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2 F.(20) 29 sold for delivery at London. The terms of other, and that we could not inquire wheththe contract gave much liberty to the seller, er every possible purpose of the buyer would and by so doing indicated that the buyer not be as well served by that which was was chiefly interested in the ultimate de- brought in the substitute. From much which livery of the hemp to him. It was agreed was said by the tribunals which have herethe shipment might be made from any recog- tofore passed upon the obligation of buyers nized shipping port or ports in the Philip- to accept sugar from the West Cheswald, it pine Islands, or from Hong Kong or Singa- would seem that it is at least possible that pore, at any time within a three months in- their conclusions were influenced not a little terval between October 1 and December 31. by their natural desire to prevent purchasers The shipment might be direct or indirect. It on a rapidly falling market from escaping was in fact made from Manila in due season, from a bad bargain, by taking advantage of but on a bill of lading which called for de- a variation from the terms for which they livery at Hong Kong. At the last-named in fact cared nothing. Such considerations port, subsequently to December 31, the hemp have much less weight in construing and enwas put upon another ship, and there was forcing the agreements of business men than issued for it a new bill of lading from Hong the courts may properly give to them when Kong to London. Mr. Justice Scrutton held they are called upon to deal with contracts that the seller was bound within the time of a less strictly mercantile character. In named in the contract to ship at the port this respect we can add nothing to what has of shipment goods of the description con- been so forcibly said in the quotations made tained in the contract, and on shipment to from Mr. Justice Gray in this country and procure a contract of affreightment under from Lords Cairns and Blackburn in Engwhich the goods would be delivered at the land. Our examination of the cases which destination contemplated by the contract. in this country and across the water have He said, if when the seller ships goods sold put a definite interpretation on the meaning c. i. f. London, he has no contract for care of the word “shipment," as used in conriage to London,' but only an intention to tracts of the character of that with which make one, he cannot forward this and ten. we are here concerned, has convinced us that der an intention to the buyer. He further the instant case is not distinguishable from said that a seller c. i. f. must ship his goods them, and is governed by what the Supreme under a contract for conveyance to the port Court there said. of destination which can be transferred, and It follows that the learned court below not under a contract for part of the way erred in rejecting the prayer of the defendand to take another which cannot be trans- ant for a directed verdict in its favor, and ferred. Now it is true, as it is pointed out in consequence the judgment below must be by the learned counsel for the seller, that reversed, and the case remanded for a new the contract here is not a c. i. f. contract, but trial. it is one under which the buyer had an in- Reversed. surable interest, and is therefore one which, so far as this question is concerned, is gov

60 erned by the same principle. Moreover, at 45 Tujo (4.226. all events, Landauer v. Craven & Speed is MARYLAND CASUALTY CO. V. SIMMONS.* one of the many cases which hold that the character of the shipment is fixed at the time (Circuit Court of Appeals, Fifth Circuit. Octo

ber 25, 1924.) it is made, a principle which has received new and recent affirmation by the House of

No. 4411. Lords in Hansson v. Hamel & Horley, L. R.

1. Appeal and error Om 205–Exclusion of evi. 1922, 2 App. Cases 36.

dence not grounds for reversal, in absence of [2] We in the past have had more than

showing as to its nature or statement of what

it tended to prove. one occasion to hold that in mercantile con

Exclusion of evidence is not grounds for tracts the courts must give effect to every reversal in absence of showing as to evidence term in the bargain the parties have chosen rejected or statement as to what it tended to

prove. to make, and are not at liberty to speculate whether they did or did not attach import- 2. Executors and administrators Om 535—Judg.

mont establishing devastavit by administrator ance to something they wrote. As, for ex

prima facie evidence in action against his ample, in The Manhattan, 284 F. 310, we surety. accepted as settled law that a purchaser which administrator is party, adjudging that

Under law of Georgia, judgment in case to of grain to be shipped by one ship could

there has been devastavit by him, is prima not be required to take it if it came in an- facie evidence in an action against his surety.

*Rehearing denied November 21, 1924. Certiorari denied 45 S. Ct. 226, 69 L. Ed.

ror.

