. At the close of the evidence for the plaintiffs, the court, on the request of the defendant, instructed the jury to return a verdict for the latter, and plaintiffs’ attorney assigned this ruling as error.

In his brief counsel for the plaintiffs specifies these three alleged errors and no more: First, that the court below gave no meaning »r effect to this provision of the contract, “Should buyer fail to furnish shipping directions within specified time, seller to ship as soon thereafter as convenient, and such failure on buyer’s part shall not be considered reason for seller canceling, .-without first asking buyer for shipping directions or necessary specifications”; second, that the court erred in directing the jury to find a verdict for the defendant; and, third, that the court determined itself and failed to submit to the jury the question whether or not the parties to the contract intended that defendant should give to plaintiffs, subsequent to the date of the contract, and within the time or times of shipments set forth therein, shipping directions as a condition precedent to the shipment by plaintiffs to defendant of any or all of the sugar covered by the contract.

The testimony of Mr. Scott, which was uncontradieted, was that he prepared on or about April 23, 1920, the broker’s bought and sold notes of the contract and the shipping instructions; that the latter were parts of the same transaction as the former, and were sent to the respective parties to the contract at the same time. The bought and sold'notes contained these words: “Should buyer fail to furnish shipping directions within the specified time, seller to ship as soon thereafter as convenient. Seller not liable for nondelivery, if caused by strikes, destruction of refinery, or other unavoidable casualty.” And the shipping instructions which were sent with the bought and sold notes to. the buyer and seller contained on their right upper corners this statement: “Shipping instructions on contract our No. Imp-60-L.” The words, “Shipping instructions on contract our,” were in red ink, and “No. Lnp-60-L,” referred to the broker’s order which inspired the sale. On the left lower corner of these shipping directions, in red ink, the sentence quoted above in the statement of the first alleged error appears. These shipping instructions contained clear and express directions, however, that 600 bags of the sugar should be shipped to Hannibal, Mo., 600 bags to Jefferson City, Mo., and 5,400 bags to St. Louis, Mo. Here were clear instructions to ship the entire 6,600 bags to the places above named. The evidence discloses the fact that' upon these instructions, without later or more, the plaintiffs did ship the 600 bags to Hannibal, the 600 bags to Jefferson City, and 600 bags to St. Loujs on May 1, 1920, and these shipments were received and paid for.

On May 6, 1920, the defendant by letter requested the plaintiffs to send a ear of sugar from its purchase for May shipment to Fayetteville, Ark., and they did so, and the sugar in this ear was paid for. All the shipments made prior to July 1,1920, except that to Fayetteville, Ark., were made to the places specified in the original shipping instructions of April 23, 1920, and were promptly paid for. There remained 3,000 bags of the 6,600 bags of sugar, which by the express terms of the written contract the plaintiffs agreed to ship to St. Louis in June, 1920, no part of whieh was shipped or delivered until after the month of June had expired. As the contract and the shipping instructions of April 23, 1920, expressly provided that this sugar should be shipped to St. Louis, and those instructions were given by the buyer at the time when the contract was made, and long before the time for the shipment expired, and those instructions were never revoked or modified, the conclusion is unavoidable that the buyer did not “fail to furnish shipping directions within specified time,” within the meaning of the stipulation, “Should buyer fail to furnish shipping directions within specified time, seller to ship as soon thereafter as convenient, and such failure on buyer’s part shall not be considered reason for seller canceling; without first asking buyer for shipping directions or necessary specifications,” and the facts of this ease failed to bring it within the terms or under the effect of that provision.

Nor was there any error in the failure of the court to submit to the jury the question whether or not the parties to the contract intended that the defendant should give to the plaintiffs, subsequent to the date of the contract and the shipping instructions of April 23, 1920, other shipping instructions as a condition precedent to the shipment by plaintiffs of any or all of the sugar. The contract and the original shipping instructions are free from either ambiguity or uncertainty. The intention of the parties thereby to contract between themselves, then and there, when and to what places the 6,-600 bags of sugar could be shipped, shines forth therefrom so clearly that a failure of the court to have found and given effect to that intent would have been clear error. It is the province and duty of the court, not that of the jury, to construe the plain terms of a written contract, to deduce therefrom the intention of the parties and to give it effect. Hull Coal & Coke Co. v. Empire Coal & Coke Co., 113 F. 256, 260, 51 C. C. A. 213; Fitzgerald v. First National Bank, 114 F. 474, 477, 52 C. C. A. 276; Kesterson v. La Moine Lumber & Trading Co., 193 F. 355, 359, 113 C. C. A. 279.

The contract of sale contains this elanse: “Seller not liable for nondelivery if caused by strikes, destruction of refinery, or other unavoidable casualty.” The plaintiffs pleaded that about June 12, 1920, the steam engine supplying power to their refinery broke down; that this was an unavoidable casualty; that it notified the defendant thereof, and of the fact that further shipments of the sugar under the contract would be delayed; that they repaired the engine and were ready to resume shipment of the sugar to the defendant about the 21st day of June, 1920. They also alleged that they notified the defendant that they were ready to resume shipments, and requested of it shipping instructions; but they did not prove that they notified defendant of "this casualty at any time, or that they notified it that they were ready to resume shipments, or that they requested shipping instructions until after the expiration of the month of June, the time within which they agreed to deliver the 3,000 bags of sugar. .

The clause of the contract heve invoked goes no farther than to relieve the plaintiffs from liability for nondelivery on account of the casualty. It does not by its terms or its legal effect extend indefinitely the time within which the parties by their contract agreed that they would, and beyond which they would not, buy or sell any of this personal property. And, however that may he in this ease, the evidence as to this casualty was clearly insufficient to excuse the plaintiffs from their failure to deliver any of the 3,000 hags in June, in view of the fact that their refinery was in operation 19 days in that month, that they did not deliver a single bag of the 3,000 bags in that month, that there was no proof and no probability that the casualty they pleaded made it impossible for them to deliver any of this sugar in June, when their refinery was in operation more than two-thirds of the month, and there was no proof whatever what part, if any, of this sugar they could not, and what part of it they could, have delivered. The result is that their failure to deliver this 3,000 bags of sugar, or any part, in June, constituted the first substantial breach of the contract, and is fatal to the cause of action of the plaintiffs. He who commits the first substantial breach of a contract cannot maintain an action against the other contracting party for the latter’s subsequent failure to perform. Cresswell Ranch & Cattle Co. v. Martindale, 63 F. 84, 89, 11 C. C. A. 33; Norrington v. Wright, 115 U. S. 188, 204, 205, 6 S. Ct. 12, 29 L. Ed. 366; Filley v. Pope, 115 U. S. 213, 6 S. Ct. 19, 29 L. Ed. 372; Cleveland-Rolling Mills v. Rhodes, 121 U. S. 255, 261, 264, 7 S. Ct. 882, 30 L. Ed. 920; Rice v. Fidelity & Deposit Co., 103 F. 427, 433, 43 C. C. A. 270; National Surety Co. v. Long, 125 F. 887, 892, 60 C. C. A. 623.

Let the judgment below be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    SAUTBINE v. STROUD.
    (Circuit Court of Appeals, Eighth Circuit.
    May 4, 1925.)
    No. 6793.
    1. Corporations <®=>I2I (4)— Binding contract for purchase and sale of corporate stock held sufficiently pleaded to support purchaser’s action thereon.
    Binding contract for purchase and sale of corporate stock, as evidenced by broker’s bought and sold memorandum for notes, held, sufficiently pleaded to sustain purchaser’s action for seller’s failure to deliver.
    2. Frauds, statute of - i 15 (3) — Binding contracts for purchase may be evidenced by broker’s-seller’s note or memorandum.
    Binding contracts for purchase may be evidenced by broker’s-seller’s note or memorandum.
    3. Corporations <g=U2l (4) — Facts alleged in action for breach of contract to sell corporate stock held sufficient, if established, to show breach of contract by defendant.
    In action for .breach of contract to sell corporate stock, allegation that, after broker had completed deal, plaintiff purchaser deposited money for payment in bank which wired to bank in which stock was to have been deposited guaranteeing payment of draft on purchaser, when accompanied by letter to corporation directing payment of unpaid dividends to purchaser, and defendant’s failure to comply with contract, held, to allege facts establishing breach of contract by defendant, notwithstanding condition attached to telegram guaranteeing-payment of draft on purchaser.

      4. Corporations <§=>155(4) — Seller of corporate stock entitled to dividends declared before sale, and purchaser to those declared after sale, though before delivery.
    Seller of eqrporate stock is entitled to dividends declared prior to date of sale under contract, though purchaser is entitled to dividends declared after such date and before .delivery. -
    5. Corporations <§=>! 18 — Actual tender of purchase' price held unnecessary to put- seller of corporate stock in default.
    Where, under terms of contract of sale, corporate stock was to be assigned and delivered to bank by seller to order of purchaser, and purchase price to be paid by purchaser on or before certain date, tender of purchase price was not necessary to put seller in default; it being sufficient, if purchaser was ready, able, and willing to pay price, and that seller was notified of such fact.
    In Error to the District Court of the United States for the Western District of Oklahoma-; John H. Cotteral, Judge.
    Action by Willis G. Sautbine against P. E. Stroud. Judgment for defendant, and plaintiff brings error.
    Reversed and remanded, with directions.
    C. B. Stuart, J. E. Sharp, M. K. Cruce, and J. E. Sharp, Jr., all of Oklahoma City, Okl., for plaintiff in error.
    Frank Wells, D. I. Johnston, and C. L. Billings, all of Oklahoma City, Okl., for defendant in error.
    Before SANBORN, Circuit Judge, and POLLOCK and SYMES, District Judges.
   SANBORN, Circuit Judge.

