author: KALODNER, District Judge.

text:
    ALBRIGHT v. KALBITZER.
    Civil Action No. 3513.
    District Court, E. D. Pennsylvania.
    Oct. 16, 1945.

      Crosky & Edwards by Ralph S. Crosky, all of Philadelphia, Pa., for plaintiff.
    Karl W. Johnson, of Upper Darby, Pa., for defendant.
   KALODNER, District Judge.

This is an action ex contractu in which the plaintiff, in addition to damages for breach of contract, seeks an accounting. The defendant has set up a counterclaim also seeking recovery of damages for breach of the same contracts by plaintiff.

The cause was tried before the Court without a jury. The facts are as follows:

Plaintiff Albright, of Chicago, Illinois, and the defendant Kalbitzer, of Paoli, Pennsylvania, entered into a contract on May 6, 1943, whereby the plaintiff was, inter alia, to sell certain poultry and egg processing and handling equipment, and poultry eviscerating equipment to be manufactured by the defendant; the agreement was to continue effective for one year. On May 7, 1943, the parties executed a supplementary agreement extending the prior contract to include certain patented poultry picking equipment for which plaintiff held a license; this agreement was to continue as long as the plaintiff held the license. Both contracts are set out in full in an appendix.

The plaintiff has charged the defendant with failure to perform practically all the provisions of the agreements, and on this basis seeks the recovery of damages. The prayer for an accounting is founded upon the thesis that the contracts accorded to the plaintiff an exclusive right to sell, which the defendant is alleged to have violated by making sales over the plaintiff’s head without payment of commissions to the plaintiff. The defendant admits an exclusive agency, but denies that under the terms of the contract he himself was precluded from making sales.

The defendant also asserts that the plaintiff failed to meet the minimum requirements as to sales set forth in Paragraph 2(f) of the contract of May 6, 1943, and for this reason he wrote to the plaintiff on November 10, 1943, terminating that agreement.

It also appears from the record that the plaintiff’s license to manufacture the poultry picking machines, subject to the second agreement, terminated about November 9, 1943, at about which time the defendant acquired a similar license.

A preliminary question may be resolved at the outset. The defendant attacks the jurisdiction of this Court, on the ground that the jurisdictional amount, necessary in diversity of citizenship cases, is lacking here. However, this issue was determined against the defendant on his motion to dismiss by my brother Ganey, J., on August 11, 1944. I may add that the pleadings do not disclose the legal impossibility of a judgment for the plaintiff in excess of the jurisdictional amount. See Hiltz v. Atlantic Refining Co., 1944, 57 F. Supp. 308, decided by this Court.

Coming to the merits of the controversy, the plaintiff seeks to recover commissions on sales alleged to have been made by him between May 6, 1943, the date of the first contract, and November 10, 1943, the date of the defendant’s letter of termination.

It is hardly necessary to discuss in detail all the business done by the parties during this controversial period. Admittedly on the Ebbs & Son order of July 13, 1943, the commission was paid. On the Chicago Foods Products order of April 20, 1943, referred to at the trial as the Hor-witz transaction, plaintiff did receive a commission, but he is not entitled to commission under the contract since the sale was made prior to the execution of the contract .

Concerning the Dorset Foods order, Albright testified, and I credit his testimony, that he made the contact with Dorset in Long Island, New York, that he measured the building and helped prepare the blueprints for the layout, and that he then called Kalbitzer asking him to go to Dorset because the firm was ready to place its order. Kalbitzer took the order, and the unit was installed sometime in October, 1943. While this transaction may come within the plaintiff’s contention that he had an exclusive right to sell, I think he is entitled to the agreed commission on the ground that he was at least the efficient cause of the sale, particularly since there was no break in the negotiations. See Restatement, Agency, Section 448, and the Pennsylvania Annotations thereto.

As to purchases by the plaintiff, while they may be counted under Paragraph 2(f) of the agreement of May 6th, plaintiff is not entitled to commissions where he himself was the purchaser at cost.

Thus, plaintiff proved an order dated September 25, 1943, which was never shipped. Defendant’s counsel, in his brief, states that it was established no such order was received, but admits he could find no such testimony in the record. Neither can I, and I must therefore accept the plaintiffs proof. Also plaintiff proved an order for two machines dated June 22, 1943; this order was to be applied to a prior order for five machines dated May 19, 1943. This order was not shipped. Since these orders were purchases by the plaintiff for his own account, no commissions become due. While he may be entitled to damages for defendant’s failure to ship, he has not offered proof thereof.

The remaining orders handled by the plaintiff during the period from May 6, 1943, to November 10, 1943, are characterized by the fact that they were communicated to the defendant, but defendant failed to make deliveries thereon. On these orders, the plaintiff seeks to recover commissions as sales made. In view of the admission of the defendant that the contract provided for commissions on “sales,” the only question in dispute is the meaning of the term “sales,” concerning which the contract is silent.

The defense to this claim is that the term “sales” requires a delivery and passing of title; therefore, since no deliveries were made, no commissions became due.

Considering the admission, I think this view is too narrow. Ordinarily, where, as here, the contract is silent, it is sufficient if an enforceable contract of sale is executed. See Restatement, Agency, Section 445 Comment (e) ; 2 Amer.Juris., Agency, Sections 302, 303. In any event, since the defendant was bound to fill all orders, and failed to do so, plaintiff is entitled to damages in the amount he would have realized if the order had been filled. Johnson v. Hoosier Drill Co., 1881, 99 Pa. 216; see Penn Anthracite Collieries Co. v. Coleman & Co., Inc., 1945, 53 Pa.Dist. & Co.R. 420. Here, such damages constitute plaintiff’s commissions, in the absence of mitigating evidence. See 1 Sutherland, Damages, 3rd Ed. (1903) p. 215.

One transaction to which this conclusion is particularly applicable is that referred to during the trial as the Rabinowitz order of May 21, 1943. Although the defendant accepted the order procured by the plaintiff, and the contract with Rabinowitz, calling for equipment valued in excess of $6,000, was legally enforceable, the defendant released the purchaser for $750, considerably less than the plaintiff’s commission. On the view I have taken, the plaintiff is entitled to the agreed commission for making this sale. See Lieberman v. Colahan, 1920, 267 Pa. 102, 105, 110 A. 246; Blau v. Settling, 1928, 94 Pa.Super. 411; cf. Cooper v. Midland Metal Co., 1914, 56 Pa.Super. 485.

Another transaction in this group was the order obtained by the plaintiff from the Charles Keeshin Poultry Co., on or about October 6, 1943. To the claim for compensation on this order, it seems to me there is a valid defense. Admittedly Al-bright never furnished a priority rating, and clearly, unless he was led to believe otherwise by the defendant, he could not have expected this order to be filled in view of Paragraph 2(g) of the contract of May 6th. That the defendant showed a willingness to fill the order without a priority rating does not help the plaintiff, for any such action would have been illegal and plaintiff could not recover his commission as a matter of public policy.: The Court will not further an illegal arrangement. See Pollock v. MacElree, D.C.E.D.Pa.1944, 56 F.Supp. 961. Moreover, the inference that in accepting the order the defendant intended to obtain the priority himself, waiving the plaintiff’s obligation under Paragraph 2(g) of the contract, is rebutted by the fact that the order form discloses on its face that the priority was to follow. Plaintiff, accordingly, is not entitled to any compensation on this transaction.

Concerning the order of the R. H. Macy Co., dated August 19, 1943, the defendant testified that at that time he was engaged in government work which carried a higher priority and which prevented his filling the Macy order. If this were so, certainly under the terms of the contract, which required the plaintiff to furnish a high enough priority to enable the defendant to fill orders, defendant could have properly rejected the order. Perhaps even if he accepted the order, this defense would still be valid. The difficulty is that not only did defendant accept the Macy order and begin production, but he never stated to the plaintiff that a higher priority would be necessary. In fact, in his letter to the plaintiff dated August 31, 1943, the defendant stated, “Concerning the Macy pickers; motors have been shipped and as soon as we receive same we will ship the pickers. We understood that the Macy display only lasted during the New York show, that is why we did not ship the machine without motor.” With this in mind, I cannot credit the defendant’s statement that the government contract interfered with his completion of the Macy order. Moreover, the priority extended for this order was otherwise sufficient. Therefore the plaintiff, having made a sale, is entitled to his commission.

