author: DOBIE, Circuit Judge.

text:
    ASHLAND COAL & ICE CO., Inc., et al. v. UNITED STATES et al.
    Civil Action No. 337.
    District Court, E. D. Virginia, Richmond Division.
    Jan. 25, 1945.

      Walter M. Evans, of Richmond, Va., and Harry C. Ames, of Washington, D. C., for plaintiffs.
    Robt. L. Pierce, Sp. Asst. to Atty. Gen., Harry H. Holt, Jr., U. S. Atty., of Norfolk, Va., and John V. Cogbill, Asst. U. S. Atty., of Richmond, Va., for United States.
    Edward M. Reidy, Asst. Chief Counsel, of Washington, D. C., for Interstate Commerce Commission.
    Frank W. Gwathmey, of Washington, D. C., D. Lynch Younger, of Roanoke, Va., Charles Clark and John C. Donnally, both of Washington, D. C., Horace L. Walker, of Richmond, Va., Henry W. Oppenhimer, of Richmond, Va., and Lawrence Chaffee, of Chicago, Ill., for intervenors.
    Before DOBIE, Circuit Judge, and POLLARD and HUTCHESON, District Judges.
   DOBIE, Circuit Judge.

This is a suit, under 28 U.S.C.A. §§ 41 (28) 43-47a, to set aside that part of the order of the Interstate Commerce Commission which denied reparation to the plaintiffs for the past. The Commission’s order (this part is not attacked in the instant suit) reduced freight rates on shipments of coal to points in certain parts (the Western portion) of the designated shipping area. As to the past, however, the Commission decided that these rates were not unreasonable. The railroads which had been made defendants in the proceedings before the Commission were permitted, by order of the District Court, to intervene as parties defendant in the instant suit.

(1) Jurisdiction.

We must first consider the contention of the defendants that we have no jurisdiction to entertain the present suit. The ground of this contention is that this is plainly'a suit to set aside an order of the Commission denying reparation to the plaintiffs; and that, under the Interstate Commerce Act, Sec. 9, 49 U.S.C.A. § 9, a specially organized three-judge District Court of the United States is powerless to entertain such a suit. We believe that this contention is sound and that this Court lacks jurisdiction.

Under Section 8 of the Interstate Commerce Act, 49 U.S.C.A. § 8, a common carrier by railroad committing an act, matter or thing prohibited by the Act is made liable in damages to the person or persons thereby injured. Section 9 of the Act, 49 U.S.C.A. § 9, provides that any person so damaged may either make complaint to the Interstate Commerce Commission or bring suit in a federal court for the recovery of damages; but this section contains the further provision: “such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adoot.” Under Section 16 of the Act, 49 U.S.C.A. § 16, the Commission is authorized to award damages upon such a complaint.

The cases seem to establish the rule that where a litigant applies to the Commission for reparation, which has been denied by the Commission, an ordinary civil action cannot, on the same claim or cause of action, be entertained by an ordinary one-judge federal district court. George A. Hormel & Co. v. Chicago, M. & St. P. Ry. Co., 8 Cir., 283 F. 915, 918, opinion by Circuit Judge Lewis; Bartlesville Zinc Co. v. Mellon, 7 Cir., 56 F.2d 154, 156, opinion by District Judge Lindley. See, also, the opinion of Mr. Justice Butler in Baltimore & O. R. Co. v. Brady, 288 U.S. 448, 457, 458, 53 S.Ct. 441, 77 L.Ed. 888.

This brings us to the jurisdictional problem of the case before us. Can a party who has sought reparation before the Commission and has been denied such reparation by the Commission, bring a civil action (under the Urgent Deficiencies Act) in a specially organized three-judge district court for the purpose of setting aside the Commission’s order? Section 9 of the Interstate Commerce Act, 49 U.S.C.A. § 9, we think, as interpreted by the federal courts, is an effective bar to such a civil action.

Mr. Justice Sutherland seems to have dealt rather effectively with this problem in the closing words of his opinion in Standard Oil Co. v. United States, 283 U.S. 235, 240, 241, 51 S.Ct. 429, 431, 75 L.Ed. 999:

“But putting the foregoing grounds entirely aside, and assuming the correctness of appellant’s contentions to the contrary, nevertheless, having regard to the remedy invoked and the relief sought by the petition, we think the district court was without jurisdiction. Section 9 of the Interstate Commerce Act, c. 104, 24 Stat. 379, 382 (U.S.C., Title 49 § 90 (49 U.S.C.A. § 9) ), provides that a claim for damages against a common carrier may be brought before the Commission by complaint, or by an action in a federal district court of competent jurisdiction, but that the claimant or claimants ‘shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt/ Having elected to proceed and having proceeded to a determination before the Commission, appellant was, by force of this provision, precluded from seeking reparation upon the same claims by the alternative method of procedure. Compare George A. Hormel & Co. v. Chicago, M. & St. P. Ry. Co., 8 Cir., 283 F. 915, 918.
“It is true that appellant sought to enjoin and set aside the order of the Commission, but only as a preliminary step toward obtaining, by a decision upon the merits of the claims, the same relief it failed to secure from the Commission. This is made clear by the prayer of the petition, already quoted, namely, that the Commission be directed by the court to grant the prayer of the complaints; find that petitioner has been overcharged to the extent set forth; and order a further hearing, if necessary, to determine the amount to be paid by way of reparation. It is of no importance that the adjudication sought is to take the form of a direction to the Commission to grant the prayer of the complaints filed before that body, etc., instead of a plenary judgment to the same end, for the prayer in that form is nothing less than an attempt to avoid the statute by indirection. In substance and in principle the claim before the Commission and the claim before the court were the same, and the district court was without authority to entertain the controversy. It is hardly necessary to add that, since section 9 contemplates that the jurisdiction in such cases shall be exercised by the federal district courts as ordinarily constituted, the specially constituted court is without jurisdiction to dispose of an action under that section even if brought in the District Court in the first instance.”

True it is that in Rochester Telephone Corporation v. United States, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147, the Supreme Court repudiated the “negative order doctrine” as the touchstone of judicial review-ability. But in a note (No. 23) Mr. Justice Frankfurter, 307 U. S. at page 140, 59 S.Ct. at page 762, 83 L.Ed. 1147, was careful to point out:

“Standard Oil Co. v. United States [supra] held not reviewable the action of the Commission refusing to grant reparations, but the main basis of the decision was not the ‘negative order’ doctrine but the statutory scheme dealing with reparations.” (Italics ours.)

Thus, from our standpoint, the binding authority of the Standard Oil case was not impaired by the Rochester Telephone case.

No less emphatic was the language of District Judge Fee, speaking for a three-judge district court, in Atlantic Lumber Corporation v. Southern Pacific Co., D.C., 47 F.Supp. 511, 513, in which the Standard Oil case, the Rochester Telephone case (and other cases in this field) were analyzed and discussed:

“The power to give reparations in rate cases is of statutory genesis and was unknown to the common law. It is a discretionary authority reposed in the Commission in order to round out the scheme of regulation. Congress endowed with administrative finality such orders of the Commission.
“Jurisdiction of the District Court, sitting with three judges, in this type of situation is only to ‘enjoin, set aside, annul, or suspend in whole or in part any order of the Interstate Commerce Commission.’ There are many orders of the Commission which cannot be reviewed by such a court. Although the earlier cases used phraseology indicating that such a court had no jurisdiction to set aside a ‘negative order which denies relief without more compels nothing requiring enforcement, and contemplates no action susceptible of being stayed,’ it was found that this formula ■ was too loosely stated for specific application. However, the courts constituted as this one is have no jurisdiction to review an order failing to allow reparations. The purpose of Congress in constituting the Commission and in the various acts giving jurisdiction was the establishment of uniformity of administration in light of the declared policy upon these very matters.
“The prescription of reasonable and lawful rates for the future might be a basis for action, except that plaintiff obviously does not desire or seek annulment of the order upon the theory that relief should be granted as to this feature.”

Even more sweeping is the language of Circuit Judge Parker, in Brady v. Interstate Commerce Commission, D.C., 43 F.2d 847, 850, 851:

“Amending section 15 of the Interstate Commerce Act, the Act June 29, 1906 provided that the Commission should determine just and reasonable maximum rates and just, fair, and reasonable practices with respect to transportation, and issue orders to carriers with respect thereto, and that all orders of the Commission, except orders for the payment of money, should take effect within such reasonable time, not less than thirty days, as might be prescribed by the Commission, unless same should be suspended or set aside by the Commission or by a court of competent jurisdiction. 34 Stat. 589 § 4 (49 U.S.C.A. § 15). By the amendment of section 16 (34 Stat. 590, § 5 (49 U.S.C.A. § 16) ), it drew a clear distinction between reparation orders and other orders of the Commission, by providing for suit in the circuit courts to collect damages in the case of reparation orders not complied with, and for application to a court of equity for the enforcement of other orders. Following this was the provision for suits to enjoin, set aside, annul, or suspend orders of the Commission; and when all of these provisions are considered together, we think it clear that the jurisdiction thus conferred was intended to relate to quasi legislative orders, in which the public at large are interested, disobedience of which is made punishable, and the suspension of which is expressly provided for by section 15 of the act, and not to reparation orders which affect only the rights of private individuals, have no binding force and do not subject anyone to punishment for disobedience. For distinction between the two kinds of orders, see Baer Bros. [Mercantile Co.] v. Denver & R. G. Co., 233 U.S. 479, 34 S.Ct. 641, 58 L.Ed, 1055.
“This view is strengthened when it is remembered that the Act of June 18, 1910, creating the Commerce Court, 36 Stat. 539, vested that court with exclusive jurisdiction of suits to enjoin or set aside orders of the Commission and of only three other classes of cases, viz., suits for the enforcement of orders of the Commission, other than orders for the payment of money, suits to prevent unjust discrimination and rebating under the Act of February 19, 1903 (32 Stat. 847 (49 U.S.C.A. §§ 41-43) ), and applications for writs of mandamus to require carriers to comply with the provisions of the act. It vdll be noted that all three of these classes embrace only cases which are prosecuted for the benefit of the public at large and to which the public, through the representation of the Attorney General or the Commission, is a party. And we think it is a reasonable inference from the fact that suits to enjoin or set aside orders of the Commission were included with these, that such suits were’ understood to include only those which were brought to enjoin or set aside orders made by the Commission in its quasi legislative capacity and which affected the public at large.
* * * * *
“The power of this court to grant injunctions in cases of this kind is no greater than that of the Commerce Court; for we exercise jurisdiction in such cases only by virtue of the provisions of the Urgent Deficiencies Act of Oct. 22, 1913, 38 Stat. c. 32, which abolished the Commerce Court and transferred to the District Courts its jurisdiction.”

