PHOSPHATE MIN. CO. v. UNIONE AUSTRIACA DI NAVIGAZIONE, ETC. · 239 3 F.(2d) 239 was, as above stated, direct evidence of the existence of an agreement to restrict the use of defendant's acceptances, but there was not an iota of evidence that plaintiff knew or ought to have known anything about that arrangement. There was no basis of fact for the instructions requested. Any verdict for defendant should have been set aside, as opposed to all the evidence. We do not consider it necessary to treat of the assignments relating to admission or rejection of evidence; and the evidence against plaintiff's ownership of the bills was trivial-the jury disposed of that. Judgment affirmed, with costs. PHOSPHATE MINING CO. v. UNIONE AUS- Fratelli Cosulich executed a charter party in It is charged that the appellant failed to AMERICANA & FRATELLI COSULICH furnish a steamer to the appellee between SOCIETA ANONIMA. (Circuit Court of Appeals, Second Circuit. November 3, 1924.) No. 1. Shipping 56-Owner not liable for charterer's breach of contract to subcharterer. Though a partnership which entered into contract on its own behalf for ocean carriage of cargo for libelant by steamer to be named, owned no vessels, and was accustomed to charter vessels from respondent to carry out such contracts, and though the partners owned 20 per cent. of the stock of respondent, the corporation was not liable for partnership's breach of charter party by failure to furnish vessel. Appeal from the District Court of the United States for the Southern District of New York. Libel by the Phosphate Mining Company against the Unione Austriaca di Navigazione Gia Austro-Americana & Fratelli Cosulich Societa Anonima. Decree for libelant and respondent appeals. Reversed. Haight, Smith, Griffin & Deming, of New York City (Clarence B. Smith, of New York City, of counsel), for appellant. Burlingham, Veeder, Masten & Fearey, of New York City (Roscoe H. Hupper and Carl G. Stearns, both of New York City, of counsel), for appellee. these dates, and, on the contrary, gave notice on November 17, 1914, and again on March 29, 1915, that it would not do so, because of the then existing state of war in which Austria was a belligerent nation. Fratelli Cosulich is a partnership, and both it and the appellant are separate entities, but it does appear that the words "Fratelli Cosulich" appear as part of the title of the appellant corporation. Members of the Cosulich family are directors of the appellant and owned 20 per cent. of the stock. Oscar Cosulich testified that he was a stockholder of the appellant, and that the charter was entered into by Fratelli Cosulich for and on their own behalf, and not as agents of or on behalf of the Unione Austriaca Di Navigazione and no contract ever existed between Fratelli Cosulich and Unione Austriaca Di Navigazione with regard to the charter party mentioned. He testified that he prepared the copartnership papers and the documents necessary for the organization and the registration of the appellant. He was familiar with its affairs. He declared it was organized under the laws of Austria, with its principal place of business in Trieste, and that it and Fratelli Cosulich were separate and entirely independent legal and business entities, and he said that a relationship did exist between the two, because partners of the firm Fratelli Cosulich happened to be directors of the ap Before ROGERS, HOUGH, and MAN- pellant; that Fratelli Cosulich has always TON, Circuit Judges. MANTON, Circuit Judge. The appellant is an Austrian corporation and the appellee is a New York corporation. On July 17, 1913, at London, England, the appellee and been accustomed in the past, as they are now, to enter into contracts of charter for the ocean carriage of phosphate cargoes. He further testified that it had been the practice of Fratelli Cosulich to arrange with the appellant for the transportation of ocean cargoes by them, and said that there was no contract or agreement compelling the partnership to turn over to the corporation contracts of charter and/or affreightment entered into by them. He was emphatic in declaring that in the instant case the charter party was entered into in the sole interest of the partnership, and not as agents or on behalf of the appellant. The partnership did not own any vessels in 1915, and it was then their practice to charter vessels of the appellant, and carry out their own contracts of affreightment. The partnership's agents in London, Tyson & Co., negotiated the present charter and carried on the negotiations in its behalf. The first cargo load of 2,500 pounds was carried before the war broke out under a bill of lading dated July 6, 1914, containing the following cause: "(1) The acts of God, public enemies, the restraint of rulers, princes and people, pirates, robbers and arrests, fire on land and sea, and every danger and accident of the sea, river, machinery, boilers and navigation, of what ever nature or kind mutually excepted, barratry of master and crew, strandings, collision, and all loss and damage caused thereby also excepted." It was not until November 14, 1914, after the war started, and Great Britain and her allies had established a blockade against Germany, Austria, and the other central powers that the