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3 F.(2d) 139 There is a difference, as counsel for plain- ment for plaintiffs, and defendant' brings tiff in error points out, between giving or- error. Affirmed. ders and imparting information. This may be well illustrated in a switching operation

S. S. Alderman, of Greensboro, N. C. in the night. The brakeman who makes the

(W. P. Bynum and F. P. Hobgood, Jr., coupling may give information to the con

both of Greensboro, N. C., and H. M. Robductor by the swinging of his lantern. The

The ins, of Ashboro, N. C., on the brief), for conductor will then give a somewhat sim- plaintiff in error. · ilar lantern signal to the engineer. Both of

John M. Robinson, of Charlotte, N. C. these signals are informative, but one is

(Hitch, Denmark & Lovett, of Savannah, purely so, while the other is primarily an Ga., and Cansler & Cansler, of Charlotte, order.

N. C., on the brief), for defendants in The testimony in the present case does error. not permit of a conclusion which recognizes Before WOODS, WADDILL, and the communications that passed between the ROSE, Circuit Judges. towermen and switchmen merely as infor

e re

ROSE, Circuit Judge. The defendants ceived or delivered over the telephone were

in error, trading as Lamborn & Co., were "orders," which the receiving party was not at liberty to ignore.

plaintiffs below, and the plaintiff in error They dealt with the

was the defendant. It will tend to clearmovement and operation of trains. Their form-whether in the nature of a command

ness if they be designated by the positions or worded as a request-is not at all deter

* they occupied in the trial court. .

The plaintiffs sued to recover upon & minative of the question. Our decision is based upon the conclusion

contract dated June 4, 1920, by which they

sold to the defendant and the defendant we have reached respecting the nature and necessary effect of the directions which pass

bought from them 85 barrels of standard ed between these two employees of the com

fine granulated sugar on the basis of 26 pany. We think they were "orders," within

cents per pound, f. o. b. Savannah Refinthe meaning of the statute.

ery, Port Wentworth, Ga. The defendant The judgment is affirmed.

accepted 28 barrels, but declined to take the balance, and the only question now open in the case is as to the measure of damages applied by the court below in de

termining the amount for which it directed RANDOLPH GROCERY CO. V. LAMBORN a verdict for the plaintiffs. et al.

[1,2] The wording of the contract in (Circuit Court of Appeals, Fourth Circuit. the instant case was identical with that December 20, 1924.)

sued on in Bell v. Lamborn, 2 F.(20) 205, No. 2292.

decided by this court at the October term, 1. Sales 55-Law of state where contract

1924, in all matters legally material to the is to be performed governs measure of dam.

questions to be here passed upon. We then ages for breach.

held that, as the place of performance was Where a contract of sale between parties Port Wentworth, Ga., the measure of damin different states was to be performed in one ages upon the breach was that prescribed of the states, the law of that state governs by the law of Georgia, even if it be asas to the measure of damages for its breach.

sumed that there was any difference be2. Sales 334Resale of sugar on refusal of tween the applicable law of that state and buyer to accept it held without unreasonable that of North Ca

that of North Carolina upon which point delay.

we intimate no opinion. It is unnecessary A resale of sugar for account of the buyer, who had contracted for its purchase, but re

to repeat what we have said in the earlier fused to accept delivery, held within a reason- case, which answers a number of the conable time.

tentions so ably made by the learned coun

sel of the defendant; but, of course, the In Error to the District Court of the

question whether there was unreasonable United States for the Western District of

delay of the plaintiffs in reselling depends North Carolina, at Greensboro; James E.

upon the particular facts of this case. Boyd and Edwin Y. Webb, Judges.

