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to make the claim, and is, in fact, the prior inventor. Finding no error, we affirm the decision appealed from. Affirmed.

Robert ANDREU, etc., et al., Plaintiffs in Error, v. UNITED STATES, Defendant in Error. (Circuit Court of Appeals, Fifth Circuit. February 4, 1925.) No. 4290. In error to the District Court of the United States for the Southern District of Florida; Henry D. Clayton, Judge. R. E. Stillman, of Jacksonville, Fla., for plaintiffs in error. Harry W. Reinstine, Asst. U. S. Atty., of Jacksonville, Fla. (Wm. M. Gober, U. S. Atty., of Tampa, Fla., and Maynard Ramsey, Asst. U. S. Atty, of Jacksonville, Fla., on the brief), for the United States. Before WALKER and BRYAN, Circuit Judges, and DAWKINS, District Judge.

PER CURIAM. Plaintiffs in error were convicted of a conspiracy to possess, transport, and sell intoxicating liquor, in violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.). Their only defense.was that they were entrapped by government agents. The evidence was in conflict on this issue, and no objection or exception was made or taken to any ruling or charge of the court. The judgment is affirmed.

the Harrison Anti-Narcotic Act (Comp. St. §§ 6287g-6287q). The testimony on the part 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 in the purchase of narcotics from one Newby. Woods approached Newby in a pool hall, and after a brief conversation between the two a bill was passed from Woods to Newby. Newby then left the pool hall and met the plaintiff in error on the street. Newby there passed a piece of paper money to the plaintiff in error, and the plaintiff in error passed a brown paper bindle to Newby. The plaintiff in error and Newby were thereupon arrested, and, after the arrest, one of the marked $5 bills was found on the person of the plaintiff in error, and the brown paper bindle containing narcotics was found on the person of Newby. One of the narcotic agents was called as a witness on the part of the government, and identified the $5 bill taken from the person of the plaintiff in error as one of the marked bills which had theretofore been given to the informer, Woods. Counsel for the plaintiff in error, on crossexamination, asked certain questions concerning the second bill and its whereabouts. To these questions objections were interposed and sustained. The first assignment of error is based on these rulings. The rulings may or may not have been erroneous; but, be that as it may, the witness was recalled later in the trial, and testified, on cross-examination, that , the second bill was returned to the narcotic agents by the wife of the informer, Woods. This explanation seemed entirely satisfactory at the time, or at least it was the information which counsel for the plaintiff in error brought out by direct questions. Under these circumstances there could be no prejudicial error in the original rulings. Later in the trial, counsel for the plaintiff in error was called as a witness by the government. On direct examination he answered the questions propounded to him without objection. On cross-examination he testified that he went to the office of the United States attorney with Woods, the informer, and his father, and the informer there stated, in the presence of his father, and in the presence of the district attorney, that he had not given a marked $5 bill to Newby. An objection to this question was sustained, after the answer had been given, and the jury were instructed to disregard the answer. Here the matter ended. No other ruling was made by the court, and no exception was taken to the ruling as made. Under these circumstances, there is manifestly no question before us for review. The other assignments of error are so devoid of merit as to call for no discussion. The judgment is affirmed.

CHARLESTON, S. C., MINING & MANUFACTURING COMPANY, Appellant, v. UNITED STATES, Appellee.* (Circuit Court of Appeals, Fifth Circuit. February 7, 1925.) No. 4400. Appeal from the District Court of the United States from the Southern District of Florida; Rhydon M. Call, Judge. W. W. Hampton and W. W. Hampton, Jr., both of Gainesville, Fla. (Wm. Wade Hampton, of Gainesville, Fla., Fred J. Hampton, of Tampa, Fla., Edwin Birkett Hampton and Wilson & Swearingen, of Bartow, Fla.,/ on the brief), for appellant. Wm. M. Gober, U. S. Atty., of Tampa, Fla., and Maynard Ramsey, and Harry W. Reinstine, Asst. U. S. Attys., both of Jacksonville, Fla. Before WALKER and BRYAN, Circuit Judges, and DAWKINS, District Judge.