appellee cabled Fratelli Cosulich that it wished the second cargo carried between May 1st and June 11th. In the same months the appellant replied that on account of the war, it would be unable to carry the cargo, but it would carry it if the war should cease. On March 8, 1915, the appellee again sent a notification, requesting that the second shipment to Barcelona be carried between May 1 and June 11, 1915, and on March 29th, the appellant replied by cablegram that the cablegram of November 4, 1914, "never reached us, and presume has been stopped on the way," and advised the appellee that the war would prevent the shipment of the 1915 cargo. There is proof in the record that it was not possible or feasible, after Italy entered the war on May 15, 1915, to send letters from Trieste to the United States, and that "letters were stopped at some neutral or allied place." Oscar Cosulich testified that the chartering of vessels for oceanic trade was impossible, because no foreign owner would risk going against the Enemy Act published by Great Britain. He pointed out that Austrian laws also prohibited communication with enemies, and that postal and telegraphic communica tions between Austria and her enemies were interrupted and prohibited, and that the censorship instituted by the belligerent powers stopped all communications which would have been sent through "dummy firms" from neutral places. It is clear to us that the charter party was not made by the appellant, nor by any agent on its behalf. Fratelli Cosulich was an independent partnership, which took contracts similar to the one here sued upon, and carried them out through subcharterers. This method of carrying on its business was the policy of the partnership and the corporation was not otherwise interested. From the testimony it appears to have been of long standing. Even though the subcharter was made upon the same terms, it did not constitute any contractual relations between the appellee and the appellant. This appellant was never a party to the charter in suit. Its obligation must be measured by the contract between it and the partnership. In no way did it become obligated to the appellee. The case of Luckenbach Steamship Company, Inc., v. W. R. Grace Co., Inc. (C. C. A.) 267 F. 676, is distinguishable. There a corporation owned a number of ships and leased them to another corporation, which had a small capital stock, and which was controlled by the same officers and directors. The rental was far below the value of the ships and it was held that the owning corporation was so far interested in the contracts of the leasing corporation as to be liable for their breach. It was pointed out that there was sufficient to warrant the conclusion that Edgar F. Luckenbach owned 94 per cent. of the stock of the steamship company and 90 per cent. of the leasing company. This caused the companies to be regarded as one and the same. These facts warranted a strong presumption of Luckenbach's identity with that of the corporation's, so as to warrant the conclusion that the steamship company was liable for the breach of contract. In the case at bar, the stock ownership in the appellant by members of Fratelli Cosulich is but 20 per cent. No motive is shown for the identity of the two enterprises, for their business has been carried on separately and independently. It cannot be said that the potential and the ultimate control of the property and business affairs of the appellant is lodged in the partnership, nor that the control was exercised so completely and directly as the machinery of the corporate organism would permit. There was no complete dominance and control by the partnership which made 8 F.(2d) 241 the appellant its mere instrumentality (U. S. v. D. L. & W. R. Co., 238 U. S. 516, 35 S. Ct. 873, 59 L. Ed. 1438; Lehigh Valley R. R. v. Du Pont, 128 F. 840, 64 C. C. A. 478); but, on the contrary, we deem our decision in The Banes, 221 F. 416, 137 C. C. A. 214, to be controlling. Reaching this conclusion, we deem it unnecessary to consider the further defense that the appellant is excused by reason of the provision as to the restraint of princes. Judgment reversed. filed a bill of complaint in the District Court for the Judicial District of Ponce praying that she be adjudged the natural child of Charles M. Boerman, with the right to bear his surname and also to inherit the part of the estate to which she would be entitled if legitimatized. The defendants named in this complaint were the widow, Maria D. Boerman, née Fordham, a resident of Ponce, and the mother of the testator, Esther Bessie Boerman, a resident of Ponewish, Russia, who were the only legatees named in the will besides the complainant who received a small bequest. Service upon the mother was ordered by publication and notice by mailing to her at her address in Russia a copy of a summons. She did not appear to answer to the complaint; but the widow did so, and there was a full hearing before the District Court of Ponce upon the question whether Amelia Marrero had been acknowledged by the said Charles M. Boerman to be his natural child, as redeath of the alleged parent, his executor is quired by the Civil Code of Porto Rico. BOERMAN v. MARRERO et al. (Circuit Court of Appeals. First Circuit. January 6, 1925.) Bastards No. 1711. 