ing the option of shipping during the periods mentioned; that is to say, they were not bound by the contract to ship any of it before September 30.

Plaintiffs on the 18th of August called on defendant for shipping instructions for the portion of the sugar which they had the right to deliver in that month. On the 19th, defendant wired: "Not in position to take care of sugar. Letter of explanation follows." On the same day it wrote, confirming the telegram and said that it was then selling sugar at a loss of 3 cents a pound and that it had one-half of that already received under the contract on hand, that it would probably lose much more before it disposed of the remainder, and concluded by saying: "Now the point we are getting at is we do not have the money to take care of the other shipments, nor can we obtain it under present condi

tions so you can see if you should succeed in forcing this lot on us, you would do us irreparable damage and at the same time, do yourselves no good. With this statement of facts, we leave the matter with you and regret the incident."

On the 26th of August the plaintiffs again called for shipping instructions and on the 27th defendant wired that "we cannot and will not accept further shipments of sugar." That was the last communication that the defendant ever made to the plaintiffs. The latter on the 18th, 23d, and 27th of September, by letters and telegrams, repeated their demand for shipping instructions and by the last, gave the defendant notice that in default of receiving such instructions, the sugar would be resold for defendant's account and at its risk. On the 22d of October, the plaintiffs wired the defendant that they had obtained an offer of 11 cents a pound for the sugar, less the usual 2 per cent. discount, and askd for a better offer. The plaintiff did not reply and on the 23d of October, the offer was accepted and the sugar sold. The plaintiffs might have accepted the action of the defendant as an anticipatory breach. They were not bound to do so. Roehm v. Horst, 178 U. S. 1, 20 S. Ct. 780, 44 L. Ed. 953. Under the uncontradicted evidence in the case and in view of the conditions then prevailing in the sugar market, there is no ground to complain that there was any unreasonable delay in making the resale. The evidence shows that it was in fact made for the best price obtainable. The record discloses no error and the judgment must be Affirmed.

1. Admiralty 31-Doctrine of assumption of risk applied in admiralty.

The doctrine of assumption of risk is applied in admiralty.

2. Admiralty 118-Decree not reversible, if allegations of libel are not sustained by credible evidence.

A decree dismissing a libel is not reversible, if the record fails to show that its allegations were sustained by evidence which was entitled to credence.

Appeal from the District Court of the United States for the Southern District of Texas; Joseph C. Hutcheson, Jr., Judge.

alias Gadison, widow of James Gaderson, Suit in admiralty by Maggie Gaderson, Company. Decree for respondent, and lideceased, against the Texas Contracting belant appeals. Affirmed.

Wilford H. Smith, of Houston, Tex., for appellant.

Mart H. Royston, of Galveston, Tex., for appellee.

Before WALKER and BRYAN, Circuit Judges, and DAWKINS, District Judge.

WALKER, Circuit Judge. This was a libel in admiralty by the appellant, the widow of James Gaderson, deceased, against the appellee, a contracting stevedore, to recover damages for the death of the deceased while he was engaged in building a structure called a grain feeder on a ship located at a pier in the port of Galveston; the deceased at the time of his death being the foreman or "straw boss" of a gang employed by the appellee and assigned to the task mentioned. The libel contained allegations to the effect that the death of the deceased was due to a

fall caused by the careening, tilting, or turning of a strongback or beam on which he was standing while at work, and that the due to appellee's negligence in failing to unsteadiness of the strongback or beam was have it bolted or fastened, so as to make it steady.

The evidence in the trial was adduced in

the presence of the trial judge. The appellant undertook to support the allegations of the libel as to how the deceased came to his death by the testimony of two of his coemployees, who were engaged with him in the same task. Only one of those witnesses claimed to have seen the deceased when he fell, or to know what caused him to fall. There was evidence tending to discredit the

testimony of that witness. The trial judge's memorandum opinion shows that he did not credit the testimony of that witness so far as it was uncorroborated. Testimony of the other witness was to the effect that, at the time of and prior to the deceased's fall, witness had one foot on the same beam upon which the deceased had one of his feet; that witness was not looking in the direction of the deceased when the latter fell, and did not know what made him fall; that prior to deceased's fall, and during the time witness and the deceased were using the beam as a support, it rocked, and did so at any time it was stepped on; and that the deceased was aware of the danger to which he was exposed when he undertook the task in which he was engaged when he fell, deceased having undertaken that task after it was disclosed that another member of the gang was afraid to do so.

