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3 F.(20)
to make the claim, and is, in fact, the prior in- the Harrison Anti-Narcotic Act (Comp. St.
ventor. Finding no error, we affirm the deci- 88 62878-62879). The testimony on the part
sion appealed from. Affirmed.

of the government tended to show that certain
narcotic agents gave two marked $5 bills to

an informer named Woods, to be used by him
1

in the purchase of narcotics from one Newby.

Woods approached Newby in a pool ball, and Robert ANDREU, etc., et al., Plaintiffs in

after a brief conversation between the two a Error, v. UNITED STATES, Defendant in

bill was passed from Woods to Newby. NewError. (Circuit Court of Appeals, Fifth Cir- by then left the pool hall and met the plaintiff cuit. February 4, 1925.) No. 4290. In error

in error on the street. Newby there passed a to the District Court of the United States for piece of paper money to the plaintiff in error, the Southern District of Florida; Henry D. and the plaintiff in error passed a brown paper Clayton, Judge. R. E. Stillman, of Jackson. bindle to Newby. The plaintiff in error and ville, Fla., for plaintiffs in error. Harry W. Newby were thereupon arrested, and, after the Reinstine, Asst. U. S. Atty., of Jacksonville, arrest, one of the marked $5 bills was found Tla. (Wm. M, Gober, U. S. Atty., of Tampa,

on the person of the plaintiff in error, and the Fla., and Maynard Ramsey, Asst. U. S. Atty., brown paper bindle containing narcotics was of Jacksonville, Fla., on the brief), for the found on the person of Newby. One of the United States. Before WALKER and BRY: narcotic agents was called as a witness on AN, Circuit Judges, and DAWKINS, District

the part of the government, and identified the Judge.

$5 bill taken from the person of the plaintiff PER CURIAM. Plaintiffs in error were con- in error as one of the marked bills which had victed of a conspiracy to possess, transport, theretofore been given to the informer, Woods. and sell intoxicating liquor, in violation of Counsel for the plaintiff in error, on crossthe National Prohibition Act (Comp. St. Ann. examination, asked certain questions concernSupp. 1923, $ 1013814 et seq.). Their only ing the second bill and its whereabouts. . To defense.was that they were entrapped by gov- these questions objections were interposed and ernment agents. The evidence was in conflict sustained. The first assignment of error is on this issue, and no objection or exception based on these rulings. The rulings may or was made or taken to any ruling or charge of may not have been erroneous; but, be that as the court. The judgment is affirmed.

it may, the witness was recalled later in the

trial, and testified, on cross-examination, that he'd

1,215,618, the second bill was returned to the narcotic

agents by the wife of the informer, Woods. 2,6731

This explanation seemed entirely satisfactory CHARLESTON, S. C., MINING & MANU- at the time, or at least it was the information FACTURING COMPANY, Appellant, v. UNIT. which counsel for the plaintiff in error brought ED STATES, Appellee.* (Circuit Court of out by direct questions. Under these circumAppeals, Fifth Circuit. February 7. 1925.)

stances there could be no prejudicial error in No. 4400. Appeal from the District Court of the original rulings. Later in the trial counsel the United States from the Southern District for the plaintiff in error was called as a witof Florida; Rhydon M. Call, Judge. W. W.

ness by the government. On direct examinaHampton and W. W. Hampton, Jr., both of

tion he answered the questions propounded to Gainesville, Fla. (Wm. Wade Hampton, of him without objection. On cross-examination Gainesville, Fla., Fred J. Hampton, of Tampa, he testified that he went to the office of the Fla., Edwin Birkett Hampton and Wilson & United States attorney with Woods, the inSwearingen, of Bartow, Fla., on the brief), former, and his father, and the informer there for appellant. Wm. M. Gober, U. S. Atty., stated, in the presence of his father, and in of Tampa, Fla., and Maynard Ramsey, and

the presence of the district attorney, that he Harry W. Reinstine, Asst. U. S. Attys., both had not given a marked $5 bill to Newby. An of Jacksonville, Fla. Before WALKER and objection to this question was sustained, after BRYAN, Circuit Judges, and DAWKINS, Dis- the answer had been given, and the jury were trict Judge.