3. Executors and administrators 537(10) shown by the following extract from the bill

Direction of verdict against administrator's surety in action for devastavit by him held not

of exceptions: error.

“The court then stated: 'I will hear arIn action against surety on administrator's gument on that question, just as if evidence bond, to recover for devastavit by him, where had been offered that attacked the decree.' there was no evidence controverting prima facie case made by decree in another case, to which After argument the court sustained the obadministrator was party, fixing amount of prin: jection to any evidence attacking the decree, cipal's liability, it was not error to direct verdict for plaintiff for such amount.

and directed a verdict for the plaintiff for 4. Evidence Cu 174(4)-Carbon copy of letter

the full amount of principal and interest properly mailed, reply to which had been re- claimed in the suit, to which action of the ceived, held admissible.

court exception was taken and allowed.” Where evidence established writing, stamping, addressing, and mailing of a letter to de.

[1] A reversal of the judgment is sought fendant in another jurisdiction, and receipt in on the ground that the court erred in its due course of mail of a reply, carbon copy of above-mentioned ruling as to evidence. The letter was admissible, though original was not accounted for, and though no demand for its judgment cannot be reversed because of that production had been made.

ruling, for the reason that it is not made to

appear what evidence the defendant desired In Error to the District Court of the to introduce. It is well settled that, for a United States for the Southern District of ruling rejecting evidence to be a ground for Georgia; William H. Barrett, Judge.

reversal in a case at law, the evidence reAction by E. G. Simmons, receiver of the jected, or a statement of what it tended to estate of H. L. Jenkins, deceased, against prove, must appear in the bill of exceptions. the Maryland Casualty Company. Judg- Herencia v. Guzman, 219 U. S. 44, 31 S. Ct. ment for plaintiff, and defendant brings er- 135, 55 L. Ed. 81; Packet Co. v. Clough, 20 Affirmed.

Wall. 528, 22 L. Ed. 406; Patrick v. GraLeonard Haas and H. A. Alexander, both ham, 132 U. S. 627, 10 S. Ct. 194, 33 L. of Atlanta, Ga., and A. L. Miller, of Ma- Ed. 460; Ladd v. Missouri Coal & Mining con, Ga. (Underwood, Pomeroy & Haas, of Co., 66 F. 880, 14 C. C. A. 246; rule 11, U.

S. Circuit Court of Appeals, Fifth Circuit. Atlanta, Ga., on the brief), for plaintiff in

The evidence desired to be introduced by Geo. S. Jones, of Macon, Ga., and C. C. the defendant was not so disclosed or ofCrockett, of Dublin, Ga. (Jones, Park & fered as to make the court's action in reJohnston, of Macon, Ga., on the brief),

for jecting 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.

constituted prima facie evidence against the

surety. Bryant v. Owen, 1 Ga. 355; Shipp WALKER, Circuit Judge.

This was an v. McCowen, 147 Ga. 711, 95 S. E. 251. action against the plaintiff in error, Mary. There was no evidence controverting the corland Casualty Company, the surety on an rectness of the finding embodied in that deadministrator's bond, seeking to recover the cree as to the amount for which the princi. amount of an alleged devastavit by the prin- pal was liable. It was not error to direct a cipal in the bond. It was admitted that a verdict for the plaintiff for the amount for court of competent jurisdiction had ren- which the uncontroverted evidence adduced dered a decree in a case to which the prin- showed the defendant was liable. cipal was a party, adjudging that there had [4] After a witness for the plaintiff had been a devastavit by him to the amount of testified that he was a practicing attorney at the sum sued for. The bill of exceptions Dublin, Ga., that he wrote a letter to the shows the following:

defendant, which was properly stamped and Upon it being made known to the court addressed to defendant at Baltimore, Md., that the defendant proposed to offer evi- that he mailed that letter, that he kept a dence attacking the above-mentioned decree, carbon copy of it, and received a reply to the court said to plaintiff's counsel: “Any it by due course of mail thereafter, the evidence that is introduced by the Maryland plaintiff offered in evidence the carbon copy Casualty Company for the purpose of at- and the reply produced by the witness. Detacking the decree you object to?In an- fendant objected to the admission of such swer to this question plaintiff's counsel re- carbon copy, on the ground that there had plied: “Yes, sir.” What then occurred is been no showing as to where the original

error.

