2 F.(2d) 29 sold for delivery at London. The terms of the contract gave much liberty to the seller, and by so doing indicated that the buyer was chiefly interested in the ultimate delivery of the hemp to him. It was agreed the shipment might be made from any recognized shipping port or ports in the Philippine Islands, or from Hong Kong or Singapore, at any time within a three months interval between October 1 and December 31. The shipment might be direct or indirect. It was in fact made from Manila in due season, but on a bill of lading which called for delivery at Hong Kong. At the last-named port, subsequently to December 31, the hemp was put upon another ship, and there was issued for it a new bill of lading from Hong Kong to London. Mr. Justice Scrutton held that the seller was bound within the time named in the contract to ship at the port of shipment goods of the description contained in the contract, and on shipment to procure a contract of affreightment under which the goods would be delivered at the destination contemplated by the contract. He said, if when the seller ships goods sold c. i. f. London, he has no contract for car riage to London, but only an intention to make one, he cannot forward this and tender an intention to the buyer. He further said that a seller c. i. f. must ship his goods under a contract for conveyance to the port of destination which can be transferred, and not under a contract for part of the way and to take another which cannot be transferred. Now it is true, as it is pointed out by the learned counsel for the seller, that the contract here is not a c. i. f. contract, but it is one under which the buyer had an insurable interest, and is therefore one which, so far as this question is concerned, is governed by the same principle. Moreover, at all events, Landauer v. Craven & Speed is one of the many cases which hold that the character of the shipment is fixed at the time it is made, a principle which has received new and recent affirmation by the House of Lords in Hansson v. Hamel & Horley, L. R. 1922, 2 App. Cases 36. [2] We in the past have had more than one occasion to hold that in mercantile contracts the courts must give effect to every term in the bargain the parties have chosen to make, and are not at liberty to speculate whether they did or did not attach importance to something they wrote. As, for example, in The Manhattan, 284 F. 310, we accepted as settled law that a purchaser of grain to be shipped by one ship could not be required to take it if it came in anRehearing denied November 21, 1924. other, and that we could not inquire whether every possible purpose of the buyer would not be as well served by that which was brought in the substitute. From much which was said by the tribunals which have heretofore passed upon the obligation of buyers to accept sugar from the West Cheswald, it would seem that it is at least possible that their conclusions were influenced not a little by their natural desire to prevent purchasers on a rapidly falling market from escaping from a bad bargain, by taking advantage of a variation from the terms for which they in fact cared nothing. Such considerations have much less weight in construing and enforcing the agreements of business men than the courts may properly give to them when they are called upon to deal with contracts of a less strictly mercantile character. In this respect we can add nothing to what has been so forcibly said in the quotations made from Mr. Justice Gray in this country and from Lords Cairns and Blackburn in England. Our examination of the cases which in this country and across the water have put a definite interpretation on the meaning of the word "shipment," as used in contracts of the character of that with which we are here concerned, has convinced us that the instant case is not distinguishable from them, and is governed by what the Supreme Court there said. It follows that the learned court below erred in rejecting the prayer of the defendant for a directed verdict in its favor, and in consequence the judgment below must be reversed, and the case remanded for a new trial. 2. Executors and administrators 535—Judg. Under law of Georgia, judgment in case to 3. Executors and administrators 537(10) Direction of verdict against administrator's surety in action for devastavit by him held not error. In action against surety on administrator's bond, to recover for devastavit by him, where there was no evidence controverting prima facie case made by decree in another case, to which administrator was party, fixing amount of prin cipal's liability, it was not error to direct verdict for plaintiff for such amount. 