This case was affirmed by the United States Supreme Court, per curiam, sub nom. Brady v. United States, 283 U.S. 804, 51 S.Ct. 559, 75 L.Ed. 1424.

We are not impressed by the attempt of the plaintiffs to distinguish these cases and to minimize their authority. To us they seem controlling.

Nor can we find any merit in the contention of plaintiffs that this is not a suit to set aside an order of the Commission denying reparation. In their brief we find:

“There is no prayer before this Court that it determine either (a) whether we are entitled to reparation, or (b) 'the amount thereof.’ This Court is simply asked to determine whether the Commission acted arbitrarily or beyond its statutory power in deciding upon the sam<e mass of evidence that rates were not unreasonable prior to a certain date, but that they ewe unreasonable subsequent to such date and whether the decision of the Commission contains the essential findings of preliminary fact to sustain these divergent views. As a necessary corollary this suit raises the further question whether the Commission has wrongfully assumed a power of discretion in respect of determining past unreasonableness. If this Court finds with us, it is asked to remand the case for further action within the framework of power properly exercised."

If to this contention any answer be necessary beyond its mere statement, that answer, we think, is found in the words of Circuit Judge Swan, in George Allison & Co. v. United States, D.C., 12 F.Supp. 862, 863, 864:

“Plaintiffs, on the other hand, insist that they seek no reparation or damages, but merely ask annulment of part of an affirmative order arbitrarily fixing as reasonable the rates and charges attacked. The petition is framed so as to be consistent with this contention; as has been stated, plaintiffs request the annulment of the parts of the order of November 7, 1933, already indicated, and there is no prayer for damages or reparation. But it is too plain for argument that this suit was prompted by the hope that its success would pave the way for a later recovery of damages against the carrier in a larger amount than the order of November 7 permits. The plaintiffs, as complainants or in-terveners in the proceedings before the Commission, sought reparation as well as . reasonable rates for the future. * * * Hence, in substance there is presented a situation wherein shippers sought reparation for excess charges exacted by a carrier, and now complain that the Commission fixed reasonable rates for the past too high and failed to award them the full measure of damages they were entitled to. If this court has no jurisdiction to entertain such complaint, it cannot be conferred by the devious method of assailing in one step the preliminary finding upon which the damages awarded must be computed, and postponing to a later proceeding the actual prayer for additional reparation. Compare Standard Oil Co. (Indiana) v. United States, 283 U.S. 235, 241, 51 S.Ct. 429, 75 L.Ed. 999. The real inquiry is whether such jurisdiction exists.”

This case was affirmed, on the strength of the Standard Oil case and the Brady case, George Allison & Co. v. United States, 296 U.S. 546, 56 S.Ct. 175, 80 L.Ed. 387.

We must therefore conclude that the instant case is not within the jurisdiction of our specially organized three-judge District Court. For that reason, the complaint of the plaintiffs must be dismissed.

Merits.

Even if we concede that this Court has jurisdiction to set aside that part of the Commission’s order which denied reparations, as to the past, for the plaintiffs, we still think that on the merits, the complaint must be dismissed.

Said Mr. Justice Cardozo, in Mississippi Valley Barge Co. v. United States, 292 U.S. 282, 286, 54 S.Ct. 692, 693, 78 L.Ed. 1260:

“The settled rule is that the findings of the Commission may not be assailed upon appeal in the absence of the evidence upon which they were made. * * * The findings in the report being thus accepted as true, there is left only the inquiry whether they give support to the conclusion. * * * The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.”

The scope of our review is0 thus very narrow. And we think that the findings of the Commission (though not as clear and as complete as the importance of the instant case would justify) do afford ample support and a rational basis for the Commission’s decision, which denied reparations to the plaintiffs.

There is nothing essentially inconsistent between the two conclusions of the Commission as to freight rates in the Western part of the district: (1) That these rates were unreasonable for the future; (2) that these same rates were not unreasonable as to the past.

In Baer Bros. Mercantile Co. v. Denver & R. G. R. Co., 233 U.S. 479, 486, 34 S.Ct. 641, 644, 58 L.Ed. 1055, Mr. Justice Lamar aptly said:

“ * * * awarding reparation for the past and fixing rates for the future involve the determination of matters essentially different. One is in its' nature private and the other public. One is made by the Commission in its quasi judicial capacity to measure past injuries sustained by a private shipper; the other, in its quasi legislative capacity, to prevent future injury to the public.”

The clear line of demarcation between these two functions of the Commission has been recognized in many cases by the federal courts. See, for example, Great Northern Railway Co. v. Merchants’ Elevator Co., 259 U.S. 285, 291, 42 S.Ct. 477, 66 L.Ed. 943; Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U.S. 370, 388, 52 S.Ct. 183, 76 L.Ed. 348; Morgan Co. v. Great Northern R. Co., 7 Cir., 285 F. 876, 877; George Allison & Co. v. Interstate Commerce Commission, 70 App.D.C. 375, 107 F.2d 180, 186, certiorari denied 309 U.S. 656, 60 S.Ct. 470, 84 L.Ed. 1005. A few representative cases, in which the Commission reached a like conclusion, may be cited. Anadarko Cotton Oil Co. v. Atchison, etc. Ry. Co., 20 I. C. C. 43, 50; Eastern Livestock Cases of 1926, 144 I. C. C. 731, 781; John Nix & Co. v. Railway Express Agency, 238 I. C. C. 60, 61.

We next discuss whether the Commission’s order denying reparations is supported by the findings of the Commission. We think it is. The process of rate making cannot be solved by the rigid application of algebraic formulae or reduced to the monotonous regularities of mechanical instrumentalities. As Mr. Justice Lamar remarked in Interstate Commerce Commission v. Union P. R. Co., 222 U.S. 541, 550, 32 S.Ct. 108, 112, 56 L.Ed. 308:

“There is no possibility of solving the question as though it were a mathematical problem to which there could only be one correct answer.”

And, in Board of Trade of Kansas City v. United States, 314 U.S. 534, 546, 62 S.Ct. 366, 372, 86 L.Ed. 432, Mr. Justice Frankfurter said:

“The process of rate making is essentially empiric. The stuff of the process is fluid and changing — the resultant of factors that must be valued as well as weighed.” (Italics ours.)

Among the important findings, on which the denial of reparations was grounded by the Commission, some may be pointed out and briefly discussed.

The Commission found: “The assailed rate of $2.65 to the destination group as a whole compares favorably with rates from both the southern and northern fields to many destinations through the East and to the Carolinas.” Certainly that is an important factor to be both valued and weighed. The case of the plaintiffs here was grounded very heavily on the basis of cost. The Commission indicated very clearly that this element in rate making had been duly appraised and was “entitled to considerable weight” though not in itself alone conclusive. Incidental reference was made to the possible effect of the instant rate on other rates for carriers of coal.

Stress was laid by the Commission on its past experience with freight rates on coal in this area. These rates had been duly considered by the Commission in a number of proceedings. Surely the Commission was amply justified both in considering the wide background of this experience and information thus gained and in making it a cardinal ground for its ultimate decision on the question of reparations.

Very dynamic and exceedingly influential was the Commission’s finding that the instant rates had become unreasonable “as the result of changes so gradual that no date can be pointed out upon which they became unreasonable.” (Italics ours.) It would have been extremely helpful had the Commission been more specific as to the nature, the approximate dates and even the probable force, of these changes. Yet, standing alone and quite apart from any omissional imperfections, we must give it due consideration and proper heed.

We do not attribute very compelling force to the fact that “the history of the rates is such as to justify the carriers in believing that they were maintaining rates which had our (the Commission’s) approval.” Whatever probative force this fact may have on the question of wilfullness on the part of a carrier, it could hardly be a basis for sustaining (as to the past) a freight rate in the face of convincing proof that this rate was unreasonably high. This does not, of course, mean that evidence justifying such belief would not have some force as tending to prove the reasonableness of the assailed rate. See the vigorous language of District Judge Paul in City of Danville v. Chesapeake & O. Ry. Co., D.C., 34 F.Supp. 620, 623, 628, 629.