Willis G. Sautbine, of Oklahoma City, Okl., brought this action against P. E. Stroud, of Los An-geles, Cal., for $18,384 damages for the latter’s alleged br.each of his contract to sell and deliver to the plaintiff 38,300 shares of the stock of the Black Panther Oil & Gas Company, a corporation, for 52 cents per share, when it was worth $1 a share, or $38,-300. The defendant demurred to the plaintiff’s amended complaint, on the ground that .it did not state facts sufficient to constitute a cause of action, and claimed that it did not allege facts constituting a contract of sale, or a breach by the defendant of such a contract. The court below sustained the demurrer, the plaintiff elected to stand on his amended complaint, the court rendered judgment against him, and he sued out the writ of error in this case. He complains of the ruling sustaining the demurrer, and these two -questions are presented: (1) Did the complaint state facts sufficient to constitute a contract of sale between the plaintiff and the defendant? and (2) if so, did it state facts sufficient to evidence a breach of that contract by the defendant?

In that complaint the plaintiff clearly alleged that Ben Longfellow was a broker engaged in his business as such at Oklahoma City; that on May 31, 1923, the defendant at Los Angeles telegraphed Longfellow at Oklahoma City that he would offer 38,300 shares of Black Panther stock at 50 cents net to him; if the offer was accepted to send draft to Security Trust & Savings Bank, Los Angeles, and he would deposit stock assigned; that Longfellow answered on June 1, 1923, that he thought he had this stock sold; that he would assume delivery of funds covering purchase to Security Trust & Savings Bank of Los Angeles by June 5th; that he was selling at 52 cents, and wanted the defendant to wire him that he would protect him for 2 cents, or $766, which was his commission; that on June 2, 1923, Stroud telegraphed Longfellow that he would deposit stock with the Security Trust & Savings Bank of Los Angeles; that he would remit Longfellow’s commission when the deal was closed, and asked him to wire if he was sending money; that thereupon Longfellow, as agent and broker for the defendant Stroud, made out and delivered to the plaintiff Sautbine, his broker’s-seller’s note, which was thereupon accepted and agreed to by Sautbine, and also by the defendant Stroud, and was in these words:

“Oklahoma City, Old., June 2, 1923. “Mr. P. E. Stroud, e/o Victoria Hotel, Los Angeles, Cal.:
“Sold for you the following securities:
38,300 thirty-eight thousand three hundred shares of Black Panther Oil Company stock, to net you 50c per share, or total...............$19,150.00
“We sold stock at 52e. the 2c. per share representing our commission, and total of $19,916.00 is being sent to your bank; upon receipt of $19,916.00, you are to remit to us by draft $766.00 as per your wire confirming. Ben A. Longfellow & Co.,
“Per [Signed] Ben A. Longfellow.
“Accepted:
“[Signed] Willis G. Sautbine.”

The averments of the complaint, which have now been stated, seem clearly to allege facts sufficient to prove a valid contract of sale of the 38,300 shares of stock, binding upon both the plaintiff and the defendant. They establish the authority of the broker to offer for sale and to make a contract of sale by the defendant of his 38,300 shares of stock, for $19,150 net to him, to be paid to him, and his stock to be duly assigned and delivered to the plaintiff at the Security Trust & Savings Bank, Los Angeles, Cal., by June 5, 1923, and that such a contract of sale was made by and between the parties on June 2, 1923, is evidenced by the brokeffsseller’s note, or memorandum. The validity and conelusiveness of contracts evidenced by such brokers’ slips or notes have been repeatedly declared by this court. Gettys v. Newburger, 272 F. 209, 212, 213, 215; Thorn v. Browne, 257 F. 519, 521, 522, 523, 524, 168 C. C. A. 469; Kempner v. Goddard Grocer Co. (8th C. C. A., opinion filed April 30, 1925) 5 F.(2d) 807.

Counsel for Mr. Stroud suggest that the complaint shows that the minds of Mr. Saut-bine and Mr. Stroud never met upon the terms of this contract of June 2, 1923, because the plaintiff alleged in his pleading that on June 4, 1923, he caused the Security National Bank of Oklahoma City to telegraph to the Security Trust & Savings Bank of Los Angeles Exhibit E, which reads as follows: “We will pay draft P. E. Stroud on Willis G. Sautbine $19,150.00 providing that is attached thereto certificates of stock of Black Panther Oil & Gas Co., of Okla. City properly assigned covering 38,300 shares their stock also to be attached letter from P. E. Stroud dated prior to June sixth addressed to Black Panther Oñ & Gas Co. authorizing payment of any unpaid dividends to be paid to Will G. Sautbine. Telegraph us what has been done” — and on June 5, 1923, Exhibit G, which reads in this way: “Supplementing our telegram to you yesterday notify and pay to P. E. Stroud $19,-150.00 on delivery to you stock and documents mentioned our wire June 4th. We are remitting by wire.” But the contract of sale was concluded on June 2, 1923, and neither of the parties to it could change, reject, or rescind it, or any part of it, after its making, without the consent of the other party thereto, and our conclusion is that the contract of sale was well pleaded.

The second question is: Did the plaintiff plead facts sufficient, if proved, to establish a breach of the contract by the defendant? Counsel for the defendant contend that he did not do so, because the plaintiff pleaded that he caused the Security National Bank of Oklahoma City to send to the Los Angeles bank Exhibits E and G, and that these telegrams conditioned the plaintiff’s readiness and willingness to pay over the purchase price upon the defendant’s delivery of the stock to him at that bank on June 5, 1923, by the requirement that the assignment of the stock should be accompanied by a letter from Mr. Stroud to the Black Panther Company, dated prior to June 6, 1923, authorizing that company to pay any unpaid dividends on the stock to Mr. Sautbine, and thereby disclosed the fact that the plaintiff was not ready and willing to pay the purchase price of the stock to the defendant at the Los Angeles bank on June 5, 1923. There are, however, several reasons why this contention has not proved persuasive.

The request in Exhibits E and G for a letter to the Black Panther Company to pay any unpaid dividends to the plaintiff must be read and construed in the light of the circumstances under which it was made and of the indisputable legal rights of the parties. The contract of sale was made and completed on June 2, 1923. It is the indisputable law that, if there were any unpaid dividends on June 5, 1923, those dividends that had been declared prior to the making of the contract, if any, would remain the property of the seller after the performance of the agreement, and those declared by the Black Panther Company after the making of the contract on June 2, 1923, would become the property of the purchaser, Mr. Sautbine. The latter, upon payment of the purchase price, or upon deposit of it with the Los Angeles bank on June 5, 1923, with instructions to pay it over to the defendant on delivery of the stock duly assigned would’ become the owner and entitled to receive any unpaid dividends on it declared after the making of the contract. Black v. Homersham, L. R. 4 Exch. Div. 24, 39 L. T. N. S. 671, 48 L. J. Exch. N. S. 79, 45 L. R. A. 395, note; Currie v. White, 45 N. Y. 822, 823, 830.

The amended complaint contains no averment, and there is no evidence or information in the record, that there were any unpaid dividends, and, if there were, the legal presumption is that they were declared subsequent to the making of the contract, and before the 6th day of June, and that the plaintiff was entitled to them upon the payment of the purchase price. This court cannot presume that the plaintiff was demanding that to which he had no claim or right, when his request may have been applicable to that to which he was lawfully entitled. Moreover, if there were no unpaid, dividends, except those declared after the making of the contract, or if there were no unpaid dividends at all, the defendant’s compliance with the request of the plaintiff would have de* prived him of no property that belonged to him, and would have inflicted upon him no loss. In the transfer of stock of corporations from seller to purchaser, it is an accommodation to the purchaser that burdens little, if any, the seller to receive from him a note or letter to the corporation directing it to pay to the purchaser dividends to which the latter becomes legally entitled by the sale, and in the absence of further information the proper and true construction of the request for the letter in Exhibits E and G must be construed to have been to ask for that accommodation. And if the readiness and willingness of the plaintiff to pay the purchase price rested upon this request alone, we should hesitate long to hold that it constituted a .breach of the contract, dr a lack of readiness or willingness to perform, on June 5, 1923, especially in view of the fact that the complaint shows that on June 6, 1923, the defendant telegraphed the broker, Longfellow, as follows: “Presented stock to Security Trust & Savings Bank 7th and Spring June 5 payment refused on guarantee wired by Security National Bank Oklahoma City. Now making other arrangements” — clearly indicating that it was not on account of the request for the letter about the dividends that the defendant failed to assign and deliver the stock to the plaintiff.

The readiness and willingness of the plaintiff to pay the purchase price at the Los Angeles bank on June 5,1923, does not, however, rest upon these requests and telegrams alone. The plaintiff also alleged in his amended complaint that on June 4, 1923, Longfellow, the broker, telegraphed the defendant that his purchaser, the plaintiff, had had the Security National Bank of Oklahoma City wire the Los Angeles bank guaranteeing the payment of his draft on the plaintiff; that the plaintiff was on June 5,1923, ready, willing, and able to perform the terms of the contract; that the defendant was duly advised of that fact; that on that day the plaintiff caused the amount required to pay for the stock to be placed in cash in the Los Angeles bank designated by the defendant, to be paid over to the defendant upon delivery of the stock purchased, and advised the defendant of that fact; but that the latter refused to transfer the stock and repudiated his contract for its sale. Under the terms of the contract the stock was required to be assigned and delivered by the defendant to the order of the plaintiff, and. the purchase price was to be paid by the plaintiff at the Los Angeles bank at the same time on or before June 5,1923. Under these circumstances no tender of the purchase price was necessary to put the defendant in default. It was sufficient that the plaintiff was able, ready, and willing to pay the purchase price at the Los Angeles bank on June 5, 1923, and that the defendant was notified of that fact. 35 Cyc. 624; Porter v. Rose, 12 Johns. (N. Y.) 208, 7 Am. Dec. 306; Currie v. White, 45 N. Y. 822, 830.