PER CURIAM. The judgment in this case is affirmed, upon the opinion of the District Judge (298 F. 127).

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Ray COOK, Plaintiff in Error, v. UNITED STATES, Defendant in Error. (Circuit Court of Appeals, Ninth Circuit. March 16, 1925.) No. 4336. In Error to the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge. T. D. Page and J. J. Sullivan, both of Seattle, Wash., for plaintiff in error. Thos. P. Revelle, U. S. Atty., and Donald G. Graham, Asst. U. S. Atty., both of Seattle, Wash. Before GILBERT, ROSS, and RUDKIN, Circuit Judges.

RUDKIN, Circuit Judge. This is a writ of error to review a judgment of conviction under *Certiorari denied 45 S. Ct. 513, 69 L. Ed.

Elliott FREDERICK, Trustee in Bankruptcy of the Estate of Wilmer Sales Co., a Corporation, Bankrupt, Plaintiff in Error, v. MOTORS MORTGAGE CORPORATION, Defendant in Error. (Circuit Court of Appeals, Third Circuit. March 2, 1925.) No. 3250. In Error to the District Court of the United States for the Western District of Pennsylvania; W. H. Seward Thomson, Judge. See, also, 1 F. (2d) 437. M. J. Hosack and Redden

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& Weddell, all of Pittsburgh, Pa., for plaintiff in error. Wilbur F. Galbraith, of Pittsburgh, Pa., for defendant in error. Before BUFFINGTON and DAVIS, Circuit Judges. PER CURIAM. This action was brought here by writ of error of Elliot Frederick, trustee in bankruptcy of the estate of the Wilmer Sales Company, to review the action of the trial judge in giving binding instructions for the defendant, Motors Mortgage Corporation. The business transactions among the parties connected directly or indirectly are all clearly set forth in the lucid opinion of the learned trial judge in overruling a motion for a new trial. We entirely agree with his reasoning and conclusions, and accordingly affirm the judgment on his opinion. 1 F. (2d) 438.

Bronson McCARVER, Plaintiff in Error, v. UNITED STATES, Defendant in Error. (Circuit Court of Appeals, Sixth Circuit. March 4, 1925.) No. 4279. In Error to the District Court of the United States for the Eastern District of Michigan; Charles C. Simons, Judge. Edward N. Barnard, of Detroit, Mich., for plaintiff in error. Frederic L. Eaton, Asst. U. S. Atty., of Detroit, Mich. (Delos G. Smith, U. S. Atty., of Detroit, Mich., on the brief), for the United States. Before DENISON, DONAHUE, and KNAPPEN, Circuit Judges.

PER CURIAM. McCarver was a (so-called) narcotic inspector. A prisoner taken by the Detroit police in a raid, and supposed to be "wanted" for a federal offense, was informally, 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 prisoner was badly beaten. McCarver was indicted, the fact issue as to initial fault was fairly submitted to the jury, and he was found guilty. The only exception taken was to part of the charge. That portion is in obvious response to the argument which defendant's counsel had made to the jury, and the charge was not erroneous, unless it was not thus justified. The record does not show the argument, and we cannot presume error. The fact that there was no stenographic record of a vital fact on the trial does not excuse its omission from the record for review. If the argument was what

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are now told it was, the response and comment by the court were wholly justified. There is no rule by which the offense of counsel in making an unfit argument is finally condoned, if he is not then and there stopped by the court and reproved. The court may well, in its discretion, reserve the matter for treatment in the charge. The court's error of fact, in referring the custody by the marshal as being after due arrest, when it was really less formal, was not substantial. The judgment is affirmed.

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MOTOR FINANCE & GUARANTY CORPORATION, Appellant, v. Mrs. Kate B. HOWELL, Appellee. (Circuit Court of Appeals, Fifth Circuit. February 21, 1925.) No. 4429. Appeal from the District Court of the United

States for the Southern District of Florida; Henry D. Clayton, Judge. T. M. Shackleford, Jr., of Tampa, Fla., for appellant. G. E. Mabry and Doyle E. Carlton, both of Tampa, Fla. (G. E. Mabry, O. K. Reaves, and D. E. Carlton, all of Tampa, Fla., on the brief), for appellee. Before WALKER and BRYAN, Circuit Judges, and DAWKINS, District Judge.

