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2 F.(20) 418 in this case. But, even if I should be mis- authority of Mr. Broadhurst to designate one taken in this view, I think Mr. Gruber is now year as the additional time the company deestopped from claiming that he is not the sired. proper party to receive the renewal money. “If the law had remained as stated in the Both parties acted on the theory that Mr. Minshew Case, the real controversy between Gruber was the proper party to receive the Mr. Gruber and the Lumber Company would renewal money. The Bellingers at no time have revolved around the right of Mr. Broadhave made any claim to it. There was no hurst to bind the company to his designation suggestion by Mr. Gruber at any time or by of one year, and upon that issue the authorthe Lumber Company that the. Bellingers ity of Mr. Broadhurst would be material, were entitled to the renewal money. . It is and it would be material to decide the contrue that Mr. Gruber testifies that he had flicting testimony of Mr. Broadhurst and Mr. in mind that he was not entitled to it, but Gruber upon that point. But the Supreme he nowhere made any such statement to the Court, in a case decided shortly after that Lumber Company.

controversy arose, to wit, on April 30, 1917, “The whole course and conduct of the in the case of Lumber Co. v. Johnson, 107 transaction between the two parties showed S. C. 147, 92 S. E. 271, held that it was not that they were resting their respective claims necessary to designate the number of years and rights upon the Bellinger deed. Mr. of extension desired, and in the later case Gruber accepted the $30 and receipted for it, of Bethea v. Lumber Co., 111 S. C. 97, 96 and the receipt itself shows on its face that it S. E. 717, approved the decision of Lumber was to be a renewal of the rights under the Co. v. Johnson, and also held that the simBellinger deed. It is true that Mr. Gruber ple act of payment extended the right to cut. testified that another receipt had been pre

"Under these decisions, all controversy as viously offered to him, which varied the Bellinger deed, and for that reason he declined to any receipt at all being required is elimi

to the designation being for one year and as to sign it; but, so far from this showing nated, and all questions relative to that conthat Mr. Gruber, in accepting the renewal

In money, was not accepting it under the terms troversy, therefore, fade from the case. of the Bellinger deed, it rather shows to the that controversy, it is clear that both parties contrary. It would appear that he objected looked to the Bellinger deed to ascertain their to signing the original receipt because it va- respective rights. ried the terms of the Bellinger deed, and,

"The question therefore arises upon the when the company did present him with a estoppel. Mr. Gruber has cited a number of receipt which did not vary the terms of the South Carolina cases and other authorities Bellinger deed, he signed it and merely con

which have been carefully considered. Withtented himself with inserting the words, 'the out taking them up specifically, I do not company desiring renewal for the one year

think that there is anything in them to preas above stipulated.'

vent the application of the doctrine of es

Mr. Gruber in “The real controversy at that time between toppel in the present case. Mr. Gruber and the Lumber Company re

his brief has the following quotation from volves around the effect of that addition to

Corpus Juris: the receipt. Mr. Gruber is a lawyer, and

'Essential Elements In General.-In orno doubt was familiar with the case of Min- der to constitute this kind of estoppel there shew v. Lumber Corporation, 98 S. C. 8, 81 must exist a false representation or concealŞ. E. 1027. In that case, the court laid down ment of material fact; it must have been the rule that, where a party desired a timber made with knowledge, actual or constructive, extension, he must tender and pay the amount of the facts; the party to whom it was made agreed upon in advance and indicate the ad- must have been without knowledge or the ditional number of years he would claim.

means of knowledge of the real facts; it That was understood to be the law at the must have been made with the intention that time the company tendered to him and he it should be acted upon; and the party to accepted the $30 on April 12, 1917. He tes- whom it was made must have relied on or tifies that he asked Mr. Broadhurst whether acted upon it to his prejudice. To constithey desired more than one year and that tute an "estoppel in pais” there must con, ' Mr. Broadhurst stated that the company de- cur an admission, statement, or act inconsired one year, and he thereupon made the sistent with the claim afterward asserted, interlineation referred to. Thereupon, later, action by the other party thereon and inthe Lumber Company, no doubt acting upon jury to such other party. There can be no the advice of counsel, practically denied the estoppel if either of these elements is want

ing. They are each of equal importance.' 21 that receipt constituted an entirely new and Corpus Juris, 1119, 1120.