The defendant also refused to pay the plaintiff a commission on an alleged sale to the Berger Kleifgen Co., on about June 23, 1943. This sale involved a Whistler Universal picker which was subject to the supplemental agreement of May 7, 1943. Under paragraph 1 of that contract the defendant agreed to manufacture this machine and under paragraph 2 the plaintiff agreed to sell it at a price of $435.00. The plaintiff extended an AA3 MRO priority, which, under CMP Regulation 5 (CCH War Law Service, Priorities 1, Sec. 33,228) was sufficiently high to enable filling of the order. The defendant testified, however, that he had never made a Universal machine, and that plaintiff had agreed to obtain for him plans for its construction or a sample machine, which, admittedly, was never done. Plaintiff, on the other hand, testified that the defendant did not tell him he could not make the machine until after he had obtained the Kleifgen order. Since the defendant agreed to manufacture the Universal machine and to accept orders for it, the burden rests upon him, as a matter of defense, to show that the plaintiff was under a duty to supply him with information for construction. Aside from the contradictory testimony of the parties, the only other pertinent evidence is a letter from the plaintiff to defendant dated June 17, 1943, in which the plaintiff stated that he had an order for a Universal Machine (the order dated June 23rd). While this letter indicates a recognition on the part of the plaintiff that the defendant required a sample before he could manufacture the machine, and shows that he undertook to secure such a sample for the defendant, nevertheless it leaves it to the defendant to secure the sample. The letter does not help in placing a duty on the plaintiff, and therefore, it is my opinion that the defendant failed to prove the duty. He is left, then, with the obligation to accept orders for and manufacture the Universal picker.

Plaintiff also seeks to recover as damages loss of profits, i. e., commissions, on uncompleted sales by reason of the defendant’s termination of the contractual arrangement by letter dated November 10, 1942.

Clearly, if the defendant were justified in terminating the agreement, Albright is not entitled to additional damages on orders taken but not communicated to the defendant. The immediate question, therefore, is whether the termination was based upon cause. On this determination, also depends the outcome of the defendant’s counterclaim.

The reason assigned for the termination is that Albright failed to meet the minimum purchase and sales requirement contained in Paragraph 2(f) of the contract of May 6, 1943; to wit, he did not “buy or sell for Company, an average of two complete eviscerating units each month, or-a cumulative average total of seven thousand dollars per month of all merchandise based on the selling price to the purchaser thereof, commencing from the date of the completed installation of the first unit shipped by Company.”

It is the defendant’s contention that between the 6th of May and the 10th of November, 1943, plaintiff did not meet this requirement. Aside from the truth of this contention, I think it obvious that, since the term of the contract was for one year, the “average” referred to is the average over a period beginning with the date of the completed installation of the first unit and ending with the last day of the contract. The average most certainly is not over a period the length of which is determined by the defendant. Since the defendant does not take the position that to have waited until the end of the contract year would have been in vain, whatever aid that argument might have afforded him in view of the evidence that plaintiff did all he could in furtherance of the agreements, I am of the opinion that his termination of the contract was premature and unjustified.

, [18,19] Accordingly, defendant’s repu-\ ¡diation constituted an anticipatory breach, ) 'jand plaintiff is entitled to recover damages j therefore. Commonwealth Trust Co. of Pittsburgh v. Hachmeister Lind Co., 1935, 320 Pa. 233, 181 A. 787. The party so injured is entitled to recover such amount as ill place him in the position he would be j in had the contract been fully performed, that is, the value of the performance of the contract. Macan v. Scandinavia Belting Co., 1919, 264 Pa. 384, 392, 107 A. 750, 5 A.L.R. 1502; Keller v. Gomery-Schwartz Motor Car Co., 1916, 253 Pa. 507, 98 A. 690; Jaeger Machine Co. v. L. B. Smith, Inc., 1941, 144 Pa.Super. 488, 19 A.2d 750; Restatement, Contracts, Sections 331-333; 5 Williston, Contracts (1937) Sections 1338, 1339 and 1346A.

The plaintiff here, however, seeks to recover only commissions lost on three orders taken by him but not communicated to the defendant because of defendant’s repudiation. One of these orders was taken by plaintiff before the defendant’s act of termination, and as to this order, I think it plain that plaintiff is entitled to his commission. As stated in 1 Sutherland, Damages, 3rd Ed. (1903) page 215:

“If the agent at the time of the revocation of his authority, had agreements for sales which he could have consummated but for the wrongful act of his principal he is entitled to his commissions, if it is clear they would have been made.”

The defendant here was bound to accept all orders, and this order carried a priority rating sufficiently high to enable him to manufacture the equipment. Plaintiff therefore lost a commission he would have made but for defendant’s act. See Wilson v. Wernwag, 1907, 217 Pa. 82, 66 A. 242, 10 Ann.Cas. 649; Restatement, Contracts, Section 331.

The remaining two orders were received by the plaintiff within a short time after November 10, 1943, when his authority under the contract was terminated. As to these, the evidence is that negotiations were begun, both as to the Farmers Produce Co. and the Lansboro Produce and Hatchery Co., as early as June 9, 1943 or thereabout. The measure of damages, as I have stated, for the repudiation by defendant, is the value of the contract right, and the plaintiff may show what gains he could have made or the profits he lost. Macan v. Scandinavia Belting Co., supra; Restatement, Contracts, Sections 329 and 331, and note comment (e) thereto. Plaintiff seeks to recover the commissions on these orders as gains prevented by the defendant’s breach. Since all the work to obtain these orders had been done before the repudiation, and it appears that these orders were received as a result of such work, it seems to me that the plaintiff is entitled to damages for the prevention of the gains on these orders. The damages here amount to his commissions in view of the failure of defendant to produce any evidence in mitigation thereof.

Finally, plaintiff’s claim for damages extends to sales made by the defendant himself during the full contract period from 1943 to 1944. This claim is based upon the contention that the contracts gave to 'Al-bright an exclusive right to sell, thus precluding sales by the defendant.

On this issue, it may be noted that in Pennsylvania a distinction is drawn ■between an exclusive agency to sell, which merely prohibits the appointment of another agency to sell, and an exclusive right to sell. Turner v. Baker, 1909, 225 Pa. 359, 74 A. 172; Dain v. Loeffler, 1917, 256 Pa. 319, 100 A. 888. Moreover, an exclusive right to sell may be acquired only by a contract in “unequivocal terms or by necessary implication.” Wilson v. Franklin, 1925, 282 Pa. 189, 127 A. 609. The defendant, however, admits that the contract is one for an “exclusive agency” but denies that it goes so far as to exclude sales made by himself. The plaintiff seeks to establish his exclusive right particularly on Paragraph 2(a) and (b) of the contract of May 6, 1943.

Generally, in Pennsylvania, if the construction of a contract is doubtful, the doubt is thrown against the party who prepared the agreement. Wilson v. Franklin, supra. Here, the agreements were drawn by plaintiff’s attorney. However, all contracts “must be construed with reference to their subject-matter and obvious purpose, and however general the language may be, their scope and effect are necessarily limited and controlled thereby.” Schnee v. Elston, 1930, 299 Pa. 100, 106, 149 A. 108, 109.

In the instant case, the contracts are contracts of manufacturer and distributor providing, on the one hand, for the manufacture of poultry processing equipment by defendant and, on the other hand, for its distribution and sale by the plaintiff. The preamble to both contracts makes this apparent immediately. There is no limitation to the plaintiff’s territory. Plaintiff was charged with doing the advertising, ■ setting up a sales office and training and financing salesmen. All of which, according to the record, he did. Moreover, he was to furnish blueprints, drawings and all information possible to aid in the improvement of the equipment subject to the agreement. In addition, he was to set aside 2% of the net amount of all sales for advertising purposes. The defendant, on the other hand, agreed to place all of the sales in the plaintiff. This was to include all machines manufactured by defendant or made with his direction either directly or indirectly. He was to refer all inquiries to the plaintiff, to quote only the prices as directed by plaintiff, to send exact copies of each and every invoice and shipping notice covering all equipment and all repair parts, and to set aside 2% of the net sales of all equipment.