One-half of the sugar as to which this conAction at law by A. H. Lamborn and troversy arose was to be delivered in Auothers, trading as Lamborn & Co., against gust or September, and the other half in the Randolph Grocery Company. Judg- September or October, the plaintiffs hav

(1 mit for the mount to court be measure

ing the option of shipping during the peri- GADERSON v. TEXAS CONTRACTING CO. ods mentioned; that is to say, they were (Circuit Court of Appeals, Fifth Circuit. Denot bound by the contract to ship any of

cember 2, 1924.) it before September 30. Plaintiffs on the 18th of August called

No. 4350. on defendant for shipping instructions for 1. Admiralty Om31-Doctrine of assumption of the portion of the sugar which they had risk applied in admiralty. the right to deliver in that month. On

The doctrine of assumption of risk is apthe 19th, defendant wired: "Not in posi- P

plied in admiralty. tion to take care of sugar. Letter of ex- 2. Admiralty 118-Decree not reversible, if planation follows." On the same day it

it allegations of libel are not sustained by credi

ble evidence. wrote, confirming the telegram and said

A decree dismissing a libel is not reversithat it was then selling sugar at a loss of ble, if the record fails to show that its allega3 cents à pound and that it had one-half tions were sustained by evidence which was of that already received under the contract entitled to credence. on hand, that it would probably lose much Appeal from the District Court of the more before it disposed of the remainder, United States for the Southern District of and concluded by saying: “Now the point Texas; Joseph C. Hutcheson, Jr., Judge. we are getting at is we do not have the

Suit in admiralty by Maggie Gaderson, money to take care of the other shipments,

alias Gadison, widow of James Gaderson, nor can we obtain it under present condi

deceased, against the Texas Contracting tions so you can see if you should succeed

Company. Decree for respondent, and liin forcing this lot on us, you would do us

belant appeals. Affirmed. irreparable damage and at the same time, do yourselves no good. With this state Wilford H. Smith, of Houston, Tex.. for mont of facts, we leave the matter with you appellant. and regret the incident.”

Mart H. Royston, of Galveston, Tex., for On the 26th of August the plaintiffs appellee. again called for shipping instructions and Before WALKER and BRYAN, Circuit on the 27th defendant wired that "we can- Judges, and DAWKINS, District Judge. not and will not accept further shipments of sugar.” That was the last communica

WALKER, Circuit Judge. This was a tion that the defendant ever made to the

to the libel in admiralty by the appellant, the widplaintiffs. The latter on the 18th, 23d, and

ow of James Gaderson, deceased, against 27th of September. by letters and tele- the appellee, a contracting stevedore, to regrams, repeated their demand for shipping cover damages for the death of the decea instructions and by the last, gave the de

while he was engaged in building a structure fendant notice that in default of receiving

called a grain feeder on a ship located at a such instructions, the sugar would be re

pier in the port of Galveston; the deceased sold for defendant's account and at its risk.

at the time of his death being the foreman On the 22d of October, the plaintiffs wired

or "straw boss" of a gang employed by the the defendant that they had obtained an of

appellee and assigned to the task mentioned. fer of 11 cents a pound for the sugar, less

The libel contained allegations to the effect

that the death of the deceased was due to a the usual 2 per cent. discount, and askd for a better offer. The plaintiff did not reply

fall caused by the careening, tilting, or turnand on the 23d of October, the offer was

ing of a strongback or beam on which he

was standing while at work, and that the accepted and the sugar sold. The plain

unsteadiness of the strongback or beam was tiffs might have accepted the action of the

due to appellee's negligence in failing to defendant as an anticipatory breach. They.

y have it bolted or fastened, so as to make it were not bound to do so. Roehm v. Horst,

steady. 178 U. S. 1, 20 S. Ct. 780, 44 L. Ed. 953.

The evidence in the trial was adduced in Under the uncontradicted evidence in the

the presence of the trial judge. The apcase and in view of the conditions then pre

pellant undertook to support the allegations vailing in the sugar market, there is no

of the libel as to how the deceased came to ground to complain that there was any un- his death by the testimony of two of his reasonable delay in making the resale. The coemployees. who were engaged with him in evidence shows that it was in fact made for the same task. Only one of those witnesses the best price obtainable. The record dis- claimed to have seen the deceased when he closes no error and the judgment must be fell, or to know what caused him to fall. Affirmed.