different agreement, whereby he regranted If we test the case by this statement of to the Lumber Company the right to the the law, I do not see that there can be any timber and to another period of one year doubt about the estoppel. Mr. Gruber cer- to take the same from the land. What I tainly accepted the money and certainly ac- have said before in connection with the quescepted it as the renewal money under the tion of estoppel would sufficiently dispose Bellinger deed. That act of receiving the of this question likewise. money is certainly inconsistent with the "I cannot find anything in the whole course claim that he now asserts that he was not and conduct of the parties and their negotiathe proper party but that it should be paid tions which would lend color to the idea that to the Bellingers. The mere fact that he the parties thought they were entering into did not actually say in words to the Lum- an absolutely new and independent contract, ber Company that he was the proper party by which Mr. Gruber sold them the timber can make no difference. The Lumber Com- in question with the right of entry for one pany certainly acted upon the theory that year for the purpose of removing the same. they had paid the money to the proper par. In addition to what has already been stated, ty. If Mr. Bellinger had refused to accept it is to be noted that as far as the testimony the money on the ground that he was not the shows, no part of the timber has ever been proper party to receive it, but the Belling- removed. The original price of the timber ers, the company would undoubtedly have was $500, and it is not to be supposed that it taken steps before their time expired to. had decreased in value. have made a tender to the Bellingers, and in "It would seem to be extremely unlikely, such case Mr. Gruber would have been estop- therefore, that Mr. Gruber would sell this ped from claiming that the Bellingers were timber by a new and independent contract not the proper parties. But nothing of that for the sum of $30, even though the time sort occurred. He accepted the money as if of removal should be restricted to one year. he stood in the shoes of the Bellingers and This in itself is a strong circumstance to inhas never offered to return it.

dicate that the parties really had in mind a "Mr. Gruber also contends, however, that carrying out of the Bellinger deed and not the matter depends upon the construction of entering into a new and independent conthe Bellinger deed, and that the Lumber tract. Moreover, as has been pointed out, Company therefore could have construed the Mr. Gruber himself testified that he was undeed as well as he; but that is beside the willing to extend the terms of the Bellinger mark. The point is that both of them, by deed. He was apparently unwilling to entheir conduct and course of negotiation, con- ter into a new and independent contract. He strued the Bellinger deed as requiring the re- was evidently standing upon the Bellinger newal money to be paid to Mr. Gruber and deed and upon the Minshew Case. I cannot to the Bellingers. It is a familiar rule not, under the testimony and the stipulated that, where both parties to a contract act facts, find that the payment of the renewal upon a certain construction of it, that con

money by the Lumber Company and the givstruction is, in general, controlling, and I ing of the receipt by Mr. Gruber constituted see no reason why the rule should not be any new and independent contract. applied to the case of subsequent grantees "It is therefore ordered, adjudged, and and others who are interested in the same decreed that the title to the timber specified contract, so that they should be bound by in the Bellinger deed on the tract of land the construction that they have both adopted. described in the complaint as No. 4 and Even if the original Bellinger deed, under known as Rotherwood, is in the defendant the case of Richardson v. Cooler, requires the Savannah River Lumber Company, in that the renewal money should be paid to accordance with the terms and conditions the Bellingers, I hold that the conduct of set forth in the Bellinger deed by reason of the parties in this case has been such that the payment to Mr. Gruber of the sum of Mr. Gruber is estopped from making such $30 on April 12, 1917, and the tender to him claim, and that the tenders to him under all of like amounts in subsequent years. the circumstances of this case are good and

“It is further ordered, adjudged, and debinding upon him.

creed that the complaint, as to the defend“Mr. Gruber's second contention is that ant the Savannah River Lumber Company, the renewal money of $30 paid to him was

be and the same is hereby dismissed." not paid to him as renewal money under the terms of the Bellinger deed, but that the pay- W. B. Gruber and M. P. Howell, both of ment of that money and the giving by him of Walterboro, S. C. (Howell & Fishburne and

2 F.(20) 427 J. C. Lemacks, all of Walterboro, S. C., on other testimony of prohibition agent that he the brief), for appellants.