2 F.(20) 31 was, and no notice to produce it, and be- Jas. L. Mayson, of Atlanta, Ga. (J. S. cause the execution of such reply had not Watkins and P. C. O'Gorman, both of Aubeen proved. That objection was overruled. gusta, Ga., and P. E. Johnson and Mayson It seems that it was permissible to admit & Johnson, all of Atlanta, Ga., on the in evidence such carbon copy, as the evi- brief), for plaintiff in error. dence showed that that instrument was a Orville A. Park, of Macon, Ga., and W. carbon copy of a letter duly addressed and W. Abbot, Jr., of Louisville, Ga. (M. C. mailed to the defendant in another jurisdic- Barwick, of Louisville, Ga., Jones, Park & tion, and the receipt in due course of mail Johnston, of Macon, Ga., and Phillips & of a reply thereto. Savannah Bank & Trust Abbot, of Louisville, Ga., on the brief), for Co. v. Purvis, 6 Ga. App. 275, 65 S. E. 35; defendant in error. Scofield v. Parlin & Orendorff Co., 61 F.

Before WALKER, BRYAN, and KING, 804, 10 C. C. A. 83.

Circuit Judges. 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

WALKER, Circuit Judge. This was an evidence of the carbon copy mentioned had action by the plaintiff in error, American been sustained, the defendant's admissions Wholesale Corporation (herein referred to and the other evidence adduced warranted

as the plaintiff), against P. R. Brown and the action of the court in giving the above C. S. Bryant on a note dated October 28, mentioned direction for a verdict in favor 1919, for $10,000 and interest from date at of the plaintiff. The conclusion is that the 8 per cent., payable on demand to c. S. record shows no reversible error.

Bryant Company, or order, signed by DaThe judgment is affirmed.

vid 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 conAMERICAN WHOLESALE CORPORATION Defendant admits that his name was writ

tained averments to the following effect : V. BRYANT.

ten by him on the back of the note. After (Circuit Court of Appeals, Fifth Circuit. October 13, 1924.)

the execution of said note, and after it was

due, the C. S. Bryant Company, desiring to No. 4296,

use it as collateral with the Georgia RailI. Bills and notes On 29(3)-Demand note is road Bank of Augusta, Ga., procured dedue immediately.

fendant to indorse said note solely for the Under law of Georgia, instrument payable on demand is due immediately.

purpose of securing a loan from said bank. 2. Bills and notes 285—That note was over

When that loan was repaid, said note was due when indorsed does not relieve indorser returned to the C. S. Bryant Company. Infrom liability.

Fact that note was overdue when indorsed advertently that company, by some of its does not keep indorser from being liable there. officers or agents, forwarded said note to on.

plaintiff without having erased therefrom 3. Bills and notes On 537(1)-Liability of com- the indorsement of defendant, and there

pany's president on indorsement of note placed as collateral held question for jury. was no purpose or intention upon the part

In action against company's president on his of the defendant to become surety or inindividual indorsement of note of third person

dorser for the C. S. Bryant Company or forwarded to plaintiff as collateral, evidence held to raise question for jury as to whether note said Brown to the plaintiff; nor was there had been unintentionally forwarded while so indorsed, and whether there was lack of con

ever any agreement or contract upon the sideration for indorsement.

part of the defendant to become surety or

indorser to the plaintiff. Even if defendIn Error to the District Court of the ant's name had been placed upon said note United States for the Southern District of

as accommodation indorser, the undertaking Georgia; Wm. H. Barrett, Judge.

by him was without consideration and void. Action by the American Wholesale Cor- There was judgment for the full amount poration against C. S. Bryant and P. R. of the note with interest against Brown, Brown. Judgment for plaintiff against de- who made no defense, and who, so far as fendant Brown, and in favor of defendant appears, never claimed or had any defense. Bryant, and plaintiff brings error. Re- At the conclusion of the evidence the court versed and remanded for new trial.