There was evidence tending to discredit the

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8 F.(20) 141 testimony of that witness. The trial judge's BIERNDT v. UNITED STATES. memorandum opinion shows that he did not

(Circuit Court of Appeals, Seventh Circuit. credit the testimony of that witness so far December 8, 1924. Rehearing Denied as it was uncorroborated. Testimony of the

January 2, 1925.) other witness was to the effect that, at the

No. 3341. time of and prior to the deceased's fall, witness had one foot on the same beam upon

1. Criminal law 1 159(3)-Verdict on conwhich the deceased had one of his feet; that

flicting evidence conclusive on appeal.

The verdict of jury on conflicting evidence witness was not looking in the direction of

is conclusive on appeal. the deceased when the latter fell, and did not know what made him fall; that prior to

prior to

2. Criminal law w 449(2)-Whether identifi.

cation hesitatingly or positively made proper. deceased's fall, and during the time witness

ly shown. and the deceased were using the beam as a

Though generally it may not be proper to support, it rocked, and did so at any time it testify as to one's opinion of another's state of was stepped on; and that the deceased was mind, whether identification is hesitatingly or aware of the danger to which he was ex

positively made may properly be shown, and

question whether codefendant's identification of posed when he undertook the task in which

accused was doubtful, followed by substituted he was engaged when he fell, deceased hav question whether he expressed any doubt, was ing undertaken that task after it was dis- not objectionable. closed that another member of the gang was afraid to do so.

In Error to the District Court of the The trial judge's memorandum opinion United States for the Eastern Division of contained the following:

the Northern District of Illinois. "Either the accident occurred, as libel

Walter Bierndt and another were chargant's witnesses testified, by reason of the

ed with falsely assuming and pretending to insecurity of the beam, which condition, un

be officers of the United States with intent der the undisputed evidence, was bound to

to defraud. From the judgment, defendant have been know to plaintiff before his fall,

Bierndt brings error. Affirmed. and therefore the risks of which were assumed by him, or, if you discard the testi

William A. Sherwin, of Chicago, Ill., for mony of these witnesses, the case is one of plaintiff in error. unexplained accident, and upon neither the- James G. Cotter, of Chicago, I., for the ory is libelant entitled to recover."

United States. [1] Though the libel stated a cause of ac- Before ALSCHULER, EVANS, and . tion which was enforceable in a court of ad- PAGE, Circuit Judges. miralty, the appellant was not entitled to recover, if the allegations of the libel as to ALSCHULER, Circuit Judge. Plaintiff the cause of her husband's death were not in error and another were charged with duly sustained by proof, or if his death was falsely assuming and pretending to be offidue to a risk which he assumed. O'Brien v. cers of the United States with intent thereLuckenbach S. $. Co. (C. C. A.) 293 F. 170. by to defraud complaining witness of $200. Even if the court's conclusion that the de- We have examined the abbreviated printceased assumed the risk to which his deathed transcript, and, at the earnest insistence is attributed was incorrect for any reason, of counsel for plaintiff in error, also the a reversal of the decree dismissing the libel full stenographic report of the trial. For would not be warranted, unless the evidence the government there was evidence of sevadduced was such as to require the conclu- eral witnesses identifying plaintiff in error sion that the death of the deceased was due as one of several who went to the house of to the negligence alleged. That conclusion the complaining witness representing themcannot be reached without giving credence selves to be officers of the federal governto testimony which was impeached, and ment, and demanding and securing entry inwhich the record indicates was not believed to the premises and obtaining from her $200 by the trial judge, in whose presence the for refraining from arresting her. Plaintestimony was given. "

tiff in error denied that he was ever presr21 The dismissal of the libel is sustain- ent at the premises or saw the alleged inable on the ground that the record fails to jured party, but that at that time he was show that material allegations of the libel far away from the scene of the alleged of were sustained by evidence which was en- fense. Other witnesses testified in support titled to credence. Johnson V. Frederick of his alibi. Leyland & Co., 153 F. 572, 82 C. C. A. 526. [1] This is a typical case presenting a The decree is affirmed.

conflict of evidence, wherein the verdict of

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the jury, on which the judgment was based, Virginia, at Richmond, in bankruptcy; D.
must be accepted by this court as conclusive Lawrence Groner, Judge.
upon the controverted facts.