14-in an action for filiation under Civil Code Porto Rico, brought after the not a necessary party. The District Court found that she had, and rendered a judgment of filiation. Appeal was then taken by the widow to the Supreme Court of Porto Rico, which affirmed the judgment of the District Court, stating that the evidence at the trial, that Amelia Marrero had been acknowledged by the said Charles M. Boerman as his natural child, was "strong and convincing." Appeal was then taken to this court which, in its opinion, 273 F. 61, affirmed the judgment of the Supreme Court of Porto Rico. The District Court of Ponce then proceeded with the administration of the es Herminia Tormes, of Ponce, Porto Rico, tate of Charles M. Boerman in accordance for appellant. R. V. Perez Marchand and Jose Tous Soto, both of Ponce, Porto Rico, and Perez Marchand, for appellees. Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges. JOHNSON, Circuit Judge. This is an appeal from a decree of the District Court of the United States for the District of Porto Rico. The plaintiff is the widow of Charles M. Boerman, who died in Porto Rico January 30, 1915, leaving a last will and testament in which the widow was named executrix. This will was duly probated in the local District Court of Ponce, Porto Rico, on February 3, 1915, and on June 6, 1917, she was appointed judicial administratrix of his estate. with the law of Porto Rico. A commissioner was appointed by it for the partition of the estate, who filed his written report in the District Court, and it was approved. An appeal was then taken to the Supreme Court of the Island from the decree approving the report by the District Court, which was dismissed for the reason that it was not seasonably taken. A motion was then filed in the District Court that the widow, as judicial administrator, file a final account. This was opposed by the widow; but the court granted the motion and directed her to file a final account of her administration. The widow, then, as executrix and judicial administratrix, filed a motion attacking the judgment of filiation which had been rendered by the District Court and affirmed by the Supreme Amelia Marrero on November 24, 1915, Court of Porto Rico and by this court, 3 F. (2d)-16 claiming that the judgment was void because the widow had not been made a party as judicial administratrix and moving that the judgment of filiation be vacated and declared without any legal effect. This motion was denied. No appeal to the Supreme Court of Porto Rico appears to have been taken from this last judgment, which was rendered upon May 15, 1923. On May 25, 1923, a bill of complaint was filed in the District Court of the United States for Porto Rico by the appellant against Amelia Marrero, the sisters of Charles M. Boerman (his mother having died), and certain parties to whom the said Amelia Marrero had conveyed certain real estate which, by the partition of the commissioner, approved by the District Court of Ponce, had been allotted to her as a part of the real estate to which she was entitled as an heir. The complainant in this bill alleges that the judgment of filiation rendered by the District Court of Porto Rico is void for lack of jurisdiction because she, as executrix of the will of Charles M. Boerman and judicial administratrix, was not made a party to the action for filiation, and praying that said judgment and all proceedings thereunder be declared null and void, as well as the deeds given to certain defendants of real estate which under the parti tion had been allotted to Amelia Marrero as a legitimatized child; also praying for an injunction. The District Court held that the widow, having been made a party to the complaint for filiation as one of the parties constituting the succession, the judgment in that case barred her right of action as judicial administratrix in this case and dismissed the bill. It is not necessary to consider the reason assigned by the District Court for its decree, because we think it should be affirmed upon broader grounds. It was contended in argument that the judgment rendered was void because the widow was not made a party as the personal representative of Charles M. Boerman. This question was not raised in the District Court of Porto Rico when the complaint for filiation was before it, nor in the Supreme Court of Porto Rico upon appeal; nor when the case was argued before this court. In support of this contention it is urged that the following pertinent part of section 41 of the Code of Civil Procedure of Porto Rico requires that the personal representa tive be made a party to the complaint of filiation and that the court was without jurisdiction if it proceeded without such representative being made a party. The part of the section which has been brought to our attention is as follows: "Sec. 41. If a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof, an action may be commenced against his representatives after the expiration of that time, and within one year after the issuing of letters testamentary or of administration." In support of this contention counsel have cited Rosado v. Succession of Matta, 19 P. R. Rep. 291. Upon an examination of this case it appears that the only question raised