instructed to disregard the answer. Here the PER CURIAM. The judgment in this case matter ended. No other ruling was made by is affirmed, upon the opinion of the District the court, and no exception was taken to the Judge (298 F. 127).

ruling as made. Under these circumstances,
there is manifestly no question before us for

review. The other assignments of error are
3

80 devoid of merit as to call for no discussion. Ray COOK, Plaintiff in Error, v. UNITED The judgment is affirmed. STATES, Defendant in Error. (Circuit Court of Appeals, Ninth Circuit. March 16, 1925.) No. 4336. In Errør to the District Court of

4 the United States for the Northern Division

Elliott FREDERICK, Trustee in Bankruptof the Western District of Washington; Jere

cy of the Estate of Wilmer Sales Co., a Cormiah Neterer, Judge. T. D. Page and J. J. poration, Bankrupt, Plaintiff in Error, v. MOSullivan, both of Seattle, Wash., for plaintiff TORS MORTGAGE CORPORATION, Dein error. Thos. P. Revelle, U. S. Atty., and

fendant in ror. (Circuit Court of Appeals, Donald G. Graham, Asst. U. S. Atty., both of Third Circuit. March 2, 1925.) No. 3250. Seattle, Wash. Before GILBERT, ROSS, and In Error to the District Court of the United RUDKIN, Circuit Judges.

States for the Western District of PennsylRUDKIN, Circuit Judge. This is a writ of vania; W. H. Seward Thomson, Judge. See, error to review a judgment of conviction under also, 1 F.(20) 437. M. J. Hosack and Redden *Certiorari denied 45 S. Ct. 513, 69 L. Ed. --,

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& Weddell, all of Pittsburgh. Pa., for plaintiff States for the Southern District of Florida; in error. Wilbur F. Galbraith, of Pittsburgh, Henry D. Clayton, Judge. T. M. Shackleford Pa., for defendant in error. Before BUF- Jr., of Tampa, Fla., for appellant. G. E. MaFINGTON and DAVIS, Circuit Judges. bry and Doyle E. Carlton, both of Tampa, Fla.

PER CURIAM. This action was brought (G. E. Mabry, O. K. Reaves, and D. E. Carlhere by writ of error of Elliot Frederick, trus

ton, all of Tampa, Fla., on the brief), for aptee in bankruptcy of the estate of the Wilmer pellee. Before WALKER and BRYAN. CirSales Company, to review the action of the

cuit Judges, and DAWKINS, District Judge. trial judge in giving binding instructions for

DAWKINS, District Judge. Complainant the defendant, Motors Mortgage Corporation. brought this suit to rescind her subscription The business transactions among the parties to the stock of defendant corporation, made connected directly or indirectly are all clearly on the 8th and 13th of March, 1922, for $1,500 set forth in the lucid opinion of the learned and $7,500, respectively, upon the ground of trial judge in overruling a motion for a new fraud and misrepresentation. The fraud altrial. We entirely agree with his reasoning leged consisted in representations made to her and conclusions, and accordingly affirm the by the defendant's stock sales agent that it judgment on his opinion. 1 F.(20) 438. was a banking and mortgage company, backed

by the United States government, and its stock was guaranteed to pay 20 per cent. diridends, that only $1,500 of the stock could be