instructed a verdict in favor of the defend

ant. There was judgment pursuant to such other evidence in conflict with material parts verdict. The action of the court in giving of that above mentioned. the above-mentioned instruction is duly pre- The above-mentioned evidence furnished sented for review.

support for the inferences that the defendThere was evidence to the following ef- ant was the person who acted for the C. S. fect: On January 5, 1921, the note sued Bryant Company in sending the note to the on, containing the above-mentioned indorse- plaintiff as above stated, that he was then ments, was sent with a letter of that date aware that his uncanceled indorsement was from Bartow, Ga., to the plaintiff at Balti- on the note, and that the note so indorsed more, Md. The following is a copy of that and used by him was intended by him to letter, omitting the date and address : have the effect of making him personally

“We want to know if we can get you to liable thereon to the plaintiff as surety or give us an extension until next fall for $10,- indorser. Such inferences are inconsistent 000 of our account, with the inclosed paper with the maintenance of the defense set up as collateral. This party, Mr. P. R. Brown, by the defendant. has been one of our largest customers, but, [1, 2] We are of opinion that the abovemaking a short crop for the past two years, mentioned phase of the evidence tended to has gotten behind with us. Farmers in this prove a state of facts which made the desection have not sold any of their cotton to fendant liable on the note. That instruamount to anything on account of the low ment, being payable on demand, under the prices, which causes us to have out quite a law of Georgia was due immediately. Hotel bit of money on our books, but we feel that Lanier Co. v. Johnson, 103 Ga. 604, 30 S. it will all come right when cotton begins E. 558. It follows that defendant was an to move. We hope you can see your way indorser after maturity. The fact that a clear to handle this paper for us.

note was overdue when it was indorsed does “Yours very truly,

not keep the indorser from being liable on “csb/v.

The C. S. Bryant Co.it as an indorser. De Hass v. Roberts, 70 When that letter was written, the C. S.

F. 227, 17 C. C. A. 79, 30 L. R. A. 189; Bryant Company (most of the stock of 8 C. J. 379. It cannot properly be said that which was owned by the defendant, who the defendant incurred no liability if, with was its president and general manager) was knowledge that his uncanceled indorsement indebted to plaintiff in the sum of about remained on the note, he participated in $15,000. The defendant then was, and for a sending it to the plaintiff as security for a number of years previously had been, per- requested extension of a debt, the granting sonally well known to plaintiff's credit man

of which was influenced by plaintiff's reliager. Plaintiff retained the note, and about ance on defendant's apparent liability as January 20, 1921, in reply to a letter from indorser. Though the attending circumdefendant, informed the latter that the re- stances had the effect of charging plaintiff quested extension until fall on $10,000 of with notice that the defendant's relation to the account would be granted. The "csb” the note was that of an accommodation inat the bottom of the above set out letter dorser of overdue paper, the defendant's meant that the defendant dictated that let- personal participation in procuring the acter and personally attended to the matter it ceptance of it, with his unexplained indorsedealt with. Plaintiff carried until the fall ment thereon, by the plaintiff as security of 1921 more than $10,000 of indebtedness for the requested extension, stands in the owing by the C. S. Bryant Company. In way of his having a defense based on the November, 1921, plaintiff's credit manager ground that he received no consideration talked with defendant at Bartow, Ga., in re- from the payee of the note. 8 C. J. 264. gard to that debt. On that occasion the [3] The conclusion is that the above-mennote sued on, with defendant's indorsement tioned phase of the evidence adduced waron it, was shown to him, and he said noth

ranted a finding that defendant was liable ing about it. In May, 1922, a lawyer, who on the note. Under all the evidence it was held said note for collection, had an inter- a question for the jury whether the defendview with defendant in regard to it, and ant was or was not so liable. It follows that showed the defendant the note and his in- the court erred in giving the above-mendorsement on it, whereupon, after the de- tioned instruction. Because of that error fendant saw and admitted his signature, he the judgment is reversed, and the cause is admitted that he owed the debt, and prom- remanded, with direction that a new trial ised to make a payment on it if the lawyer be granted. would come back in 30 days. There was Reversed.