As to the standards applied by the courts in passing on the sufficiency of the Commission’s findings, Mr. Justice Brandeis, in United States v. Baltimore & O. R. Co., 293 U.S. 454, 464, 465, 55 S.Ct. 268, 273, 79 L.Ed. 587, said:

“In [State of Florida v. United States, 282 U.S. 194, 51 S.Ct. 119, 75 L.Ed. 291], the legal distinction was pointed out between what may be termed quasi jurisdictional findings, there held to be indispensable, and the ‘complete statement of the grounds of the Commission’s determination’ which was declared in Beaumont, S. L. & W. Ry. Co. v. United States, 282 U.S. 74, 86, 51 S.Ct. 1, 75 L.Ed. 221, to be desirable for a proper consideration of the case in the courts. The lack of such a complete statement, while always regrettable, because unnecessarily increasing the labor of the reviewing court (compare Virginian Ry. v. United States, 27 U.S. 658, 675, 47 S.Ct. 222, 71 L.Ed. 463), is not fatal to the validity of the order. It is true that formal and precise findings are not required, under section 14(1) of the Interstate Commerce Act * * *, which declares that the report ‘shall state the conclusions of the commission, together with its decision.’ Compare Manufacturers’ Ry. Co. v. United States, 246 U.S. 457, 487, 38 S.Ct. 383, 62 L.Ed. 831; Meeker v. Lehigh Valley R. Co., 236 U.S. 412, 428, 35 S.Ct. 328, 59 L.Ed. 644, Ann.Cas.l916B, 691 * * *. That provision relieves the Commission from making comprehensive findings of fact similar to those required by Equity Rule 70% * * *. But section 14(1) does not remove the necessity of making, where orders are subject to judicial review, quasi jurisdictional findings essential to their constitutional or statutory validity.” (Italics ours.)

And see Meeker v. Lehigh Valley R. Co., 236 U.S. 412, 427, 428, 35 S.Ct. 328, 59 L.Ed. 644, Ann.Cas.1916B, 691; Manufacturers’ Ry. Co. v. United States, 246 U.S. 457, 487, 38 S.Ct. 383, 62 L.Ed. 831; and United States v. Chicago, M., St. P. & P. Ry. Co., 294 U.S. 499, 504, 505, 510, 511, 55 S.Ct. 462, 79 L.Ed. 1023.

Counsel for plaintiffs maintain seriously and strenuously that the Commission has “substituted a supposed ‘rule of damage’ for its elementary duty to pass upon the reasonableness per se of freight rates” and has “imported into this proceeding * * * a restatement in different form of the ‘extortion’ theory * * * repeatedly rejected by Congress.” In the light of what has been previously said in this opinion, we think this contention is lacking in substantial merit.

In Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 602, 64 S.Ct. 281, 288, 88 L.Ed. 333, said Mr. Justice Douglas:

“The Commission’s order does not become suspect by reason of the fact that it is challenged. It is the product of expert judgment which carries a presumption of validity. And he who would upset the rate order under the Act carries the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences.”

This statement was further approved in Interstate Commerce Commission v. Jersey City, 322 U.S. 503, 512, 513, 64 S.Ct. 1129, 88 L.Ed. 1420.

We do not think the plaintiffs here have carried the heavy burden, thus imposed on them, by making a convincing showing that the order of the Commission denying reparations is invalid.

An order will be drawn dismissing the complaint of the plaintiffs.

Complaint dismissed.

POLLARD and HUTCHESON, District Judges, concur.


source: Caselaw Access Project

author: DUNCAN, District Judge.

license: Public Domain

text:
    COYER v. BOURN et al.
    Civil Action No. 157.
    District Court, N. D. Missouri, E. D.
    April 27, 1945.

      Elmer McClain, of Lima, Ohio, and Sam Friedman, of Hannibal, Mo., for plaintiff.
    Charles E. Rendlen, Harrison White (of Rendlen, White & Rendlen), of Hannibal, Mo., and Hudson V. Smoot of Smoot & Smoot, all of Memphis, Mo., for defendants.
   DUNCAN, District Judge.

This is a suit for the recovery of possession of the following described real estate:

“The Northwest Fourth (%) of the Northwest Quarter (%) of Section Sixteen (16) also the South' One-half (%) of the Southwest Quarter of Section Nine (9) and the Northeast Fourth (%) of the Northwest Quarter (%) of Section Sixteen (16) and the West One-half (%) of the Southeast Fourth (j4) of the Northwest Quarter ()4) of Section Sixteen (16) all in Township Sixty-five (65) of Range Ten (10) West, except one (1) acre out of the Northeast corner of the South half of the Southwest Quarter of section Nine and containing in all One Hundred Seventy-nine acres, more or less, and located in Scotland County, Missouri.”

and for damages to a barn located thereon; the value of timber removed therefrom and for the reasonable annual rental value thereof from March 2, 1935. Plaintiff bases his right to recovery on the ground that the foreclosure sale under a deed of trust under which defendants acquired such land, was void.

On April 5, 1930, the plaintiff was the owner of and in possession of the property described aforesaid, and on that date, he and Joy B. Boyer, his wife (now deceased), executed their promissory note to W. E. Shannon in the sum of $4000.00 with interest at the rate of 6% per annum, payable annually, and if not so paid, to become part of the principal and all bear interest at the rate of 8% per annum thereafter, together with reasonable attorney’s fees. Said note was secured by deed of trust on all of the property above described. Be fore maturity, the note was signed in blank without recourse by the payee and delivered to Matison Boyer, plaintiff’s brother.

No part of said note was paid, and on October 5, 1934, while the plaintiff was in possession of said property, he filed with the Clerk of the United States District Court for the Northern Division of the Eastern Judicial District of Missouri at Hannibal, his petition under Section 75 of the Bankruptcy Act, 11 U.S.C.A. § 203, seeking to effectuate a composition or extension of his debts, and listed the property above described as a part of the assets of his estate, and the note and deed of trust described aforesaid, among his obligations. The petition as filed, was approved on October 8, 1934, and was ordered referred to the Conciliation Commissioner on that date.

At the request of the holder of said note, and pursuant to due notice, the trustee sold the property aforesaid at trustee’s sale on October 6, 1934, and Matison Boyer, the holder of the note, was the highest and best bidder for said property for the sum of $1790 and on the same date the trustee made, executed and delivered a trustee’s deed to the said Matison Boyer conveying all of said real estate described in the deed of trust to him, said deed being recorded in Book 170 at page 35 of the Deed Records of Scotland County, Mo.

On October 8, 1934, on the same day on which the order of approval was filed and the petition referred to the Conciliation Commissioner, the purchaser at the trustee’s sale (Matison Boyer) filed an action in ejectment against Okie R. Boyer, in the Circuit Court of Scotland County, Missouri, and on November 16, 1934, final judgment in ejectment was entered in said action, adjudging that Matisoii Boyer was the owner in fee simple of said land and entitled to the immediate possession, and restitution was ordered. No appeal was taken from the judgment.

A writ of restitution was issued pursuant to the judgment aforesaid and delivered to the sheriff of Scotland County, Missouri. Pursuant to said writ of restitution, the sheriff evicted and ejected the said Okie R. Boyer and delivered the possession of said property to Matison Boyer on March 2, 1935, and the said Matison Boyer retained possession of said property until the time of his death on April 30, 1938.

By virtue of a will executed by the said Matison Boyer, Emma Boyer, his widow, received a life estate in said property, with the remainder to his daughter, the defendant, Elsie Bourn. Emma Boyer occupied the property from the time of the death of her husband on April 30, 1938, until her death on November 7, 1943. At that time, defendant Elsie Bourn came into possession of said property, and is now and was at the time of the institution of this suit, the legal owner and holder of the promissory note and deed of trust aforesaid, under the will of said Matison Boyer.

Following the reference of the petition filed on October 5, 1934, to the Conciliation Commissioner, he called a meeting for November 5, 1934. At that meeting the farmer-debtor presented his written offer of compromise or extension, which was rejected by Matison Boyer, the only creditor present. Matison Boyer also submitted a counter-offer which was refused by the debtor. These matters are all contained in the report of the Conciliation Commissioner.

Following failure of the parties to agree upon a compromise, the Conciliation Commissioner in his report to the court recommended that debtor’s position be dismissed on the ground that petitioner was not proceeding in good faith, and that the creditors be allowed to collect their claims in the regular procedure. With this report he submitted certain written data in support of his recommendation.

On December 11, 1934, and subsequent to the report of the Conciliation Commissioner recommending dismissal of the petition, the court entered an order granting the debtor leave to file an amended petition under Section 75, sub. s, of the Bankruptcy Act. However, no amended petition was filed by the petitioner, and on January 28, 1935, the secured creditor, Matison Boyer, filed a motion to set aside the order of the court made on December 11, 1934 granting leave to file an amended petition.

On February 11, 1935, the motion of Matison Boyer to set aside the order of the court granting leave to file an amended petition was sustained, and the order vacated, and the petition and proceedings of the debtor were dismissed. No appeals were taken from any of these orders and nothing further was done by any of the parties until on December 19, 1941, when Okie R. Boyer filed a motion to set aside the order of the court made on February 11, 1935, setting aside the order granting leave to the debtor to file an amended petition, and dismissing the petition of the debtor and all proceedings with respect to the setting aside of the order allowing an amendment to the petition and the dismissal of the petition. This motion was overruled on June 25, 1942. In the findings, the court states that:

“The dismissal order of February 11, 1935, was not based upon the unconstitutionality of sub-section (s); the decision of the Supreme Court to that effect was not handed down until May 27, 1935, (Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 [55 S.Ct. 854, 79 L.Ed. 1593, 97 A.L.R. 1106]); hence the order was not based upon the decision of the Supreme Court.
“The order was based upon the motion of the secured creditor and the recommendation and findings of the Commissioner, that the debtor was not prosecuting the (fol.29) proceeding in good faith, in that he had conveyed a portion of his land to his minor children without consideration, that he failed to file and present a fair plan for the extension of debts, that he failed to pay taxes and permitted penalties to accrue.”

