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said total disability and within two hundred in the schedule. Plaintiff suffered one of weeks from the date of the accident, the in- such injuries, to wit, the loss of his eye; sured suffers, as the direct result of the but as that loss did not occur within 90 bodily injury causing the said total disabil- days from the date of the accident, and was ity and independently and exclusively of all not suffered during a period of total disother causes, one of the injuries defined in ability, we are of opinion that he is not enthe schedule of injuries set forth hereon; titled to recover the lump sum indemnity. or, if within ninety days from the date of This construction of the policy is strengththe accident, irrespective of total disability, ened by reference to the lump sum indemnithe insured suffers in like manner one of ties provided for total disability and for the said injuries—the insured may elect to death. In case of total disability, and durreceive the amount of indemnity set opposite ing the period thereof, and within 200 weeks said injury in the said schedule, together from the date of the accident, if the insured with the weekly indemnity for the period suffers one of the injuries listed in the schedbetween the date of the accident and the ule, he is entitled to a lump sum indemnity. date that the insured suffers the injury de Again, if the insured suffers total disability fined in said schedule in ieu of all other and during the period thereof suffers death, indemnity under this policy except surgeon's the company agrees to pay the principal fees and hospital charges to which he may sum, as well as the weekly indemnity for the be entitled," etc.

period between the date of accident and the Attached to the policy is a schedule of in- date of death. And the company also agrees juries arranged in two sections. The irrev- to pay the principal sum and the weekly ocable loss of the sight of one eye, resulting indemnity irrespective of total disability if from an accident sustained while the insured the insured dies within 90 days from the is riding as a passenger of a common car- date of the accident. In articles 6 and 7, rier, is fixed at the principal sum of $7,500. which contain the provisions just referred The district judge, a jury being waived in to, the periods covered by the policy are set writing, entered judgment for the defend- out and made to differ according to whethant, and the plaintiff assigns error upon the er the accident results in death, in total disrefusal of a motion for judgment in his ability or in partial disability. The policy favor.

does not insure against scheduled losses reThe insurance is not against bodily injury sulting from accidents for indefinite periods only, but is limited to such bodily injury as of time. results in immediate and continuous total

Plaintiff relies upon the caption of the or partial disability, death, or illness. Total policy providing indemnity for loss of sight, disability must be such as to prevent the but ignores the statement therein contained insured from performing any duty pertain- that such indemnity is limited by the proviing to his occupation, and partial disability sions of the policy. He also seeks to sepmust be such as to prevent the insured from arate the bodily injuries sustained from the performing fully work essential to the du- limitations which make it a condition precedties of his occupation. In the event of to- ent to liability that such injuries shall retal disability, the company agrees to pay sult in immediate disability, death or illness. the weekly indemnity so long as such dis- We think such a construction is untenable, ability lasts, and, in the event of partial dis- and does violence to the clear and explicit ability, to pay the weekly indemnity for a provisions of the policy. The language of period not exceeding 52 weeks. As the the policy is not ambiguous and to be conplaintiff was able to engage, without in- strued against the company, because it preterruption, in his business of real estate pared the contract. Plaintiff relies on the agent, he did not suffer even a partial dis- cases of Continental Casualty Co. v. Colvin, ability within the meaning of the policy. He 77 Kan. 561, 95 P. 565, and Rorick v. Railtherefore never became entitled to the pay- way Ass'n, 119 F. 63, 55 C. C. A. 369. The ment of a weekly indemnity. In addition to policy in this case is different from the polthe weekly indemnity, the policy provides, icy sued on in either of the cited cases, and under article 7 above quoted from, for the besides the disability in the Colvin Case and payment of a lump sum indemnity, in case the death in the Rorick Case occurred within the insured, within the periods of time there- 90 days from the date of the accident. in named, suffers one of the injuries listed The judgment is affirmed.

I den 268s 700 (GLEd.

636.

بدلکاروبا/

EMERSON V. LITTLE SIX OIL CO.