2 F.(20) 33 HUMBLE OIL & REFINING CO. v. in error as engineer, and as such engineer HENDRIX.

was operating a pump at a water station (Circuit Court of Appeals, Eighth Circuit. near Milo, Oklahoma. The complaint alOctober 18, 1924.)

leges that while he was so engaged on July No. 6591.

8, 1921, 1. Master and servant en 108-Oklahoma Fac

“Said defendant had negligently failed tory Act, requiring belt shifters, held applic and refused to equip said engine with guards, cable to pumping station.

and had failed and refused to provide a Oklahoma Factory Act, requiring belt shift- clutch on either the drive shaft or the line ers to be provided in factory or institution where machinery is used, held to apply to ma- shaft of said engine, and there was no way chinery operating pump at water station.

or means of shifting the belt from the active 2. Master and servant 286(10)--Negligence to the idle pulley on the line shaft, except in failing to supply belt shifter held for jury. to use a piece of pipe, pick handle or other

Whether employer was negligent in failing similar device, and in attempting to perform to supply either clutch or belt shifter on engines in pumping plant held for jury.

his duties in this way, the said Hershel Hen3. Death 57, 64–Testimony infant son was drix was on said day and date caught by

industrious and turned earnings over to moth- the belt and thrown on the drive wheel and er held admissible.

killed.” In action by mother, sole surviving parent, testimony that deceased was industrious and It was further alleged that the deceased saving and turned much of his earnings over to was plaintiff's only support, that he was in plaintiff, paid for family supplies, and had frequently stated that he was caring for his moth- good health, earning $7 a day, and that his er and would continue to do so, was admissible death was due solely to the negligence of as against objection that complaint did not ap- the defendant in the respect stated. prise defendant that such testimony would be

The offered, and that part of it was incompetent in pump was used to pump water from a creek any event.

nearby into a storage tank, from which it 4. Master and servant em 258(12)-Complaint was distributed for use. The building at for injury by belt held to state cause of action. the pumping station was about 20 feet

Complaint in action for death of minor son, wide and 40 feet long, and housed two 60caught by belt while shifting it, held to state cause of action.

horse power engines, one in each end of the

building. They were connected by an overIn Error to the United States District head shaft. The line shaft above was equipCourt for the Eastern District of Oklahoma; ped with an idle and an active pulley, so that Orie L. Phillips, Judge.

the belt might be shifted from one to the Action at law by Anna Hendrix against other as required. One of the engines was the Humble Oil & Refining Company. in operation pumping water into the tank Judgment for plaintiff, and defendant brings at the time Hendrix was killed. He had error. Affirmed.

been in the employ of the defendant about

a year prior to his death. On occasion the J. E. Williams, H. H. Brown, R. B. Brown, and Henry M. Furman, all of Ard- tank would overflow, and when this occurred more, Okl., for plaintiff in error.

it was necessary to stop the pump. There

was no clutch on either the drive shaft or Rutherford Brett and Rutherford H. Brett, both of Ardmore, Okl., and Ben F. the line shaft for that purpose, nor was Williams and John E. Luttrell, both of the active to the idle pulley. When the

there a belt-shifter to throw the belt from Norman, Okl., for defendant in error.

plant was installed it appears to have been Before SANBORN and LEWIS, Circuit the purpose of the defendant to put on a Judges, and KENNEDY, District Judge. belt-shifter, but that arrangement seems to

have been only partly made and not comLEWIS, Circuit Judge. Defendant in er- pleted. In any event, the record is convincror recovered judgment against plaintiff in ing that there was no such provision on the error for damages on account of the death day of the accident, nor for months theretoof her son, alleged to have been due to the fore. A belt-shifter seems to be a simple negligence of the defendant below. A State contrivance. If there had been one on the statute gave to the next of kin the right to overhead or line shaft Hendrix, by operatmaintain an action when death is caused by ing its lever, could have shifted the belt from wrongful act or omission, if the deceased the active to the idle pulley, where it would might have maintained an action had he have been held by the shifter, thus stopping lived. The deceased was nineteen years of the pump; and then by the same means, age at the time of his death, his father when it was desired to start the pump, was dead, he was in the employ of plaintiff he could have shifted it back on to the ac

2 F.(20)-3

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