The Court further found:

“The present motion was filed over seven years after the order of dismissal was entered, and it is therefore untimely.”

No appeal was taken from this order.

On February 15, 1943, Okie R. Boyer again filed a petition under Section 75 of the Bankruptcy Act for composition or extension of his debts, and in that petition, which is the petition now pending, he listed among his secured creditors Elsie Bourn as the holder of the promissory note described herein, and he listed among his assets, the property above described, together with a life estate in certain other lands which he now occupies.

On March 25, 1943, the court denied approval of debtor’s petition and the proceedings were dismissed at the cost of the debtor. On appeal this order was reversed by the United States Circuit Court of Appeals. In re Boyer, 8 Cir., 138 F.2d 349.

Following this decision of the Court of Appeals, the plaintiff was authorized by the Commissioner to institute this suit. The facts up to this point are not in dispute and were submitted to the court in the form of an agreed statement and shown in “Parties Exhibit A.”

Upon a trial of this case, evidence was offered to show that the residence of the plaintiff was across the road from the property in controversy, from the time of the filing of the petition in 1934 to the present time, and as to the rental value of the land, the amount of timber removed therefrom, and the damage to a barn located thereon— also the value of the improvements placed on said property and the amount of taxes paid by Matison Boyer and those who succeeded him.

Plaintiff contends that the reasonable annual rental value of the property is about $400 and that he is entitled to that amount dating from March 2, 1935. He also contends that timber was cut and removed from the land to the extent of $7,500 and that the barn was damaged to the extent of $200.

Matison Boyer died on April 30, 1938; his widow, Emma Boyer, died November 7, 1943. Their estates have been fully administered upon and the administrators have been discharged.

The detendants allege:

(1) That the judgment in the Circuit Court of Scotland County, is res adjudicata and that plaintiff is estopped and precluded from prosecuting or asserting any claim, right, title or interest in the lands aforesaid;

(2) That “Okie Boyer’s first debtor’s petition and proceedings were ended and dismissed when the aforesaid suit in ejectment was determined and plaintiff does not have any interest in said lands or rights or pretended damages arising therefrom and is precluded and estopped from asserting same herein or against these defendants”;

(3) That “plaintiff is guilty of laches, not having prosecuted any claim against or for said lands or attempted to have same done from the date of the aforesaid judgment against him in the above described ejectment proceedings in early 1935 until the filing of the action herein on March 7, 1944, or about nine years, and stood by, saw said Matison Boyer improve said lands and premises, pay taxes and his widow and devisees do so upon his death * *

(4) “That the claims, demands and rights and alleged actions set forth in the complaint did not accrue within five years next before the commencement of this action, are barred by the Statutes of Limitation of the State o-f Missouri.”

(5) A counterclaim in the sum of $4000 secured by the deed of trust as aforesaid, subject only to the credits thereon arising from said foreclosure sale and for a decree and judgment establishing and protecting her rights and equities and asking for full reimbursement for improvements and betterments placed upon said land and for taxes paid by defendant Elsie Bourn and for her father Matison Boyer and her mother Emma Boyer, now deceased.

The only questions of fact in dispute are the rental value of the land, the value of the timber removed therefrom, and the alleged damage to the barn.

The evidence of the plaintiff with respect to all of those questions was so unsatisfactory as not to impress the court as being worthy of serious consideration. The testimony as to the number and type of trees removed is conflicting — plaintiff says he counted up to 2000 stumps of trees removed and that there were others in addition to that. He asks $7,500 as their value.

The evidence of disinterested witnesses indicate that they counted 25 or 30 such stumps. I am not inclined to believe that any substantial damage resulted from the removal of the trees — even if there had been, it cannot be determined in this suit.

Certain lumber was removed from a portion of the barn and installed in another portion, and I do not believe any substantial damage resulted from the change in the structure. This change was made during the tenancy of Emma Boyer, deceased.

Plaintiff asks for $400 a year rent from March 2, 1935, and testified that that amount was the reasonable rental value of the property. Plaintiff first testified that the rental value was $175 a year; later he testified it was about $400 and that is the amount he demands.

All of the land, except about eight acres, is rough hill land, and only about 25 acres is in cultivation; eight acres is bottom land. The testimony as to the rental value ranged from $1 per acre to $400 per year, claimed by the plaintiff. I believe $180 per year is the fair rental value for such land.

Defendants contend that in excess of $500 was expended in the erection of fences upon the property. From the evidence, I am convinced that their estimate of this amount is fair.

The plaintiff contends that the sale under the deed of trust following the filing of his petition was void, conveyed no title whatsoever to Matison Boyer, purchaser, and consequently that those who succeeded him, including these defendants, are without rights in the property.

At the time this petition was filed, paragraph n of Section 75 of the Bankruptcy Act, Title 11 U.S.C.A. § 203, provided that:

“(n) The filing of a petition pleading for relief under this section shall subject the farmer and his property, wherever located, to the exclusive jurisdiction of the court. In proceedings under this section, except as otherwise provided herein, the jurisdiction and powers of this court, the title, powers, and duties of its officers, the duties of the farmer, and the rights and liabilities of creditors, and of all persons with respect to the property of the farmer and the jurisdiction of the appellate courts, shall be the same as if a voluntary petition for adjudication had been filed and a decree of adjudication had been entered on the day when the farmer’s petition or answer was filed.” 47 Stat. 1473.

Section (o) provided:

“(o) Except upon petition made to and granted by the judge after hearing and report by the conciliation commissioner, the following proceedings shall not be instituted, or if instituted at any time prior to the filing of a petition under this section, shall not be maintained,, in any court or otherwise, against the farmer or his property, at any time after the filing of the petition under this section, and prior to the confirmation or other disposition of the composition or extension proposal by the court * * * (2) Proceedings for foreclosure of a mortgage on land, or for cancellation, rescission, or specific performance of an agreement for sale of land or for recovery of possession of land * * * (6) Seizure, distress, sale, or other proceedings under an execution or under any lease, lien, chattel mortgage, conditional sale agreement, crop payment agreement, or mortgage.” 47 Stat. 1473. (Emphasis supplied.)

Evidently it was the intention of Congress to subject all of the property of petitioners, and all persons holding claims against petitioners, to the jurisdiction of the bankruptcy court, and to stay all proceedings with respect to such petitioner and his property after the filing of the petition. These two sections (n) and (o) were later amended and broadened by Congress and their meaning more carefully spelled out, but the intention of the Congress as expressed in the original sections was not changed by the amendments as they now appear in the Act. As Mr. Justice Black said in Kalb v. Feuerstein, 308 U.S. 433, loc. cit. 442, 60 S.Ct. 343, loc. cit. 347, 84 L.Ed. 370:

“The Congressional purpose is similarly-set out in the House Judiciary Committee’s Report: ‘The amendment to subsection (n) in fact construes, interprets, and clarifies both subsections (n) and (o) of section 75. By reading subsections (n) and (o) as now amended in this bill, it becomes clear that it was the intention of Congress when it passed section 75, that the farmer-debtor and all of his property should come under the jurisdiction of the court of bankruptcy, and that the benefits of the act should extend to the farmer, prior to confirmation of sale, during the period of redemption, and during a moratorium; and that no proceedings after the filing of the petition should be instituted, or if instituted prior to the filing of the petition, should not be maintained in any court, or otherwise.”

The petition of the debtor was filed on October 5, 1934. The sale under the deed of trust was held on October 6, 1934, following the filing of debtor’s petition. This was in violation of (2) of paragraph (o) of the Act prohibiting proceedings for foreclosure of a deed of trust after the filing of the petition.

The suit in ejectment was instituted on October 8, 1934, the day the petition was approved by the court and certified to the conciliation commissioner. It was done without authority of the bankruptcy court and was in violation of subsections (n) and (o). The entire proceedings, the sale of the property, the institution of the suit in ejectment, the judgment in the Scotland County Circuit Court, the issuance of the writ of ejectment and its service by the sheriff placing Matison Boyer in possession of the property were all in violation of subsections (n) and (o) of the Act, and conferred upon the said Matison Boyer no title to said property, and no right to its possession. 47 Stat. 1472; Wright v. Union Central Ins. Co., 304 U.S. 502, 58 S.Ct. 1025, 82 L.Ed. 1490; Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370; Wragg v. Federal Land Bank, 317 U.S. 325, 63 S.Ct. 273, 87 L.Ed. 300. In Kalb v. Feuerstein, supra, Mr. Justice Black stated in 308 U.S. loc. cit. 443, 60 S.Ct. loc. cit. 348, 84 L.Ed. 370:

“In harmony with the general plan of giving the farmer an opportunity for rehabilitation, he was relieved — after filing a petition for composition and extension-— of the necessity of litigation elsewhere and its consequent expense. This was accomplished by granting the bankruptcy court-exclusive jurisdiction of the petitioning-farmer and all his property with complete and self-executing statutory exclusion of all other cotirts.” (Emphasis supplied.)

In view of the foregoing, the plaintiff is entitled to the possession of the property. Wright v. Union Central Ins. Co., 304 U.S. 502, 58 S.Ct. 1025, 82 L.Ed. 1490, Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370; Wragg v. Federal Land Bank, 317 U.S. 325, 63 S.Ct. 273, 87 L.Ed. 300.