The trial judge's memorandum opinion contained the following:

"Either the accident occurred, as libelant's witnesses testified, by reason of the insecurity of the beam, which condition, under the undisputed evidence, was bound to have been know to plaintiff before his fall, and therefore the risks of which were assumed by him, or, if you discard the testimony of these witnesses, the case is one of unexplained accident, and upon neither theory is libelant entitled to recover."

[1] Though the libel stated a cause of action which was enforceable in a court of admiralty, the appellant was not entitled to recover, if the allegations of the libel as to the cause of her husband's death were not duly sustained by proof, or if his death was due to a risk which he assumed. O'Brien v. Luckenbach S. S. Co. (C. C. A.) 293 F. 170. Even if the court's conclusion that the deceased assumed the risk to which his death is attributed was incorrect for any reason, a reversal of the decree dismissing the libel would not be warranted, unless the evidence adduced was such as to require the conclusion that the death of the deceased was due to the negligence alleged. That conclusion cannot be reached without giving credence to testimony which was impeached, and which the record indicates was not believed by the trial judge, in whose presence the testimony was given.

[2] The dismissal of the libel is sustainable on the ground that the record fails to show that material allegations of the libel were sustained by evidence which was entitled to credence. Johnson v. Frederick Leyland & Co., 153 F. 572, 82 C. C. A. 526. The decree is affirmed.

ALSCHULER, Circuit Judge. Plaintiff in error and another were charged with falsely assuming and pretending to be officers of the United States with intent thereby to defraud complaining witness of $200.

We have examined the abbreviated printed transcript, and, at the earnest insistence of counsel for plaintiff in error, also the full stenographic report of the trial. For the government there was evidence of several witnesses identifying plaintiff in error as one of several who went to the house of the complaining witness representing themselves to be officers of the federal government, and demanding and securing entry into the premises and obtaining from her $200 for refraining from arresting her. Plaintiff in error denied that he was ever present at the premises or saw the alleged injured party, but that at that time he was far away from the scene of the alleged offense. Other witnesses testified in support of his alibi.

[1] This is a typical case presenting a conflict of evidence, wherein the verdict of

the jury, on which the judgment was based, must be accepted by this court as conclusive upon the controverted facts.

[2] Error is charged as to the evidence for the government of Police Captain Smith. The codefendant, Osinski, testifying in his own behalf expressed uncertainty of identification of plaintiff in error as having been present with him at the time and place in question. Captain Smith testified in rebuttal that the next day at the police station Osinski identified plaintiff in error as one of those then present and being asked whether Osinski had any doubt on the subject, he answered, "No." On objection by counsel for plaintiff in error, the court asked the witness whether Osinski then expressed any doubt, and the witness again answered, "No." While generally it may not be proper for one to testify as to his opinion of the state of mind of another, it is evident that what the witness intended to convey was that the identification was made with out hesitancy on the part of the person who identified, and to state what actually occurred at the time of that identification rather than to express his opinion as to Osinski's state of mind. Whether or not an identification was hesitatingly and haltingly made, or was emphatic and positive, may properly be shown. The court's question, which may well be regarded as a substitute for the previous one, tended to elicit this information, and was not under the circumstances objectionable.

No substantial error appearing, the judgment of the District Court must be, and it is, affirmed.

it den 267 26 547 69 LEd.

806.4.

NG.352

In re SUNNYSIDE QUARRY CORPORA

TION.

SELVAGE v. LAMB.

Virginia, at Richmond, in bankruptcy; D. Lawrence Groner, Judge.

In the matter of the Sunnyside Quarry Corporation, bankrupt. Mary H. Selvage appeals from a decree against her in favor of Brockenbrough Lamb, trustee. Affirmed.

Robert H. Talley, of Richmond, Va., for appellant.

R. W. Carrington, of Richmond, Va., for appellee.

Before WOODS, WADDILL, and ROSE, Circuit Judges.