DAWKINS, District Judge. Complainant brought this suit to rescind her subscription to the stock of defendant corporation, made on the 8th and 13th of March, 1922, for $1,500 and $7,500, respectively, upon the ground of fraud and misrepresentation. The fraud alleged consisted in representations made to her by the defendant's stock sales agent that it was a banking and mortgage company, backed by the United States government, and its stock was guaranteed to pay 20 per cent. dividends, that only $1,500 of the stock could be sold to any one person, and that this particular stock was on the market because, and only because, some Georgia people, who had previously held it, had become financially embarrassed and forced to sell. The answer was in substance a general denial. The court below found that practically all of the allegations of fraud and misrepresentation were sustained by the proof and annulled the entire transaction. We have weighed carefully the evidence in the case, and, without finding it necessary to review the same in detail here, are convinced that the conclusions of the trial court, as set forth in its elaborate opinion, are fully sustained both by the facts and the law therein cited. For the reasons assigned, the judgment appealed from is affirmed.

275.6137/E1.-31. 3 47 p. 04. 205.

MUTUAL BENEFIT LIFE INS. CO., Defendant in Error, v. Charles V. DUFFY, Collector of Internal Revenue for the Fifth District of New Jersey, Plaintiff in Error. (Cir cuit Court of Appeals, Third Circuit. March 2, 1925.) No. 3182. In Error to the District Court of the United States for the District of New Jersey; John Rellstab, Judge. Newton K. Fox, of Washington, D. C., for plaintiff in error. John O. H. Pitney, John R. Hardin, David Kay, Jr., and Jay Ten Eyck, all of Newark, N. J., for defendant in error, Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

PER CURIAM. The collector of internal revenue for the Fifth district of New Jersey assessed upon the plaintiff a war excess profits tax of $83,779.70. This tax resulted from the government's theory that the plaintiff's legal reserve fund of $186,258,796 was not "invested capital," within the meaning of section 207 of the Income Tax Act of October 3, 1917 (Comp. St. 1918, § 6336% h). In its return for the year 1917, the insurance company declared its invested capital to be $202,685,846.45, which included its legal reserve fund. In amending the return, the collector excluded this fund, and allowed only $14,719,043.76 as "invested capital." This made the plaintiff's per centum of income very high. It brought this suit to recover the excess profits tax, on the ground that its reserve fund was a part of its "invested capital." If this position is sound, it

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would greatly decrease the rate of income. The defendant moved to strike out the complaint. In disposing of this motion, Judge Rellstab held that the legal reserve fund was "invested capital," within the meaning of the act, and that the tax was assessed on the wrong basis. We are in accord with his conclusions, and affirm the judgment (295 F. 881) on his able opinion as expressing our views.

unconstitutional, or that the punishment was not well within the limit provided by the law. Nor does the record contain any showing which excepts the case from the established rule that appellate courts will not revise the sentences of the District Courts in criminal cases. Ex parte Watkins, 7 Pet. 568, 8 L. Ed. 786; Goldberg v. United States (C. C. A.) 277 F. 211; Feinberg v. United States (C. C. A.) 2 F. (2d) 955. The judgment is affirmed.

OLD DOMINION STEAMSHIP COMPANY, Appellant, v. UNITED STATES, Appellee. (Circuit Court of Appeals, Fourth Circuit. January 13, 1925.) No. 2291. Appeal from the District Court of the United States for the District of Maryland, at Baltimore; Morris A. Soper, Judge. Emory H. Niles, of Baltimore, Md. (George S. Yost and Niles, Wolff, Barton & Morrow, all of Baltimore, Md., and Root, Clark, Buckner & Howland, of New York City, on the brief), for appellant. Arthur M. Boal, Asst. Admiralty Counsel, U. S. Shipping Board, of Washington, D. C. (A. W. W. Woodcock, U. S. Atty., of Baltimore, Md., on the brief), for the United States. Before WOODS, WADDILL, and ROSE, Circuit Judges.