The defendants contend that notwithstanding the provisions of subsections (n) and (o) of Section 75, the plaintiff is not entitled to recover, and they charge the plaintiff with laches', contend that he is estopped to deny the validity of their title, and that the proceedings in the Scotland County Circuit Court are res adjudicata. These defenses will be taken up in reverse order.

It is the defendants’ contention that the petition of plaintiff had been dismissed at the time the writ of restitution was issued and Matison Boyer placed in possession of the property; that the judgment based upon the trustee’s deed vested the title in. said Matison Boyer, under whom these defendants claim. The position of the defendants in this respect is untenable because immediately upon the filing of the petition,, exclusive jurisdiction over the petitioner, his property and his creditors was vested, in the bankruptcy court, and all proceedings, thereafter with respect to the title, by any court or any other authority without the consent of the bankrupcy court, was void..

It is true that the writ of restitution was issued out of the Circuit Court of Scotland County subsequent to the dismissal of the petition in the United States District Court, but if the sale under the deed of trust on October 6, 1934, was void, the Circuit Court of Scotland County was without jurisdiction to entertain the suit in ejectment, or to render a judgment, and of course, all subsequent actions taken pursuant thereto likewise were void. Kalb v. Feuerstein, supra. On this very question Mr. Justice Black 308 U.S. at page 438, 60 S.Ct. at page 346, 84 L.Ed. 370 stated:

“But if appellants are right in their contention that the Federal Act of itself, from, the moment the petition was filed and so long as it remained pending, operated, in. the absence of the bankruptcy court’s consent, to oust the jurisdiction of the State court so as to stay its powers to proceed with foreclosure, to confirm a sale, and to issue an order ejecting appellants from their farm, the action of the Walworth County Court was not merely erroneous but was beyond its power, void, and subject to collateral attack ” (Emphasis supplied.)

The defenses 2 and 3 “estoppel’ and “laches” may be considered together, and in considering these defenses it might be well to briefly review the facts upon which the defendants rely.

The plaintiff occupied a homestead immediately across the road from the property, the possession of which he now seeks to recover, from the time of the signing of the note, to the present time; he knew that Matison Boyer was fencing the property; was taking some timber therefrom. He observed and knew that the defendant George Bourn made certain changes in the barn and removed some lumber therefrom for the purpose of making a cattle barn rather than an all-purpose barn; he knew that Matison Boyer and Emma Boyer, his wife, and these defendants were paying the taxes on said property during all the time of the possession of those parties.

No expression of protest was ever uttered and no claim to ownership, so far as the evidence shows, was made between the time of the dismissal of the plaintiff’s petition in 1935 and the time of the filing of his motion to set such order aside on December 19, 1941. This motion was overruled on June 25, 1942, and thereafter on March 23, 1943, he filed the petition which is now pending before the conciliation commissioner. The latter petition was filed during the life tenancy of Emma Boyer, who died on November 7, 1943, so we have a period from March 2, 1935, to December 19, 1941, or a period of almost seven years during which the plaintiff did not question the ownership or the possession of the property by the defendants, and those under whom they claim possession. The present defendants enjoy no greater rights than Matison Boyer or Emma Boyer, his wife.

It might also be recalled that plaintiff’s first petition was dismissed by the District Court upon the recommendation of-the conciliation commissioner upon the ground that the petitioner was not prosecuting such petition in good faith. As a matter of fact, the whole record from the beginning to end indicates that the plaintiff was either ignorant of his rights or not acting in good faith with respect to his obligations, and with respect to this property.

Plaintiff bottoms his right to possession upon the ground that all of the proceedings incident to the foreclosure of the deed of trust were void; that the deed of trust could not be foreclosed by Matison Boyer after the filing of plaintiff’s petition for composition or extension of his debts.

“Ignorance of the law excuseth no man.” If Okie R. Boyer may be presumed to have known the meaning of the statute, such a presumption might likewise extend' to Matison Boyer, and of course, to those who claim through him. It is a well settled' general principle of law governing estoppel, that no estoppel can arise where all the parties interested have equal knowledge of the facts or where the party setting up the estoppel is chargeable with notice of the facts. 31 C.J.S., Estoppel, § 103, page 329.

If the sale under the deed of trust and the subsequent proceedings in the Circuit Court of Scotland County were void, then Matison Boyer and those who claim under-him, possessed such knowledge as well as-did the plaintiff. I think there is a strong inference that all- of the parties to this-proceeding were uninformed as- to their rights and liabilities.

The section of the statute under which the petition of the plaintiff was filed, had recently been enacted. It was not until' 1937 in the case of Wright v. Union Central Ins. Co., 304 U.S. 502, 58 S.Ct. 1025, 82 L.Ed. 1490 that this particular question came before the Supreme Court of the United States for determination. It was again before the court in 1940 in Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370, and in Wragg v. Federal Land Bank, 317 U.S. 325, 63 S.Ct. 273, 87 L.Ed. 300. There is no evidence indicating when knowledge of the construction-of the statute by the Supreme Court of the United States first came to the attention of the plaintiff, and to the defendants.

In view of the aforesaid, I do not believe the plaintiff can be held guilty of laches, or that he is estopped to claim the possession of his property, possession of which the defendants acquired under a void sale and void court proceeding, despite the fact that they occupied the property during all that period of time sincerely believing that they had acquired a good title.

As to the fifth defense — statute of limitations — this point may be disposed of by stating that the evidence indicates that the improvements placed on the property, i. e., the fence primarily, and the damage committed through the taking of timber therefrom, whatever it may have been, was committed during the tenancy of Matison Boyer from 1935 to April 30, 1938. The rent accrued during that period and the damage committed through the' taking of the timber, if any, was a claim against Matison Boyer, to be offset by the payment of taxes máde by him during the term of his tenancy and for any period for which he paid taxes prior to the time he acquired possession of the land. The estate of Matison Boyer has long since been closed and the administrator discharged. The matter cannot now be considered by this court.

The same is true with respect to that period from April 30, 1938, to November 7, 1943, during the period of the occupancy by Emma Boyer, deceased. Her estate has likewise been closed and her administrator discharged, and this court cannot determine the rights between this plaintiff and the estates of Matison Boyer or of Emma Boyer, both deceased. .

There is no evidence that the defendants have placed any improvements on said property, or that they have committed any waste. They are liable to the bankruptcy estate of the plaintiff for the rental value of the property at the yearly rent of $180 less such taxes as they have paid during the period of their tenancy. These amounts may be computed by the conciliation commissioner at the time the offer of composition or extension is submitted by the plaintiff.

If the amount of rent shall exceed the amount of the taxes which have been paid by the defendants, then the difference shall be an asset of the plaintiff’s (petitioner’s) estate. If the amount of the taxes shall exceed the amount of rent during that period, then it shall be a claim against the estate of the petitioner.

As the sale under the said deed of trust in 1934 was void, the deed issued pursuant thereto conveyed no title, and of course, the subsequent proceedings founded upon said void deed and sale are likewise void. Therefore, the parties stand in the same position as if no sale had taken place under said deed of trust. Plaintiff is entitled to the possession of the property for the benefit of his creditors, subject to the lien of the deed of trust and accrued interest Decree accordingly.

       “Now on this 11th day of February, 1935, the motion of Matison Boyer, a secured creditor, to set aside the order of Court, granting debtor leave to file an amended petition entered herein on December 11, 1934, and to dismiss debtor’s petition as well as the report of A. L. Luther, Esq., Conciliation Commissioner of Scotland County, heretofore filed, having been duly considered it is therefore
      “Ordered that the aforesaid order of this Court granting debtor leave to file an amended petition herein be and is hereby set aside and vacated; and it is further
      “Ordered that the petition of debtor and proceedings herein be and are hereby dismissed.”

       “The Court having- fully considered the debtor’s petition heretofore filed February 15, 1943, and it appearing from the records of this Court and from the debtor’s petition and schedules herein filed, that said petition should not be approved, it is therefore, now,
      “Ordered that approval of the petition of the debtor praying that proceedings be had in accordance with the provisions of Section 75 of the Bankruptcy Act as amended be, and hereby is, denied, and said petition and proceedings herein be, and hereby are, dismissed at the cost of said debtor.”


author: CONGER, District Judge.

text:
    EDWARD B. MARKS MUSIC CORPORATION v. WONNELL et al.
    District Court, S. D. New York.
    May 8, 1945.

      See also 4 F.R.D. 146.
    Julian T. Abeles, of New York City (Julian T. Abeles and Leopold Bleich, both of New York City, of counsel), for plaintiff.
    Irwin H. Clark, of New York City (Wm. B. Petermann, of Cincinnati, Ohio, of counsel), for defendants Harry S. Wonnell, Administrator, etc., and Sallie Black Waldo.
    Isidore Scherer, of New York City (Charles H. Tuttle and Gerald J. Craugh, both of New York City, of counsel), for defendant Mattie E. Shanks.
   CONGER, District Judge.

This is an action in the nature of an interpleader brought under 23 U.S.C.A. § 41, Sub. 26.

The case was tried to the Court without a jury.

Three parties are interested in this controversy: The defendants, Harry S. Won-nell, as administrator of the estate of Johnny S. Black (also known as John S. Black); deceased, Sallie Black Waldo and Mattie E. Shanks. Willie Icia Black (Kis-sick), a defendant, was served but did not appear.