In view of these contract provisions, I think plaintiff had an exclusive right to sell. The defendant was to devote his time to the manufacturing end and the plaintiff to the sales and distribution end of the business. The defendant effectively put all sales of all his manufactured products in the plaintiff. See Norris v. Clark, 1885, 33 Minn. 476, 24 N.W. 128; Restatement, Agency, Section 449, Comment (b). The instant case differs from Dahath Electric Co. v. Suburban Electric Development Co., 1938, 332 Pa. 129, 2 A.2d 765, in that there were no words in the contract capable of being construed as granting even an exclusive agency.

However, since plaintiff’s license under the Whistler patent expired on November 9, 1943, he is not entitled to recover damages for sales of Whistler machines made by defendant after that date.

The plaintiff, in my opinion, is entitled to an accounting of the sales made by the defendant during the full term of both contracts as stated above. He is entitled to the full agreed compensation thereon up to the date of the termination of the contract of May 6th by the defendant, and to the date on which the contract of May 7th expired. Morrow-Smith Co. v. Cleveland Traction Co., 1929, 296 Pa. 377, 145 A. 915.

Since the termination of the contract of May 6th by the defendant was without cause, the 'plaintiff is entitled, as I have already pointed out, to the value of the performance of the contract, and the sales made by the defendant is evidence thereof; hence, plaintiff is entitled to recover commissions on those sales less expenses he would have had in making such sales, that is, he is entitled to the net profits he would have made. Jaeger Machine Co. v. L. B. Smith, Inc., supra; see E. J. Brach & Son v. Stewart, 139 Miss. 818, 104 So. 162, 41 A.L.R. 1172, 1175; 5 Williston, Contracts (1937) Sections 1346A and 1406 ; 2 Amer.Juris., Agency, Section 309.

Having given careful consideration to the evidence and the contentions of the parties, I make the following

Findings of Fact

1. The plaintiff, E. J. Albright, is a citizen of the State of Illinois.

2. The defendant, George W. Kalbitzer, Jr., trading as National Manufacturing Co., is a citizen of the Commonwealth of Pennsylvania.

3. The amount in controversy exceeds, exclusive of interest and costs, $3,000.

4. On May 6, 1943, the parties entered into a written agreement providing for the sale by plaintiff of all poultry and egg processing and handling equipment and poultry eviscerating equipment manufactured by the defendant. The term of the agreement was for one year.

5. On May 7, 1943, the parties executed a supplemental agreement providing for the manufacture by defendant and the distribution and sale by plaintiff. of certain machines collectively referred to as Whistler Picking machines. The term of this agreement was subject to the term of a license held by Albright from the Whistler Picking Machine Co. of Philadelphia.

6. Kalbitzer wrote Albright a letter dated November 10, 1943, terminating the agreement of May 6, 1943, on the ground that Albright failed to meet the requirements of Paragraph 2(f) thereof.

7. Albright’s license from the Whistler Picking Machine Co. came to an end on or about November 9, 1943.

8. Albright carried out all the obligations imposed upon him by the aforesaid contracts.

9. Albright received commissions due him on two orders: Ebbs & Son and Chicago Food Products.

10. Kalbitzer failed to ship certain orders taken by Albright and accepted by him, viz., the order of September 25, 1943, the order of the R. H. Macy Co., the order of June 22, 1943 and the order of the Bergen Kleifgen Co.

11. Albright was the efficient cause of the sale to Dorset Foods, Long Island City, New York. He received no commission therefor.

12. Albright made a sale to one Rabino-witz in May, 1943, whom defendant released from his contractual obligations for the sum of $750. Albright received no commission therefor.

13. Albright made three sales which he did not send to the defendant, Kalbitzer, because of the latter’s termination of the contract on November 10, 1943.

14. Kalbitzer did not place all sales of all of the poultry and egg processing and handling and poultry eviscerating equipment in the plaintiff Albright, but Kalbitzer made sales himself.

15. Kalbitzer failed to set aside 2% of the net sales of such equipment and to advance to Albright the sum of $200 for advertising expenses.

16. Kalbitzer failed to send Albright exact copies of each and every invoice and shipping notice covering all of said equipment and all repair and replacement parts for said equipment.

Accordingly, I state the following

Conclusions of Law

1. This Court has jurisdiction over the parties and the subject matter.

2. Defendant Kalbitzer’s termination of the contract on November 10, 1943, was without cause.

3. Plaintiff Albright is entitled to commissions on orders taken and sent to defendant but which defendant did not ship.

4. Plaintiff Albright is not entitled to commissions on purchases made by himself.

5. Plaintiff Albright is entitled to commissions on orders taken but not sent to defendant because of defendant Kalbitzer’s unwarranted termination of the contract of May 6, 1943.

6. Plaintiff Albright is entitled to an accounting of sales made by defendant Kal-bitzer of items covered by the agreement of May 6, 1943, for the full term thereof, and for the items covered by the agreement of May 7, 1943 for the term thereof.

An Order may be entered in accordance with this Opinion.

Appendix

Agreement

This Agreement, made in the City of Philadelphia, State of Pennsylvania, by E. J. Albright, 110 N. Franklin Street, Chicago, Illinois, (hereinafter referred to as “Albright”), and George W. Kalbitzer, Jr., individually and trading as National Manufacturing Company, of Paoli, Pennsylvania (hereinafter referred to as “Company”),

Whereas, the Company has the facilities for the manufacturing of metal equipment at Paoli, Pennsylvania, and

Whereas, Albright has the experience and means of selling poultry and egg processing equipment, poultry and egg handling equipment, poultry eviscerating equipment, and is desirous of selling the equipment above stated which will be manufactured by Company,

Now. therefore, it is mutually agreed, as follows:

1. Albright agrees to immediately set up and maintain a sales office in Chicago, Illinois, to promote the sale of poultry and egg processing equipment, poultry and egg handling equipment, poultry eviscerating equipment which will be manufactured by Company.

2. Albright agrees

(a) To set aside 2% of the net amount of all sales made on the above equipment and use this fund for advertisement purposes. Albright agrees to arrange for and have printed circulars, price lists, and other sales material that will be used in the sale of this equipment.

(b) To furnish blue prints, drawings, and all information possible to aid in the improvement of the above mentioned equipment and to charge the material so furnished at cost to Company.

(c) To promptly follow by letter and personal call where possible all inquiries referred to him and to follow all mail inquiries to the best of his ability.

(d) To train and finance salesmen to promote and merchandise the above mentioned equipment, as conditions warrant.

(e) To sell the above eviscerating equipment, replacement and repair parts on a maximum profit of 25% where Company carries the account and 30% where Al-bright carries the account.

(f) ■ To buy or sell for Company, an average of two eviscerating units each month, or a cumulative average total of seven thousand dollars per month of all merchandise based on the selling price to the purchaser thereof, commencing from the date of the completed installation of the first unit shipped by Company.

(g) To submit orders with preference rating high enough to permit Company to obtain the necessary material.

3. Company agrees

(a) To place all of the sales of the poultry and egg processing equipment, poultry and egg handling equipment, and poultry eviscerating equipment in Albright. This includes all such said machines manufac-íured by Company or made with their direction either directly or indirectly.

(b) To set aside and to forward to Al-bright between the first and tenth days of each and every month so long as this agreement is in effect, an amount equal to 2% of the net sales of the above mentioned equipment. This said fund is the fund referred to in paragraph 2 of this agreement for the purpose of advertising the various equipment set forth. Company agrees to advance to Albright at the execution of this agreement the sum of $200.00 for the purpose of the said advertisement fund. Such fund is to be repaid to Company from time to time out of the above mentioned 2%.