Our conclusion is that the amended complaint states facts sufficient, if proved, to establish the readiness and willingness of the plaintiff on June 5, 1923, to pay to the defendant at the Los Angeles bank the purchase price of this stock, the defendant’s knowledge of that fact, and his failure and refusal to assign or deliver the stock or to accept payment therefor. The judgment below must therefore be reversed, and the ease must be remanded to the court below, with directions to permit the defendant to answer.


author: DONAHUE, Circuit Judge

text:
    GRAND RAPIDS TRUST CO. v. AMERICAN WOOD WORKING MACHINERY CO.
    (Circuit Court of Appeals, Sixth Circuit.
    April 6, 1925.)
    No. 4132.
    Sales <§=>477(4) — Waiver by seller of title under conditional sale contract, by filing claim.
    A seller under a conditional sale contract, by filing his claim for the purchase price with a receiver for the purchaser, waives its retained title and makes the sale absolute, and his claim is that of an unsecured contract creditor.
    Appeal from the District Court of the United States for the Western District of Michigan; Clarence W. Sessions, Judge.
    Creditors’ suit against William Homer. The Grand Rapids Trust Company, receiver, appeals from an order allowing the claim of the American Wood Working Machinery Company as a preferred claim.
    Reversed and remanded.
    The appellant, the Grand Rapids Trust Company, was appointed receiver in a suit brought by a creditor against William Hor-ner, praying among other things for the appointment of a receiver of Horner’s property, and a distribution of the proceeds among Ms creditors. An order was entered referring the cause to a master in chancery. The American Wood Working MacMnery Company filed its claim with the master for the sum of $21,395.36, based upon notes, protested cheeks, and open account. It is stated in the proof of claim that claimant has not had or received any manner of security for this debt, except five conditional sale contracts, copies of which are attached to the proof of claim and upon which contracts preference is claimed.
    The receiver filed a general objection to "the allowance of the claim on the gi'ound that the debt of Homer to the claimant amounted in the aggregate to about $20,688.-53, instead of the amount claimed, and denied that the claim was entitled to preference and that claimant had valid security therefor. Upon the hearing before the master, it was agreed by the parties that Horner had entered into the written contracts of January 22, October 1, November 26, and December 4, 1919, and September 22, 1920, copies of which were attached to the proof of claim; that none of these contracts, nor copies thereof, were recorded or filed for record in Michigan; that Horner paid a part of the purchase price in cash and executed notes for the balance, which notes had been renewed from time to time; that claimant then held the notes, copies of which were attached to the proof of claim; that the balance due as of the date of December 31, 1921, on the contracts and notes was $18,321.46 and upon open account $3,073.90. It was further agreed that the amount of the open account should be allowed as an ordinary claim. The master held these contracts were conditional sales contracts and not chattel mortgages and allowed the amount due on the contracts and notes of $18,321.46 as a preferred claim. Later he modified this order by deducting therefrom the amount of $2,952 on the contract dated September 22, 1920, and allowed the same as an unprefer-red claim. This later contract differed from the others in that it specifically provided: “It is also agreed that any default in any payment immediately matures all payments outstanding under this contract and in case of such default the American Wood Working Machinery Company shall have the right with or without legal process to take possession of the said machinery.” Both parties filed exceptions to the master’s report. The District Court entered a final order overruling the exceptions of the receiver and modifying the master’s special report by allowing a further preference for the amount due on the contract of September 22, 1920. From this order and decree the receiver appealed.
    Stuart E. Knappen, of Grand Rapids, Mich. (Knappen, Uhl & Bryant, of Grand Rapids, Mich., on the brief), for appellant.
    Fred Benson Haring, of Buffalo, N. Y. (Fred Benson Haring and Hiram H. Bacon, both of Buffalo, N. Y., on the brief), for appellee.
    Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.
   DONAHUE, Circuit Judge

(after stating the facts as above). It is insisted upon the part of the receiver that the contracts attached to claimant’s proof of claim are in legal effect chattel mortgages; that even if these contracts are conditional sale contracts, the claimant has elected to transfer title to the estate of defendant, retaining no title or security for its claim; and that the claim is not entitled to preference under any construction.

In the opinion of this court it is wholly unnecessary to consider and determine whether these contracts are conditional sales contracts or chattel mortgages. If they are chattel mortgages, they are void as against creditors because not filed as required by the law of the state of Michigan (Compiled Statutes of Michigan 1915, § 11988). If they are conditional sales contracts, the claimant had the right to retake the property after default or to sue upon the contract for the unpaid purchase .price. In neither case is it entitled to a preferred lien on all the vendee’s property. If it exercised its right to retake the property, the vendee cannot be held personally liable for the balance of the unpaid purchase price. If it sues for the balance of the unpaid purchase price, it waives the reservation of title in the conditional sales contract and makes the sale absolute. Button v. Trader, 75 Mich. 295, 42 N. W. 834; Owen & Co. v. Keller, 206 Mich. 555, 173 N. W. 343; Young v. Phillips, 203 Mich. 566, 169 N. W. 822.

This question has been fully, considered and determined by this court in Re Ames, 289 F. 208, in which it was held that á suit for the purchase price is inconsistent with the reservation of the title, and that the bringing of such suit, or at the latest the taking of judgment, will be a waiver of the title reservation and operate as a transfer of the title.

In the instant case the claimant did not exercise its right to retake this property, but, on the contrary, asked that the balance of the purchase price be allowed by the receiver as a valid claim against the estate. If, under these contracts, it was the owner of the property, then it had no such claim against the receiver. If it was not the owner, then the conditional sales' contracts were not security for the debt and would not entitle the claimant to a preference. The allowance of a preference would do even more than to give effect to these conditional sales contracts, if they are such, as chattel mortgages, and if chattel mortgages, they are void under the Michigan statute.

It is insisted upon the part of claimant that it waived none of its rights under the pure conditional sales contract by filing its claim with the receiver, for the reason that it was invited by the receiver to present its claim on a form furnished by him; that the claim as presented fully advised receiver and the court that the claimant was the owner of .the machinery and that it attached copies of the contracts to the claim. It is further claimed that the action is in equity, and the court being fully advised in the premises should grant the claimant such equitable relief as would fully protect its rights under these contracts. In reply to this, it is sufficient to say that it was for the claimant and not the receiver to elect its remedy, and that a court of'equity cannot grant a preference where, under the admitted facts and the law, the claimant is not entitled thereto.

For the reasons stated, the decree of the District Court is reversed, and the cause remanded for further proceedings in accordance with this opinion.


author: WALKER, Circuit Judge.

text:
    EDENBORN v. UNITED STATES.
    (Circuit Court of Appeals, Fifth Circuit.
    March 4, 1925.)
    (Nos. 4456-4458.)
    1. Public lands <®=»79 — Cultivation by homestead settler of other public lands held not to affect his homestead right.
    That a homestead settler actually occupied and cultivated but one legal subdivision of the land claimed by him, but occupied and cultivated other adjoining public lands, it being publicly known what land he claimed as his homestead, does not affect the validity of his claim, within Act Feb. 8, 1887, excepting land occupied by actual settlers from railroad grant.
    2. Public lands <®=»79 — Defendant held liable for timber cut on land awarded to homestead claimant.
    Defendant, claiming title under a railroad grant, helé liable for. the value of timber cut from land which had previously been held by the Land Department to have been excluded from the grant and awarded to a homestead claimant.
    3. Public lands <s=3|06(I) — Decisions of Land Department on questions of fact conclusive.
    Decisions of the officers of the. Land Department on controverted questions of fact falling within the -scope of their authority are conclusive on the courts, in the absence of fraud or imposition.
    Appeal from the District Court of the United States for the Western District of Louisiana; Rufus E. Foster, Judge.
    Tbree suits in equity by the United States against William Edenborn. Decrees for the United States, and defendant appeals.
    Affirmed.
    E. H. Randolph, of Shreveport, La. (Wise, Randolph, Rendall & Freyer, of Shreveport, La., on the brief), for appellant.
    Robert A. Hunter, Sp. Asst. Atty. Gen., for the United States.
    Before WALKER and BRYAN, Circuit Judges, and HUTCHESON, District Judge.
   WALKER, Circuit Judge.

These are appeals from decrees in three separate suits, adjudging that the appellant held in trust for a named person, his heirs or assigns, the title to described land, that appellant execute and deliver- a deed to such person, his heirs, or assigns, conveying all right, title, or interest of appellant in or to that land, and that appellant pay to the plaintiff in the suit, the United States of America, the , appellee here, for the use and benefit of such person, his heirs or assigns, the ascertained and stated value of timber cut upon the several tracts of land, with interest on such amount. Each of the suits was similar to those decided by the Supreme Court and reported in United States v. New Orleans Pacific Ry. Co., 248 U. S. 507, 39 S. Ct. 175, 63 L. Ed. 388, in that it asserted rights of a homestead claimant of land under the Act of February 8, 1887, e. 120, 24 Stat. 391; the alleged homestead claimant in one of the eases being Andrew Taylor, such claimant in another of the cases being E. L. Martin, and such claimant in the remaining case being James M. Collins. The several cases will be referred to respectively by the names mentioned.

Section 2 of the above-mentioned act, entitled “An act to declare a forfeiture of lands granted to the New Orleans, Baton Rouge and Vicksburg Railroad Company, to confirm title to certain lands, and for other purposes,” contained the following: “Provided, that all said lands occupied by actual settlers at the date of the definite location of said road and still remaining in their possession or in possession of their heirs or assigns shall be held and deemed excepted from said - grant and shall be subject to entry under the public land laws of the United States.”