265 3 F.(20) 265 EMERSON et al. v. LITTLE SIX OIL CO. After oil in paying quantities is found, the (Circuit Court of Appeals, Fifth Circuit. De- lessee is given the right either to continue cember 17, 1924. Rehearing Denied to develop the property or to abandon opJanuary 30, 1925.)

erations and surrender the lease. The No. 4389.

rights granted extend to the heirs, legal

representatives, and assigns of the lessee. Mines and minerals 79(1)-Deed to royalty held to convey interest in realty under terms Noble and Emerson upon the following con

Appellee assigned the original lease to of lease.

An oil lease provided that, on the produc- ditions: That they would promptly begin tion of oil in paying quantities, the lessee active operations in the drilling of wells; should become at once vested with an estate in that upon the completion of the first well, all minerals, including oil. Assignees of the they might drill other wells in conformity which one sold his interest to the other, but to the requirements of the original lease, reserving an overriding royalty which he after and in the event they should elect to 'abanward conveyed to defendant by deed. Held, don operations, they should give appellee that such deed conveyed an estate in the land, 45 days' prior notice; and that if the prowhich, so long as the lease remained in force, duction of oil should reach 100 barrels per it was not within the power ,of the parties to the assignment to divest by an attempted can- day, the appellee, upon paying one-half cellation and annulment of the assignment. the costs of previous drilling and operating

expenses, should be entitled to one-half of Appeal from the District Court of the the oil produced. United States for the Eastern District of Noble and Emerson drilled a well which Texas; W. Lee Estes, Judge.

produced oil at a rate in excess of 100 barSuit in equity by the Little Six Oil Com- rels a day. Thereafter, Emerson conveyed pany against Marie T. Emerson and others. by deed to Noble, for a consideration of Decree for complainant, and defendant ap- $10,000, all his interest except an overridpeals. Reversed and remanded.

ing royalty of 1 per cent., which he reW. D. Gordon, of Beaumont, Tex., for the property. Subsequently Emerson con

served in all the oil to be produced appellants.

veyed the royalty so reserved to his wife. Geo. E. Holland, of Orange, Tex., for

Noble continued operations under the appellee.

lease, drilled a second oil-producing well, Before WALKER and BRYAN, Circuit and afterwards entered into an agreement Judges, and CLAYTON, District Judge. with the appellee, which recited that the

contract between the appellee on the one BRYAN, Circuit Judge. This suit was part and Noble and Emerson on the other brought by the Little Six Oil Company, was “set aside, annulled and canceled,” and appellee, to cancel a deed from Sloan A. by which the appellee assigned to Noble all Emerson to his wife, Marie T. Emerson, its rights in the north half, and Noble in which purports to convey an overriding turn assigned to it all his rights in the royalty of 1 per cent. in an oil and gas south half, of the tract of land held under lease of 45 acres of land. Emerson and the original lease from Chesson. In order his wife, the appellants, answered and to protect their rights under the original prayed for a decree sustaining the validity lease, this partition agreement provides, in of the deed and establishing in Mrs. Emer- the event either party should desire to cease son the royalty interest thereby conveyed. operations, for prior notice of 60 days to

The facts are not in dispute. The orig- the other party, who thereupon should beinal lease was from the owner of the fee- come entitled to the entire interest in the simple title, Oscar Chesson, to one Dodd, whole lease, and to do anything necessary by whom it was assigned to the Little Six to prevent a forfeiture. At the time the Oil Company, appellee. That lease con- property was so divided, Noble notified the veys all of the oil and gas in and under appellee of the reservation by Emerson of the land, also the exclusive right of drill- 1 per cent. royalty, and besides the appeling, and reserves to Chesson one-eighth of lee had knowledge from an examination all oil produced. It provides that if oil be of the abstract of title that such reservafound in paying quantities, the lessee shall tion had been made. become at once vested with an estate in and The original lease has not been abanto all minerals, including oil, underlying doned. Appellee sold its interest in the the land, as long as any of said minerals south half and reserved a 1/24 royalty. shall be produced in paying quantities. The companies now operating the property purchased from the appellee and have been BANQUE RUSSO-ASIATIQUE V. DOLCH. withholding the royalty reserved by Emer- (Circuit Court of Appeals, Ninth Circuit. son. They were made party defendants,

January 5, 1925.) and offered to pay into the court the fund

No. 4297. already accumulated, and in the future to pay to the appellee or to Mrs. Emerson the 1. Contracts em 47–Agreement by employee to royalty in dispute, in accordance with the deferred payment of salary held unenforce

able as without consideration. decree of the court.