(c) To carry the account on the above mentioned equipment, attend to the billing, collecting and all other necessary work for a maximum charge of 5% of the sales.

(d) To refer all inquiries upon the above mentioned equipment to Albright, and to quote only the prices as directed by Al-bright. Company further agrees to take all orders for the said equipment and to give all possible aid to Albright to secure business accounts.

(e) To send to Albright daily exact copies of each and every invoice and shipping notice covering all of said equipment and all repair and replacement parts for said equipment.

(f) To remit to Albright in full, between the first and tenth days of each month all commissions and funds due to Albright under this contract covering the sales and dealings for the previous month thereto.

4. The term of this agreement shall be for one year and shall be renewable for the additional term agreed upon by the parties hereto, in writing.

5. That full and accurate accounts of the transactions under this agreement shall be kept in proper books by each of the parties hereto; that the books shall be kept at the place of business of each of the parties, and each shall, at all times, have access to, and may inspect and copy, any of them.

In Witness Whereof, the parties hereto have hereunto set their hands and seals the 6th day of May, A.D., 1943.

(Sgd.) E. J. Albright (Seal)

E. J. Albright and

National Manufacturing Company

By: Geo. W. Kalbitzer, Jr. (Seal)

Agreement

This Agreement, made in the City of Philadelphia, State of Pennsylvania, by E. J. Albright, 110 N. Franklin Street, Chicago, Illinois (hereinafter referred to as “Albright”), and George W. Kalbitzer, Jr., individually and trading as National Manufacturing Company, of Paoli, Pennsylvania (hereinafter referred to as “Company”),

Whereas, the Company and Albright have entered into and executed an agreement on May 6, 1943 for the manufacturing and sale of poultry and egg processing equipment, poultry and egg handling equipment, poultry eviscerating equipment, and the distribution thereof, and

Whereas, the said parties hereto are desirous of further entering into a supplemental agreement for the manufacture, sale and distribution of Whistler Picking Machines,

Now, therefore, it is mutually agreed, as. follows:

1. Company agrees to manufacture and ship for Albright Whistler Picking Machines at the following rate:

Cadet model $130.00

Super Cadet 185.00

Universal To be agreed in writing

The aforegoing prices are the amounts for which Company will charge and bill Al-bright for the manufacturing of the said machines.

2. Albright agrees to sell the Whistler Picking Machines at the following rate:

Cadet model $250.00

Super Cadet 335.00

Universal 435.00

3. Company agrees to bill Albright for the above prices twenty days net.

4. Upon replacements, of fingers, clips, repair parts, etc., the parties hereto agree that these items are to be stocked by Company and shipped by Company. Company shall remit to Albright one-half of the profit derived from the sales thereof of all such items shipped by Company after the deduction of royalty and actual net cost of the items.

5. This agreement shall be subject to-the term for which Albright has as the licensee of patent from the Whistler Picking Machine Company, of Philadelphia, Pennsylvania.

6. The terms and conditions of the contract between the parties hereto for the manufacturing and sale of poultry and egg processing equipment, poultry and egg handling equipment, poultry eviscerating equipment of May 6, 1943 shall apply except where the provisions as set forth in this agreement conflict therewith, in which event the agreement set forth in this agreement shall govern.

In Witness Whereof, the parties hereto have hereunto set their hands and seals the 7th day of May, 1943.

(Sgd.) E. J. Albright (Seal) E. J. Albright and

National Manufacturing Company

By: Geo. W. Kalbitzer, Jr. (Seal)

       The record, if it does nothing else, d'is-closes that both parties intended, and so construe the written agreements, that the stipulated sums were to constitute commissions on sales,

       The same priority was used to fill the Ebbs & Son order.


source: Caselaw Access Project

author: ST. SURE, District Judge.

license: Public Domain

text:
    BURALL v. JOHNSTON, Warden.
    No. 25213-S.
    District Court, N. D. California, S. D.
    Oct. 19, 1945.
    Louis Burall, in pro. per.
    No appearance for respondent.
   ST. SURE, District Judge.

This is petitioner’s fifth petition for writ of habeas corpus. The first, No. 23592-L, was filed November 15, 1941, and denied by me on January 2, 1942, certiorari denied, 316 U.S. 650, 62 S.Ct. 1300, 86 L.Ed. 1732. The second, No. 23687-W, was filed July 13, 1942, and denied by Judge Martin I. Welsh on November 14, 1942. The Ninth Circuit Court of Appeals affirmed, 134 F.2d 614, certiorari denied 316 U.S. 768, 63 S.Ct. 1327, 87 L.Ed. 1717, rehearing denied 320 U.S. 810, 64 S.Ct. 30, 88 L.Ed. 490, second petition for rehearing denied 320 U.S. 812, 64 S.Ct. 187, 88 L.Ed. 490. The fourth petition, No. 22785-S was filed before me on October 1, 1943, and denied on December 15, 1943, 53 F.Supp. 126, affirmed on appeal, 9 Cir., 146 F.2d 230, certiorari denied June 18, 1945, 325 U.S. 887, 65 S.Ct. 1567.

It is apparent that the petition does not show sufficient facts upon its face to warrant the granting of the writ, but nevertheless it has been considered “with solicitude for the essential rights of the accused.” Glasser v. United States, 315 U.S. 60, 71, 62 S.Ct. 457, 465, 86 L.Ed. 680.

Petitioner was charged with violation of section 320, Title 18 U.S.C.A. (assaulting mail custodian and robbing mail) in the United States District Court for the Southern District of Illinois, Northern Division. He was tried and convicted by a jury and thereafter, on February 11, 1939, sentenced to serve twenty-five years in a penitentiary. At the trial he was represented by counsel appointed by the trial judge.

Petitioner contends that the judgment of sentence and commitment is void because he was not represented by counsel at the hearing before the Commissioner; because the evidence obtained at the Commissioner’s hearing was evidence obtained through coercion and used to procure the indictment; and because he was denied assistance of counsel of his own choice.

The question of the right to assistance of counsel at the preliminary hearing before a Commissioner was decided adversely to petitioner in Burall v. Johnston, D.C., 53 F.Supp. 126, affirmed 9 Cir., 146 F.2d 230, certiorari denied June 18, 1945, 325-U.S. 887, 65 S.Ct. 1567.

In support of his second contention, that evidence was obtained by coercion at the hearing before the Commissioner, petitioner cites McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. In the McNabb case, before defendants were taken before the Commissioner they were submitted to a “relentless sweating process” by federal officers, through which incriminating statements were obtained which were made the basis for criminal prosecution. No such circumstances are shown here. The holding in the McNabb case was not intended to extend to legal hearings before a Commissioner. And as was said in Burall v. Johnston, 9 Cir., 134 F.2d 614: “The time to inquire into the circumstances of the confession was during the progress of the trial, and error committed, if any, was subject to correction on appeal.”

On the question of the right to the assistance of counsel of his own choice, petitioner cites Glasser v. United States, supra. It is obvious that the facts relied on here were known to petitioner when he filed his prior petitions. If he intended to rely upon them he should have urged them in the first petition. “To reserve them for use in a later proceeding ‘was to make abusive use of the writ of habeas corpus.’ ” Swihart v. Johnston, 9 Cir., 150 F.2d 721, 723. Furthermore, it appears that petitioner is attempting to use the writ of habeas corpus as a writ of review or as a means of correcting error in the admission of evidence. This he cannot do. Bowen v. Johnston, 306 U.S. 19, 23, 59 S.Ct. 442, 83 L.Ed. 455; Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357.

Subsequent to the filing of this petition for writ of habeas corpus and after assignment under Court rules of the case to the undersigned, petitioner filed a motion to remand this petition for hearing to Judge Michael J. Roche upon the ground that he addressed his petition to Judge Roche. This is an attempt on the part of petitioner to select the Judge before whom he wishes the petition heard, which he may not do. Burall v. Johnston, D.C., 53 F.Supp. 126, supra.