4. Evidence 174(4)-Carbon copy of letter properly mailed, reply to which had been received, held admissible. Where evidence established writing, stamping, addressing, and mailing of a letter to defendant in another jurisdiction, and receipt in due course of mail of a reply, carbon copy of letter was admissible, though original was not accounted for, and though no demand for its production had been made. In Error to the District Court of the United States for the Southern District of Georgia; William H. Barrett, Judge. Action by E. G. Simmons, receiver of the estate of H. L. Jenkins, deceased, against the Maryland Casualty Company. Judgment for plaintiff, and defendant brings error. Affirmed. Leonard Haas and H. A. Alexander, both of Atlanta, Ga., and A. L. Miller, of Macon, Ga. (Underwood, Pomeroy & Haas, of Atlanta, Ga., on the brief), for plaintiff in error. Geo. S. Jones, of Macon, Ga., and C. C. Crockett, of Dublin, Ga. (Jones, Park & Johnston, of Macon, Ga., on the brief), for shown by the following extract from the bill of exceptions: "The court then stated: '1 will hear argument on that question, just as if evidence had been offered that attacked the decree.' After argument the court sustained the objection to any evidence attacking the decree, and directed a verdict for the plaintiff for the full amount of principal and interest claimed in the suit, to which action of the court exception was taken and allowed." [1] A reversal of the judgment is sought on the ground that the court erred in its above-mentioned ruling as to evidence. The judgment cannot be reversed because of that ruling, for the reason that it is not made to appear what evidence the defendant desired to introduce. It is well settled that, for a ruling rejecting evidence to be a ground for reversal in a case at law, the evidence rejected, or a statement of what it tended to prove, must appear in the bill of exceptions. Herencia v. Guzman, 219 U. S. 44, 31 S. Ct. 135, 55 L. Ed. 81; Packet Co. v. Clough, 20 Wall. 528, 22 L. Ed. 406; Patrick v. Graham, 132 U. S. 627, 10 S. Ct. 194, 33 L. Ed. 460; Ladd v. Missouri Coal & Mining Co., 66 F. 880, 14 C. C. A. 246; rule 11, U. S. Circuit Court of Appeals, Fifth Circuit. The evidence desired to be introduced by the defendant was not so disclosed or of fered as to make the court's action in rejecting it available in an appellate court. [2, 3] It is not questioned that under the defendant in error. law of Georgia the above-mentioned decree Before WALKER, BRYAN, and KING, against the principal in the bond sued on Circuit Judges. WALKER, Circuit Judge. This was an action against the plaintiff in error, Maryland Casualty Company, the surety on an administrator's bond, seeking to recover the amount of an alleged devastavit by the principal in the bond. It was admitted that a court of competent jurisdiction had rendered a decree in a case to which the principal was a party, adjudging that there had been a devastavit by him to the amount of the sum sued for. The bill of exceptions shows the following: Upon it being made known to the court that the defendant proposed to offer evidence attacking the above-mentioned decree, the court said to plaintiff's counsel: "Any evidence that is introduced by the Maryland Casualty Company for the purpose of attacking the decree you object to?" In answer to this question plaintiff's counsel replied: "Yes, sir." What then occurred is constituted prima facie evidence against the surety. Bryant v. Owen, 1 Ga. 355; Shipp v. McCowen, 147 Ga. 711, 95 S. E. 251. There was no evidence controverting the correctness of the finding embodied in that decree as to the amount for which the princi pal was liable. It was not error to direct a verdict for the plaintiff for the amount for which the uncontroverted evidence adduced showed the defendant was liable. [4] After a witness for the plaintiff had testified that he was a practicing attorney at Dublin, Ga., that he wrote a letter to the defendant, which was properly stamped and addressed to defendant at Baltimore, Md., that he mailed that letter, that he kept a carbon copy of it, and received a reply to it by due course of mail thereafter, the plaintiff offered in evidence the carbon copy and the reply produced by the witness. Defendant objected to the admission of such carbon copy, on the ground that there had been no showing as to where the original 2 F.(2d) 31 was, and no notice to produce it, and because the execution of such reply had not been proved. That objection was overruled. It seems that it was permissible to admit in evidence such carbon copy, as the evidence showed that that instrument was a carbon copy of a letter duly addressed and mailed to the defendant in another jurisdiction, and the receipt in due course of mail of a reply thereto. Savannah Bank & Trust Co. v. Purvis, 6 Ga. App. 275, 65 S. E. 35; Scofield v. Parlin & Orendorff Co., 61 F. 804, 10 C. C. A. 83. But, even if that ruling was not free from error, it would not be a ground for reversal. If the objection to the admission in evidence of the carbon copy mentioned had been sustained, the defendant's admissions and the other evidence adduced warranted the action of the court in giving the above Jas. L. Mayson, of Atlanta, Ga. (J. S. Watkins and P. C. O'Gorman, both of Augusta, Ga., and P. E. Johnson and Mayson & Johnson, all of Atlanta, Ga., on the brief), for plaintiff in error. Orville A. Park, of Macon, Ga., and W. W. Abbot, Jr., of Louisville, Ga. (M. C. Barwick, of Louisville, Ga., Jones, Park & Johnston, of Macon, Ga., and Phillips & Abbot, of Louisville, Ga., on the brief), for defendant in error. Before WALKER, BRYAN, and KING, Circuit Judges. WALKER, Circuit Judge. This was an action by the plaintiff in error, American Wholesale Corporation (herein referred to as the plaintiff), against P. R. Brown and C. S. Bryant on a note dated October 28, 1919, for $10,000 and interest from date at 8 per cent., payable on demand to C. S. Bryant Company, or order, signed by David Brown, and indorsed by "C. S. Bryant Company, by C. S. Bryant, Pres.," and, below that indorsement, by C. S. Bryant, who is herein referred to as the defendant. Defendant's answer to the petition contained averments to the following