Agreement by an employee that payment of The District Court entered an order can

salary then due him under his contract might celing the royalty deed from Emerson to be deferred held without consideration and not his wife, and directing the producing com- enforceable. panies to pay without deducting 1 per 2. Contracts 212(1)-Agreement by emcent., the full 1/24 royalty to the appellee. ployé to wait for his salary held to bind him

Upon the production of oil in paying only for reasonable time. quantities, an estate in the land was creat

An agreement by an employee to wait for

salary due him until the employer resumed ed, subject to be divested upon condition

business in a designated place, as then intended, subsequent; that is, the failure to comply held to bind him to wait only a reasonable time. with the terms of the original lease. The estate so created was a base fee. Stephens In Error to the District Court of the County v. Mis-Kansas Oil & Gas Co., 113 United States for the Southern Division of Tex. 160, 254 S. W. 290, 29 A. L. R. 566. the Northern District of California; John As the lease remains in force, the estate S. Partridge, Judge. still exists. Emerson's conveyance to his Action at law by Edward Dolch against wife was made after the estate vested. The the Banque Russo-Asiatique. Judgment for reservation of the royalty was therefore an plaintiff and defendant brings error. Afinterest in the land, and not a mere person- firmed. al right enforceable only against Noble. Alan C. Van Fleet. of San Francisco, It is immaterial that the partition agree- Cal. (Evarts, Choate, Sherman & Leon, of ment between Noble and the appellee re- New York City, of counsel), for plaintiff in ferred to the former assignment of the lease error. by the appellee as being canceled and an- Morrison, Dunne & Brobeck, Herman H. nulled. All that was meant by that expres- Phleger, and H. A. Judy, all of San Fransion, as it appears to us, is that one con- cisco, Cal., for defendant in error. tract was being superseded by another. Before GILBERT, HUNT, and RUDBut, aside from that, Noble had no power KIN. Circuit Judges. to dispose of Emerson's vested interest, if it be conceded, contrary to the fact, that heG ILBERT, Circuit Judge. The defendattempted to do so. Emerson's assignment ant in error, as the assignee of one John M. of all his interest except the royalty which Grant, recovered a judgment in the court he reserved was not an abandonment of the below for $18,000, being the balance of sallease, and is no more open to attack than ary claimed to be owing to Grant by the is appellee's assignment of its interest to plaintiff in error for services rendered as the companies which are at present operat its representative. The bank relied upon ing thereunder. All that was required was the defense that, while the said sum for that the lessee or his assigns comply with which the judgment was rendered was its the terms and conditions of the lease. It is just debt, it was not yet due and payable. immaterial whether the acts essential to such [1] Grant's services to the bank began in compliance are performed by the original June, 1919, under a.contrast in writing. He or a subsequent lessee. Forfeiture is care- was to be paid a salary of $6,000 per anfully guarded against, both in appellee's num. The contract was by its terms termincontract with Noble and Emerson and par- able at the will of either party. It was tition agreement with Noble.

terminated on December 31, 1921, at which The conclusion we reach is that the court time there was a balance owing to Grant should have denied the relief asked by the of $18,000. The contention that payment appellee, and granted that prayed for by was not due at the time when the present the appellants.

action was begun rests upon the contents The decree is reversed, and the cause re- of two letters. On August 30, 1921, Grant manded for further proceedings not incon- wrote to the bank, acknowledging receipt of sistent with this opinion.

