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inspect, search, and examine the same, lying upon this case the defendants arge

and if it shall appear that any that both counts of the indictment are best breach or violation of the laws of the Unit- because they do not allege facts showing an ed States has been committed, whereby or in antecedent lawful seizure. As this question consequence of which such vessel, or the was not raised at the trial, or after trial merchandise

on board of or im- by motion in arrest of judgment, and in ported by such vessel, is liable to forfeiture, view of our inability to discover a plain erto make seizure of the same

and ror which (under our rule) we could notice to arrest

any person engaged in of our own motion, we advert to the matter such breach or violation."

only to distinguish this indictment from the William Price and Theodore Price and one in Cooper v. United States, supra, and two others were convicted on two counts of thereby prevent confusion. While the inan indictment, the first charging conspiracy dictment in this case is not a model of crimunder section 37 of the Criminal Code inal pleading, it satisfies the law in that it (Comp. St. § 10201) to violate the provision shows the inspector of customs had authorof section 65 which denounces assaults upon ity to make the search and seizure and gives and resistance to customs officers in the per- enough of the circumstances under which formance of their duties, and the second the search and seizure were made to justify charging violation of the provision of the the conclusion that the boat and its cargo same section which forbids attempts to res- of liquor were at the time being used in viocue property seized by officers so authorized. lation of the customs law and enough to apTwo of the defendants submitted to sen- prise the defendants of the lawful character tence, but William Price and Theodore Price of the seizure. sued out this writ of error and, on a record

The judgment is affirmed. which contains none of the testimony, charge that the court erred in refusing their motion for a directed verdict and in imposing sentence on a conviction not supported by a valid indictment. As the testimony is not before us it is impossible to find error in

SMITH v. PHILADELPHIA & R. RY. CO. the court's refusal of the defendants' motion for a directed verdict. But assuming that (Circuit Court of Appeals, Third Circuit the testimony, if it were here, would show

February 3, 1925.) the facts recounted by the court in its charge and repeated by counsel for the plaintiffs

No. 3216. in error in their statement of the case, we

Master and servant 285(2)-Evidence of are of opinion the evidence justified the

cause of freight conductor's death held insuffi. submission of the case to the jury. This cient for jury. brings us to the indictment.

In action for death of freight conductor, In the case of Cooper v. United States, last seen alive walking alongside freight cars, 299 F. 483, this court held in substance that and found lying under car which had struck to constitute the offense under section 65

car along which he had been walking, evidence

held insufficient for submission to jury of ques. of the Criminal Code of rescuing property tion of railroad's negligence; the cause of the seized under the internal revenue laws, there accident being a matter of speculation. must be an unlawful rescue of property lawfully seized, indicating that a lawful sei

In Error to the District Court of the zure is a prerequisite to an unlawful rescue and that it must be shown in the indictment, United States for the District of New Jernot by mere assertion or conclusion but by sey; William N. Runyon, Judge. allegation of facts. This statement of the Action by Mabel P. Smith, as adminislaw was made in a case where the indict- tratrix of William J. Smith, deceased, ment alleged that a federal prohibition against the Philadelphia & Reading Railagent made a lawful search and seizure way Company. Judgment for defendant, without showing that he was acting under and plaintiff brings error.

Affirmed. authority of a valid search warrant, and

Frank F. Davis, of New York City, for that he was assisted by a deputy collector

plaintiff in error. of internal revenue, yet in a place and under circumstances beyond the scope of the

Katzenbach & Hunt, of Trenton, N. J.,

for defendant in error. authority of such an officer. We held that the authority of both officers to search and Before BUFFINGTON, WOOLLEY, and seize should appear in the indictment. Re- DAVIS, Circuit Judges.

46 Suos

G.

400 46
R. H. HASSLER, INC. V. SHAW
3 F.(20) 603

479 BUFFINGTON, Circuit Judge. The ques- R. H. HASSLER, Inc., V. SHAW. tion involved in this case is whether there

(Circuit Court of Appeals, Fourth Circuit. was any evidence produced which tended

January 20, 1925.) to show negligence on the part of the de

No. 2297. fendant railroad. The court below held there was not, and instructed the jury to 1. Courts Om 405(5)-Supreme Court, and not find for the defendant. This action is here

Circuit Court of Appeals, had jurisdiction of

writ of error involving question as to whether assigned for error.

District Court had jurisdiction. A study of the records clearly shows such

Where the only question raised by assigninstruction was right. The husband of the ments of error is whether District Court acplaintiff was a' freight train conductor. quired jurisdiction to render judgment in perHis train had entered a freight car classifi- Appeals has no jurisdiction; Judicial Code, $

sonam against defendant, the Circuit Court of cation yard, where it made å switching 238 (Comp. St. § 1215), giving Supreme Court movement. In the course of his duty, the exclusive jurisdiction of such question. deceased had to go alongside of his freight 2. Courts m 5271/2, New, vol. 17A Key-No. cars, and compare their numbers with tick

Series-Circuit Court of Appeals will transets he had in his possession in order to clas- fer to Supreme Court writ of error of which sify the cars and shunt them to their prop

Supreme Court has jurisdiction, er tracks. He was walking alongside two

Where Circuit Court of Appeals has no

jurisdiction on writ of error, because question standing cars, which had no engine attached involved is whether District Court bad juristo them, when last seen alive by a car in- diction, the writ will be transferred to the Suspector, who passed him in going to a shan- preme Court, under Judicial Code, f 238a ty where car repair parts were kept. After (Comp. St. