cans could be seen. No words or signs of recognition passed between the officers and the conductor until all the passengers had left the train at Winston-Salem, and no one apparently claimed the liquor. The officers then began pulling the whisky out of the car, for the purpose of getting it off the train, when plaintiff in error approached and inquired if they had the right to take the liquor off, to which the prohibition officer replied that he thought he had, and that he was taking it off anyway. The prohibition officer then went back into the next coach, and there found three one-gallon cans lying up in the hat rack. He asked the conductor if they were his, and he said they were not. Fifty-eight gallons in all, some 8 or 10 gallons more than a barrel, were taken from the train at that time.

The prohibition officer and the conductor were not acquainted with each other. The former said the latter was a little bit harsh in speaking to him when he inquired what he was going to do with the liquor, and that he informed the conductor that he had a search warrant, but did not show it to him, though he showed him his badge as an officer. The plaintiff in error does not deny having the interview in question with the prohibition officer, in respect to his removing the liquor from the train, but says he does not remember it. He testified that he had never knowingly transported liquor on his train, or had anything to do with its transportation, or knowingly permitted any one to carry and transport liquor thereon; that he had no knowledge of the presence of the liquor on this occasion, nor did he know whose liquor it was, or who put it where it was, and knew nothing about it. He further testified that the regular run of his train was from Roanoke, Va., to WinstonSalem, N. C., a distance of 121 miles, leaving Roanoke at 5:10 p. m. and arriving at Winston-Salem at 9:55 p. m.; that the route was largely through an agricultural country, with some small villages; that the passenger traffic was made up of persons carrying packages, handbags, sacks, and baggage of all sorts and descriptions; that there were 33 stations on the run; that traffic at the time was very heavy, and passengers got off and on at practically every station; that with a view of collecting tickets and fares he was required to go through the entire train after each stop; that, upon going through the train, he usually took a seat in the white smoker, being the rear compartment of the colored car, separated generally by a partition and swinging doors, and there made 2 F. (2d)-4

up his report before reaching another station, if possible; that he thought he occupied this position on the night in question; that he passed through the car at least 30 times that evening; that, in starting through, the first thing he did was to open the toilet door to see if any one was inside, but he did not do that all the time; that he had no recollection of seeing any unusual number of tow sacks going into the colored coach on the evening in question.

The case was submitted to the jury on this statement of facts. Under the charge of the court, the jury was instructed that the defendant could not be convicted of either transporting, or permitting or aiding and abetting in the transportation, of liquor on his train, unless they were satisfied beyond a reasonable doubt that he had knowledge of the presence of liquor, and permitted the train to go into Winston-Salem with the liquor upon it. The jury heard all the testimony, had the actors before them, saw their manner and deportment on the stand, and with this clear and comprehensive statement of the law from the judge, returned a verdict finding the plaintiff in error guilty.

[1] On this question of fact, the verdict of the jury is binding on this court, unless the same is not supported by testimony, or is plainly contrary thereto. It cannot be said that the testimony was not sufficient to support the verdict, or that the same was contrary to the evidence. Clearly it was ample to warrant the jury's finding, and the court's action thereon. Indeed, it is difficult to see that any other conclusion could well have been reached, having proper regard to the facts of the case, and the reasonable inferences to be drawn therefrom. Plaintiff in error was the conductor of the train. He had full and complete authority over the same, and to regulate the conduct of passengers and employés. He was charged with the duty reasonably to observe, see, and learn what was going on upon his train. He should have used his sight, his hearing, his sense of smell, and generally to have conducted himself with such degree of diligence as that infractions of the law would not occur in his presence without his knowledge, and he cannot escape the consequences of his neglect in these respects if violations of law actually took place. He should have seen, as far as reasonably lay within his power, that the laws of the country were observed on his train, especially as by the law of the state he was clothed with powers of a special policeman, with full authority to make arrests for offenses committed in

his presence. North Carolina Consolidated Statutes, § 3483; Brown v. Atlantic Coast Line R. Co., 161 N. C. 573, 77 S. E. 777. The liquors found on the train on this occasion were unquestionably being transported thereon in violation of the provisions of the Volstead Act (title 2, §§ 13 and 14 [Comp. St. Ann. Supp. 1923, §§ 101382ff, 10138/2g]), and were subject to seizure by this defendant under the provisions of section 26 of said act (Comp. St. Ann. Supp. 1923, § 1013812mm).

[2] It seems almost incredible that this large quantity of liquor, 55 gallons in all, could have been carried in a coach of this train, through which the conductor passed to and fro every few minutes, without his knowing or in some manner becoming aware of the same. The jury, in our judgment, was fully warranted in inferring that the defendant did have such knowledge, and that he either transported the liquors in question personally, or knowingly aided and abetted others in so doing.

Much was said in argument as to just what a conductor should do in handling liquors found on his train, and the disposition of such liquors and the arrest of persons found in possession thereof. Suffice it to say, respecting these several matters, they one and all become unimportant, as nothing was done with the liquor until the same was taken by the officers, and no person appeared to claim the same.

The judgment of the District Court will be affirmed.

Robert W. Kime, of Salem, Va. (Kime & Kime, of Salem, Va., on the brief), for plaintiffs in error.

E. W. Poindexter, of Roanoke, Va., and L. L. Moore, of Moultrie, Ga. (Kline & Moore, of Moultrie, Ga., and Poindexter & Poindexter, of Roanoke, Va., on the brief), for defendant in error.

Before WOODS, WADDILL, and ROSE, Circuit Judges.

WADDILL, Circuit Judge. The plaintiffs in error were defendants in the court below, and defendant in error was plaintiff. This action is in assumpsit to recover an indebtedness of $3,960.84, alleged to be due by defendants to plaintiff, with interest. The suit arose out of the following transactions:

The defendant in error, a corporation chartered and doing business in the state of Georgia, at Moultrie, was a wholesale lumber manufacturer. Plaintiffs in error were wholesale and retail lumber and building material dealers at Salem, Va. Morrell & McConnell, a copartnership doing business at Salem and Roanoke, Va., were building contractors, and as such secured a large portion of the lumber used by them from the defendant in error. Prior to the 10th of August, 1922, Morrell & McConnell were indebted to the defendant in error in the sum of $3,500 for lumber furnished, and about that time the plaintiffs in error took over the business and assets of Morrell & McConnell, including the lumber purchased by them from the defendant in error, and undertook to complete the contracts of Morrell & McConnell. Defendant in error thereupon applied to Morrell & McConnell and plaintiffs in error for the amount due them, to wit, $3,500, with the result that on the 10th of August, 1922, Morrell & McConnell gave the defendant in error an order on plaintiffs in error for $3,500, the same to be charged to their account. This order was

missible to add condition to unconditional trade acceptance.

Parol evidence of prior oral agreement held not admissible to add a condition to an unconditional trade acceptance, though parol evidence may be admitted to show that its delivery was conditional.

In Error to the District Court of the United States for the Western District of Virginia, at Roanoke; Henry Clay McDowell, Judge.

Action at law by the Ladson Lumber Company against J. J. Lewis & Sons. Judgment for plaintiff, and defendants bring error. Affirmed.

in 60 days. On the same day, to wit, August 10, 1922, a trade acceptance was drawn by the defendant in error on the plaintiffs in error, payable at the Farmers' National Bank, Salem, Va., on the 10th of October, said original order for $3,500, less 10 per 1922, for $3,150, being the amount of the cent. agreed to be paid by defendant in error to plaintiffs in error for accepting the same, together with interest at 8 per cent. from maturity, and costs of collecting the same, including 10 per cent. of principal and interest as attorney's fee. This trade acceptance for $3,150 was discounted by

once available for use in the marts of trade, and it was so received and used. What is attempted to be shown by parol? That the condition on which this acceptance was given was that the plaintiffs in error should be liable to pay the same only from moneys to be collected by them on account of Morrell and McConnell, with whom they were at the time engaged in large business transactions. It is entirely contrary to the express and specific undertaking entered into between the parties, plainly and unambiguously expressed, and would in effect destroy the same by substituting in lieu of its positive and unqualified provisions and promises something that would be wholly indefinite and uncertain, and in the end most likely prove utterly worthless.

In Brown v. Spofford, 95 U. S. 474, 480, 482 (24 L. Ed. 508), the Supreme Court had under consideration the precise question involved and determined the essential issues here. In speaking for the court, at page 480, Mr. Justice Clifford said:

"Where a bill of exchange was drawn in the usual form, and was protested for nonpayment, the court held 20 years ago that parol evidence of an understanding between the drawer and the party in whose favor the bill was drawn was inadmissible to vary the terms of the instrument. Brown v. Wiley, 20 How. 442. In that case the defendant offered to prove to the jury, pursuant to the defense set up in a special plea, a parol agreement between him and the plaintiffs, that the bill should not be presented for acceptance until funds were furnished and placed in the hands of the drawees, to provide for a certain other draft, who had agreed to accept the second bill when funds were received to meet their liability for accepting the first bill; but the court below excluded the evidence, and the defendant excepted, and this court decided that the ruling was correct, and affirmed the judgment, holding that the evidence offered, that the bill should not be presented until a distant, uncertain or undefined period, tended in a very material degree to alter and vary the operation and effect of the instrument. Shankland v. Washington, 5 Pet. 394; 1 Greenl. Evid. (12th Ed.) 318; Stackpole v. Arnold, 11 Mass. 27; Hunt v. Adams, 7 Mass. 518; Myrick v. Dame, 9 Cush. (Mass.) 248; Thompson v. Ketchum, 8 Johns. 192."

And at page 482 the court further said: "Parol evidence of an agreement, made contemporaneously with a promissory note which contains an absolute promise to pay at a specified time, is not admissible in or

der to extend the time for payment, or to provide for the payment out of any particular fund, or in any other way than that specified in the instrument, or to make the payment depend upon condition. Chitty, Contr. (10th Ed.) 99; Abrey v. Crux, Law Rep. 5 C. P. 41; Allan v. Furbish, 4 Gray, 514; 2 Pars. Bills and Notes 501." Bank v. Dunn, 6 Pet. 51, 8 L. Ed. 316; Specht v. Howard, 16 Wall. 562, 564, 21 L. Ed. 348; Forsyth v. Kimball, 91 U. S. 293, 23 L. Ed. 352; 22 C. J. § 1540, pp. 1148, 1151, and section 1663, pp. 1248 to 1253, inclusive.

Counsel for plaintiffs in error cite two cases in the Supreme Court, Ware v. Allen, 128 U. S. 590, 9 Sup. Ct. 174, 32 L. Ed. 563, and Burke v. Dulaney, 153 U. S. 228, 14 Sup. Ct. 816, 38 L. Ed. 698, and insist that under these decisions, and the doctrine enunciated therein, they are entitled to the relief sought here. We have given much consideration to the contention made, but are unable to concur in it, as the same is clearly distinguishable from that controlling in this, and hence those cases have no particular bearing under the facts here. They turn upon the insufficient and incomplete delivery of the paper or undertaking then under consideration. The rule controlling in such instances is entirely unlike that having to do with a paper complete within itself, and issued and delivered unconditionally. One relates to an incomplete transaction by reason of the failure to do something, or the doing of an act which operates to make the transaction inconclusive and unsettled between the parties, and is an infirmity inherent in the making thereof. The case here made is plain, unambiguous, and a concluded transaction; and the question involved is how far such a certain, positive, completed compact may be the subject of attack by parol testimony. The two cases recognize clearly this distinction, and that, even with a paper apparently complete on its face, as between the parties its conditional delivery may be shown 'as tending to establish the fact that it never became legally effective.

In Ware v. Allen, supra, 128 U. S. 590, 9 Sup. Ct. 174, 32 L. Ed. 563, Mr. Justice Miller said:

"We are of opinion that this evidence shows that the contract upon which this suit is brought never went into effect, that the condition upon which it was to become operative never occurred, and that it is not a question of contradicting or varying a written instrument by parol testimony, but that it is one of that class of cases, well recognized in the law, by which an instrument,

whether delivered to a third person as an escrow or to the obligee in it, is made to depend, as to its going into operation, upon events to occur or be ascertained thereafter." In Burke v. Dulaney, supra, 153 U. S. 233, 14 Sup. Ct. 818, 38 L. Ed. 698, Mr. Justice Harlan said:

"The issue here is between the original parties to the note. And the evidence offered by the appellant, and excluded by the court, did not in any true sense contradict the terms of the writing in suit, nor vary their legal import, but tended to show that the written instrument was never, in fact, delivered as a present contract, unconditionally binding upon the obligor according to its terms from the time of such delivery, but was left in the hands of Dulaney, to become an absolute obligation of the maker in the event of his electing, upon examination or investigation, to take the stipulated interest in the property in question."

In Pym v. Campbell, Court of Queen's Bench, 6 Ell. & Bl. 370, 373, cited by Mr. Justice Miller approvingly in Ware v. Allen, supra, 128 U. S. 590, 9 Sup. Ct. 174, 32 L. Ed. 563, Erle, J., succinctly gives the reason for the distinction, viz.:

"The point made is that this is a written agreement, absolute on the face of it, and that evidence was admitted to show that it was conditional, and, if that had been so, it would have been wrong. But I am of opinion that the evidence showed that in fact there was never any agreement at all. If it be proved that in fact the paper was signed with the express intention that it should not be an agreement, the other party cannot fix it as an agreement upon those signing. The distinction in point of law is that evidence to vary the terms of an agreement in writing is not admissible, but evidence to show that there is not an agreement at all is admissible.""

In this case the question of conditional delivery was left by the court to the jury, which found, and we think properly, in favor of the defendant in error, thereby establishing the delivery of the unconditional acceptance as a binding and valid undertaking between the parties.

Counsel for plaintiffs in error cite authorities to show that in Virginia the doctrine is as contended for respecting the right to assail the acceptance in question, naming Whitaker & Fowle v. Lane, 104 S. E. 252, 128 Va. 317, 344, 347, 11 A. L. R. 1157, decided in 1920, as the latest. A careful examination of the able and exhaustive opinion of Judge Burks in this recent case, at page 262

of 104 S. E., and pages 344 and 347 of 128 Va., supra, with the authorities there cited, will clearly show that the plaintiffs in error are entirely wrong in their interpretation of the Virginia authorities, and that the same in all respects sustain the views herein expressed, giving full recognition to the doctrine enunciated in the two federal cases of Ware v. Allen and Burke v. Dulaney, supra, so much relied on by plaintiffs in error.

The decision of the District Court will be affirmed.

WALLACE v. OHIO VALLEY BANK.

In re STAR CAR & FOUNDRY CO. (Circuit Court of Appeals, Fourth Circuit. September 29, 1924.)

No. 2217.

1. Corporations 432 (5)-Plaintiff had burden of proving president's authority.

Where a bank charged to bankrupt corporation sums advanced to its president, claiming that it was by his direction, which sums bankrupt did not receive, the bank had the burden of proving the president's authority.

Creditor 2. Banks and banking 116(2) bank held required to credit bankrupt with a payment misappropriated.

Where the president of bankrupt corporation and its treasurer, who was also vice president of a bank which held the president's personal note, without authority signed a check of bankrupt in payment of the note, for which bankrupt received no consideration, its vice president in such transaction acted for the bank, which is chargeable with notice of the facts, and must be required to credit the payment on an indebtedness of bankrupt to it.

3. Bankruptcy 345-Fraud of creditor, not affecting other creditors generally, not ground for disallowance of claim.

That a creditor made false statements as to bankrupt's financial condition to one who

afterward became a creditor does not entitle the trustee, representing creditors generally, to insist on postponement of the first creditor's claim until all others are paid.

Appeal from the District Court of the United States for the Southern District of West Virginia, at Huntington; George W. McClintic, Judge.

In the Matter of the Star Car & Foundry Company, bankrupt. From an order of the District Court, allowing the claim of the Ohio Valley Bank, George S. Wallace, trustee, appeals. Modified.

P. P. Gibson, of Huntington, W. Va. (George S. Wallace, of Huntington, W. Va., on the brief), for appellant.

H. Clay Warth, of Huntington, W. Va. (T. W. Peyton and John H. Holt, both of