The following is a brief summarization of the pertinent facts set forth in the complaint: That prior to December 9, 1915, said Johnny S. Black wrote the original musical composition entitled “Paper Doll” which was duly copyrighted by him on December 9, 1915. That htereafter the said musical composition was duly assigned by Johnny S. Black to plaintiff. That the said Johnny S. Black died, intestate, one year prior to the expiration of said copyright ‘and that said Sallie Black Waldo as widow of Johnny S. Black, deceased, duly renewed and extended said copyright for the further term of 28 years, and that on November 11, 1943, she duly assigned said renewal copyright to plaintiff. That plaintiff is the sole proprietor of all the rights, title, and interest in and to said renewal copyright. That four claims have been made against plaintiff arising out of this copyright and renewed copyright as follows: By Harry S. Wonnell, as administrator; by Sallie Black Waldo, widow of Johnny S. Black; by Willie Icia Black who also claims to be the widow of Johnny S. Black and by Mattie E. Shanks. That by reason of the conflicting claims of the defendants, plaintiff is in great doubt as to the rights of the defendants and as to which defendants are entitled to be paid the moneys that have become due under the copyright and the renewal copyright. That plaintiff had in its possession $15,220.17 payable under the copyright and $2,214.18 payable under the renewal copyright. That plaintiff has paid these two sums with the Registry of the Court to abide the judgment of this Court. Plaintiff prays that it be adjudged the sole owner of the said renewal copyright. That defendants be required to interplead and settle among themselves their respective claims and that plaintiff be discharged from liability in the premises.

The two defendants, Harry S. Wonnell, administrator, and Sallie Black Waldo do not dispute the title of plaintiff to the song, but rather by alleged facts support plaintiff’s claim to title thereto, both to the original copyright and the renewal copyright; but they do assert that each is entitled to patt of the fund, one as the administrator of Johnny S. Black to the moneys due Black under the copyright agreement and assignment and the other, as the widow of Johnny S. Black, to the moneys due under the renewal copyright agreement and assignment. Both ask for an accounting.

Defendant Mattie E. Shanks in her answer, however, by way of counter-claim and cross-claim alleges that she is the real owner of this song. That she was the joint composer of the song with Black, and that when he died she became the sole owner. She attacks plaintiff’s title to the song and the right of the defendants to any of the moneys from the royalties of said song. She also attacks the validity of the renewal of the copyright and asks that it and the assignment thereunder be set aside and declared void. She also asks for an accounting from the plaintiff of all moneys due. At the trial, however, defendant Shanks by stipulation in open court withdrew any claim she might have or have , had against the plaintiff concerning the title to the song, either because of the original copyright or the renewal of the copyright. In brief she, by this stipulation, recognizes the title of plaintiff to the song. She does claim, however, all the royalties or sums due by reason of the agreement made in connection with the assignment of the original copyright and the agreement made in connection with the assignment of the renewal copyright; so that now the real issue is the division of the funds due from the plaintiff under the royalty agreements.

At the outset, therefore, to clarify the issues, I find that plaintiff is the sole owner of the renewal copyright of the song “Paper Doll.”

The following facts I believe are undisputed: On or about December, 1915, Johnny S. Black made application for copyright of a musical composition, “Paper Doll,” not to be reproduced for sale. With the application he filed one complete copy of the words and music. In the application, the said Johnny S. Black stated he was the - arranger of the music and the author of the words of the song.

A certificate of copyright registration was thereupon issued to the said Black by the Register of Copyrights. The copy of the song so filed bore the inscription “Words and music by John S. Black.”

On or about September 12, 1924, Edward B. Marks Music Co. (plaintiff’s predecessor) became the owner, by assignment from Black, of all his interest in and to said song and the original copyright thereof. In and by said assignment the said assignee agreed to pay the said Black a certain royalty on each copy of the song published and sold.

On August 27, 1942, plaintiff copyrighted the song as a published work.

Johnny S. Black died on June 9, 1936, a resident of the State of Ohio, leaving him surviving a widow, Sallie Black Waldo.

On November 9, 1943, Harry S. Wonnell was appointed, by the Probate Court of the State of Ohio (Butler County), administrator of the goods, chattels, etc., of the said Black.

The original copyright to the song expired on December 8, 1943.

During the year prior thereto and on November 13, 1943, Sallie Black Waldo, as “the widow of the author,” renewed and extended said copyright.

On or about the same date the said Sallie Black Waldo assigned the said renewal copyright to the plaintiff and the plaintiff at the same time agreed to pay to the said Sallie Black Waldo, certain royalties due from the publication and use of the song by the plaintiff under the said renewal copyright.

There are certain sums now due from the plaintiff for royalties due under the original copyright and also under the renewal copyright.

Perhaps it might be as good a time as any to mention the fact that this song rested in oblivion until some time during the summer of 1942. It was then sung by a popular radio singer and after that this song enjoyed marked popularity. Hence this lawsuit.

The defendants, Wonnell as administrator and Sallie Black Waldo have made out a prima facie case. Both claim title through Black. These defendants have made a prima facie case of title by the production of the original certificate of copyright registration which shows that the author of the lyrics and words of the song “Paper Doll” was John S. Black. Such a certificate is prima facie evidence of all that appears on its face. Gerlach-Barklow Co. v. Morris & Bendien, 2 Cir., 23 F.2d 159; Jerry Vogel Music Co., Inc. v. Forster Music Publishers, 2 Cir., 1945, 147 F.2d 614.

The burden of going ahead with the evidence is with defendant Shanks; to show that the title of Black and those claiming by and through Black is defective is upon her. She has the burden of proof in this respect and to prove that she has or had any interest in this song and the proceeds therefrom.

The defendant has undertaken this burden and has testified herself and others have testified on her behalf.

The defendant, Mattie E. Shanks, in attempting to meet this burden and to prove lier case, took the witness stand herself. She testified that as a young girl she was gifted in music and dancing and was teaching dancing and playing the piano in various schools in Chicago at an early age. That in connection with her work as an instructor she wrote her own music. That she went on the stage as a solo dancer. That when she started to dance professionally she continued to create her own dances and make her own costumes and write her own music for the numbers she used. That she met Johnny S. Black at the end of 1914. That she wrote the song “My Doll” (the words and music). That she got the idea from Nell Brinkley’s dolls, which Nell Brinkley drew for the newspapers. That she called the piece originally “My Doll.” That when she came to New York in 1915 with her brother she met Johnny S. Black and Andy M. Boyle, a pianist, at Remick’s Music Publishing House. That she sang three songs there; the other two numbers were two other songs which she had written, “Adorable You” and “I Love You.” That she became engaged to Black in 1915. That she brought with her from Chicago on the visit in 1915 the three songs: “Adorable You”, “I Love You” and “My Doll.” That the last song had two verses and a chorus. That she continued in musical vaudeville from 1915 to 1927 when she left the stage permanently. That during that time she played the leads in various Broadway productions and when she left the stage she was receiving a salary of between $400-500 per week.

Her testimony was that she wrote this song “Paper Doll,” then named “My Doll” and brought the words and music to New York in 1915, where it was played by Boyle, the pianist, in the presence of Johnny S. Black. Mattie Shanks produced in corroboration of her story four witnesses. A brief resume of their testimony follows:

James W. Miller, who testified that he and Black in 1916, 1917 and 1918 were members of an act known as the “Three Chums”; that in the act they used this song “Paper Doll” a number of times; that Black spoke to him (Miller) about this song and told him that he (Black) would introduce him “to the little girl who wrote the song and who was responsible for this song”; that later Black did introduce him to Mattie E. Shanks who then had the stage name of Shirley Sherman; that Black said to him (Miller), “Here is the little girl who wrote that song” ; that about this time Black said to Miller that he (Black) and Shirley Sherman would some day make a lot of money out of this song.

The next witness was Andy M. Boyle, who was a piano player and musician. He testified that he met Mattie E. Shanks known then as Shirley Sherman at Coney Island about 1915; that he was a piano player and band leader there; that Miss Sherman was accompanied by Black; that an appointment was made the next day for all three to meet at Remick’s Music Publishing House so that Boyle could assist Miss Sherman with some new dance routines; that the next day they did meet, Boyle, Miss Sherman and Black; that Miss Sherman worked with said Boyle in connection with some dance music and that then Miss Sherman produced three manuscripts of the three songs: “Adorable You”, “I Love You” and “My Doll”; that he (Boyle) liked this doll song and the question of copyrighting the song came up and he (Boyle) suggested it be copyrighted in the name of Black and that Black then stated, “It’s a family affair anyway. It’s going to be a man and wife proposition”; that at that time someone said (the witness thought Miss Sherman), “Let’s call it ‘Paper Doll’.” The witness further stated that, “That is the way ‘Paper Doll’ was born.”

Miss Sherman produced as a witness her brother, Sidney Shanks, who testified among other things that Black visited the Shanks’ home in the latter part of 1915 or 1916; that Black and Mattie Shanks played a number of songs on the piano, particularly this doll song and that Black remarked in connection with that song, “She’s got scmethirg there,” and that they, Mattie Shanks and Black, had it together but that he was going to copyright it.

The last witness was Black’s foster father, Huber. He testified that he met Mattie Shanks in 1915 when Black brought her to his mother’s home; that on one of the visits Black told him with reference to this “Paper Doll” song that they (Black and Shirley Sherman) had it in partnership; that he (Black) had had it copyrighted the previous year and that the survivor was to take all; that it was Shirley’s piece.

It also appears from the testimony that Black and Mattie Shanks were married in May, 1918, and that Mattie Shanks divorced Black in 1924; that Black died in 19.16. Mattie Shanks is now Mattie Shanks Goeller.

It also appears from the evidence in the case that Johnny S. Black was a well-known musician; that he had written a number of musical compositions and arrangements, some of which were quite successful.

If the above testimony of Mattie Shanks and her witnesses is to be believed, there is only one conclusion that can be drawn and that is that Mattie Shanks was the author in the main of this song “Paper Doll.”