The motion to remand and the petition for writ of habeas corpus will be denied.


author: DUFFY, District Judge.

text:
    UNITED STATES v. SCHNEIDER.
    Civil Action No. 965.
    District Court, E. D. Wisconsin.
    June 21, 1944.
    Carl R. Becker, Asst. U. S. Atty., of Milwaukee, Wis., and F. Kirk Maddrix, of Department of Justice, of'Washington, D. C., for plaintiff.
    Val W. Dittmann, of Kenosha, Wis., for defendant.
   DUFFY, District Judge.

' Findings 17, 18, 20, 21, 22, 23, 24, 25, and 26 in Part I are not applicable to this case.

Findings of Fact (Part II)

27. The defendant, Ewald Schneider, was born in Germany in 1904. He entered the United States on December 26, 1923, proceeding directly to Kenosha, Wisconsin. After employment with the American Brass Company and the Simmons Company, he began working for the Jewel Tea Company in 1929 as a route man. Except for a period of less than a year in 1933 when he was a partner in a small printing establishment, and for a period of several months in 1939 when he was in Germany, defendant has continuously been in the employ of the Jewel Tea Company. As a sideline he also operated a hand printing press in his basement.

28. Defendant was married in 1927 and to this marriage four children were born, all in the United States. His wife is an alien and she and the three surviving children are now in Germany. When last heard from two of defendant’s brothers and his brother-in-law were in the German Army.

29. On June 10, 1932, defendant filed his petition for naturalization in the Circuit Court of Kenosha County. This was six days before the expiration of the seven year statutory time limit. Defendant’s explanation of the delay was his lack of funds to meet the expense of filing the petition. On September 26, 1932, he took his oath of allegiance and Certificate of Naturalization No. 3524579 was issued to him the same day.

30. In the late autumn of 1934 the defendant became a charter member of the Kenosha unit of the Friends of New Germany. He was appointed treasurer of the unit by Fritz Gissibl, who was responsible for the organization of the Kenosha unit.

31. The Kenosha unit was a “stuetz-punkt,” the term being used to designate all Bund units having less than thirty members. The meetings were held on Saturday nights. Some of the wives and children of members usually attended. The business part of the meetings were short, usually not exceeding half an hour, after which the members sat around in the small hall drinking beer or engaging in dancing or other social activities.

32. In 1936 the national organization of the Friends of New Germany changed its name to German-American Bund, and the Kenosha unit accepted this change. The outstretched arm salute was used at their meetings. The Horst Wessel song was sung. Salutations of “Heil Hitler” and “Sieg Heil” were used. The unit leader read some of the Bund commands received from national Bund headquarters.

33. The Kenosha unit had a uniformed group known as the O.D. Their uniform consisted of a cap, white shirt, black trousers, Sam Browne belt, and an arm band with a swastika insignia thereon. These uniforms were similar to those worn by Storm Troopers in Germany. The defendant belonged to the O.D. and on occasions wore the regulation uniform.

34. The defendant had supervision over the distribution of the Bund newspaper, “Weckruf,” in Kenosha, but received no compensation for this activity. In 1937 he employed Walter Meier to deliver the papers, giving him a list of those who were to receive same.

35. Defendant attended Bund meetings in Chicago, Milwaukee, and Hammond, Indiana, but never visited Camp Hinden-berg near Grafton, Wisconsin.

36. The Kenosha unit sponsored a German Day celebration in 1935, 1936, and 1937. Defendant acted as chairman of the 1937 celebration and introduced the speakers. Some other German societies in Keno-sha cooperated in these celebrations.

37. In December, 1938, defendant assisted in arranging a meeting of those who might be interested in returning to Germany as skilled workers. Fritz Heberling of Chicago, who was engaged in securing such recruits, addressed the meeting. He told the audience that Germany needed skilled labor and that a one-way ticket to that country could be purchased for $35. Before the meeting adjourned Heberling told his hearers that any further information could be obtained from the defendant. Two or three weeks later Heberling again came to Kenosha and met a group at the defendant’s home, some of whom signed applications to return to Germany.

38. In January, 1939, the defendant himself applied to return to Germany with his wife and four children, and in May purchased one-way tickets for himself and family. Before leaving he sold his printing press and most of his furniture, retaining only the gas stove and washing machine. Defendant claimed the furniture sold was old and could be replaced cheaper than it would cost to store same. He drew $350 from the bank and purchased $150 worth of Rueckwanderer marks, knowing at the time that they could be used only in Germany.

39. Defendant’s father had died in 1937 and one of the objects of defendant’s visit to Germany was to see his mother who had written glowing accounts of employment conditions in that country. When defendant left on this trip he was not certain that he would return to this country. He thought if conditions were as good as represented, he might remain in Germany.

40. After visiting his mother for several weeks, defendant accepted employment. He placed his children in a German school. He was not satisfied, however, with conditions in Germany and returned to the United States on November 15, 1939, leaving his family there. He expected to have his wife and children follow him and made arrangements for a loan from the Jewel Tea Company to pay the expenses of bringing the family back to this country, but he was unable to do so because of war conditions.

41. Commencing some three or four years after the date of his naturalization and prior to his trip to Germany, the defendant from time to time praised Hitler and his activities in Germany. He said the working man was better off in Germany than in this country. He claimed superiority for the German youth under Hitler over our American youth. He stated that a dictatorship form of government was better than a democracy for Germany, and claimed that a Hitler type government would be wonderful for this country. He complained when the Kenosha City Council refused to allow the Bund to use Washington Park for a celebration. When calling on his customers he at times raised his arm in a Nazi salute and greeted them with “Heil Hitler” or “Heil,” but probably did so in a somewhat jocular manner. Defendant called on some 700 coffee customers, and the evidence shows no complaint except from four witnesses who were related, three of them being in the same family.

Comment

Defendant was naturalized in 1932. No evidence of any statements or actions of the defendant which could be subject to criticism prior to that date, nor for several years thereafter, was introduced. It was more than two years after his naturalization that he joined the Friends of New Germany, known later as the Bund. Under the ruling of the United States Supreme Court in Baumgartner v. United States of America, 322 U. S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525, I have no alternative but to order judgment for the defendant.

Conclusions of Law

1. This court has jurisdiction of the parties to this action and to the subject matter thereof.

2. The complaint herein will be dismissed upon the merits.


author: SYMES, District Judge.

text:
    BRIDGES v. THOMAS, Director of P.S.C.
    No. 11.
    Civil Action No. 11687.
    District Court, D. Colorado.
    Nov. 14, 1944.
    Frank Le Roy Bridges in pro. per.

      Ivor O. Wingren, Asst. U. S. Atty., of Denver, Colo., for respondents.
   SYMES, District Judge.

The defendant when first called under Selective Service claimed he was supporting dependents and was a minister of the gospel and was given a classification of 3-A by the local board in Idaho. He took an appeal and while this" was pending the local board reclassified him 4 — E. The appeal board sustained the local board classification of 3-A and the local board accordingly put him in that classification. A year elapsed, then the local board put him in A-l for screening test. He gave notice of appeal, claiming he was still supporting dependents and was a conscientious objector. The local board then put him in 4-E, from which he took no appeal.

A year later, pursuant to this classification, he was ordered to Mancos Camp and refused to go. He did not exhaust his administrative remedies by complying with the order and then suing out a writ of habeas corpus.

For this refusal to report he was convicted and put on probation by the Federal court in California. The terms of the probation were as follows:

“That imposition of sentence herein is suspended for the period of two years, and you are placed on probation for said period on the following terms and conditions; First, that you shall comply with all future orders of your draft board or orders that may be issued under the Selective Service System; Secondly, that you shall keep employed in some essential, worth-while work.
“The Court will not interfere with your testing the classification of yourself by your draft board, and will not consider such action by you to be a violation of the above probation order.”

Pursuant to this probation order he went to work in a store until his local board gave him another order to report at Man-cos Camp on September 8, 1944. He complied with this order, and on arrival at Mancos sued out this writ of habeas corpus. According to his petition for the writ, what he complains of is the original classification of the board and not the action of the court in California.