went into hotel room, found two glasses of

beer and empty beer bottle on table therein, and A. B. Lovett, of Savannah, Ga., and G. L. saw two men in the room, in absence of evi. B. Rivers, of Charleston, S. Ć. (J. M. Moor- dence that defendants were present in the room,

or bad sold or served the beer. er, of Walterboro, S. C., Hitch, Denmark & Lovett, of Savannah, Ga., Padgett & Moor- In Error to the District Court of the er, of Walterboro, S. C., and Hagood, Riv- United States for the Northern Division of ers & Young, of Charleston, S. C., on the the Western District of Washington; Edbrief), for appellee.

ward E. Cushman, Judge. Before WOODS, WADDILL, and ROSE, Elsie Lochnane and Mildred White were Circuit Judges.

convicted of the unlawful possession of in

toxicating liquor, and they bring error. RePER CURIAM. We are not prepared versed. to assent to the construction placed by the District Judge on the decision of the Su

Edward H. Chavelle, of Seattle, Wash., preme Court of South Carolina in Richard- for plaintiffs in error. son v. Cooler, 115 S. C. 102, 104 S. E. 305.

Thos. P. Revelle, U. S. Atty., and J. W. On that point it is not necessary to express Hoar, Asst. U. S. Atty., both of Seattle, an opinion. We adopt the reasoning of the Wash. District Judge on which he reaches the con- Before GILBERT, ROSS, and HUNT, clusion that Mr. Gruber is estopped, and on Circuit Judges. that ground affirm the judgment. Affirmed.

HUNT, Circuit Judge. Plaintiffs in error, Lochnane and White, were convicted of unlawful possession of intoxicating liquor. Before the trial of the case the court over

ruled defendants' motion to suppress certain LOCHNANE et al. v, UNITED STATES,

evidence, on the ground that the affidavit (Circuit Court of Appeals, Ninth Circuit. No- upon which the search warrant was based vember 10, 1924.)

failed to state any facts upon which the No. 4313.

commissioner could have based a finding of 1. Intoxicating liquors em 248–Affidavit charg. probable cause, and that the search and seizing hotel proprietor with possession, trans- ure were void and illegal, as made in violaportation, and sale of liquor, without state- tion of the Fourth and Fifth Amendments to ment of evidentiary facts, held insufficient.

Federal prohibition agent's affidavit, that the Constitution. damed proprietors of described hotel had been The affidavit upon which the search warand were "possessing, transporting, and selling rant issued was made by G. B. O'Hara, who intoxicating liquor for beverage purposes" on the hotel premises, without a statement of the deposed that he was a federal prohibition evidentiary facts, held insufficient for issuance agent; that a crime was being committed in of search warrant, under Const. U. S. Amends. 4, 5, and Espionage Act, tit. 1. 85 (Comp. St. Seattle, Wash., in that one Myrtle Olson, 1918, Comp. St. Ann. Supp. 1919, § 10212e). Mildred White, and Ray Johnson, proprie2. Searches and seizures m3—Judicial officer tors, had been and then were “possessing, not authorized to issue search warrant, in ab. transporting, and selling intoxicating liquor, sence of affidavit or deposition showing the all for beverage purposes, on the premises facts.

Under Espionage Act, $ 5 (Comp. St. 1918, described as Ottawa Hotel, 818 First avenue, Comp. St. Ann. Supp: 1919, § 10212e), a ju- Seattle, Wash., and on the premises used, 'rant, must have before him, by affidavit or dep: operated, and occupied in connection thereosition, the facts tending to establish the with,

all of said premises being grounds of the application, or probable cause

occupied or under the control of said Myrtle for believing that the facts exist.