effect: Defendant admits that his name was written by him on the back of the note. After the execution of said note, and after it was due, the C. S. Bryant Company, desiring to use it as collateral with the Georgia Railroad Bank of Augusta, Ga., procured defendant to indorse said note solely for the purpose of securing a loan from said bank. When that loan was repaid, said note was returned to the C. S. Bryant Company. Inadvertently that company, by some of its officers or agents, forwarded said note to plaintiff without having erased therefrom the indorsement of defendant, and there was no purpose or intention upon the part of the defendant to become surety or indorser for the C. S. Bryant Company or said Brown to the plaintiff; nor was there ever any agreement or contract upon the part of the defendant to become surety or indorser to the plaintiff. Even if defendant's name had been placed upon said note as accommodation indorser, the undertaking by him was without consideration and void. There was judgment for the full amount of the note with interest against Brown, who made no defense, and who, so far as appears, never claimed or had any defense. At the conclusion of the evidence the court instructed a verdict in favor of the defend ant. There was judgment pursuant to such verdict. The action of the court in giving the above-mentioned instruction is duly presented for review. There was evidence to the following efOn January 5, 1921, the note sued on, containing the above-mentioned indorsements, was sent with a letter of that date from Bartow, Ga., to the plaintiff at Baltimore, Md. The following is a copy of that letter, omitting the date and address: "We want to know if we can get you to give us an extension until next fall for $10,000 of our account, with the inclosed paper as collateral. This party, Mr. P. R. Brown, has been one of our largest customers, but, making a short crop for the past two years, has gotten behind with us. Farmers in this section have not sold any of their cotton to amount to anything on account of the low prices, which causes us to have out quite a bit of money on our books, but we feel that it will all come right when cotton begins to move. We hope you can see your way clear to handle this paper for us. "Yours very truly, "csb/v. The C. S. Bryant Co." When that letter was written, the C. S. Bryant Company (most of the stock of which was owned by the defendant, who was its president and general manager) was indebted to plaintiff in the sum of about $15,000. The defendant then was, and for a number of years previously had been, personally well known to plaintiff's credit manager. Plaintiff retained the note, and about January 20, 1921, in reply to a letter from defendant, informed the latter that the requested extension until fall on $10,000 of the account would be granted. The "csb" at the bottom of the above set out letter meant that the defendant dictated that letter and personally attended to the matter it dealt with. Plaintiff carried until the fall of 1921 more than $10,000 of indebtedness owing by the C. S. Bryant Company. In November, 1921, plaintiff's credit manager talked with defendant at Bartow, Ga., in regard to that debt. On that occasion the note sued on, with defendant's indorsement on it, was shown to him, and he said nothing about it. In May, 1922, a lawyer, who held said note for collection, had an interview with defendant in regard to it, and showed the defendant the note and his indorsement on it, whereupon, after the defendant saw and admitted his signature, he admitted that he owed the debt, and promised to make a payment on it if the lawyer would come back in 30 days. There was other evidence in conflict with material parts of that above mentioned. The above-mentioned evidence furnished support for the inferences that the defendant was the person who acted for the C. S. Bryant Company in sending the note to the plaintiff as above stated, that he was then aware that his uncanceled indorsement was on the note, and that the note so indorsed and used by him was intended by him to have the effect of making him personally liable thereon to the plaintiff as surety or indorser. Such inferences are inconsistent with the maintenance of the defense set up by the defendant. [1, 2] We are of opinion that the abovementioned phase of the evidence tended to prove a state of facts which made the defendant liable on the note. That instrument, being payable on demand, under the law of Georgia was due immediately. Hotel Lanier Co. v. Johnson, 103 Ga. 604, 30 S. E. 558. It follows that defendant was an indorser after maturity. The fact that a note was overdue when it was indorsed does not keep the indorser from being liable on it as an indorser. De Hass v. Roberts, 70 F. 227, 17 C. C. A. 79, 30 L. R. A. 189; 8 C. J. 379. It cannot properly be said that the defendant incurred no liability if, with knowledge that his uncanceled indorsement remained on the note, he participated in sending it to the plaintiff as security for a requested extension of a debt, the granting of which was influenced by plaintiff's reliance on defendant's apparent liability as indorser. Though the attending circumstances had the effect of charging plaintiff with notice that the defendant's relation to the note was that of an accommodation indorser of overdue paper, the defendant's personal participation in procuring the acceptance of it, with his unexplained indorsement thereon, by the plaintiff as security for the requested extension, stands in the way of his having a defense based on the ground that he received no consideration from the payee of the note. 8 C. J. 264. [3] The conclusion is that the above-mentioned phase of the evidence adduced warranted a finding that defendant was liable on the note. Under all the evidence it was a question for the jury whether the defendant was or was not so liable. It follows that the court erred in giving the above-mentioned instruction. Because of that error the judgment is reversed, and the cause is remanded, with direction that a new trial be granted. Reversed. 