The way to test out the question of his conviction in California was by direct appeal from the judgment of his conviction. However, he is here attempting to question his original classification, which he admittedly refused to comply with. He has no standing here because he has not exhausted his administrative remedies, or taken any appeal in respect to that order.

The record fails to show that he took any appeal of any kind from the first order of his local board. Therefore under the Falbo case, Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305, and the Billings case, Billings v. Truesdell, 321 U.S. 542, at page 558, 64 S.Ct. 737, 746, 88 L.Ed. 917, he has not exhausted all his administrative remedies. He must take all those steps, for as Justice Douglas says in the Billings case, he has not exhausted all his administrative remedies by not complying with the procedure outlined in the Falbo case for the exhaustion of his administrative remedies.

In the Billings case, supra, it is said:

“Moreover, it should be remembered that he who reports at the induction station is following the procedure outlined in the Falbo case for the exhaustion of his administrative remedies.”

As stated above, he did not report at any camp pursuant to the first order of his draft board, and his failure to do so was the cause of that trial.

“Unless he follows that procedure he may not challenge the legality of his classification in the courts.” Billings v. Trues-dell, supra, 321 U.S. at page 558, 64 S.Ct. at page 746, 88 L.Ed. 917.

It seems to me this probation order is inconsistent, because it entirely overlooks the fact that he was in default for failure to comply with the original order of his draft board, and has not taken any appeal in respect to that order, or exhausted the administrative remedies in respect thereto given him by the statute.

Furthermore, he is at Mancos by virtue of his probation order and the second order of his local board. If so then any complaint he has of that order should be made to the court which granted him probation.

The writ is set aside and the defendant remanded.


text:
    MCDONALD v. JOHNSTON, Warden.
    No. 24885-S.
    District Court, N. D. California, S. D.
    Sept. 20, 1945.
    Wayne M. Collins, of San Francisco, Cal., for petitioner.
    Frank J. Hennessy, U. S. Atty., and Joseph Karesh, Asst. U. S. Atty., both of San Francisco, Cal., for respondent.
   ST. SURE, District Judge.

Petitioner seeks release from the United States Penitentiary at Alcatraz upon the ground that he was denied his constitutional right of assistance of counsel at the time of his trial upon the charge for which he is imprisoned.

Petitioner with another defendant was indicted in the District Court of the United States for the Eastern District of Michigan, Southern Division, charged with violation of 12 U.S.C.A. § 588b(a) and (b). Each was found guilty and was sentenced on January 26,' 1939, to a term of imprisonment of 35 years.

Undisputed facts show that at the trial, after the jury had been impaneled, petitioner stated to the court that he had had a disagreement with his attorney. The court did not inquire into the nature of the disagreement. The facts further show that prior to the trial petitioner had filed a complaint with the State Bar of Michigan alleging that his attorney was guilty of violation of professional ethics. This complaint was thereafter heard on March 10, 1939 and dismissed.

Petitioner contends that his case is governed by Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680.

Respondent in moving to dismiss contends that petitioner knew of this point, which he now raises for the first time, when he filed his petition, No. 23414 — S which was denied by this Court on August 29, 1944 (affirmed 9 Cir., 149 F.2d 768), and that he is therefore barred from asserting the point under Swihart v. Johnston, 150 F.2d 721, decided by the Ninth Circuit Court of Appeals on August 6, 1945. Respondent also urges that the very point petitioner now raises, namely, that he was denied assistance of counsel, was decided adversely to him in 113 F.2d 984, and 129 F.2d 196, and that this Court should follow the ruling of the Tenth Circuit Court.

In the Glasser case, supra, Glasser, a former Assistant United States Attorney, was found guilty of conspiracy to defraud the United States and appealed. At the time of trial Glasser’s counsel was appointed by the court to represent one of the co-defendants. Glasser objected to the appointment of his attorney to represent a co-defendant, but the appointment was made and the trial had. The Supreme Court said, 315 U.S. at page 70, 62 S.Ct. at page 464, 86 L.Ed. 680: “ *. * * we have held that the right to the assistance of counsel is so fundamental that the denial by a state court of a reasonable time to allow the selection of counsel of one’s own choosing, and the failure of that court to make an effective appointment of counsel, may so offend our concept of the basic requirements of a fair hearing as to amount to a denial of due process of law contrary to the Fourteenth Amendment, Powell v. [State of] Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L. Ed. 158, 84 A.L.R. 527, so are we clear that the ‘Assistance of Counsel’ guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests. If the right to the assistance of counsel means less than this, a valued constitutional safeguard is substantially impaired. * * * We are told that, since Glasser was an experienced attorney, he tacitly acquiesced in Stewart’s appointment because he failed to renew vigorously his objection at the instant the appointment was made. The fact that Glasser is an attorney is, of course, immaterial to a consideration of his right to the protection of the Sixth Amendment. His professional experience may be a factor in determining whether he actually waived his right to the assistance of counsel. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 146 A.L.R. 357. But it is by no means conclusive. Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused. * * * No such concern on the part of the trial court for the basic rights of Glasser is disclosed by the record before us. * * * The court made no effort to reascertain Glasser’s attitude or wishes. Under these circumstances, to hold that Glasser freely, albeit tacitly, acquiesced in the appointment of Stewart is to do violence to reality and to condone a dangerous laxity on the part of the trial court in the discharge of its duty to preserve the fundamental rights of an accused.” The conviction of Glasser was set aside and he was remanded to the trial court for a new trial.

The language of the Swihart case, supra, relied on by respondent, is to the effect that if facts are known to the petitioner and they are not alleged in his first petition he should not be allowed to file another petition based upon the same matters, for “to reserve them for use in a later proceeding ‘was to make an abusive use of the writ of habeas corpus.’ ” The Court further said: “Each petition is to be disposed of in the exercise of a sound judicial discretion guided and controlled by whatever has a rational bearing on the propriety of the discharge sought. One of the matters which may be considered and given controlling weight is a prior refusal to discharge on a like petition.” The rule stated may be invoked where there is a repetitious filing, but if the point raised by the petitioner is one which affects his substantial legal rights, although known and not urged in a prior petition, the trial court should take judicial cognizance of it.

As we have seen, the point of assistance of counsel has not been heretofore raised in this court by petitioner. And respondent points out that in McDonald v. Hud-speth, 113 F.2d 984, and in McDonald v. Hudspeth, 129 F.2d 196, the Circuit Court of Appeals for the Tenth Circuit decided that petitioner did have assistance of counsel. The first case was decided before the Supreme Court’s decision in the Glasser case. The second case was decided after, but there is no reference to it in the decision of the Circuit court. It is probable that the attention of the Circuit court was not called to the Glasser case or its decision would have been otherwise.

Here we have a layman charged with a serious crime who informs the court that he has had differences with his attorney. No inquiry is made by the court into the nature or seriousness of the differences, or whether or how these differences might affect the defense offered in behalf of the defendant. It seems clear that this case comes squarely within the holding in the Glasser case: “Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused. * * * No such concern on the part of the trial court for the basic rights of [McDonald] Glasser is disclosed by the record before us.”

Applying the ruling in the Glasser case to the facts presented here, I feel constrained to hold that petitioner was denied his constitutional right to assistance of counsel. If the “requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus.” Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461, 146 A.L.R. 357.

In conformity with the rule mentioned in Re Bonner, 151 U.S. 242, 261, 14 S.Ct. 323, 38 L.Ed. 149, the discharge of the petitioner will be delayed and he will be remanded to the United States District Court for the Eastern District of Michigan, Southern Division, for further action by that Court. The motion to dismiss will be denied.


author: GOODMAN, District Judge.

text:
    Petition of AGUSTIN.
    No. 8255-M.
    District Court, N. D. California, S. D.
    Oct. 10, 1945.
    Daniel H. Lyons, Naturalization Examiner, of San Francisco, Cal., for the Government.
    Gus C. Pingóle, of San Francisco, Cal., amicus curiae, by special appointment of the Court.
   GOODMAN, District Judge.