sold to any one person, and that this particuBronson McCARVER, Plaintiff in Error, v. lar stock was on the market because, and only UNITED STATES, Defendant in Error. (Cir- because, some Georgia people, who had precuit Court of Appeals, Şixth Circuit. March viously held it, had become financially em4, 1925.) No. 4279. In Error to the District barrassed and forced to sell. The answer was Court of the United States for the Eastern in substance a general denial. The court below District of Michigan; Charles C. Simons, found that practically all of the allegations of Judge. Edward N. Barnard, of Detroit, Mich., fraud and misrepresentation were sustained by for plaintiff in error. Frederic L. Eaton, Asst. the proof and annulled the entire transaction. U. S. Atty., of Detroit, Mich. (Delos G. Smith, We have weighed carefully the evidence in the U. S. Atty., of Detroit, Mich., on the brief), for case, and, without finding it necessary to rethe United States. Before DENISON, DONA view the same in detail here, are convinced that HUE, and KNAPPEN, Circuit Judges.

the conclusions of the trial court, as set forth PER CURIAM, McCarver was a (so-called) in its elaborate · opinion, are fully sustained narcotic inspector. A prisoner taken by the both by the facts and the law therein cited. Detroit police in a raid, and supposed to be For the reasons assigned, the judgment ap"wanted” for a federal offense, was informally, pealed from is affirmed. but actually, turned over to the United States marshal, and by him sent to and left with McCarver. An assault by one upon the other, and an affray, followed, in which the pris

3 47 sup, et. 205. A oner was badly beaten. McCarver was indict

MUTUAL BENEFIT LIFE INS. CO., Dee ed, the fact issue as to initial fault was fairly fendant in Error, v. Charles V. DUFFY, Col. submitted to the jury, and he was found guilty. lector of Internal Revenue for the Fifth Dis. The only exception taken was to part of the trict of New Jersey, Plaintiff in Error. (Cir charge. That portion is in obvious response cuit Court of Appeals, Third Circuit. March to the argument which defendant's counsel had 2, 1925.) No. 3182. In Error to the Distriet made to the jury, and the charge was not er- Court of the United States for the District roneous, unless it was not thus justified. The of New Jersey; John Rellstab, Judge. Newton record does not show the argument, and we K. Fox, of Washington, D. C., for plaintiff in cannot presume error. The fact that there was

error. John O. H. Pitney, John R. Hardin, no stenographic record of a vital fact on the David Kay, Jr., and Jay Ten Eyck, all of Newtrial does not excuse its omission from the ark, N. J., for defendant in error, Before record for review. If the argument was what BUFFINGTON, WOOLLEY, and DAVIS, Cir. we are now told it was, the response and cuit Judges. comment by the court were wholly justified.

PER CURIAM. The collector of internal There is no rule by which the offense of counsel in making an unfit argument is finally con

revenue for the Fifth district of New Jersey doned, if he is not then and there stopped by

assessed upon the plaintiff a war excess profits the court and reproved. The court may well,

tax of $83,779.70. This tax resulted from the in its discretion, reserve the matter for treat government's theory that the plaintiff's legal

reserve fund of $186,258,796 was not "inment in the charge. The court's error of fact, vested capital,” within the meaning of section in referring the custody by the marshal as be- 207 of the Income Tax Act of October 3, 1917 ing after due arrest, when it was really less (Comp. St. 1918, 8 6336%h). In its return for formal, was not substantial. The judgment is the year 1917, the insurance company declared affirmed.

its invested capital to be $202,685,846.45, which included its legal reserve fund. In amending

the return, the collector excluded this fund, 2

and allowed only $14,719,043.76 as “invested MOTOR FINANCE & GUARANTY COR- capital." This made the plaintiff's per centum PORATION, Appellant, v. Mrs. Kate B. HOW- of income very high. It brought this suit to ELL, Appellee. (Circuit Court of Appeals, recover the excess profits tax, on the ground Fifth Circuit. February 21, 1925.) No. 4429. that its reserve fund was a part of its "in. Appeal from the District Court of the United vested capital.” If this position is sound, it

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Chun 686,694 Ed. 156, 45 Supt. 639