PER CURIAM. The decree of the District Court (297 F. 534) is affirmed, on the authority of United States v. Carver, 260 U. S. 482, 43 S. Ct. 181, 67 L. Ed. 361, and the decisions of this court in Gill v. United States (Sept. 29, 1924) 1 F. (2d) 964, Frey v. United States (Sept. 29, 1924) 1 F. (2d) 963, and Standard Oil Co. v. United States (Sept. 29, 1924) 1 F. (2d) 961. Affirmed.

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Daisy E. SMITH, Plaintiff in Error, v. UNITED STATES, Defendant in Error. (Circuit Court of Appeals, Ninth Circuit. March 16, 1925.) No. 4431. In Error to the District Court of the United States for the Northern Division of the Eastern District of Washington. John F. Garvin, of Spokane, Wash., for plaintiff in error. Frank R. Jeffrey, U. S. Atty., and H. Sylvester Garvin, Asst. U. S. Atty., both of Spokane, Wash., for the United States. Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

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HUNT, Circuit Judge. The plaintiff in error was tried and convicted under an information containing a count which charged that she sold beer and whisky, and a count which charged that she maintained a common nuisance by selling and keeping for sale intoxicating 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 severity. In support of her argument she refers to certain affidavits filed before judgment of the lower court, by physicians, who stated, in effect, that largely as a result of an accident her physical condition was such that confinement in jail would tend to break down her health. There is no suggestion that the statute under which judgment was pronounced is

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Florence STARRITT and John Mann, Plaintiffs in Error, v. UNITED STATES, Defendant in Error. (Circuit Court of Appeals, Ninth Circuit. March 2, 1925.) No. 4283. In Error to the District Court of the United States for the Northern Division of the Eastern District of Washington. M. E. Mack, of Frank Spokane, Wash., for plaintiffs in error. R. Jeffrey, U. S. Atty., and H. Sylvester Garvin, Asst. U. S. Atty., both of Spokane, Wash. Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT, Circuit Judge. This case comes before us without assignment of error other than that, at the close of the testimony for the prosecution, the trial court overruled the challenge of plaintiffs in error to the sufficien-. cy of the evidence, and that the motion for a new trial was overruled. As no motion was made at the close of the testimony for an instructed verdict, and the ruling on the motion for a new trial is not reviewable here, no 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 the verdict. We have looked sufficiently far into the transcript to discover that the contention is without merit. The testimony fairly indicates that the plaintiffs in error were conducting a certain hotel when prohibition officers entered the same, and discovered that a large party was in progress and that a number of guests were drinking intoxicating liquor. There was testimony that the plaintiffs in error were the managers of the hotel. An attempt was made to show that the premises, which had been previously leased to the plaintiff in error Starritt, had been sublet by her to another. But there were testimony and circumstances which tended to indicate that such was not the fact, and that the jury were justified in discrediting her testimony. Among the items of the evidence was her express admission that she was the landlady. The judgment, therefore, must be affirmed.

TALGE MAHOGANY COMPANY et al., Appellants, v. Freeman HATFIELD, Master of the British Schooner Cashier, Appellee. (Circuit Court of Appeals, Fifth Circuit. February 5, 1925.) No. 4409. Appeal from the District Court of the United States for the Southern District of Mississippi; Edwin R. Holmes, Judge. James A. Leathers, of Gulfport, Miss., for appellants. W. A. White, of Gulfport,

Miss. (Hanun Gardner, of Gulfport, Miss., on the brief), for appellee. Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge. In this case it appears that the Talge Mahogany Company, hereinafter referred to as the appellant, entered into a charter party whereby the British schooner Cashier was hired to transport a cargo of mahogany logs from Axim, on the west coast of Africa, to the city of Gulfport, Miss. The charter provided for 15 lay days for loading and 12 lay days for discharging, and for $250 per day demurrage. The vessel arrived