a payment on account and saying: “I here

1921, $2,5000 on or before its Petrograda

8 F.(20) 267 by agree to accept payment of the balance its Petrograd office. He waited a year bedue me in installments, $6,000 on or before fore the commencement of the action. Prior December 31, 1921, $2,500 on or before to the overthrow of the imperial governMarch 31, 1922. Balance payable upon the ment of Russia in October, 1917, the head reopening of your Petrograd office.” In re- office of the bank had been at Petrograd. ply the bank wrote: “We confirm to you Thereafter it maintained its principal office our agreement on the mode of settlement set in Paris, with branches as before in Engforth in your aforesaid letter. . * At land and at various points in China and the same time it has been agreed between us Japan. Grant testified that, at the time that your functions as representative of the when he agreed to defer the payment of the Banque Russo-Asiatique in New York will balance due him, he thought, and it was terminate December 31 next. Kindly for generally expected, that the Petrograd office regularity confirm to us your agreement." would be opened "very shortly,” and there

· It is insisted that the letters constitute à is no testimony to the contrary. At the time contract whereby Grant agreed that the final of the trial in February, 1924, the Petrograd installment due bim was not to be paid un- office had not been reopened, and there was til the head office of the bank in Petrograd no suggestion that it would ever be reopenshould open, and that, as this event has not ed. In such a case the law is that payment happened, the bank has a valid defense. It must be made within a reasonable time. is said that a consideration for Grant's 13 C. J. 684; Nunez v. Dautel, 19 Wall. agreement thus to defer the payment of the 560, 22 L. Ed. 161; Hood v. Hampton Plains balance due him is expressed in the promise Exploration Co. (C. C.) 106 F. 408; Skidon the part of the bank to continue to em- more v. Eikenberry, 53 Iowa, 621, 6 N. ploy him for the period of four months from W. 10; Smithers v. Junker (C. C.) 41 F. the date of his letter, and until December 31, 101, 7 L. R. A. 264; Greenstreet v. Chestum, 1921, the date when his employment ceased. 99 Kan. 290, 161 P. 596; Rosenheim v. We are unable to find in the correspondence Howze, 179 Cal. 309, 176 P. 456; Williston a promise on the part of the bank to em- v. Perkins, 51 Cal. 554; Benton v. Benton, ploy Grant as its representative until De- 78 Kan. 366, 97 P. 378, 27 L. R. A. (N. S.) cember 31, 1921. There was at no time an 300, 130 Am. St. Rep. 376; De Wolfe v. abrogation of the original contract between French, 51 Me. 420; Noland v. Bull, 24 Or. the parties. It was continuously in force 479, 33 P. 983. We think that under the until December 31. By its terms, as we circumstances a reasonable time elapsed behave seen, it was terminable at the will of fore the commencement of the action. either party, and there can be no doubt but The judgment is affirmed. that after the date of the correspondence, as before, either the bank or Grant could have terminated it at any time.

We are unable to agree with the contention that there was a "second contract” by SOO HOO HUNG et al. v. NAGLE, Commis. which the bank engaged the services of

sioner of Immigration. Grant for the period of four months prior (Circuit Court of Appeals, Ninth Circuit. to December 31, 1921. As we read the cor

January 5, 1925.) respondence, the only contract therein is

No. 4317. Grant's consent to the postponement of salary which was then and there due and pay. Aliens Om32(8)-Exclusion of Chinese boys able to him. In saying, “It has been agreed

held supported by the evidence.

Discrepancies in the testimony of the al. between us that your functions as represen

leged father of two Chinese boys, seeking entry tative will terminate December 31 next,” the as sons of a citizen of the United States, held bank affirmed that it had given its notice to to justify a finding by the immigration officers Grant that the contract would come to an that the alleged relationship did not exist, and end at that date and that Grant had accept their exclusion. ed the notice. There having been no consideration for Grant's agreement to the post

Appeal from the District Court of the ty

United States for the First Division of the ponement of the payments, it was nudum pactum and unenforceable.