The land involved in the Taylor suit, the W. % of the S. E. % and S. E. % of S. W. % of section 33, township 12 north, of range 7 west, Louisiana meridian, was patented to the New Orleans Pacific Railway Company on March 3, 1885. At that time, and at the time of the definite location of the road, November 17,1882, Taylor actually occupied and cultivated the southwest % of the northeast % of said section, and claimed that land and also the above-mentioned adjoining land. In December, 1888, Taylor filed his application to enter under the homestead laws all of the above-mentioned land. His application was contested by the railway company. Taylor’s claim was sustained by the register and receiver of the local land office, and that decision was approved by the Commissioner of the General Land Office. On January 3, 1888, the patentee deeded the land in controversy to Charles J. Easton, through whom the appellant claimed. In 1906 appellant sold the timber on the land in dispute at the price of $3 per 1,000 feet. To defeat the claim asserted in the Taylor suit the appellant relied on evidence to the effect that at the time of the definite location of the railroad Taylor did not occupy or use the land in dispute, but was then occupying or using land in other subdivisions contiguous to the above-mentioned one, which he was then actually occupying and cultivating.

The facts being as above stated, at the time of the issue of the patent to the railway company, Taylor was entitled to embrace in his homestead claim the subdivisions in dispute, which are contiguous to the 40-aere subdivision which he then actually occupied and cultivated, if the existence and extent of his claim were then so disclosed as to charge the patentee with notice of the nature and extent of his claim. St. Paul, Minneapolis & Manitoba Ry. Co. v. Donohue, 210 U. S. 21, 28 S. Ct. 600, 52 L. Ed. 941; United States v. New Orleans Pacific Ry. Co., supra. Taylor, at the time of the issue of the patent to the railway company, being in possession of part of the 160 acres he claimed, and the existence and extent of his claim being then well known to the people of the neighborhood, the validity of his claim as to any part of the land embraced therein was not impaired by the fact that he used or cultivated public land in subdivisions adjoining the one on which he lived, other than the ones which were embraced in his openly asserted claim. The fact that he used or cultivated public land which he did not claim as a part of his homestead did not deprive him of the right to any part of that which was embraced in his homestead claim.

When the appellant sold the timber on the land in dispute in the Taylor case, he was not entitled to the land or the timber thereon. By such sale the appellant incurred liability for the value of the timber sold to the person or persons who were entitled thereto.

In the Martin case appellant makes no contention, except as to his liability for the value of timber taken from the land, which was sold by him. Eor reasons above indicated, appellant is not exempt from liability for so disposing of property to which he was not entitled.

The land involved in the Collins suit was patented to the railway company on March 3, 1885. The appellant claimed under Johñ Bennetto, to whom the railway company deeded that land on June 13, 1892. Prior to the execution of that deed, Collins filed his homestead claim to that land, the railway company contested that claim, the register and receiver rendered a decision in favor of Collins, and that decision was affirmed by the Commissioner of the General Land Office. The written communication of the Commissioner, evidencing his decision, contains the following:

“The proof shows that Collins purchased the improvements of one Richardson, a former settler upon the land, in the fall of 1882, and moved thereon with his family, where he has continued to reside, cultivating and improving the same. As shown by the testimony, Collins occupies the land as assignee of Richardson, who is shown to have been an actual settler upon the land and occupant of the same at the date of definite location of the road. He therefore comes clearly within, and his claim is confirmed by, the second section of the act of 1887 aforesaid.”

As the legal title to the land in dispute was in the railway company when. Collins filed .his homestead entry, when the railway company contested that claim, and when that claim was finally sustained, the position of the appellant, who claims under one who purchased from the railway company after the allowance of the homestead claim, is no better than that of the railway company.

Decisions of the officers of the Land Department on controverted questions of fact failing within the scope of their authority are conclusive on the courts, in the absence of fraud or imposition; judicial inquiry as to the action of the officials of the Land Department in reference to the claim passed on by them being limited to determining whether the award made by them resulted from clear error of law. Johnson v. Riddle, 240 U. S. 467, 36 S. Ct. 393, 60 L. Ed. 752; Cameron v. United States, 252 U. S. 450, 40 S. Ct. 410, 64 L. Ed. 659. The above-quoted decision as to the facts of possession upon which the allowance of the homestead claim of Collins was based was such a decision on a controverted question of fact. The appellant is not entitled to have the question of fact so decided reopened. The facts so found warranted .the allowance of the homestead claim in question.

No error is shown by the record in any of the three eases. The judgments are affirmed.


author: HUTCHESON, District Judge.

text:
    CHILDS et al. v. UNITED STATES.
    (Circuit Court of Appeals, Fifth Circuit.
    March 6, 1925.
    Rehearing Denied April 4, 1925.)
    No. 4470.
    1. Appeal and error <®=7I9( I) — Matters not assigned as error not considered.
    Matters not assigned as error cannot be considered.
    2. Appeal and error <©=673(2) — Defenses n¡pt considered on .appeal, in absence of pleading and evidence on issues.
    Defenses of innocent purchaser and bar of laches cannot be considered on appeal, where record does not contain either pleading or evidence on such issues.
    3. Public lands <©=I03(I) — Finding of Commissioner of Land Office in favor of settler as against patentee not conclusive as to pat-entee’s grantee.
    Finding of Commissioner of Land Office in favor of possession and consequent right of actual settler as against patentee, though conclusive as between patentee and settler, was not conclusive as to patentee’s grantee, to whom patentee conveyed land before Commissioner made finding, and who was given no notice of the proceeding.
    4. Public lands <©=109 — Successors of paten-tee's grantee, to whom patentee conveyed land prior to award by Land Office fo actual settler as against patentee, had burden of proving award without foundation and validity of patent against actual settler’s claim.
    In action involving question as to title between heirs of actual settler, to whom Commissioner of Land Office awarded land as against patentee subsequent to patentee’s conveyance of land to the third party and third party’s successors in interest, the successors in interest to sustain claim were required to prove that award in favor of actual settler was without foundation, and that ,the lands were . in fact validity patented against actual settler’s claim.
    5. Estoppel -<®=77 — Transactions as to particular forty acres held not to create estoppel in pais as to remainder of section.
    Deed from patentee’s grantee to actual settler and his heirs to a particular forty out of a quarter section, and subsequent acceptance of lease by settler from grantee of a particular forty out of a quarter section, did not create estoppel in pais, precluding settler’s heirs from claiming remainder of quarter section, as against grantee’s successors, in title.
    6. Estoppel <©=45 — Deed of retrocession from actual settler to patentee’s grantee estopped settler’s heirs from claiming any interest which settler might have had or claimed at time of conveyance.
    Deed of retrocession from actual settler to patentee’s grantee, who- had previously conveyed land to settler, though not shown to contain covenants of general warranty, estopped settler’s heirs from claiming any right, title, or interest which settler might have had or claimed at time of conveyance, whether title ■ was complete or partly inchoate.
    7. Estoppel <®=35 — Estoppel hy deed as to after-acquired title springs out of doctrine of warranty.
    Estoppel by deed as to after-acquired title springs wholly out of the doctrine of warranty.
    8. Estoppel <©=45 — Deed of retrocession from settler’s son to patentee’s grantee construed as warranty d'eed, so as to effect estoppel against son from asserting after-acquired title as settler’s heir.
    Deed of retrocession from son of actual settler to patentee’s grantee, to whom grantee had previously conveyed land by warranty deed, though not shown to contain covenants of general warranty, should be construed as a transaction under covenants of warranty, so as to effect an estoppel against son from asserting after-acquired title as settler’s heir.
    Appeal from the District Court of the United States for the Western District of Louisiana; Rufus E. Poster, Judge.
    Suit by the United States against William Childs and others. Judgment for the United States and defendants appeal.
    Affirmed as modified.
    Philip S. Pugh, of Crowley, La., for appellants.
    Robert A. Hunter, Sp. Asst. Atty. Gen., for the United States.
    Before WALKER and BRYAN, Circuit Judges, and HUTCHESON, District Judge.
   HUTCHESON, District Judge.

This is one of a series of eases appealed from the District Court of the United States for the Western District of Louisiana, involving title to lands included in patents issued by the United States to the New Orleans Pacific Railway Company as assignee, and, except where its particular facts differentiate, is governed by the same general considerations which controlled and directed the decisions of the Edenbom Cases, 5 F.(2d) 814, appealed at the same time, and just decided.

This ease involves the southeast quarter of section 11, township 7, range 2 east, and in addition to the general claim that the ap-pellee did not show right in Dupreville Ber-geron and his heirs, in whose interest the government is prosecuting suit, to claim the lands as an actual settler against appellants, error was also assigned that the court erred in overlooking the fact that by deeds and leases in the record, which will be hereafter noted, an estoppel had arisen.

In the argument before this court-appellants urged both the defense of innocent purchaser and the bar of laches. Neither of these matters are assigned as error, and they cannot be considered here; but in addition they are both matters of pleading and proof. Boone v. Chiles, 10 Pet. 177, 9 L. Ed. 388; United States v. Brannan, 217 F. 849, 133 C. C. A. 559; Wright-Blodgett v. United States, 236 U. S. 397, 35 S. Ct. 339, 59 L. Ed. 637. And the record is without either pleading or evidence on these issues.

Reserving the issue of estoppel for later treatment, and turning first to the general contention as to the patentable character of the land in suit against the claim of actual settlement, we agree with the contention of appellants that, in view of the fact that the land was sold by the railroad company, their predecessor in title to whom the land had been patented, prior to the finding of the Land Office in favor of Bergeron, the finding of the Commissioner in favor of the possession and consequent right of Bergeron to the lands involved is not conclusive against appellants (Guaranty Savings Bank v. Bladow, 176 U. S. 454, 20 S. Ct. 425, 44 L. Ed. 540), for the act of the Commissioner of the Land Office, though conclusive as between the railroad company and Bergeron, would not be conclusive upon the grantee of the railroad; the hearing being had without notice to such grantee, and with no opportunity on his part to be heard.