at Axim on July 3, 1920, and her captain reported to the agent of the appellant that she would be ready to load cargo on July 5th, which was a Monday. The loading at Axim was completed on August 31st, and the master contended for 41 days' demurrage at $250 per day. After some controversy between the master and the agent of the appellant, a notation was made on the back of the bill of lading for the cargo in the following language; "Lay days ended July 21, 1920. Demurrage commenced July 22, 1920. Loading completed August 31, 1920." The District Court rendered judgment in favor of the vessel for 41 days' demurrage, at $250 per day, aggregating the sum of $10,250, and allowed interest thereon at the rate of 6 per cent. per annum from September 1, 1920, to the date of judgment. From that judgment this appeal is prosecuted. It is the contention of appellant that the District Court should have found that the vessel was not seaworthy for the voyage, in that she was insufficiently equipped with loading tackle, and that the delay was caused by this alone. In support of this contention, the appellant relies upon a letter written by the captain to Wolf, appellant's agent at Axim, which would tend to show that the vessel had not sufficient equipment. The captain in his testimony explains the writing of the letter, and, although additional equipment was furnished by the said agent, it also clearly appears that it was not needed, and it was not used; the original equipment on the vessel being sufficient. Appellant also seeks to evade the conclusion to be reached from the annotation on the bill of lading above referred to. We think the evidence fully sustains the judgment of the District Court, and that the judgment was right. Affirmed.

UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION, Defendant-Appellant, V. STANDARD SHIPBUILDING CORPORATION, Albert Conway, William A. Young, and Alfred A. Stein, as Receivers of the Property of Defendant Standard Shipbuilding Corporation, Defendants-Appellees, and Shooters Island Shipyard Company, Complainant-Appellee. (Circuit Court of Appeals, Third Circuit. February 27, 1925. Rehearing Denied April 7, 1925.) No. 3201. Appeal from the District Court of the United States for the District of New Jersey; Joseph L. Bodine, Judge. Walter G. Winne, U. S. Atty., of Hackensack, N. J. (Chauncey G. Parker and John M. Emery, both of Newark, N. J., of counsel), for appellant. William St. John Tozer and White & Case, all of New

York City (Joseph M. Hartfield and Jeremiah M. Evarts, both of New York City, of counsel), for Shooters Island Co. Conover English, of Newark, N. J., for Standard Co. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY, Circuit Judge. The main question in this case concerns the priority of liens of two mortgages given by the Standard Shipbuilding Corporation,-one to Shooters Island Shipyard Company covering after-acquired property and the other to the United States Shipping Board Emergency Fleet Corporation covering the same property. This question is one of law and its solution depends on other questions of law,-whether the mortgage to the Shipping Board, the second in point of time, is a purchase money mortgage or is based on an equitable lien. These questions in turn rest on questions of fact to be decided according as the evidence proves or does not prove that certain large advances of money made by the Fleet Corporation to the Standard Shipbuilding Corporation in the early period of the war were made under an agreement between them that the advances should be secured by a first mortgage and that pursuant to this agreement negotiations were continuously conducted until finally the mortgage in question was given the Shipping Board for that purpose. The District Court found for the Shipping Board and awarded priority of lien to its mortgage. On appeal this court thought differently and, on an opinion reported in 293 F. 706, was about to issue its mandate reversing the decree below when the Shipping Board appeared and represented that it had newly discovered evidence which, if heard, would compel a different judgment. Hesitatingly this court remanded the case for further proofs. On the remission the newly-acquired evidence was taken. The learned trial judge was of opinion that it did not alter the judgment of this court and entered a decree accordingly. The case is here on the Shipping Board's appeal. We shall not review the testimony, nor shall we do more than say that the new evidence, supplementing the old, fills several gaps which theretofore existed in the record and, quite contrary to what was expected, fortifies the previous judgment of this court by establishing that the mortgage was not given the 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 affirmed.

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Ellen WIRT, Plaintiff in Error, v. UNITED STATES, Defendant in Error. (Circuit Court of Appeals, Ninth Circuit. March 16, 1925.) No. 4407. In Error to the District Court of

the United States for the District of Nevada. L. B. Fowler, of Reno, Nev., for plaintiff in error. George Springmeyer, U. S. Atty., and Chas. A. Cantwell, Asst. U. S. Atty., both of Reno, Nev., and George A. Whiteley, Asst. U. S. Atty., of Carson City, Nev., for defendant in error. Before ROSS, HUNT, and RUDKIN, Circuit Judges.