In the matter of the Sunnyside Quarry
[2] Error is charged as to the evidence Corporation, bankrupt. Mary H. Selvage
for the government of Police Captain Smith. appeals from a decree against her in favor of
The codefendant, Osinski, testifying in his Brockenbrough Lamb, trustee. Affirmed.
own behalf expressed uncertainty of iden-
tification of plaintiff in error as having been

Robert H. Talley, of Richmond, Va., for present with him at the time and place in appellant. question. Captain Smith testified in rebut

R. W. Carrington, of Richmond, Va., for tal that the next day at the police station appellee. Osinski identified plaintiff in error as one Before WOODS, WADDILL, and ROSE, of those then present and being asked wheth- Circuit Judges. er Osinski had any doubt on the subject, he answered, "No." On objection by counsel ROSE, Circuit Judge. This is an appeal for plaintiff in error, the court asked the from a decree that the trustee in bankruptcy witness whether Osinski then expressed any of the Sunnyside Quarry Corporation redoubt, and the witness again answered, cover from the appellant, Mary H. Selvage, "No." While generally it may not be prop- $2,500, with interest thereon from Septemer for one to testify as to his opinion of ber 1, 1921, and which decree imposes upon the state of mind of another, it is evident certain real estate in Richmond a trust for that what the witness intended to convey

that amount in favor of the trustee The was that the identification was made with- bankrupt was a corporation of the state of out hesitancy on the part of the person who Virginia, organized February 5, 1921, identified, and to state what actually occur- against which the petition for adjudication red at the time of that identification rather as a bankrupt was filed February 15, 1922, than to express his opinion as to Osinski's one year and ten days later. It does not apstate of mind. Whether or not an identifi- pear that a share of its stock was ever paid cation was hesitatingly and haltingly made, for. It was a family corporation, the presior was emphatic and positive, may prop- dent of which was the son, and the vice erly be shown. The court's question, which president and treasurer the husband, of the may well be regarded as a substitute for the appellant. The son and the husband, togethprevious one, tended to elicit this informa- er with a stenographer, constituted the board tion, and was not under the circumstances of directors of the corporation. It made a objectionable.

contract with the Stonewall Courts CorpoNo substantial error appearing, the judg- ration to do some work for the latter, and ment of the District Court must be, and it

was to take its pay, or part of its pay, in is, affirmed.

two unimproved lots, valued by the parties at $3,000. The appellant's husband, as vice

president of the bankrupt, directed that 866 VS 6:35

352 these two lots should be conveyed to his wife. in ro SUNNYSIDE QUARRY CORPORA. This, however, was not actually done, but TION.

by direction of the husband the lots were SELVAGE V. LAMB.

sold for $2,500, and this $2,500 was applied (Circuit Court of Appeals, Fourth Circuit. by the appellant as a payment upon the December 20, 1924.)

house she purchased at 305 South Mulberry

street, Richmond. Before the deed to the No. 2257.

property at 305 South Mulberry street had Bankruptcy w 186(1)-Trustee held entitled been acknowledged, a question as to the reg

to recover money transferred in fraud of ularity of the transaction arose, and the con-
Where bankrupt, a corporation, when in-

veyance was actually delivered to her counsolvent, and without valuable consideration, sel, to be held by him until the court should turned over to the wife of its vice president, pass on the questions of law and fact inwho was also the mother of its president, a volved. She consented that “all questions sum of money belonging to the corporation, which she invested in real estate, the trustee involving the claims to all title to and inheld entitled to a personal decree against her terest in 305 South Mulberry street should for the amount, with a lien for its payment on be fully heard and adjudicated” in the court the real estate.