This concession, however, would merely permit appellants to show, if they can, that the award of the Land Office in favor of Bergeron was without foundation, and that the lands were in fact validly patented against Bergeron’s claim. This they have failed to do, and we concur in the finding of ’the Land Office, and of the District Judge, that “the tract of land in question was oc-eupied by an actual settler at the date of the definite location of the railroad, and was claimed by Bergeron as the assignee of such settler, and that his claim thereto as such settler is entitled to be protected against the patent, and therefore against appellant holding thereunder.”

Appellants insist strenuously that an equitable estoppel has arisen against the heirs of Bergeron, the original settler, out of the following facts: That after the claim of Bergeron had in 1889 been decided against him, and after the land had been patented in 1891, and the title passed under the patent to Duson, and before the Land Office had, on reconsideration of Bergeron’s claim, made the award to him, C. C. Duson, holding under the railroad company, executed to Dupreville Bergeron under date of August, 1891, a warranty deed to the southeast quarter of the southeast quarter of section 11, and to-Oneil Bergeron, a son of Dupreville Berger-on, and one of the claimants in whose right the United States has recovered in this suit, a warranty deed to the northwest quarter of the southeast quarter of this section. That on March 7, 1893, Dupreville Bergeron, and. on May 12, 1903, Oneil Bergeron, executed each a- deed of retrocession to Duson of the-respective 40’s conveyed to him.

It was argued that these acts of recognition by Dupreville Bergeron of the title of Duson were so inconsistent with his claim as an actual settler that out of it arises an equitable estoppel against his claim as a settler, not only to the particular 40 conveyed, but to the whole section, and that the same-character of estoppel arises out of the deeds to and from Oneil Bergeron. Beside these-deeds, and the fact that after the retro-cession Dupreville Bergeron took a lease for-this 40 and was thereafter ousted by Duson in 1894, no facts are presented out of which the equitable estoppel claimed could spring, and we are clear that no estoppel in pais has-resulted.

That as to the particular 40 conveyed by Dupreville Bergeron, the southeast quarter of the southeast quarter, an estoppel by deed has arisen, against all the heirs of Du-preville Bergeron so that the judgment as to that 40 must be reversed, we are equally clear; for, while it is not made to appear whether the retrocession deed from Berger-on to Duson was a deed with covenants of' general warranty, so as to estop him from asserting an after-acquired title, he certainly affirmed by that deed that he had no title at the time of the transfer, and that affirmance operated, even though it were a mere-quitclaim deed, as a complete estoppel as to any right, title, or interest which the grantor might have had or claimed at the time of the conveyance, whether that title was complete or partly inchoate. 10 R. C. L. 676; Olmstead v. Tracey, 145 Mich. 299, 108 N. W. 649, 116 Am. St. Rep. 299; 10 R. C. L. 679, § 8, note 1, p. 680.

As to the 40 conveyed to and from Oneil Bergeron, one of the heirs of Dupreville Ber-geron, here suing, the ground of estoppel is different; for at the time of the deed Oneil Bergeron had no title whatever, and passed none except such as he got from his grantor, and if an estoppel by deed has arisen against him, it must be because either the deed to or the deed from him operated as an estoppel against him to assert an after-acquired title.

While it is true that an estoppel by deed as to .after-acquired title springs wholly out of the doctrine of warranty, we are of the opinion that under the record in this ease, nothing to the contrary appearing, the transaction of the warranty deed from Duson to Oneil Bergeron and from Bergeron back to Duson should be construed as a transaction under covenants of warranty, so as to effect an estoppel against Oneil Bergeron from asserting as to said 40 the interest afterwards acquired by him from Dupreville Bergeron, and to vest that interest in appellants.

Erom these considerations, it results that the judgment of the court below should be reversed as to the southeast quarter of the southeast quarter, and as to the interest of Oneil Bergeron in the northwest quarter of the southeast quarter, and, as mpdifled by this reversal, should be affirmed.


author: PHILLIPS, District Judge.

text:
    TUCKER et al. v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    March 26, 1925.)
    No. 6658.
    I. Post office <@=>35 — Offense of using mails to defraud consists of both scheme to .defraud and mailing advertisement.
    The elements of an offense under Penal Code, § 215 (Comp. St. § 10385), are (1) a scheme or artifice devised or intended to be devised to defraud, and (2) causing an advertisement to be placed in the post office, to be sent or delivered by post office establishment, for purpose of executing such scheme or artifice, or attempting to do so.
    2. Post office <@=>50 — In absence of proof of mailing, verdict should have been directed for defendants.
    In prosecution for using mails to defraud, in violation of Penal Code, § '215 (Comp. St. § 10385), where there was no evidence that defendants caused insertion in newspaper of alleged fraudulent advertisements, verdict of acquittal should have been directed.
    3. Witnesses <@=>301— Compelling accused on cross-examination to answer questions not relevant to examination in chief held invasion of privilege against self-incrimination.
    In prosecution for using mails to defraud, in violation of Penal Code, § 215 (Comp. St. § 10385), where one defendant testified only as to alleged fraudulent plan and his good faith in matter, and made no reference to insertion or mailing of advertisements, requiring him on cross-examination to testify as to who inserted the advertisements was an invasion of his privilege against self-incrimination, guaranteed by Const. Amend. 5, and by Act March 16, 1878 (Comp. St. § 1465).
    4. Witnesses <©=>277(1), 319 — Accused, voluntarily becoming witness, subjects himself to cross-examination and impeachment to no greater extent than other witnesses in same situation.
    One accused of crime, who voluntarily becomes a witness in his own behalf, subjects himself to cross-examination and impeachment to the same extent as any other witness in the same situation, but to no greater extent.
    5. Witnesses <@=>269(1) — Cross-examination of witness should be confined to subjects of direct examination.
    A party in a civil or criminal case, in whose behalf a witness is called, has the right to restrain cross-examination to the subjects of his direct examination, and violation of this right is reversible error.
    In Error to the District Court of tbe United States for the Western District of Oklahoma.
    Dudley R. Tucker and others were convicted of using the mails to promote frauds, in violation of Penal Code, § 215 (Comp. St. § 10385), and they bring error.
    Reversed, with instructions to grant new trial.
    S. P. Freeling, of Oklahoma City, Okl. (J. I. Howard, of Oklahoma City, Okl., on the brief), for plaintiffs in error.
    J. W. Scothorn, Asst. U. S. Atty., of Oklahoma City, Okl. (W. A. Maurer, U. S. Atty., and James A. Ingraham and Roy St. Lewis, Asst. U. S. Attys., all of Oklahoma City, Okl., on the brief), for defendant in error.
    Before KENTON, Circuit Judge, and TRIEBER and PHILLIPS, District Judges.
   PHILLIPS, District Judge.

Dudley R. Tucker, William L. Tucker, and Howard A. Tucker, hereinafter called defendants, were charged by indictment with the violation of section 215 of the Penal Code (25 Stat. 873 [Comp. St. § 10385]). The indictment contained five counts. The first count charged that the defendants, having devised a scheme and artifice to defraud certain persons named in that count, on the 15th day of September, 1920, for the purpose of executing such scheme and artifice to defraud, caused to be placed in the United States post office at Oklahoma City, Okl., for mailing and delivery. by the post office establishment of the United States, a certain newspaper, to wit, the Daily Oklahoman, which contained an advertisement, prepared by the defendants and printed in said newspaper at the special instance and request of the defendants, in words and figures following, to wit:

“Very attractive proposition open to responsible man who can invest $2,000 cash; pays $60 per week and all expenses; handling road picture shows; playing in Oklahoma towns. Investment guaranteed. Tucker Bros. Amusement Co., 310% W. Main St., Dreamland Theatre. Phone M 1192 or M 5620.”

The first count further alleged in detail the scheme and artifice to defraud and the means and methods by which the defendants intended to carry out the same.

The remaining counts were substantially the same as the first count, except the second charged the placing of the newspaper in the post office on the 16th day of November, 1920, and the following advertisement:

“Have attractive proposition open to responsible man who can invest $2,000 cash; pays $50 per week and all expenses; handling road picture shows; playing in Oklahoma towns. Investment guaranteed. Tucker Bros. Amusement Co., 306 W. Reno St., Oklahoma City, Okla. Phone M 5620.”

And the third count charged the placing of the newspaper in the post office on the 21st day of November, 1920, and the following advertisement:

“Have very attractive proposition open to responsible man who can invest $2,000 cash; pays $50 per week and all expenses; handling road picture shows; playing Oklahoma towns. Investment guaranteed. Tucker Bros. Amusement Co., 306 W. Reno St., Oklahoma City, Okla. Phone M 5620.”

And the fourth count charged the placing in the newspaper in the post office on the 2d day of December, 1920, and the following advertisement :

“Have very attractive proposition open to responsible man who can invest $2,000 cash; pays $50 per week and all expenses; handling road picture shows; playing in Oklahoma towns; investment guaranteed. Tucker Bros. Amusement Co., 306 W. Reno St., Oklahoma City, Okla. Phone M 5620.”

And the fifth count charged the placing of the newspaper in the post office on the 14th day of December, 1920, and the following ad-vertiserdent:

“Steady employment offered responsible man who can invest $1,000 cash borní; paying $40 per week, salary and all expenses; handling Tucker Bros. Road Picture shows; playing Oklahoma, Texas and Arkansas towns. Deposit secured and guaranteed; money can be withdrawn on two weeks notice; no experience necessary. Tucker Bros. Amusement Co., 306 W. Reno St., Oklahoma City, Okla. Phone M 5620.”

The assignments of error may be grouped under three principal contentions:

First, that the trial court erred in admitting over objection Government’s Exhibit 1, being a copy of the Daily Oklahoman of September 15,1920, containing the advertisement alleged in count 1; Government’s Exhibit 2, being a copy of the Daily Oklahoman of November 16, 1920, containing the advertisement alleged in count 2; Government’s Exhibit 3, being a copy of the Daily Oklahoman of November 21, 1920, containing a copy of the advertisement alleged in count 3; Government’s Exhibit 4, being a copy of the Daily Oklahoman of December 2, 1920, containing a copy of the advertisement alleged in count 4; and Government’s Exhibit 5, being a copy of the Daily Oklahoman of December 14, 1920, containing an advertisement similar to the advertisement alleged in count 5.