Petitioner, a native of the Philippines, has applied for naturalization under the provisions of Section 701 of the Nationality Act of 1940 as amended, 50 U.S.C.A. Appendix, § 640. The naturalization service, in submitting the petition, advises the court that it has no objection to the granting of the same, but makes no recommendation, one way or the other.

The statute, i.e. Section 701 (adopted March 27, 1942), authorizes the naturalization of “any person not a citizen, regardless of age, who has served or hereafter serves honorably in the military or naval forces of the United States during the present war and who, having been lawfully admitted to the United States, including its Territories and possessions, shall have been at the time of his enlistment or induction a resident thereof, * * *” without the formalities and conditions required of civilian aliens. Proof of military or naval service may be made either “by a duly authenticated copy of the record of the executive department having custody of the record of petitioner’s service, showing that the petitioner is or was during the present war a member serving honorably in such armed forces” or by “affidavits, forming part of the petition, of at least two citizens of the United States, members or former members during the present war of the military or naval forces of the noncommis-sioned or warrant officer grade or higher. * * *»_ authenticated copy of the record of the executive department was furnished in this case hut the alternative method of proof was followed, namely, there was attached to and a part of the petition, the affidavits of Major Alfred W. Ludtke of Fort Mason, California, and Lt. Col. Harry Hewitt of the Presidio Military Reservation, San Francisco, California, each of whom stated under oath as follows: “I am a citizen of the United States of America; I personally know the petitioner named in this petition for naturalization to he a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States, and that he is now serving honorably, in the military or naval forces of the United States, as Col. in U. S. Army under Serial No. 0 — 4000, as shown by official service records.” Such proof should under the provisions of the statute prima facie suffice to admit petitioner to citizenship. Indeed, the jurisdiction of the court to go back of the affidavits of the witnesses might well be questioned, in view of the recent decision of the Circuit Court of Appeals of this Circuit in Fong Chew Chung v. United States, 9 Cir., 149 F.2d 904. In that case, District Judge St. Sure, notwithstanding presentation of a certificate of discharge -by Fong Chew Chung, certifying to his honorable service in the army, had, after examining into all the circumstances, determined that in fact the petitioner had not rendered the service prescribed by the statute as a prerequisite to the granting of citizenship. The Circuit Court, in reversing Judge St. Sure’s decision, held that the District Court “was without the jurisdiction to go back of the discharge order upon the subject of petitioner’s service while he was in the army.” Fong Chew Chung v. United States, supra, 149 F.2d at page 906.

However at the hearing upon the instant petition, the naturalization service presented, in considerable detail, evidence concerning the nature of petitioner’s alleged military service. It appears therefrom that petitioner was born on November 17, 1907, in Sara, Iloilo, P. I. On December 6, 1941, he was by occupation a mechanic, then residing in Manila, P. I. On December 7, 1941, after the Japanese attack upon the Philippines, petitioner offered his services to the United States Army. As a civilian he was engaged by the Army to convoy troops from Manila to Bataan. He continued in that work until December 30, 1941, at which ..time the bridge which connected Bataan and Manila was destroyed by enemy action. Thereafter Captain Dillon of the U. S. Army, under whose orders petitioner had been engaged in the convoy work, asked for volunteers to seek out mountain trails by which troops could be infiltrated to Bataan and petitioner volunteered for this service. When petitioner reached the combat zone, his companion, one Lt. Vidin, was captured by the Japanese. Thereupon petitioner attempted to return to Manila, but was himself captured by the Japanese. He remained a captive for several days and succeeded in escaping to the Sierra Madre Mountains of Rizal Province. There he began the organization of a guerrilla group, which started with himself and two others and grew to twenty in number within a month. By April of 1942, under petitioner’s leadership, the guerrilla band had increased to approximately seventy in number. During March, 1942, petitioner gave refuge to three army officers of the 91st Division of the U. S. Army, one of whom was one Lt. Russell Barrows. These officers remained at petitioner’s camp for about a month. Just prior to their departure, Lt. Barrows administered the oath of allegiance to the United States to petitioner reading it out of the Articles of War. Petitioner in turn administered the oath to his men. Thereafter petitioner devoted himself to the leadership of his band of guerrillas, harassing the enemy and sabotaging their installations. Extreme hardships were suffered in the process. Finally in the Fall of 1944, by which time petitioner’s guerrilla group had increased to one thousand active members, contact was made, 'by radio, with General McArthur’s headquarters in Australia. Thereafter by means of submarines, supplies and equipment were delivered to petitioner from General McArthur’s headquarters. A Captain George Miller and Captain Brookstellar arrived at petitioner’s headquarters and acted as liaison officers between McArthur’s headquarters and petitioner’s troops. After the landing of General McArthur’s forces on Leyte Island, petitioner was directed by General McAr-thur to take orders from General Kruger, commanding officer of the 6th Army Corps, U. S. Army and thereafter orders were transmitted by radio from General Kruger’s headquarters to petitioner. After the landing of American forces upon Luzon, and on or about March 2, 1945, petitioner received orders from General Kruger to bring his men down from the hills to report to the nearest U. S. troops. This was done and petitioner reported to the commanding officer of the 43rd infantry division, Mayor General Wing. From and after March 13, 1945, petitioner’s guerrilla group, which was known as Yay regiment, Marking’s “Fil Americans” became a part of the 43rd Division. This status was officially recognized by an order issued by headquarters of the Sixth Army, on May 16, 1945, under the signature of Capt. W. W. Stuart, Assistant Chief of Staff of the 6th Army, wherein it was stated.

“The following guerrilla units are recognized by the Commander in Chief, Southwest Pacific area, as' authorized elements of the United States Army Forces in the Far East, effective as of the date specified after each unit listed: * * * Yay Regiment,- Marking’s Fil-Americans 13 Mar. 45.”

Further recognition of his status was given petitioner in the form of a document signed by Maj. General Leonard Wing, Commanding General of the 43rd Division, by Brig. General A. N. Stark, its executive officer, by Col. Joseph P. Cleland, Regimental Commander, and, by Lt. Col. Lloyd E. Barron, Commander of the First Battalion of said regiment, certifying that: “Marcos V. Agustín, Col. Infantry, (Markr ing), Commanding officer of ‘Marking’s Guerrillas,’ is now personally commanding the ‘Yay’ Regiment, his crack combat unit now attached to the 43rd Division, U. S. Army” and allowing him and his bodyguards access to and from Manila.

Previously, in October of 1944, the President of the Philippines, by executive order, for the purpose of giving official status to the guerrilla fighters, had declared all such persons to be on active service in the Philippine Army and further fixed the annual pay and quarters’ allowances of the officers according- to the .same schedule prevailing in the U. S. Army.

In May of 1945, petitioner led his regiment in an attack on Ipo dam for the purpose of securing the water supply of Manila. On that mission he performed feats of valor which resulted in the bestowal upon him by the Commanding General of the 11th Corps, upon the recommendation of Brig. Gen. Alex. N. Stark, of the distinguished service cross. The citation, which accompanied the award, in recounting Col. Agustin’s feats while leading his men through concentrated artillery, mortar, machine-gun, and sniper fire to take a strategic hill, the possession of which was necessary to the success of the operation, refers to his extraordinary heroism and courageous personal leadership. After attachment to the 43rd Division pursuant to the order of May 16, 1945, petitioner was paid the salary and allowances of a colonel in the U. S. Army from funds furnished by the finance officer of the 6th infantry division attached to the 6th Army. On July 10, 1945, by an order signed by Lt. Col. J. H. Lowell, assist. Adj. General, attached to General McArthur’s headquarters, petitioner was granted leave to come to the United States, furnished transportation and directed upon termination of his leave to return to his proper overseas station; and the transportation corps of the army was directed to furnish the necessary transportation for petitioner.

All in all, the record discloses a brilliant saga of heroism, hardship and'loyalty on the part of Col..Agustín in years of fighting against the enemies of the United States.