The attorney for the other defendants contends that this testimony is not creditable ; that the witnesses have discredited themselves and that they were confused. In support thereof he has picked out a number of instances where inaccuracies have occurred in the testimony and instances which he contends show that the witnesses were confused and that their testimony was unconvincing. I have gone into this very carefully. Some of the criticism of this testimony is not justified. Some is. Some of the inaccuracies pointed out are innocuous. Some are only what one would expect of witnesses giving testimony of what occurred 25 years ago. Some of the witnesses are interested, Mattie Shanks herself and her brother.

One of the witnesses (Boyle), seemed to me, related some circumstances which could only be born out of his imagination, yet from anything which I could find, he was uninterested. He wasn’t particularly acquainted with Mattie Shanks but had been a great personal friend of Black.

The witness Lewis Huber (foster father of Black) is 71 years of age. He seemed to be a rather slow and unresponsive witness at times and yet at other times prompt in his answers. Whether or not he is interested, I am unable to say. It would seem, at least from his testimony, that he claims some interest in part of the royalties in dispute, and might be said to be testifying against his interest. He apparently is. very friendly with Mattie Shanks. During the trial he was living here in New York with her brother. He was not too. satisfactory a witness.

One witness, Miller, impressed me very much. He was absolutely disinterested as. far as I could tell. Pie is not related to Mattie Shanks. His recollection is that he hadn’t seen her from 1915 until about a year before the trial. He had never-visited her at her home. Down through, the years he had never seen her. His statements were positive and direct. It is so important that I quote several of them in-which he is referring to what Black said to him in 1917 or 1918 about this song and about Mattie Shanks and the connection-of Mattie Shanks with this song:

“Some day I am going to introduce you to the little girl who wrote the song, who is responsible for this song.”
“The witness: He told me he would' introduce me to the girl that wrote that song.
“Q. Did he mention any name in that connection at all? A. No, he said that,. later, that he would introduce me to the girl and he finally did.
“Q. When was that, that he finally did? A. Well, it was quite a few months after. We were working in the Beacon Hotel in Buffalo and this was when I met Shirley Sherman. She was a dancer in the show at the time and he says, ‘Here is the girl that wrote the song.’ ”

At the end of the trial I was rather impressed with the testimony given by the defendant Mattie Shanks and her witnesses. Since then I have read over the minutes, considered the testimony in connection with the law applicable to this type of case. I realize that this type of testimony should be scrutinized closely; that testimony given of occurrences 25-30 years before m'ght be tinged with the desire to aid the litigant; witnesses might be mistaken after such a long period of years, also a story might easily be fabricated which would be hard to disprove; that this type of evidence is frequently unsatisfactory.

I realize that in order to succeed Mattie Shanks should prove her case by clear and satisfactory evidence; that her evidence should be scrutinized with great care and perhaps even with suspicion.

With all this in mind I have come to the conclusion, however, that Mattie Shanks has met the burden which the law imposes upon her. I am satisfied from the evidence that she, a person with considerable talent as a musician, was the main author and did write in the main the words and music of the song “My Doll”; that in the year 1915 Mattie Shanks came to New York where she met Andrew Boyle, a musician, and Black; that on that visit Boyle played the song “My Doll” at Remick’s Music Publishing House in New York City; that as the result of a conversation there held, the name of the song was changed to “Paper Doll”; that Black agreed to have it copyrighted in his name and that Black did have this song copyrighted in his name; that Mattie Shanks first met Black in 1914; that she became engaged to him in the summer of 1915 when she came to New York; that she was married to him in 1918 and divorced him in 1924.

I have come to the above conclusion after a review of the testimony. There can be no question of mistake here or of faulty memory in the main. These witnesses are either telling the truth in the main or they are committing perjury. I can’t see where there can be any middle road. The story told by each of these witnesses is either essentially true or it is not. I can’t conceive that all of these witnesses committed perjury.

I have above criticized the nature and character of their testimony and I have come to the conclusion that adding it all up that Mattie Shanks was the main author of the words and music of this song “Paper Doll” and that she did collaborate with Black, he completing it so that it might be copyrighted.

I, therefore, hold that when Black took out this copyright, he took it out for himself and Mattie Shanks; that when Black copyrighted this song in his own name it was a copyright upon a joint work and that he (Black) as the copyright owner held the copyright with a trust impressed upon it, a trust for the benefit of Mattie Shanks and that the renewal of the copyright taken out by the defendant Sallie Black Waldo is held by her with a constructive trust imposed upon it for the benefit of Mattie Shanks. See Edward B. Marks Music Corporation v. Jerry Vogel Music Co., 2 Cir., 140 F.2d 266.

I am convinced that when Black took out the original copyright to the song that it was a joint venture; that he took out the copyright for himself and his then fiance, Mattie Shanks. I am not impressed, however, neither do I hold with the contention of Mattie Shanks that the survivor was to take all. In other words that this was to be a joint tenancy with the right of survivorship. In coming to this conclusion I am impressed by the fact that it was never the intent of these two parties to make a testamentary disposition of the title to this song. Passing on a question of this kind and in determining as to the intent of the parties, one must look at the surrounding circumstances. When the conversations were had which led to the copyrighting of this song, Black and Mattie Shanks were engaged to be married; no doubt very much in love. The idea, undoubtedly, was as expressed by the conversations testified to, that they were soon to be man and wife; that whatever one had belonged to the other; that would be the natural thought in the minds of each. I certainly can’t conceive that they had in mind that if divorced there would still be a right of survivorship. It seems to me it would be inequitable to hold here that this oral agreement made between the two was ever intended to cover such a situation. Such oral agreements are frowned upon by the Courts and should only be enforced when they have been established by evidence so strong and clear as to leave no doubt and when the result of enforcing them would not be inequitable or unjust. See Hamlin v. Stevens, 177 N.Y. 39, 69 N.E. 118.

It seems to me it would be inequitable to take from the defendant Sallie Black Waldo any right or benefit which should come to her by reason of her renewal of the copyright. Had she not renewed the copyright, this song would undoubtedly be in the public domain.

It is significant to note that Mattie Shanks testified that she heard this song played publicly in October or November, 1943. She apparently consulted an attorney at that time and notified the plaintiff of her interest in this song. Her claim then was that “she was co-writer with Johnny S. Black of the musical composition ‘Paper Doll.’ ” There is nothing in the case to indicate what Black did in collaborating with Mattie Shanks. There is testimony, however, which would indicate that there were some changes made in either the music or the words from the original copy, brought by Mattie Shanks to New York, which original copy, it might be noted here, was not the one filed when the application was made for copyright.

In her answer and cross-complaint interposed herein, Mattie Shanks alleged that she and Johnny S. Black entered into an agreement in and by which they “agreed to collaborate each with the other in the creation and writing of a musical composition, and that the said musical composition thereafter was by them called and came to be known as ‘Paper Doll’ ” (Par. 11); that pursuant to said agreement and in fulfillment thereof, she, Mattie Shanks and Johnny S. Black “created and wrote in collaboration the aforesaid musical composition which thereupon was and now is named and entitled ‘Paper Doll’ ” (Par. 13).

My attention has been called by the attorney for the defendants Wonnell and Waldo to a decision handed down recently by the United States Circuit Court of Appeals for the Second Circuit. Jerry Vogel Music Co. v. Forster Music Publisher, 2 Cir., 147 F.2d 614, 615.

The attorney for these defendants contends that this decision is applicable to this case. I can’t see that it is. In the Vogel case,. both the District Court and the Circuit Court of Appeals held that evidence introduced in support of a contention similar to the one made here by Mattie Shanks, was not sufficient to overcome the presumption of authorship in favor of the one who ohtained the original copyright. The Circuit Court of Appeals said this in the Vogel case:

“We do not, under familiar rules, undertake to weigh the evidence to determine its preponderance. The appellee established, a prima facie case by producing the copyright certificate, and while the ultimate-burden was upon it to establish its right to-a declaratory judgment of sole ownership* of the copyrighted publication, the appellant had the burden of establishing its affirmative defense, and we are not persuaded that the District Judge was clearly wrong in holding that it failed to do so.”

I hold here that there is this same presumption which is obtained from the production of the copyright certificate, but I hold here that the evidence has overcome-that presumption. An examination of the-testimony in the Vogel case indicates that the other testimony produced was not clear and one might very well hold that it was. not sufficient to overcome the prima facie-case made by producing the copyright certificate. I hold differently here.

We now come to the question of laches. There was not a great deal said of this at the trial, but it is a question which has given me much concern. Mattie-Shanks made no claim apparently to this, song until November 24, 1943. I know that claims of this type made so many years, later may very well be frowned upon and discredited, but after all delay alone in asserting a claim is seldom a bar. That which converts passage of time into laches, is some prejudice to one of the parties. In re Stilwell, 2 Cir., 120 F.2d 194.

Certainly the plaintiff has not been-prejudiced in any -way. The only prejudice that could come to the other two defendants here is the difficulty in obtaining witnesses after this period of time. This, is the thing which has given me a great deal of thought. The peculiar facts of the-case, however it seems to me, justify the-non-application of the doctrine of laches, here, although as I have said this question has given me a great deal of trouble- and concern and some doubt. This is a peculiar situation. This song after it was. copyrighted apparently never had any vogue. It laid on the shelf. It was appar— ■ently dead. It never came to life until some time in 1942, when a popular radio performer sang it over the radio. At once it seemed to take hold and became a so-■called popular song overnight. There was •no reason for Mattie Shanks ever to make any claim up to this time. She did make a claim, as she says, shortly after she heard the song on the radio.