Second, that the trial court erred in overruling the motion of the defendants, for a directed verdict of not guilty, on counts 1, 2, 3, and 4.

Third, that the trial court erred in requiring the defendant Dudley R. Tucker to answer on cross-examination whether he had inserted or caused to be inserted, in the Daily Oklahoman, the advertisements alleged in the several counts of the indictment.

The crimes charged .are made up of two principal elements: (1) A scheme or artifice devised or intended to be devised to defraud; (2) causing an advertisement to be placed in the post office to be sent or delivered by the post office establishment of the United States, for the purpose of executing such scheme or artifice, or attempting so to do. Robins v. U. S. (C. C. A. 8) 262 F. 126; Bowers v. U. S. (C. C. A. 9) 244 F. 641, 157 C. C. A. 89; U. S. v. Young, 232 U. S. 155, 34 S. Ct. 303, 58 L. Ed. 548.

In the Young Case the court said:

a * * * Tlie elements of an offense under section 215 are (a) a scheme devised or intended to he devised to defraud, or for obtaining money or property by,means of false pretenses, and (b) for the purpose of executing such scheme or attempting to do so, the placing of any letter in any post office of the United States to be sent or delivered by the post office establishment.”

The first two contentions relied on by defendants may be treated together, and require an examination of the evidence offered to prove the second element of the offenses charged.

In the government’s case in chief there was no direct evidence that the defendants, or any of them, caused the advertisements alleged in the indictment to be inserted in the Daily Oklahoman.

For the purpose of establishing that defendants caused such advertisements to be inserted, the government called a number of witnesses, who testified that they called on Dudley Tucker and advised him they had read an advertisement of Tucker Bros, in the Daily Oklahoman and wanted to know about the proposition, and that Dudley Tucker then explained the plan to them and employed them for Tucker Bros.

Keeping ifi mind that the copy of the advertisements was changed from time to time, let us examine the testimony of these witnesses with reference to the point under- consideration :

W. A. Harris testified that he read advertisements in issues of about July 4, 1920.

L. L. Prosser testified that he called on Dudley Tucker in response to an advertisement, and thereafter entered into a contract with Tucker Bros. The contract was dated August 19, 1920.

N. E. Weaver testified that he learned of Tucker Bros.’ proposition from other employees of Tucker Bros.; that later he saw an advertisement in the paper and wrote Tucker Bros, and asked if they were still wanting men. He received a reply dated September 21,1921.

Charles Geiger testified that he read an advertisement in the Daily Oklahoman; that he met Dudley Tucker and William Tucker September 30, 1920, and told them he had read their advertisement; that Dudley Tucker explained the proposition and gave Geiger to understand it was Tucker Bros.’ advertisement he had read; that he entered into a contract with Tucker Bros., dated October 11, 1920; that he saw the advertisement in an issue published during September; that the advertisement did not say anything about invest or investment, but .said the person would have to put up a $2,000 cash bond; qnd that he “did not see an ad stating an attractive proposition could be offered to a, responsible man who would invest.”

R. C. Dohe testified that he saw an advertisement published between January 5 and 15, 1921; that the advertisement said “Men who could put up bond of $1,000 or $2,000”; that he could not say the advertisement was the same as those set forth in Government’s Exhibits 1, 2, 3, 4, and 5.

Charles H. Darling testified that he answered Tucker Bros.’ advertisement by letter and received a letter in reply dated January 6, 1921; that he then called on Dudley Tucker and entered into a contract dated J anuary 11, 1921.

Roy L. Bradshaw testified that he saw advertisements in February, 1921, and that he thereafter called upon Dudley Tucker and entered into a contract with Tucker Bros.

S. R. Walker testified that he saw advertisement and called on Dudley Tucker February 10, 1921.

J. H. Roberts testified that he saw the advertisements in the fall of 1920, and in January and February, 1921; that’ on February 26, 1921, he met Dudley Tucker, told him he “had noticed these advertisements in the paper,” and “had' come down to get his proposition on it.”

Frank Gresham testified that he “read advertisements in yarious newspapers signed by Tucker Bros. Amusement Company, saying they wanted reliable men who could deposit cash bond of $1,000; that theji- would pay $40 a week salary”; that between February 20 and 25, 1921, he called on Tucker Bros, and discussed proposition with Dudley Tucker; that he only discussed advertisement which read $1,000 deposit and $40 a week”; and that he inquired only as to the $1,000 proposition.

I. L. Sheets testified that he read an advertisement of Tucker Bros, in the Daily Oklahoman, published about the middle of December, 1920; that he answered the advertisement, and met Dudley Tucker, the latter part of December, 1920.

E. K. McKinnis testified that he saw the advertisement alleged in count 5 in December, 1920; that he wrote a letter to Tucker. Bros, inclosing copy of the advertisement; that later he met Dudley Tucker in Oklahoma City in January, 1921, and discussed the advertisement and the men who had been employed under it.

R. M. Cook testified that he read an advertisement in an issue of the Daily Oklahoman of about the middle of December, 1920; that he wrote a letter to Tucker Bros, relative to the proposition and received a reply dated December 23, 1920; that shortly thereafter he went to Oklahoma City, met Dudley Tucker, and signed a contract with Tucker Bros., dated December 31,1920.

Clyde Brown testified: “I saw an ad in the Daily Oklahoman wanting men at $40 a week with $1,000 deposit, this $1,000 to be used on a bond, and I went up to see him-about it”; that he saw Dudley Tucker January 2, 1921, and discussed the proposition set out in the advertisement.

From the foregoing it is clear that, with the possible exception of Weaver, none of these witnesses discussed with Dudley Tucker any of the advertisements charged in counts 1, 2, 3, and 4. While Geiger testified to an advertisement published in September, he testified specifically as to what appeared in the advertisement, and showed clearly that it was not the one charged in the first count of the indictment. McKinnis identified the advertisement charged in the fifth count, and the testimony of Sheets, Gresham, Brown, and Cook may have referred to that advertisement. However, there was a variance between the allegation and the proof on the fifth count, and the jury returned a verdict of not guilty under the instructions of the court. Weaver may have referred to the advertisement charged in the first count. Wherever the witnesses were specific in their testimony, they described an advertisement substantially different from those charged in the first, second, third, and fourth counts. Hone of the witnesses discussed with Dudley Tucker the advertisement of December 2d, charged in the fourth count, upon which the verdict of guilty was returned. None of the witnesses talked to either William Tucker or Howard Tucker.

To establish the insertion by the defendants of the advertisements charged in the indictment, the government also offered the testimony of H. E. Dreier, advertising manager, and Edwin C. Barthell, assistant advertising manager, of the Daily Oklahoman and Times, Mrs. C. A. Cunningham, a stenographer for Tucker Bros., and M. C. Nabb, bookkeeper, and F. S. Baird, collector, for the Oklahoman Publishing Company.

Dreier identified Government’s Exhibits 1, 2, 3, 4, and 5, as regular issues of the Daily Oklahoman containing the advertisements charged in the indictment, but testified that he did not know of his own knowledge who furnished the copy for the advertisements, who directed their insertion, or who paid for them.

Barthell testified that he found four copies of advertisements in the files, and gave them to the post office inspector; that he knew nothing of his own knowledge concerning them; that he did not know who brought the advertisements in, or who received them; and that he could not say any of the defendants brought the copies of the advertisements to the Daily Oklahoman.

Mrs. Cunningham testified that she commenced to work for Tucker Bros. December 18,1920, and did not know of the writing or insertion of any advertisement in the Daily Oklahoman prior to December 19, 1921.

The government sought to prove by the witnesses Nabb and Barthell that the defendants paid for the advertisements. It appeared that these witnesses had no personal knowledge of the transactions, and on motion of defendants their evidence was stricken out and taken from the jury.

The record is certainly void of any evidence that the defendants William Tucker and Howard Tucker caused the insertion in the Daily Oklahoman of any of the advertisements charged in the several counts of the indictment. As against them there was no proof of the second element of the offenses charged. The court should have directed the jury to find William Tucker and Howard Tucker not guilty.

A finding from the evidence that Dudley Tucker caused the advertisement of December 2,1920, to be inserted in the Daily Oklahoman would be largely a matter of surmise and conjecture. But, since the case must be reversed as to Dudley Tucker on another point, we are not required to determine whether or not there was sufficient evidence to warrant the submission of the ease to the jury as against Dudley Tucker.

The question raised by the third contention is: Did the court, in requiring the witness Dudley Tucker, over objection, to answer whether or not he caused the advertisements alleged in counts 1, 2, 3, and 4, to be inserted in the Daily Oklahoman, compel him to be a witness against himself, in violation of the protection guaranteed to him under the Fifth Amendment to the Constitution of the United States?

The fraudulent scheme alleged and sought to be proved by the government was substantially this: That the defendants falsely represented that the amounts deposited with Tucker Bros, by the persons who entered into employment contracts were merely to serve' as bonds to insure the accounting by the employees for moneys collected and for the property intrusted to the employees, and that the amounts so deposited would be placed in Oklahoma City banks, held in trust, and returned up on demand after two weeks’ notice; that such representations were false, in that the defendants intended to appropriate and did appropriate the moneys so deposited to their own use, and that the defendants intended thus to cheat such persons out of the moneys so deposited.

Dudley Tucker was called as a witness in behalf of the defendants. He testified to the plan he had worked out for operating road motion picture shows, and to what he stated to prospective employees, and to his good faith in the matter. He at no time in any way mentioned or referred to the advertisements or the insertion of the same in the newspaper. He made no reference to the statements concerning the advertisements testified to by the persons who called upon him in response to advertisements. In shorty his direct testimony went wholly to a refutation of the first element of the offenses charged, namely, the scheme to defraud, and at no time went to the question of using the post office in furtherance of any such scheme.