2 F.(2d) 33 HUMBLE OIL & REFINING CO. v. HENDRIX. 1. Master and servant 108-Oklahoma Fac tory Act, requiring belt shifters, held applicable to pumping station. Oklahoma Factory Act, requiring belt shifters to be provided in factory or institution where machinery is used, held to apply to machinery operating pump at water station. 2. Master and servant 286(10)-Negligence in failing to supply belt shifter held for jury. Whether employer was negligent in failing to supply either clutch or belt shifter on engines in pumping plant held for jury. 3. Death 57, 64-Testimony infant son was industrious and turned earnings over to mother held admissible. In action by mother, sole surviving parent, testimony that deceased was industrious and saving and turned much of his earnings over to plaintiff, paid for family supplies, and had frequently stated that he was caring for his mother and would continue to do so, was admissible as against objection that complaint did not apprise defendant that such testimony would be offered, and that part of it was incompetent in any event. 4. Master and servant 258(12)-Complaint for injury by belt held to state cause of action. Complaint in action for death of minor son, caught by belt while shifting it, held to state cause of action. In Error to the United States District Court for the Eastern District of Oklahoma; Orie L. Phillips, Judge. Action at law by Anna Hendrix against the Humble Oil & Refining Company. Judgment for plaintiff, and defendant brings error. Affirmed. J. E. Williams, H. H. Brown, R. B. Brown, and Henry M. Furman, all of Ardmore, Okl., for plaintiff in error. Rutherford Brett and Rutherford H. Brett, both of Ardmore, Okl., and Ben F. Williams and John E. Luttrell, both of Norman, Okl., for defendant in error. Before SANBORN and LEWIS, Circuit Judges, and KENNEDY, District Judge. LEWIS, Circuit Judge. Defendant in error recovered judgment against plaintiff in error for damages on account of the death of her son, alleged to have been due to the negligence of the defendant below. A State statute gave to the next of kin the right to maintain an action when death is caused by wrongful act or omission, if the deceased might have maintained an action had he lived. The deceased was nineteen years of age at the time of his death, his father was dead, he was in the employ of plaintiff 2 F. (2d)-3 in error as engineer, and as such engineer was operating a pump at a water station near Milo, Oklahoma. The complaint alleges that while he was so engaged on July 8, 1921, "Said defendant had negligently failed and refused to equip said engine with guards, and had failed and refused to provide a clutch on either the drive shaft or the line shaft of said engine, and there was no way or means of shifting the belt from the active to the idle pulley on the line shaft, except to use a piece of pipe, pick handle or other similar device, and in attempting to perform his duties in this way, the said Hershel Hendrix was on said day and date caught by the belt and thrown on the drive wheel and killed." The It was further alleged that the deceased was plaintiff's only support, that he was in good health, earning $7 a day, and that his death was due solely to the negligence of the defendant in the respect stated. pump was used to pump water from a creek nearby into a storage tank, from which it was distributed for use. The building at the pumping station was about 20 feet wide and 40 feet long, and housed two 60horse power engines, one in each end of the building. They were connected by an overhead shaft. The line shaft above was equipped with an idle and an active pulley, so that the belt might be shifted from one to the other as required. One of the engines was in operation pumping water into the tank at the time Hendrix was killed. He had been in the employ of the defendant about tank would overflow, and when this occurred a year prior to his death. On occasion the it was necessary to stop the pump. There was no clutch on either the drive shaft or the line shaft for that purpose, nor was there a belt-shifter to throw the belt from the active to the idle pulley. When the plant was installed it appears to have been the purpose of the defendant to put on a belt-shifter, but that arrangement seems to have been only partly made and not completed. In any event, the record is convincing that there was no such provision on the day of the accident, nor for months theretofore. A belt-shifter seems to be a simple contrivance. If there had been one on the overhead or line shaft Hendrix, by operating its lever, could have shifted the belt from the active to the idle pulley, where it would have been held by the shifter, thus stopping the pump; and then by the same means, when it was desired to start the pump, he could have shifted it back on to the ac |