3 F.(20) would greatly decrease the rate of income. unconstitutional, or that the punishment was The defendant moved to strike out the com- not well within the limit provided by the law. plaint. In disposing of this motion, Judge Nor does the record contain any showing which Rellstab held that the legal reserve fund was excepts the case from the established rule “invested capital," within the meaning of the that appellate_courts will not revise the senact, and that the tax was assessed on the tences of the District Courts in criminal cases. wrong basis. We are in accord with his con- Ex parte Watkins, 7 Pet. 568, 8 L. Ed. 786; clusions, and affirm the judgment (295 F. 881) Goldberg v. United States (C. C. A.) 277 F. on his able opinion as expressing our views. 211; Feinberg v. United States (C. C. A.) 2

F.(20) 955. The judgment is affirmed.

for a

OLD DOMINION STEAMSHIP COMPANY,

3 Appellant, v. UNITED STATES, Appellee.

Florence STARRITT and

John (Circuit Court of Appeals, Fourth Circuit.

Mann, January 13, 1925.) No. 2291. Appeal from Plaintiffs in Error, v. UNITED STATES, Dethe District Court of the United States for the

fendant in Error. (Circuit Court of Appeals,

Ninth Circuit. March 2, 1925.) No. 4283. District of Maryland, at Baltimore; Morris A.

In Error to the District Court of the United Soper, Judge. Emory H. Niles, of Baltimore, Md. (George S. Yost and Niles, Wolff, Barton

States for the Northern Division of the East& Morrow, all of Baltimore, Md., and Root,

ern District of Washington. M. E. Mack, of

Frank Clark, Buckner & Howland, of New York City, Spokane, Wash., for plaintiffs in error. on the brief), for appellant. Arthur M. Boal, R. Jeffrey, U. S. Atty., and H. Sylvester GarAsst. Admiralty Counsel, U. S. Shipping Board, vin, Asst. U. S. Atty., both of Spokane, Wash. of Washington, D. C. (A. W. W. Woodcock, Before GILBERT, ROSS, and HUNT, Circuit U. S. Atty., of Baltimore, Md., on the brief), Judges. for the United States. Before WOODS, WAD- GILBERT, Circuit Judge. This case comes DILL, and ROSE, Circuit Judges.

before us without assignment of error other PER CURIAM. The decree of the District than that, at the close of the testimony for Court (297 F. 534) is affirmed, on the authority the prosecution, the trial court overruled the of United States v. Carver, 260 U. S. 482, 43 challenge of plaintiffs in error to the sufficien-. S. Ct. 181, 67 L. Ed. 361, and the decisions of cy of the evidence, and that the motion for a this court in Gill v. United States (Sept. 29, new trial was overruled. As no motion was 1924) 1 F.(20) 964, Frey v. United States made at the close of the testimony for an in(Sept. 29, 1924) 1 F.(20) 963, and Standard structed verdict, and the ruling on the motion Oil Co. v. United States (Sept. 29, 1924) 1 F.

new trial is not reviewable here, no (20) 961. Affirmed.

question is properly brought before this court for decision. But it is contended that there

was no evidence to go to the jury to sustain 2

the verdict. We have looked sufficiently far

into the transcript to discover that the conDaisy E. SMITH, Plaintiff in Error, V. UNITED STATES, Defendant in Error. (Cir. ly indicates that the plaintiffs in error were

tention is without merit. The testimony faircuit Court of Appeals, Ninth Circuit. March conducting a certain hotel when prohibition 16, 1925.) No. 4431. In Error to the District officers entered the same, and discovered that Court of the United States for the Northern Division of the Eastern District of Washing- ber of guests were drinking intoxicating liquor.

a large party was in progress and that a numton. John F. Garvin, of Spokane, Wash., for There was testimony that the plaintiffs in erplaintiff in error. Frank R. Jeffrey, U. S.

ror were the managers of the hotel. An atAtty., and H. Sylvester Garvin, Asst. U. S.