was whether the action was brought within the time limited by the Civil Code of Porto Rico. It was brought against the succession of Teodosio Matta, consisting of his widow and children, and the District Court in which it was brought decided that it could not be maintained because not brought within the time limited by section 199 of the Civil Code, which was afterward repealed by Act of March 9, 1911. however, that under section 41 of the Code The complainant in that case claimed, of Civil Procedure the action could be brought within one year after the issuing of letters testamentary or of administration. The Supreme Court of Porto Rico stated in its opinion, concurred in by all its members, that this last section was not applicable to a suit for filiation because the word "representatives" as used in it does not include heirs; and that the section is applicable only to suits against an estate of a deceased person to which an executor or administrator is a party. The opinion does not hold that an action of filiation must be brought against the administrator or executor of an estate. Section 192 of the Civil Code of Porto Rico is as follows: "The legitimation may be disputed by persons considering their rights impaired, when the legitimation be granted in favor of persons not having the lawful condition of natural children, or when the requirements prescribed in this chapter have not been met." Section 194, which deals with actions for filiation and limits the time in which such actions may be brought to the life of the alleged parent and a year beyond his death, except in certain cases, also provides as follows: "The recognition of [such] child 3 F.(2d)243 can be disputed by whomsoever 2. Criminal law 1056(1)-Errors predicated on refusal of requested instructions not may be affected thereby." reviewable, in absence of exceptions. In this case the only parties to be affected by the judgment of filiation were the other legatees in the will, who were the widow and the mother of Charles M. Boerman. Although the mother was defaulted, the widow, the complainant here, made a vigorous defense, and judgment was rendered determining the status of the complainant as a natural child. No decision of the Supreme Court of Porto Rico has been cited, nor have we found any, which has held that, in a complaint for filiation, it is necessary to make the judicial administrator of the deceased alleged parent a party. A complaint for filiation has been frequently brought in the Porto Rican courts, and examination of reported cases discloses that, in all, the parties constituting the succession have been made defendants if the alleged father has died. I. Indictment and information (I)-Indictment sufficient, though not alleging de fendant was person required to be registered. Count in indictment based on Harrison Anti-Narcotic Act Dec. 17, 1914, § 2 (Comp. St. § 6287h), for unlawfully selling, bartering, exchanging, or giving away contraband drugs, which did not allege that defendant was one of the persons required to register under section 1 (Comp. St. § 6287g), held sufficient; the latter section not limiting the former, and section 8 (Comp. St. § 6287n) specifically providing that indictment need not negative exceptions specified in the act. L In prosecution for violation of Harrison Anti-Narcotic Act (Comp. St. §§ 6287g-6287q), errors in refusing to give instructions as to entrapment are not reviewable, where no exceptions were preserved to the charge on that point, or to the refusal of defendant's re quest. In Error to the District Court of the United States for the Northern Division of the Northern District of California; John S. Partridge, Judge. Stuart Coleman was convicted of viola tion of the Harrison Anti-Narcotic Act, and he brings error. Affirmed. P. H. Johnson, of San Francisco, Cal., and H. W. Coale, of Stockton, Cal., for plaintiff in error. Sterling Carr, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal. Before GILBERT, HUNT, and RUDKIN, Circuit Judges. HUNT, Circuit Judge. Coleman, defendant in the District Court, was convicted under a count of an indictment which, after the formal parts, charged that he did "unlawfully and feloniously sell, barter, exchange, and give away to one Ira Curtis a certain quantity of a certain preparation and derivative of opium, to wit, one package of morphine, approximately four grains, and did then and there sell, barter, exchange, and give away said quantity of morphine without, and not in pursuance of a written order of the said Ira Curtis on a form issued in blank for that purpose by the Commissioner of Internal Revenue of the United States." The count was based upon section 2 of the Act of Congress of December 17, 1914 (38 Stat. 785 [Comp. St. § 6287h]), which provides that "it shall be unlawful for any person to sell, barter, exchange, or give away any of the aforesaid drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue." The evidence of the government was that about April, 1921, a government narcotic inspector, with a government agent and Ira Curtis, went to Stockton, where Curtis, who was an informer, went to Coleman's office and brought back a package of morphine hydrochloride. The two government agents then went to Coleman's office and placed him |