On cross-examination he was asked if he inserted or caused the insertion of the advertisements charged in the first four counts of the indictment.. Objection was interposed to the effect that such questions were outside the scope of the direct examination, were therefore improper cross-examination, and in effect made Dudley Tucker the government’s witness, and compelled him to be a witness against himself.

The privilege against self-incrimination was first recognized by the common-law courts in England about the middle of the seventeenth century. 8 R. C. L. § 32, p. 77; Wigmore on Evidence (2d Ed.) vol. 4, pp. 814, 815. An excellent discussion of the historical development of the privilege by the learned author of Wigmore on Evidence may be found in volume 4 of his second edition at section 2250. It found expression in the maxim “nemo tenetur seipsum accusare.” It was written into the Constitution of the United States by the Fifth Amendment, which provides: “No person * * - * shall be compelled in any criminal case to be a witness against himself.” However, since only within comparatively modern times has the accused been a competent witness in his own behalf, the facts surrounding the historical development of this privilege afford little aid in the determination of the precise question here presented.

By the Act of March 16, 1878, 20 Stat. 30 (Comp. St. § 1465), Congress provided that “the person so charged shall, at his own request, but not otherwise, be a competent witness. And his failure to make such request shall not create any presumption against him.” What is the effect of the defendant availing himself of this statute and testifying in his own behalf upon the privilege guaranteed to him by the Fifth Amendment? All courts recognize that he subjects himself to cross-examination. So far as we have been able to determine no court or legal writer has suggested that after the accused has testified in his own behalf he can be called as a witness against himself by the prosecution. If the accused testifies in his own behalf, manifestly his testimony should be subjected to the same tests for determining its truthfulness as that of any other witness. The primary purpose of cross-examination in the federal courts is to test the truth of the testimony adduced by the direct examination and to clarify or explain the same. It is not to prove independent facts in the case of the cross-examining party.

If there is’good reason why a defendant should not be compelled to be a witness against himself, there ought to be equally good reason why, if he has testified voluntarily upon one issue, he should not be compelled to testify against his will concerning matters wholly unrelated to that issue, which would not be within the scope of proper cross-examination if he were an ordinary witness.

We conclude that, when a defendant in a criminal case voluntarily becomes a witness in his own behalf, he subjects himself to cross-examination and impeachment to the same extent as any other witness in the same situation, but he does not subject himself to cross-examination and impeachment to any greater extent. Harrold v. Territory of Oklahoma (C. C. A, 8) 169 F. 47, 94 C. C. A. 415, 17 Ann. Cas. 868; Paquin v. U. S. (C. C. A. 8) 251 F. 579, 163 C. C. A. 573; Fitzpatrick v. U. S., 178 U. S. 304, 315, 316, 20 S. Ct. 944, 44 L. Ed. 1078; Sawyer v. U. S., 202 U. S. 150, 165, 26 S. Ct. 575, 50 L. Ed. 972, 6 Ann. Cas. 269.

To sustain the ruling of the learned trial judge, counsel for the government cite and rely upon ’the following cases: Quintana v. State, 29 Tex. App. 401, 16 S. W. 258, 25 Am. St. Rep. 730; People v. Bussey, 82 Mich. 49, 46 N. W. 97; State v. Ober, 52 N. H. 459, 13 Am. Rep. 88; Commonwealth v. Nichols, 114 Mass. 285, 19 Am. Rep. 346; Andrews v. Frye, 104 Mass. 234; Commonwealth v. Lannan, 13 Allen (Mass.) 563; Commonwealth v. Mullen, 97 Mass. 545. The above eases generally recognize the rule that the defendant who offers himself as a witness in his own behalf subjects himself to cross:examination the same as any other witness, but hold that the cross-examination may include any question pertinent to the issues. We find, however, that is the rule regulating the scope of cross-examination of an ordinary witness in those jurisdictions.

In the case of Wentworth v. Crawford, 11 Tex. 127, 133, the court said:

“We believe that it is regular to ask a witness, on a cross-examination, any question that may be pertinent to the questions to be decided by the jury.”

In the ease of Ireland v. Cincinnati, W. & M. R. Co., 79 Mich. 163, 164, 44 N. W. 426, the court said:

“The rule is well established that a witness may be cross-examined upon all points material to the issue, whether the party has called them out upon direct examination or not.” .

See, also, Hemminger v. Western Assurance Co., 95 Mich. 355, 54 N. W. 949, and People v. Dupounce, 133 Mich. 1, 94 N. W. 388, 103 Am. St. Rep. 435, 2 Ann. Cas. 246.

In the ease of Commonwealth v. Morgan, 107 Mass. 199, 205, the court said:

“By taking the stand as a witness, he waived his constitutional privilege of refusing to furnish evidence against himself, and subjected himself to be treated as a witness. Stat. 1866, c. 260; Commonwealth v. Mullen, 97 Mass. 545; Commonwealth v. Bonner, Id. 587. Under our rule, the cross-examination of a witness is not confined to the matters inquired of in chief. Moody v. Rowell, 17 Pick. 490, 498.”

In Webster v. Lee, 5 Mass. 334, the court said:

The opponent “might very properly cross-examine him as to all matters pertinent to the issue on trial.”

In Merrill v. Berkshire, 11 Pick. (Mass.) 269, 274, the court said:

“He was sworn generally in.the suit, and ■cannot be restricted in his testimony, to facts relating to such individual or such parts of the ease as the party calling him may choose to select.”

In Commonwealth v. Hudson, 11 Gray (Mass.) 64, 67, the court said:

“A witness, when called by one party, is liable to be examined and bound to answer as to all facts material to the case, whether examined upon that subject by the party calling him or not.”

See, also, Moody v. Rowell, 17 Pick. (Mass.) 490, 499, 28 Am. Dec. 317; Beal v. Nichols, 2 Gray (Mass.) 262; Conklin v. John Howard Industrial Home, 224 Mass. 222, 112 N. E. 606.

State v. Ober, supra, relied upon by counsel for the government, follows the Massachusetts eases.

From the foregoing it will be seen that the courts of Texas, Michigan, Massachusetts, and New Hampshire open a much broader field to the cross-examiner than do the national courts.

The rule fixing the limitation upon the cross-examination of a witness generally in the national courts, is stated in Heard v. U. S. (C. C. A.) 255 F. 829, at page 833, 167 C. C. A. 157, 161, as follows:

“The rule on this subject in the national courts is that the party in whose behalf a witness is called has the right to restrict his cross-examination to the subjects of his direct examination, and a violation of this right is reversible error. If the cross-examiner would inquire of the witness concerning matters not opened on direct examination, he must call him in his own behalf. Philadelphia & Trenton Railway Co. v. Stimpson, 39 U. S. (14 Pet.) 448, 460, 10 L. Ed. 535; Houghton v. Jones, 1 Wall. 702, 706, 17 L. Ed. 503; Resurrection Gold Mining Co. v. Fortune Gold Mining Co., 129 Fed. 668, 674, 64 C. C. A. 180, and cases there cited; Illinois Central Railway Co. v. Nelson, 212 Fed. 69, 74, 128 C. C. A. 525; Harrold v. Territory of Oklahoma, 169 Fed. 47, 52, 94 C. C. A. 415, 17 Ann. Cas. 868.”

See, also, Camp Mfg. Co. v. Beck (C. C. A. 4) 283 F. 705, 706.

The rule is the same in civil and criminal cases. Greer v. U. S. (C. C. A. 8) 240 F. 320, 323, 153 C. C. A. 246.

In Harrold v. Territory, supra, this court said:

“And right here is- the limitation of the waiver by an accused person of his constitutional privilege under the second rule by testifying. * * * He may not ‘be compelled in any criminal case to be a witness against himself.’ When he testifies as a witness he waives this privilege of silence and subjects himself to cross-examination and impeachment to the same extent as any other witness would subject himself thereto in the same situation, but no farther. He may be cross-examined upon the subjects of his direct examination, but not upon other subjects; impeaching questions relative to facts not collateral to the issue — that is to say, relative to facts which the prosecutor is entitled to prove as a part of his case — may he lawfully propounded to him (Wharton’s Criminal Evidence [9th Ed.] § 484), but such questions relative to facts that may not be so proved may not be asked him; and he may be impeached by competent proof of statements made by him contradictory of his answers to such lawful questions, but not by proof of answers contradicting unlawful questions. For these are the limits of the cross-examination and of the lawful evidence of impeachment of other witnesses. An accused person who testifies to the single fact that a bill of sale or a deed was signed by the grantor does not thereby waive his privilege to refuse to testify upon every other material issue in his case. He waives his privilege of silence upon the subjects relative to which he testifies, but upon no other.”

In Fitzpatrick v. U. S., supra, the court said:

“Where an accused party waives his constitutional privilege of silence, takes the stand in his own behalf and makes his own statement, it is clear that the prosecution has a right to cross-examine him upon such statement with the same latitudé as would be exercised in the ease of an ordinary witness, as to the circumstances connecting him with the alleged crime. While no inference of guilt can be drawn from his refusal to avail himself of the privilege of testifying, he has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts. * * * If the prosecution should go farther and compel the defendant, on cross-examination, to write his own name or that of another person, when he had not testified in reference thereto in his direct examination, the case of State v. Lurch, 12 Or. 99, is authority for saying that this would be error. It would be a clear ease of the defendant being compelled to furnish original evidence against himself. State v. Saunders, 14 Or. 300, is also authority for the proposition that he cannot be compelled to answer as to any facts not relevant to his direct examination.”