tempt was made to show that the premises, Atty., both of Spokane, Wash., for the United

which had been previously leased to the plainStates. Before GILBERT, HUNT, and RUD

tiff in error Starritt, had been sublet by her KIN, Circuit Judges.

to another. But there were testimony and cirHUNT, Circuit Judge. The plaintiff in er- cumstances which tended to indicate that such ror was tried and convicted under an infor- was not the fact, and that the jury were jusmation containing a count which charged that tified in discrediting her testimony. Among she sold beer and whisky, and a count which the items of the evidence was her express adcharged that she maintained a common nuis- mission that she was the landlady. The judgance by selling and keeping for sale intoxicat- ment, therefore, must be affirmed. ing liquor, at a certain named place in Spokane, Wash. The court imposed a sentence of imprisonment of 60 days and payment of a fine of $300. She sued out a writ of error, and relied upon one point only—that the court abused its discretion in imposing a sentence of such TALGE MAHOGANY COMPANY et al., Apseverity. In support of her argument she re- pellants, V. Freeman HATFIELD, Master of fers to certain affidavits filed before judgment the British Schooner Cashier, Appellee. (Cirof the lower court, by physicians, who stated, cuit Court of Appeals, Fifth Circuit. February in effect, that largely as a result of an accident 5, 1925.) No. 4409. Appeal from the Disher physical condition was such that confine- trict Court of the United States for the Southment in jail would tend to break down her ern District of Mississippi; Edwin R. Holmes, health. There is no suggestion that the stat Judge. James A. Leathers, of Gulfport, Miss., ute under which judgment was pronounced is for appellants. W. A. White, of Gulfport,

Miss. (Hanun Gardner, of Gulfport, Miss., York City (Joseph M. Hartfield and Jeremiah on the brief), for appellee. Before WALKER, M. Evarts, both of New York City, of coudBRYAN, and FOSTER, Circuit Judges. sel), for Shooters Island Co. Conover English, FOSTER, Circuit Judge. In this case it ap

of Newark, N. J., for Standard Co. Before pears that the Talge Mahogany Company, BUFFINGTON, WOOLLEY, and DAVIS, Cirhereinafter referred to as the appellant, en

cuit Judges. tered into a charter party whereby the British WOOLLEY, Circuit Judge. The main quesschooner Cashier was hired to transport a car- tion in this case concerns the priority of liens go of mahogany logs from Axim, on the west of two mortgages given by the Standard Shipcoast of Africa, to the city of Gulfport, Miss. building Corporation,-one to Shooters Island The charter provided for 15 lay days for load- Shipyard Company covering after-acquired ing and 12 lay days for discharging, and for property and the other to the United States $250 per day demarrage. The vessel arrived Shipping Board Emergency Fleet Corporation at Axim on July 3, 1920, and her captain re- covering the same property. This question is ported to the agent of the appellant that she one of law and its solution depends on other would be ready to load cargo on July 5th, questions of law,-whether the mortgage to which was a Monday. The loading at Axim the Shipping Board, the second in point of was completed on August 31st, and the master time, is a purchase money mortgage or is bascontended for 41 days' demurrage at $250 per ed on an equitable lien. These questions in day. After some controversy between the turn rest on questions of fact to be decided master and the agent of the appellant, a nota- according as the evidence proves or does not tion was made on the back of the bill of lad- prove that certain large advances of money ing for the cargo in the following language; made by the Fleet Corporation to the Stand"Lay days ended July 21, 1920. Demurrage ard Shipbuilding Corporation in the early pecommenced July 22, 1920. Loading completed riod of the war were made under an agreement August 31, 1920." The District Court ren- between them that the advances should be sedered judgment in favor of the vessel for 41 cured by a first mortgage and that pursuant to days' demurrage, at $250 per day, aggregat- this agreement negotiations were continuously ing the sum of $10,250, and allowed interest conducted until finally the mortgage in question thereon at the rate of 6 per cent. per annum was given the Shipping Board for that pur. from September 1, 1920, to the date of judg- pose. The District Court found for the Shipment. From that judgment this appeal is ping Board and awarded priority of lien to its prosecuted. It is the contention of appellant mortgage. On appeal this court thought difthat the District Court should have found that ferently and, on an opinion reported in 293 F. the vessel was not seaworthy for the voyage, 706, was about to issue its mandate reversing in that she was insufficiently equipped with the decree below when the Shipping Board aploading tackle, and that the delay was caused peared and represented that it had newly disby this alone. In support of this contention, covered evidence which, if heard, would comthe appellant relies upon a letter written by pel a different judgment. Hesitatingly this the captain to Wolf, appellant's agent at Axim court remanded the case for further proofs. which would tend to show that the vessel had On the remission the newly-acquired evidence not sufficient equipment. The captain in his was taken.