Olson, Mildred White, and Ray Johnson, 3. Criminal law e394—Evidence obtained by all in violation of the statute in such cases

means of illegal search warrant held inadmis. sible.

made and provided.” Based upon that affiEvidence obtained by means of illegal search davit a search warrant, following the lanwarrant held inadmissible.

guage of the affidavit as to "possessing, 4. Criminal law w 1169 (2)—Admission of evi- transporting, and selling intoxicating liqdence obtained by means of illegal search warrant held ground for reversal, notwithstanding uor," upon the premises described in the afiother evidence.

davit, was issued, and upon service of the In prosecution of hotel proprietors, for pos- warrant upon one of the defendants and session of intoxicating liquor, admission of evi- search of a room found to be locked, the key dence obtained by means of illegal search warrant held ground for reversal, notwithstanding to which was produced by Mildred White, one of the defendants, a quantity of intoxi- the void search warrant and the quantity of cating liquor was found. Upon the trial liquor found in the room illegally searched. there was evidence that defendants Mildred Our conclusion is that, inasmuch as the White and Elsie Lochnane were in control rights of the defendants were materially of the hotel.

prejudiced by the overruling of the motion [1,2] We are of opinion that the mere to suppress the evidence, defendants are ensworn general statements that a proprietor titled to a reversal of the judgment against of a hotel at a certain place is unlawfully them. possessed of intoxicating liquor for beverage Judgment is reversed. purposes, or is transporting or selling the same, is not sufficient to warrant a judicial finding of probable cause for the issuance of a search warrant which directs a search of the hotel named. It is fundamental that under title 1, section 5 of the Espionage

MEMPHIS FURNITURE MFG. CO. v. Act, 40 Stat. 228 (Comp. St. 1918,

WEMYSS FURNITURE CO. Comp. St. Ann. Supp. 1919, § 10212e), before a judicial officer is authorized to (Circuit Court of Appeals, Sixth Circuit. No

vember 7, 1924.) issue a search warrant, he must have before him, by affidavit

No. 4000. or deposition, the facts tending to establish the grounds I. Contracts on 10(4)-Contract held not inof the application, or probable cause for be

valid for want of mutuality. lieving that the facts exist. Tested by this manufactured held not invalid for want of mu

A contract for the sale of furniture to be requirement, the affidavit under considera- tuality or certainty, because of a provision, tion is fatally defective. It lacks any state- subject to our ability to ship,” where it was ment of an evidentiary fact tending to show shown that the parties had previously dealt that the defendants illegally possessed intox- under similar contracts and that the provision icating liquor, or were transporting or selling certainty at the time of obtaining and

keep. liquor. Not a circumstance is set forth tend- ing the required skilled labor for the manu

facture, which was understood by the buyer, ing to show that affiant had

knowledge

any to support his conclusion. When the validity 2. Sales Owl (3)-Contract need not directly

fix price. of such an affidavit was before the Circuit

To constitute a sale, the price need not Court of Appeals for the First Circuit (Giles be definitely fixed at the time the sale is efv. United States, 284 F. 208, 214), the court fected, if the contract contains express or imsaid: “It is not enough that the form of plied provisions by which it may be rendered this affidavit leaves it possible that the affiant might have personal knowledge as to the 3. Contracts ww 153—Construed in favor of

mutuality. possession of intoxicating liquor and as to

A contract will be construed in favor of facts tending to show that such possession mutuality, and given that construction which was illegal. It should have afirmatively will make it valid and binding, instead of a

construction which would make it void and appeared that he had personal knowledge unenforceable. of facts competent for a jury to consider, 4. Appeal and error 1068 (4) - Contradictoand the facts, and not his conclusion from ry instructions held not prejudicial. the facts, should have been before the com- Inconsistent and contradictory instructions missioner.” Tynan v. United States (C. C. are in general ground for reversal, but where

they related to the measure of damages, and A.) 297 F. 179; Woods v. United States (C. the verdict of the jury was manifestly based on C. A.) 279 F. 706. With that view we agree. the theory of the plaintiff in error, they were

not prejudicial. [3, 4] Counsel for the government say that, even if it be held that the search war- In Error to the District Court of the Unitrant was void, the circumstances are suched States for the Western District of Tenthat no search warrant was necessary. The nessee; J. W. Ross, Judge. contention is based upon the testimony of a

Action at law by the Wemyss Furniture prohibition agent that he went into a room in the hotel and found two glasses of beer Company against the Memphis Furniture upon a table and an empty beer bottle, and Manufacturing Company. Judgment for saw two men in the room. There is no evi- plaintiff, and defendant brings error. AF.

firmed. dence that any of the defendants were present in the room, or had sold or served the The Wemyss Furniture Company, hereaftbeer. We think it evident that the ver- er called the plaintiff, recovered a judgment dict was based upon the principal evidence, against the Memphis Furniture Manufacall of which pertained to the execution of turing Company, hereafter called the defend2 F.(20) 428 ant, for breach of contract. Reversal of consent to use designs; if not, selection to such judgment is sought.