The questions asked the witness Dudley Tucker on cross-examination were clearly outside the scope of his direct testimony. They had reference to the second element of the offenses charged, while his direct examination was limited to a refutation of the first element. The questions on cross-examination did not in any way test the truth of the direct examination; they did not seek to explain or modify the same; they were asked for the sole purpose of proving an independent element in the government’s case. In eliciting the answers to the questions propounded to Dudley Tucker with reference to the insertion of the advertisements, the government made Dudley Tucker its witness, and compelled him over seasonable and proper objection to be a witness against himself,,in violation of the Fifth Amendment to the Con-. stitution. There is no higher nor more important duty resting upon the courts than to see that the citizen is fully afforded the rights and immunities guaranteed to him by the Constitution.

For the reasons above stated, the cause is reversed, with instructions tó grant the defendants a new trial; and it is so ordered. •


author: PER CURIAM.

text:
    COOPER et al. v. UNITED STATES.
    (Circuit Court of Appeals, Sixth Circuit.
    May 4, 1925.)
    No. 4281.
    1. Criminal law ¡§=5406(4) — Voluntary admissions by defendants at preliminary hearing held properly admitted.
    In prosecution for feloniously transporting stolen automobile, evidence as to admissions voluntarily made by defendants at preliminary hearing before UnLed States commissioner held properly admitted.
    2. Witnesses ¡§=>219(3) — Attorney’s testimony-as to confidential admissions by defendants, held not improperly admitted.
    Where defendants’ testimony admitted of inference that they had pleaded guilty for purpose of enabling confederate to “get out,” in: part at least because, or as a result, of implied advise of attorney, it was not error to permit attorney to testify that they had admitted offense to him and told him they wanted to enter pleas of guilty.
    3. Witnesses ¡§=>219(3) — Rule forbidding attorney to divulge communications from client may be and is waived by client who divulges what he claims are such, communications.
    Rule forbidding attorney ■ to divulge matters communicated to him by client in course of professional employment may be and is waived by client, when, in an attempt to avoid responsibility, client divulges what he claims were communications between himself and attorney, especially when his version of what transpired reflects on attorney and calls for explanation.
    In Error to the District Court of the United States for the Western District of Tennessee; J. W. Ross, Judge.

      Harry Cooper and James Odom were convicted of feloniously transporting a' stolen automobile from one state to another, and they bring error.
    Affirmed.
    M. L. Tallant, of Memphis, Tenn. (W. P. Lopez, of Memphis, Tenn., on the brief), for plaintiffs in error.
    S. E. Murray, U. S. Atty., of Memphis, Tenn. (W. H. Fisher and A. A. Hornsby, Asst. U. S. Attys., both of Memphis, Tenn., on the brief), for the United States.
    Before DENISON, MOORMAN, and KNAPPEN, Circuit Judges.
   PER CURIAM.

Cooper and Odom were convicted on an indictment charging them with feloniously transporting a stolen automobile from Edwards, Miss., to Memphis, Tenn.

Counsel for the convicted men insist upon three of the errors assigned. The first relates to the substance of the evidence, in respect to which it is enough to say that it was sufficient to support the verdict. The pther two pertain to the admissibility of certain evidence, it being contended that error was committed in permitting' proof of admissions made by plaintiffs in error at the preliminary hearing before the United States commissioner, and also in permitting counsel who represented them at that hearing to testify to their confidential communications with him.

The admissions made at the open hearing before the commissioner were clearly competent because wholly voluntary. The testimony of the attorney was introduced after plaintiffs in error had testified that they had been advised by him and by Joe Higdon, who was jointly charged with them, that one of the three could get out (and, as said by one of the plaintiffs in error, that “it would be better to get one out than for all three to go up”), and that Higdon advised that plaintiffs in error, being younger than he, should accept responsibility, enter pleas of guilty, let him out, and they would subsequently be able to get out. One plaintiff in error testified, in effect, that he admitted his guilt before the commissioner because Higdon told him he would get them out. The other testified he acted on the advice of the attorney. It was the permissible inference from this testimony that plaintiffs in error claimed to have pleaded guilty in part at least because, or as a result, of the implied advice of the attorney that, they do so. The attorney was then called as a witness and permitted to say that he did not advise plaintiffs in error to accept responsibility and relieve Higdon, that they admitted to him that they had taken the automobile and told him they wanted to enter pleas of guilty. These disclosures were necessarily a part of the witness’ denial that •he had advised them to enter pleas of guilty.

The rule which forbids an attorney from divulging matters communicated to him by his client in the course of professional employment is for the benefit of the client. But it may be waived by the client; and when a client, in attempting to avoid responsibility for his acts, as in this ease, divulges in his testimony what he claims were communications between himself and his attorney, and especially when his version of what transpired reflects upon the attorney, the reason for the rule ceases to exist, and the attorney is at liberty, to divulge the communications about which the client has testified. Hunt v. Blackburn, 128 U. S. 464, 9 S. Ct. 793, 33 L. Ed. 215.

The judgment is affirmed.


author: NETERER, District Judge

text:
    UNITED STATES v. DUKE.
    (District Court, W. D. Washington, N. D.
    May 22, 1925.)
    No. 8353.
    Bail <§=>57 — Surety held liable, though there was no term held at time specified.
    Surety on bond, conditioned that defendant would appear at term of court “to be begun and held * * * on the 1st day of February, 1924,” held liable on defendant’s failure to appear at May term, though there was no term held in February, in view of Rem. Comp. Stat. Wash. § 1957, which became part of bond and required that defendant appear to answer charges against him “at all times until discharged according to law.”
    George Duke was charged with a violation of National Prohibition Act, and, on his failure to appear to answer the charge, his bail bond was declared forfeited. On petition of the National Surety Company to set aside forfeiture.
    Petition denied.
    The National Surety Company, on January 24, 1924, before United States Commissioner Bowman, made bond for George Duke to “appear before the District Court of the United States * * * on the day of the -term to be begun and held at the city of Seattle, Washington, in said district, on the 1st day of February, 1924, and from time to time thereafter to which the cause may be continued, and then and there answer the charge of having on or about the 23d day of January, A. D. 1924, within said district, in violation of * * * the National Prohibition Act, * * * unlawfully * * * possess and sell intoxicating liquor, and then and there abide the judgment of said court. * * * })

    On the 5th of March, 1924, the United States attorney filed an information charging Duke with violating the National Prohibition Act by possessing and selling intoxicating liquor and maintaining a common nuisance. A bench warrant was issued, but the defendant was not apprehended. Thereafter on the 12th day of May, 1924, the defendant was called to answer to such information, and failing to appear, the bond was declared forfeited. The surety company seeks to have the forfeiture set aside because no term of court began on the 1st day of February, and that if the bond is not void, the defendant not being called to answer to the information during the November term, in which the bond was given, and that forfeiture not having been entered, if the bond be valid during the November term the surety was not required to produce the defendant at the next, or May, term.
    Robert H. Evans, and Walter Metzen-baum, both of Seattle, Wash., for National Surety Co., petitioner.
    Thos. P. Revelle, U. S. Atty., of Seattle, Wash.
   NETERER, District Judge

(after stating the facts as above). The surety company relies on Joelson v. U. S. (C. C. A.) 287 F. 106, and U. S. v. Mace (C. C. A.) 281 F. 635. I think neither of these eases are decisive.

In the Joelson Case there was no particular time and no particular place when and where the defendant was to appear, and the court said, at page 109:

“Under the terms of the contract, Rosen was under no obligations whatever to appear at any time or place before the court. This omission of the condition was a fatal defect, and the recognizance was a nullity.”

In this case, the court, the place, and the time were designated and fixed.

Nor does the case of U. S. v. Mace, supra, help the situation. In the Mace Casé Circuit Judge Kenyon for the court said that it is uniformly held under federal statutes that United States commissioners have such powers as to procedure that may be conferred by the state statutes on examining magistrates of the state. See section 1014, R. S.; Comp. Stat. § 674.

The Supreme Court, in U. S. v. Ewing, 140 U. S. 142, 11 S. Ct. 743, 35 L. Ed. 388, said:

“It is proper,” under section 1014, supra, “to look at the law of the state in which the services in such ease are rendered, to determine what is necessary and proper to be done.” -

Justice Brewer, in U. S. v. Patterson, 150 U. S. 67, 14 S. Ct. 21, 37 L. Ed. 999, said:

“It was held in the case of U. S. v. Ewing, 140 U. S. 142, that, in view of section 1014 of the Revised Statutes, the law of the state in which the services are rendered must be looked at, in order to determine what is necessary in the matter of procedure.”

Section 1957, Rem. Comp. Stat. of Washington, says:

“The recognizance shall be conditioned in effect that the defendant will appear * * * to answer said charge whenever the same shall be prosecuted, and at all times until “discharged according to law, render himself amenable to ,the orders and process of the Superior Court, and if convicted, render himself in execution of the judgment.”

The recognizance in this case is a contract between the government and the surety to produce the defendant, not at any term of the court, “but at all rimes until discharged according to law.” The bond in effect so recites, and the statute enters into and becomes a part of the contract. The statute of Washington differs from the Nebraska statute under which the Mace, supra, recognizance was taken, in this: That the Nebraska statute provides, “That the accused appear forthwith before the District Court, if then in session, and if not in session, then on the first day of the. next jury term thereof” (Comp. St. Neb. 1922, § 9981), and the court said at page 639:

“It will be noted in this bond that the time is not fixed as of the next term. But the language is used, ‘on the first day of the 'term, to be begun and held on the 29th day of July, 1918/ ”

The court further said on the same page:

“The bond here under consideration called for the appearance of Chenoweth at the April term, 1918, of the United States- District Court, being the term in session at the time the bond was taken. * * * Forfeiture was entered at the September term. At that time the bond had no vitality.”

The Nebraska' statute required the accused to appear at a stated term, while the-Washington statute required the accused to appear “at all times until discharged according to law.”

The surety failed to produce the defendant, and must be held to the contract obligation.

The petition is denied.