The learned trial judge was of testimony explains the writing of the letter, opinion that it did not alter the judgment of and, although additional equipment was fur- this court and entered a decree accordingly. nished by the said agent, it also clearly appears The case is here on the Shipping Board's apthat it was not needed, and it was not used; peal. We shall not review the testimony, nor the original equipment on the vessel being suf- shall we do more than say that the new evificient. Appellant also seeks to evade the dence, supplementing the old, fills several gaps conclusion to be reached from the annotation which theretofore existed in the record and, on the bill of lading above referred to. We quite contrary to what was expected, fortifies think the evidence fully sustains the judgment the previous judgment of this court by estabof the District Court, and that the judgment lishing that the mortgage was not given the was right. Affirmed.

Shipping Board in pursuance of an agreement to secure the original money advances but to secure further advances with which to finish uncompleted work. The decree below is af

firmed. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION, Defendant-Appellant, V. STANDARD SHIP

2 BUILDING CORPORATION, Albert Conway, William A. Young, and Alfred A. Stein, as Re

Ellen WIRT, Plaintiff in Error, v. UNITED ceivers of the Property of Defendant Standard STATES, Defendant in Error. (Circuit Court Shipbuilding Corporation, Defendants-Appel- of Appeals, Ninth Circuit. March 16, 1925.) lees, and Shooters Island Shipyard Company, No. 4407. In Error to the District Court of Complainant-Appellee. (Circuit Court of Ap- the United States for the District of Nevada. peals, Third Circuit. February 27, 1925. Re- L. B. Fowler, of Reno, Nev., for plaintiff in hearing Denied April 7, 1925.) No. 3201.

George Springmeyer, U. S. Atty., and Appeal from the District Court of the United Chas. A. Cantwell, Asst. U. S. Atty., both of States for the District of New Jersey; Jos- Reno, Nev., and George A. Whiteley, Asst. U. eph L. Bodine, Judge. Walter G. Winne, U. S.

S. Atty., of Carson City, Nev., for defendant Atty., of Hackensack, N. J. (Chauncey G.

in error. Before ROSS, HUNT, and RUDParker and John M. Emery, both of Newark, KIN, Circuit Judges. N. J., of counsel), for appellant, William St. HUNT, Circuit Judge. Ellen Wirt, plaintiff John Tozer and White & Case, all of New in error, together with certain others, was in.

error.