be made from regular line.” On November About November 1, 1919, Janes, president 26, plaintiff wrote defendant that it would of defendant, and Miller and Couch, of fur- be in position to take care of defendant on niture companies located in Oklahoma and the pattern selected, and, having procured Little Rock, Ark., respectively, visited plain- the eastern jobber's consent to the use of tiff's plant at Evansville, Ind., to buy fur- the special designs, mailed, on January 8, niture. Throughout that year the furniture 1921, to defendant an acceptance of its ormarket was very active. Jobbers, to meet der, which acceptance, after enumerating the demands of trade, purchased extensively, the items and styles of articles sold, proand prices advanced about every 30 days. vided as follows: "Due to the uncertainty The cost of wages and raw material likewise of manufacturing, this order is accepted advanced, and difficulty was' experienced by subject to prices in effect on shipping date, manufacturers in obtaining and keeping la- and our ability to ship. Your valued orbor and procuring needed material. Pro- der received and entered as above." Thereducing companies, on account of labor con- after the plaintiff began the fabrication of ditions, were not in a position to produce the goods sold. their normal output. Labor took advantage On March 22, defendant, on account of of the market situation, and jobbers bought the overcrowded condition of its warehouse, to an extent which might be deemed specu- requested plaintiff, to make no further shiplative, and, as it sometimes proved, overload- ments on the unfilled order for at least 60 ed themselves. The continuing changes in to 90 days. Its purpose was to secure a the cost of production necessitated corre postponement of shipments on both its Nosponding increases in the selling price of vember order and its order given in the pregoods, and manufacturers, therefore, includ- ceding June for goods of the value of about ing plaintiff, began to accept orders subject $22,000, which, on account of the excessive to prices in effect on date of shipment at . number of its orders, the plaintiff had been their factories and their ability to ship. The unable entirely to fill. The plaintiff so unplaintiff and furniture manufacturers gen- derstood, and notified defendant that the erally had oversold, and were not in a posi- goods purchased by it were in process of tion to fill orders promptly, which fact was manufacture, and that work on them would communicated to Janes and Miller. They be put aside and their shipment delayed, as were, however, willing to buy, notwithstand- requested. In response the defendant wrote ing the necessary delay in shipment. Prices on March 26 that it was impossible for it to were the highest ever known by any of the take care of further shipments inside of 60 parties to this litigation, and were still ad- to 90 days, and again requested no earlier vancing, and were expected to continue to shipments be made. At that time the plaindo so, although Janes knew a decline was tiff had purchased all the materials (which coming, but did not know when.

were then at the highest price) necessary to Whether the defendant's order given on

filling the order and had expended a considthe November visit to plaintiff's factory was erable sum in manufacturing the goods, and, for the styles of furniture known as Nos.

on account of the unusual conditions in the 202 and 203, and was substituted for anoth- furniture business, had endeavored to comer order given on the same date for styles plete its work on them as soon as practicaNos. 36 and 37, is unimportant, for the rea- ble, and could have done so within 40 days. son the contract on which this action is bas. At no time after March 22 did the defended was for furniture bearing the two first ant request the shipment of goods, nor did named numbers. The furniture purchased it at any time complain of want of promptwas of a special pattern or design of the ness on plaintiff's part in making and shipLouis XV period, and was made for a New ping them, or suggest that they were to York jobber, H. Herman Manufacturing have been shipped in 60 days from the date Company, but in reality for the Hudson of the order, as claimed on the trial. Metal Bed Company. A pencil memoran- On May 3, plaintiff's factory was closed dum of the precise quantity of goods desir- by a strike for a period of more than two ed was made by Miller, who also placed an months, excepting as to some of the shop order for the same styles of furniture, on foremen. At the end of that period manuwhich memorandum was stamped: “Prices facturing was resumed with such , men as prevailing at time of shipment and subject plaintiff was able to get and acquaint with to our ability to ship. Contingent on wheth- its work, but the number did not exceed more er or not we can get H. Herman Mfg. Co.'s than 60 per cent of its usual force, until the

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