below in the bankruptcy proceedings in

question. Appeal from the District Court of the The proceeds of the lots were turned over United States for the Eastern District of to her, as she said, in repayment of moneys

et den: 262 146 547 (69 Led


3 F.(20) 143 advanced by her to the bankrupt. The ref- Roy L. Morse, of Milwaukee, Wis., for aree and the court both found that the bank- the United States. rupt was not indebted to the appellant. The judge held that, if any advances had been

Before ALSCHULER, EVANS, and made by her to anybody, they were to her

PAGE, Circuit Judges. husband and not to the corporation, and that the payment of the $2,500 to or for her ALSCHULER, Circuit Judge. Convicwas a fraud upon the bankrupt and its tion for violation of National Prohibition creditors. In our view, the record not only Act (Comp. St. Ann. Supp. 1923, § 1013844 justifies, but requires, that conclusion. et seq.). The one question raised is as to

She says that in any event there is no au- the admissibility of evidence obtained upon thority to enter a money judgment or de entry of a residence at 272 Jefferson street, cree against her, because the pursuit of Milwaukee. A search warrant for the premproperty fraudulently obtained cannot be ises was obtained in the Wisconsin state abandoned and a judgment in personam court. The entry and seizure was conducttaken for its value. Phipps v. Sedgwick, ed by a federal revenue agent, with a state 95 U. S. 3, 24 L. Ed. 591; U. S. Trust Co. officer present and nominally serving the v. Sedgwick, 97 U. S. 309, 24 L. Ed. 954; warrant. The government concedes that the Huntington v. Saunders, 120 U. S. 80, 7'S. warrant itself was invalid, but insists that Ct. 356, 30 L. Ed. 580; Clark v. Beecher, 154 under the facts the entry of the premises U. S. 632, 14 S. Ct. 1184, 24 L. Ed. 705. was lawful. None of these authorities is applicable to

The wholly uncontradicted evidence for the facts in this particular case. From the the government showed that revenue officers, sale of the lots, which were the property of suspecting that a truck bearing Wurm's the bankrupt, the appellant received $2,500 name was being used in transporting illicit of its money, and that she should be re- liquor, were on the watch for it, and late quired to return to the trustee in bankrupt- in December saw it drive into an alley and cy. Moreover, as the fund was traced into stop in the rear of a saloon and boarding a particular piece of property, the court be- house at 035 Thirty-Fifth street. Examinlow was right in impressing a trust upon her ing the truck, they found on it, concealed interest in it, to the extent of such sum, with beneath rags and torn clothes, four twointerest and costs.

gallon jugs of moonshine whisky, which was Affirmed.

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 WURM v. UNITED STATES.

some unremembered park, asking him to take (Circuit Court of Appeals, Seventh Circuit. it home and keep it till he called for it. He December 8, 1924.)

was taken into custody, and for his identiNo. 3323.

fication produced some papers, including a

recent receipt from the gas company to one Intoxicating liquors em 249–Revenue officers Gleckner for gas consumed at 272 Jefferson held justified in entering premises without search warrant.

street. Inquiry at the gas office showed that Where revenue officers, who seized warm

the deposit required to be paid for having moonshine in accused's truck, had their sus- the gas turned on there was made in the picions aroused by improbable story as name of Gleckner. Going to these premises, where he obtained and by his attempt to

the officer attempted vainly to obtain enprove identity by gas receipt, giving name which officers knew was not his own, and on

trance at the front door, but on going to approaching premises described in receipt of the rear he found the windows all steamed ficers saw windows all steamed up on inside, up on the inside, as though cooking on a held, that they were justified in entering prem- considerable scale was going on within, where ises without search warrant.

two men

were seen to be walking about. In Error to the District Court of the After knocking at the rear door, they were United States for the Eastern District of admitted by one of these men, who said Wisconsin.

they were working there for Wurm. On

going in they found three 25-gallon stills in Edward Wurm was convicted of violating operation, 700 gallons of moonshine mash, the National Prohibition Act, and he brings 50 gallons of "moonshine," "home-brew". error. Affirmed.

boilers, and various other ingredients of Louis H. Koenig, of Milwaukee, Wis., for and paraphernalia for making so-called plaintiff in error.

"moonshine" and "home-brew."


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