The

ROSE, Circuit Judge. This is an appeal from a decree that the trustee in bankruptcy of the Sunnyside Quarry Corporation recover from the appellant, Mary H. Selvage, $2,500, with interest thereon from September 1, 1921, and which decree imposes upon certain real estate in Richmond a trust for that amount in favor of the trustee. bankrupt was a corporation of the state of Virginia, organized February 5, 1921, against which the petition for adjudication as a bankrupt was filed February 15, 1922, one year and ten days later. It does not appear that a share of its stock was ever paid for. It was a family corporation, the president of which was the son, and the vice president and treasurer the husband, of the appellant. The son and the husband, together with a stenographer, constituted the board of directors of the corporation. It made a contract with the Stonewall Courts Corporation to do some work for the latter, and was to take its pay, or part of its pay, in two unimproved lots, valued by the parties at $3,000. The appellant's husband, as vice president of the bankrupt, directed that these two lots should be conveyed to his wife. This, however, was not actually done, but by direction of the husband the lots were sold for $2,500, and this $2,500 was applied

December 20, 1924.)

house she purchased at 305 South Mulberry street, Richmond. Before the deed to the property at 305 South Mulberry street had been acknowledged, a question as to the regularity of the transaction arose, and the conveyance was actually delivered to her counsel, to be held by him until the court should pass on the questions of law and fact involved. She consented that "all questions involving the claims to all title to and interest in 305 South Mulberry street should be fully heard and adjudicated" in the court below in the bankruptcy proceedings in question.

The proceeds of the lots were turned over to her, as she said, in repayment of moneys

Before ALSCHULER, EVANS, and PAGE, Circuit Judges.

was

She says that in any event there is no authority to enter a money judgment or decree against her, because the pursuit of property fraudulently obtained cannot be abandoned and a judgment in personam taken for its value. Phipps v. Sedgwick, 95 U. S. 3, 24 L. Ed. 591; U. S. Trust Co. v. Sedgwick, 97 U. S. 309, 24 L. Ed. 954; Huntington v. Saunders, 120 U. S. 80, 7 S. Ct. 356, 30 L. Ed. 580; Clark v. Beecher, 154 U. S. 632, 14 S. Ct. 1184, 24 L. Ed. 705. None of these authorities is applicable to the facts in this particular case. From the sale of the lots, which were the property of the bankrupt, the appellant received $2,500 of its money, and that she should be required to return to the trustee in bankruptcy. Moreover, as the fund was traced into a particular piece of property, the court below was right in impressing a trust upon her interest in it, to the extent of such sum, with interest and costs. Affirmed.

ALSCHULER, Circuit Judge. Conviction for violation of National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.). The one question raised is as to the admissibility of evidence obtained upon entry of a residence at 272 Jefferson street, Milwaukee. A search warrant for the premises was obtained in the Wisconsin state court. The entry and seizure was conducted by a federal revenue agent, with a state officer present and nominally serving the warrant. The government concedes that the warrant itself was invalid, but insists that under the facts the entry of the premises was lawful.

The wholly uncontradicted evidence for the government showed that revenue officers, suspecting that a truck bearing Wurm's name was being used in transporting illicit liquor, were on the watch for it, and late in December saw it drive into an alley and stop in the rear of a saloon and boarding house at 035 Thirty-Fifth street. Examining the truck, they found on it, concealed beneath rags and torn clothes, four twogallon jugs of moonshine whisky, which was warm, as though just taken from where it was made. Wurm, who was in charge of the truck, told them a preposterous story of some unknown man giving it to him near some unremembered park, asking him to take it home and keep it till he called for it. He was taken into custody, and for his identification produced some papers, including a recent receipt from the gas company to one Gleckner for gas consumed at 272 Jefferson street. Inquiry at the gas office showed that the deposit required to be paid for having the gas turned on there was made in the name of Gleckner. Going to these premises, the officer attempted vainly to obtain entrance at the front door, but on going to the rear he found the windows all steamed up on the inside, as though cooking on a considerable scale was going on within, where two men were seen to be walking about. After knocking at the rear door, they were admitted by one of these men, who said they were working there for Wurm. going in they found three 25-gallon stills in operation, 700 gallons of moonshine mash, 50 gallons of "moonshine," "home-brew" boilers, and various other ingredients of

On

"moonshine" and "home-brew."