A similar situation arose in the case of Jerry Vogel Music Co. v. Forster Music Publisher, supra. In that case there had been a claim made after some 25 years by a man who claimed to be a co-collaborator in a song “Down by the Old Mill Stream.” In that case the question was raised that the claimant was guilty of laches. An examination of the brief on appeal interposed by the attorney for the opposition indicates that practically the same cases were cited there as are cited here in support of the defense in laches, but the Circuit Court of Appeals apparently passed by or did not consider that defense, except that they did state that the fact that the claimant in the Vogel case had made no legal claim to the copyright during almost 28 years was a circumstance to be considered by the Court upon the issue of co-authorship. In other words, they held that it was to be an evi-dentiary circumstance to be considered by the Court in passing upon the strength of' the claimant’s case. This case is a bit different in that respect. The song in the Vogel case was popular during practically the whole 28 years. The song in this case was never popular until about 28 years •after it had been copyrighted.

There is another issue to be disposed of which is between Sallie Black Waldo and the plaintiff herein. She claims that when she assigned the renewal copyright to the plaintiff herein she only warranted “that she is the widow of Johnny S. Black, the writer of said work” and that she had not previously disposed of her interest in the song and her right to renew the contract. Her contention is that no matter what happens, the plaintiff agreed to pay her certain compensation and this they must pay her in any event no matter what the result of this lawsuit is.

I hold against this defendant in this contention. Whatever she has here she has under the statute, because she is the widow of Johnny S. Black. The plaintiff by the assignment took all the right and interest in and to the renewal copyright. From an examination of the papers which were executed by this defendant and the plaintiff in connection with this assignment it clearly appears that the plaintiff was to have the sole and exclusive right to this renewal copyright for which it was to pay a certain royalty to Sallie Black Waldo who succeeded to the interest of Johnny S. Black as his widow. This interest as I have heretofore held is impressed with a trust in favor of Mattie Shanks.

I, therefore, hold that Harry S. Wonnell, as administrator of the estate of Johnny S. Black, and Mattie E. Shanks are entitled to share equally in the royalties which were due under the original copyright and that Mattie Shanks and Sallie Black Waldo are entitled to share equally in the royalties due and to become due from the plaintiff upon the renewal copyright.

If the parties are unable to agree as to the division of the royalties due, then I will provide for an accounting to be had before a Special Master.

Settle decree on notice.


author: BYERS, District Judge.

text:
    THE W. A. KIPP. THE OVERBROOK.
    No. A-16927.
    District Court, E. D. New York.
    July 18, 1945.

      Mahar & Mason, of New York City (Frank C. Mason, of New York City, of counsel), for libelant.
    Burlingham, Veeder, Clark & Hupper, of New York City (George R. Wagner, of New York City, of counsel), for claimant.
   BYERS, District Judge.

The libelant’s wooden coal barge W. A. Kipp (116 feet by 31 feet by 16 feet inside depth) carrying 800 tons of coal, was the outside vessel to starboard in the third tier of a coal tow moored at the end of pier 7 (Manhattan) East River, tailing up river in the flood tide, on the morning of February 9, 1943.

At about 9:00 A. M. she struck pier 9 twice, sustaining damage for which this libel was filed in rem against the steamtug Overbrook, on October 21, 1943. The answer was filed on February 20, 1945.

The reason for this less than punctual course of pleading has not been disclosed, although the evidence contains a statement ■to her proctors, made by the' Overbrook’s captain on April 12, 1943, and the libelant first notified the claimant of its grievance on February 18, 1943.

The cause as pleaded is that the Over-brook had landed its tow in the vicinity of pier 6 and that it “became necessary for the Overbrook to swing its tow out into the river * * * and in hauling the tow out the Overbrook caused an excessive strain to be placed on the port hawser of the W. A. Kipp with the result that the starboard stern end of the barge swung toward and collided heavily with the end of pier 9.”

The faults specified are: Failure to have a helper tug in maneuvering its tow away from the dock; in maneuvering its tow away from the dock so as to cause excessive strain on the barge’s port hawser, breaking it; in so maneuvering with its tow away from the docks (sic) as to cause the Kipp to collide (twice) with the end of pier 9.

The answer denies that on the day in question the Kipp was towed, swung or •otherwise moved by the Overbrook, and alleges that any damage sustained by the former was not caused or contributed to by any fault, etc., of the Overbrook.

The libelant has failed to prove its cause as pleaded, and while a different version of the Overbrook’s conduct might have supported a recovery, it cannot be said that the evidence as adduced would be sufficient to sustain a decree, even after conforming the pleadings to the proof.

I am satisfied that the Kipp was in the position stated, the tow having been so placed in the early hours of that morning at pier 7, by Pennsylvania tug Baltimore (not the Overbrook). Also that the barge just ahead, the B. B. 146, was taken away at 8:40 A. M. by the Pennsylvania tug Jersey City, causing the bargee of the Kipp to put out a hawser from his port bow corner to the Eddy, the middle barge in the second tier; there were already in place a bow line and a stern line to the Cape Dewey, the barge alongside to port; that is, the middle boat in the third tier.

At about the time that Dehie, the Kipp’s bargee, was putting out this hawser from his port bow corner to the Eddy, the Over-brook was removing two barges from the first tier (the middle one and the outside one to port) ahead to pier 6, where presumably she made them fast.

This left but one barge in the head tier, the Sterling, which was the starboard outside barge, the hawser barge, made fast to pier 7, and the rest of the tow was hanging on her; i. e., in Donnelly’s phrase (he was the Overbrook’s captain) : “Yes, the loaded tow was made fast to pier 7, East River.”

It must be obvious that the removal of the Sterling was a critical maneuver, since the remaining elements of the tow had to be secured in some manner, or allowed to go adrift, and yet there is not one word of testimony from anyone on the subject of how that movement was handled; it does appear that the Overbrook took the Sterling away, made fast alongside to starboard, and towed her to a Brooklyn pier.

Dehie’s version, that the Overbrook took the entire tow out into the river and then back against so carelessly as to cause the damage stated in the libel, was unconvincing and cannot be relied upon for the following reasons, in addition to his failure to show that he really saw what he said took place:

1. Dehie said the tow was made fast to pier 6, not 7. This is not thought to be correct, since the leg of the Pennsylvania tug Wicomico, submitted by consent, shows that at 4:40 A. M. on this day she took the barge Hanscome from directly astern of the Kipp in this tow, from pier 7.

The log of the Pennsylvania tug Jersey City shows that at 8:40 A. M. she took the barge B. B. 146 ahead of the Kipp, from pier 6.

The log of the Overbrook shows that at 8:40 she was “Drilling out Boat and making up Tow” at pier 7. Her captain testified as to what movements were comprehended in this entry, as has been above related.

2. Dehie testified that, before the striking at pier 9,-his barge lay about 40 feet from the end of that pier, but this cannot be so, since 750 feet separates piers 6 and 9, and after 4:40 A. M. the tow was but three tiers in length; i. e. about 320 feet, which would put the Kipp about 430 feet from pier 9 at 8:40 A. M., and 270 feet from pier 9, if the tow was made fast to pier 7. The discrepancy is too great to be ignored.

3. Again, Dehie said that he was sure the B. B. 146, the barge just ahead of him, was taken away by a Tracy tug, which is contradicted by the log of the Jersey City. If he cannot be relied upon as to the tug that was operating in his immediate vision, his recital as to events two tiers ahead can scarcely be accepted for present purposes.

4. Finally, he attributes the moving of the entire tow out into the river by the Overbrook from pier 6, to the requirement of a “paper boat” (whatever that may be) which was in the slip alongside of pier 6, upstream, to move out into the river. He could scarcely have observed that while putting out his hawser to the middle barge in the second tier as was rendered necessary by the removal of the B. B. 146 from just ahead of the Kipp. That “paper boat” episode is denied in toto by Donnelly, and I regard it as a theory evolved by Dehie, rather than an observation.

The proctor for libelant in his written argument says that the tow was either at pier 6 or 7, which is more accommodating than assuring.

It is also true, however, that no ready explanation occurs for the pier discrepancy proclaimed by the logs of the Overbrook and the Jersey City, for at the same time that the former was “Drilling out Boat” (Sterling) at pier 7, the latter was taking out of the tow the second barge astern of the Sterling (the B. B. 146) from pier 6!

While the libel must be dismissed for failure of proof, I should feel free to en-C tertain a motion to reopen, if convincing testimony were proffered, from the Sterling, for instance, or other informed source, as to how the Overbrook actually contrived the removal of that barge and also saw to it, i’f she did, that the remaining vessels in the tow were handled so as to avoid damage. I think Dehie is probably right in identifying the Overbrook as playing a part in whatever maneuvers were conducted at the time the Sterling was removed from the tow, and in concluding as he doubtless did, that the striking of his barge at the end of pier 9 was related to that movement, or series of movements.

While the cause is in rem against the Overbrook, it is to be remembered that the Kipp was in a Pennsylvania tow, and none but Pennsylvania tugs are shown to have handled any of the barges after the Baltimore hung them on pier 7.

If the wrong tug has been sued, that ends the case; if the right tug has been sued, but the wrong version of her maneuvers has been thus far advanced, and the true facts are available from witnesses who are accessible, and the sum involved is not too trivial to justify further effort, the case could be reopened pursuant to motion on notice, and a later motion to conform the pleadings to the proof could be dealt with in the light of whatever might be developed from such new testimony to be taken at a subsequent hearing.

Settle decree dismissing libel without costs.