3 F.(20) dicted and convicted of conspiring to violate after, in February and March, 1923, the plainthe National Prohibition Act, to maintain a tiff in error delivered to the defendant in ercommon nuisance, and to sell and to possess in- ror two consignments of lumber under the toxicating liquor. She was also convicted un- contract. On April 4, 1923, the plaintiff in der 19 other counts, which charged possession, error notified the defendant in error that it sale, and maintenance of a nuisance-all under did not intend to complete the contract, and the Prohibition Act. No motion for a directed on its refusal to comply therewith the defendverdict was made in behalf of defendants, and ant in error brought an action in the court the record calls for no examination, further below to recover damages, setting forth in than to ascertain whether there was sufficient its complaint the facts which are above narevidence to submit to the jury. We are sat- rated. Judgment was rendered for the defendisfied there was, and that there was ample ant in error. To review that judgment the proof that Mrs. Wirt, with others, combined to cause is brought here upon writ of error, withviolate the Prohibition Law, and did violate it out a bill of exceptions, and presenting only as charged. There is an assignment of error the question whether the judgment is void for that all counts of the indictment are fatally failure of the complaint to state facts sufficient defective, in that there is no authority for to constitute a cause of action. The plaintiff joining in one indictment two or more offenses in error contends that the contract was percommitted by different persons. But the sonal in its nature, and could not be assigned charges in the several counts all related to acts by one party thereto without the consent of connected together, and in each count Ellen the other, and that the allegations of the comWirt was named as one of the defendants. plaint are insufficient to show the assent of Such an indictment is valid. Sidebotham v. the plaintiff in error to the assignment. AsUnited States, 253 F. 417, 165 C. C. A. 159; suming, but not deciding, that the contract was Goodfriend v. United States (C. C. A.) 294 F. of a personal nature, owing to the fact that it 148. We find no error and affirm the judg. provided for a credit of five days upon the ment. Affirmed.

payments for lumber as delivered, we think the complaint sets forth facts amply sufficient to show that the plaintiff in error assented to the assignment. It appears therefrom that, three months after notice of the assignment, the

plaintiff in error continued to recognize the WYATT LUMBER COMPANY, Limited, a

contract by consigning a shipment of lumber, Corporation, Plaintiff in Error, v. COOLEY

and a month later a second shipment. The HARDWOOD MANUFACTURING COMPA

facts pleaded being sufficient to show a waiver, NY, a Corporation, Defendant in Error. (Cir

it is unimportant that there is no express alcuit Court of Appeals, Ninth Circuit, March 30, 1925.) No. 4353. In Error to the District waived. "The acts and conduct of a party to

legation that objection to the assignment was Court of the United States for the Southern

a contract, with knowledge of the fact that the Division of the Northern District of Califor

contract has been assigned, may be such as to nia; John S. Partridge, Judge. Albert I.

warrant the conclusion that the provision Loeb, of San Francisco, Cal., for plaintiff in against the assignment has been waived." 5 C.

R. Clarence Ogden, of San Francisco, J. 884; Staples v. City of Somerville, 176 Cal., for defendant in error. Before GIL- Mass. 237, 57 N. E. 380; Brewster v. City BERT, HUNT, and RUDKIN, Circuit Judges.

of Hornellsville, 35 App. Div. 161, 54 N. Y. S. GILBERT, Circuit Judge. In July, 1922, R. 904; Devlin v. Mayor, 63 N. Y. 14; Kinser H. Cooley entered into a written contract with v. McMurray, 190 Iowa, 1329, 181 N. W. 691; the plaintiff in error, whereby the latter agreed Moore v. Thompson, 93 Mo. App. 336, 67 S. W. to deliver to him at Oakland, Cal., 500,000 feet 680; Camp v. Wiggins, 72 Iowa, 643, 34 N. of oak lumber of specified grades at a specified W. 461. The complaint contains a further price, to be paid for five days after delivery; allegation, from which we think it is fairly indeliveries to commence about November, 1922, ferable that the contract was repudiated, not and to continue thereafter at the rate of 60,- because of objection to the assignment there000 feet per month. In November, 1922, of, but because a sharp advance in the market Cooley assigned his interest in the contract to price of oak lumber had placed a mortal the defendant in error, and gave the plaintiff strain on the covenants of the plaintiff in erin error notice of the assignment. There- ror. The judgment is affirmed.

error.

END OF CASES IN VOL. 3 F.(20)

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