HUNT, Circuit Judge. Ellen Wirt, plaintiff in error, together with certain others, was in

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dicted and convicted of conspiring to violate the National Prohibition Act, to maintain a common nuisance, and to sell and to possess intoxicating liquor. She was also convicted under 19 other counts, which charged possession, sale, and maintenance of a nuisance-all under the Prohibition Act. No motion for a directed verdict was made in behalf of defendants, and the record calls for no examination, further than to ascertain whether there was sufficient evidence to submit to the jury. We are satisfied there was, and that there was ample proof that Mrs. Wirt, with others, combined to violate the Prohibition Law, and did violate it as charged. There is an assignment of error that all counts of the indictment are fatally defective, in that there is no authority for joining in one indictment two or more offenses committed by different persons. But the charges in the several counts all related to acts connected together, and in each count Ellen Wirt was named as one of the defendants. Such an indictment is valid. Sidebotham v. United States, 253 F. 417, 165 C. C. A. 159; Goodfriend v. United States (C. C. A.) 294 F. 148. We find no error and affirm the judgment. Affirmed.

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WYATT LUMBER COMPANY, Limited, a Corporation, Plaintiff in Error, v. COOLEY HARDWOOD MANUFACTURING COMPANY, a Corporation, Defendant in Error. (Circuit Court of Appeals, Ninth Circuit, March 30, 1925.) No. 4353. In Error to the District Court of the United States for the Southern Division of the Northern District of California; John S. Partridge, Judge. Albert I. Loeb, of San Francisco, Cal., for plaintiff in error. R. Clarence Ogden, of San Francisco, Cal., for defendant in error. Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

GILBERT, Circuit Judge. In July, 1922, R. H. Cooley entered into a written contract with the plaintiff in error, whereby the latter agreed to deliver to him at Oakland, Cal., 500,000 feet of oak lumber of specified grades at a specified price, to be paid for five days after delivery; deliveries to commence about November, 1922, and to continue thereafter at the rate of 60,000 feet per month. In November, 1922, Cooley assigned his interest in the contract to the defendant in error, and gave the plaintiff in error notice of the assignment.

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after, in February and March, 1923, the plaintiff in error delivered to the defendant in error two consignments of lumber under the contract. On April 4, 1923, the plaintiff in error notified the defendant in error that it did not intend to complete the contract, and on its refusal to comply therewith the defendant in error brought an action in the court below to recover damages, setting forth in its complaint the facts which are above narrated. Judgment was rendered for the defendant in error. To review that judgment the cause is brought here upon writ of error, without a bill of exceptions, and presenting only the question whether the judgment is void for failure of the complaint to state facts sufficient to constitute a cause of action. The plaintiff in error contends that the contract was personal in its nature, and could not be assigned by one party thereto without the consent of the other, and that the allegations of the complaint are insufficient to show the assent of the plaintiff in error to the assignment. Assuming, but not deciding, that the contract was of a personal nature, owing to the fact that it provided for a credit of five days upon the 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 contract by consigning a shipment of lumber, and a month later a second shipment. The facts pleaded being sufficient to show a waiver, it is unimportant that there is no express allegation that objection to the assignment was waived. "The acts and conduct of a party to a contract, with knowledge of the fact that the contract has been assigned, may be such as to warrant the conclusion that the provision against the assignment has been waived." 5 C. J. 884; Staples v. City of Somerville, 176 Mass. 237, 57 N. E. 380; Brewster v. City of Hornellsville, 35 App. Div. 161, 54 N. Y. S. 904; Devlin v. Mayor, 63 N. Y. 14; Kinser v. McMurray, 190 Iowa, 1329, 181 N. W. 691; Moore v. Thompson, 93 Mo. App. 336, 67 S. w. 680; Camp v. Wiggins, 72 Iowa, 643, 34 N. W. 461. The complaint contains a further allegation, from which we think it is fairly inferable that the contract was repudiated, not because of objection to the assignment thereof, but because a sharp advance in the market price of oak lumber had placed a mortal strain on the covenants of the plaintiff in error. The judgment is affirmed.

END OF CASES IN VOL. 3 F. (2d)

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