Northern District of California. [2] We are inclined to the view that the Petitions by Soo Hoo Hung and Soo Hoo judgment is also sustainable on the ground 'Mook for writs of habeas corpus, to be dithat Grant was not required to wait longer rected to John D. Nagle, as Commissioner than a reasonable time for the bank to open of Immigration at the port of San Fran

es

cisco. From orders denying the petitions, Applicant Soo Hoo Mook, 12 years old, they appeal. Affirmed.

said his father had been married twice, but William H. Wylie, of San Diego, Cal., that he had no recollection of his mother

, William H. Wylie, of San Diego, Cal., who died when he was only 1 or 2 years and J. H. Sapiro, of San Francisco, Cal.,

old. for appellants.

The other boy, Soo Hoo Hung, 8 Sterling Carr, U. S. Atty., and T. J. years old, stated that he and Soo Hoo Mook Sheridan, Asst. U. S. Atty., both of San had different mothers, and that just before Francisco, Cal., for appellee.

he left China the two Chinese women, his

mother and Soo Hoo Mook's mother, were Before GILBERT, HUNT, and RUD- both living in the house where the alleged KIN, Circuit Judges.

father's second wife lived. Discrepancies

in the statements of persons who accomHUNT, Circuit Judge. These are ap- panied the boys on their journey to the peals by Soo Hoo Hung and Soo Hoo United States were noticed by the board Mook from orders of the District Court of review, but they deemed those above redenying their petitions for writ of habeas ferred to sufficient to discredit the testicorpus. Appellants are Chinese boys, 8 and mony of Soo Hoo Hing, and to establish as 12 years old, respectively, who arrived in a fact that the relationship claimed did not the United States in August, 1923, seeking

exist. admission as sons of Soo Hoo Hing, a citi

There is no reason for saying that the imzen of the United States. Immigration offi- migration officials and the District Court cials denied the applications, and upon ap- arbitrarily disregarded the testimony. The peal the Secretary of Labor dismissed the material differences in the several stateproceeding.

ments of the alleged father justified the Soo Hoo Hing is a citizen of the United conclusions of the immigration authorities. States, and the question throughout the pro- White v. Chan Wy Sheung (C. C. A.) 270 ceedings has been as to the alleged rela- F. 764, certiorari denied 257 U. S. 654, 42 tionship of father and sons, said to exist S. Ct. 95, 66 L. Ed. 419. between him and the boys. It is

It is said that there was exclusion of tablished by the record that Soo Hoo Hing some testimony bearing upon the question made four trips to China and that his vis- whether or not one Soo Hoo Lit, said to its in point of time made it physically pos

have accompanied the boys on the ship, was sible for him to be the father of the boys;

their uncle. All that the record shows is but the board of review found material 'dis

that several lines in the testimony of one crepancies between his testimony given in of the applicants before the board of spethe present matter and that given by him cial inquiry were obliterated by a letter on on a former occasion (1922), when he swore

the typewriter. When or under what cirthat he was the father of one Soo Hoo cumstances the obliteration was made does Jin, who was eventually deported because not appear; nor does it appear that any the claimed relationship did not exist. omission has been made in the official tran

There were also discrepancies in some of script, or that there was any unfairness or his statements of the dates of the birth of irregularity in the certificate made by a two of his alleged sons, and also concerning member of the board to the effect that the his married relations. For instance, in Oc- record of the hearing in the proceeding is tober, 1913, Soo Hoo Hing said that he had correct. We must presume that the tranbeen married twice, and that his first wife, script is accurate. Hom Shee, had three boys, and that she died Appellants say that the files in the case in April, 1913; while in the present in- of Soo Hoo Jin, an alleged son of Soo Hoo quiry he said he married his second wife in Hing, who was deported, though considDecember, 1912, and that his first wife died ered in the decision of the applications unin April, 1912. Upon his return from a trip der consideration, were never brought to to China in 1915, he said he had married his the attention of the applicants. The recsecond wife on November 12, 1913. Dis- ord refutes the contention by showing that crepancies were also found between the the entire record was given to the attorney statements of the applicants themselves, al- for these applicants, and that he later rethough the board of review stated that, in turned certain exhibits, which included the the case of the younger applicant, his ten- files and the exhibit, which it is now said der age was to be considered in weighing were not brought to the attention of the his testimony.

applicants.

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