The question for decision is: Has the petitioner served in the military forces of the United States dtmng the present war, so as to qualify him for American citizenship?

If formal enlistment or induction is intended by the statute to be a prerequisite for the bestowal of citizenship under Section 701 of the Nationality Act, it would appear that petitioner is not qualified for citizenship.

While the statute employs the words “enlistment” and “induction,” neither enlistment nor induction is declared by the statute to be a condition precedent to the bestowal of citizenship. Service in the military or naval forces of the United States during the present war is the designated statutory prerequisite. The words “enlistment or induction” were used in the statute obviously in connection with the requirement that the petitioner shall have been a resident of the United States, its territories and possessions, at the time of commencement of service. In my opinion these words are intended to do no more than fix in point of time the period of commencement of service.

It is clear from an examination of the Congressional proceedings at the time Section 701 was adopted, that Congress did not intend to establish any formalistic technicalities as a condition precedent to the bestowal of citizenship upon aliens serving in our armed forces. I stated in the Petition of Delgado, D.C., 57 F.Supp. 460, at page 462—

“It was clearly the intent of Congress in adopting §' 701 to follow the historic course of granting the boon of citizenship to loyal aliens engaging to help defend this country. The House Committee reporting H. R. 1710 (which became § 701) said: ‘It is a matter of historic record that the Government of the United States, as an encouragement to loyal aliens engaged in the defense of this country through service in the armed forces, has in past years, relieved them from some of the burdensome requirements of the general naturalization laws.’ House Misc.Rep. 10661, page 3. And again in the same report, it is stated: ‘This proposed legislation proceeds upon the principle that non-citizens who are ready and willing to sacrifice their lives in the maintenance of this democratic government are deserving of the high gift of United States citizenship when vouched for by responsible witnesses as loyal and of good character and shown by government records as serving honorably/ ”

Certainly petitioner here was within the category of those “who are ready and willing to sacrifice their lives in the maintenance of this democratic government. * * *” The broad and liberal concept, upon which Congress based the bestowal of citizenship upon aliens defending this country, must therefore, in my opinion, be the background against which the court should appraise the nature of petitioner’s military activities in determining the question as to whether he served in the military forces of the United States. Extreme technical distinctions should not be invoked to defeat the application for citizenship of a worthy and distinguished Filipino as against a fair and liberal interpretation of Congressional intent.

Petitioner did, in the early period of his guerrilla activities, take the oath of allegiance to the United States administered to him by a regular United States Army officer. He in turn administered the same oath to the men under his command.

“Mere informalities in the enlistment proceedings will not invalidate the enlistment.” 6 C.J.S., Army and Navy, § 21, p. 392; In re Stevens, U.S., 24 Law Rep. O.S., 205.

In 1890, in the case of In re Grimley, 137 U.S. 147, at page. 153, 11 S.Ct. 54, 55, 34 L.Ed. 636, Mr. Justice Brewer, speaking of the status resulting from enlistment in the army, said: “* * * unless there be in the nature of things some inherent vice in the existence of the relation, or natural wrong in the manner in which it was established, public policy requires that it should not be disturbed” (emphasis supplied). In thñ same case, the oath of allegiance is referred to as the “pivotal fact” in enlistment. -■

That the evidence as to the taking of the oath of allegiance rests in parol is not important. Parol evidence is admissible to establish the fact of enlistment. 6 C.J.S., Army and Navy, § 21, p. 392. Town of Lebanon v. Heath, 47 N.H. 353.

In the recent case of Mayborn v. Hefle-bower, 5 Cir.-, 145 F.2d 864, at page 866, the court in determining the validity of a selec-tee’s induction under the Selective Training and Service Act said: “* * * whether or not all formalities prerequisite to induction were observed, the subsequent conduct of the parties was such that the irregularities were cured or the right to invoke them was waived. It is manifest that the induction officers regarded appellant as a soldier at all times after the induction ceremony was completed, and appellant -voluntarily accepted the benefits and assumed the. obligations incident to membership in the armed forces.” (Emphasis supplied.) t

After several • years of heroic service against the Japanese, the regiment which petitioner commanded, as well as petitioner, were, as before stated, recognized as authorized elements of the United States forces in the Far East.

Apparently the authority of the 6th Army headquarters to include petitioner’s regiment as part of our armed forces - stems from War Department Circular # 220 of date July 7, 1-942, which reads as follows:

“II. Appointment or enlistment in Army of the United States of officers and enlisted men in Philippine Army.
“1. That appointment or enlistment in the Army of the United States of those officers and enlisted men of the Philippine Army who are serving with the United States armed forces is authorized.
“2. Appointments or enlistments will be made in grades commensurate with the grades held in the Philippine Army at time of transfer. (A.G. 210.1) (6-10-42) (By order of the Secretary of War, G. C. Marshall, Chief of Staff.)”

After March 1945, petitioner was paid the compensation of a colonel out of funds furnished by the Finance officer attached to the 6th Army. High ranking officers of the 6th Army certified to his attachment to the United States Army by furnishing him with an appropriate certificate and pass. Orders respecting his leave to come to the United States, his method of transportation, and directions as to the time and place of his return, were officially issued by United States Army headquarters. Thus, in addition to his physical acts of service in the United States Army and as a part thereof, we have official documentation of his status by proper army officers.

The final and most impressive act in the series of events constituting official recognition of petitioner’s status is the award of the Distinguished Service Cress to petitioner. 10 U.S.C.A. § 1406 authorizes the President “to present * * * a distinguished-service cross of appropriate design and a ribbon, together with a rosette or other device, to be worn in lieu thereof, to any person who, while serving in any capacity with the Army of the United States since the 6th day of April 1917, has distinguished, or who shall hereafter distinguish, himself or herself by extraordinary heroism in connection with military operations against an armed enemy.” (Emphasis supplied.)

In my opinion, petitioner has served not only honorably, but with extraordinary heroism, in the military forces of the United States during the war with Japan and thus is fully qualified for citizenship under the provisions of Section 701 of the Nationality Act of 194Q. No formal ceremony of enlistment or induction could legally add to his qualifications for citizenship. Petitioner is therefore admitted.

       This order, is specifically referred to in the order of May 16, 1945, issued by U. S. 6th Army headquarters, supra.

       For an analysis of the distinction between voluntary enlistment and induction under tbe Selective Training and Service Act, 50 U.S.C.A.Appendix, § 301 et seq., and tbe legal consequences thereof, see Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917.

       The authority of the Secretary of War appears to derive from an order of the President under date of July 26, 1941, which reads as follows:
      Military Order
      Organized military Forces of the Government of the Commonwealth of the Philippines called into Service of the Armed Forces of the United States
      Under and by virtue of the authority vested in me by the Constitution of the United States, by section 2(a) (12) of the Philippine Independence Act of March 24, 1934, 48 Stat. 457 [48 U.S. C.A. § 1232(a) (12)], and by the corresponding provision of the Ordinance appended to the Constitution of the Commonwealth of the Philippines, and as Commander-in-Chief of the Army and Navy of the United States, I hereby call and order into the service of the armed forces of the United States for the period of the existing emergency, and place under the command of a General Officer, United States Army, to be designated by the Secretary of War from time to time, all the organized military forces of the Government of the Commonwealth of the Philippines: Provided that all naval components thereof shall be placed under the command of the Commandant of the Sixteenth Naval District, United States Navy.
      This order shall take effect with relation to all units and personnel of the organized military forces of the government of the Commonwealth of the Philippines, from and after the dates and hours, respectively, indicated in orders to be issued from time to time by the General Officer, United States Army, designated by the Secretary of War.
      Franklin D. Roosevelt
      The White House-July 26, 1941 (F.R.Doe. 41 — 5548; Filed, July 31, 1941; 9:27 A.M.)
      6 F.R. No. 149, p. 382 (Aug. 1, 1941.)

       By 10 U.S.C.A. § 1410, the President may delegate the power to award the cross to the commanding general of a separate army.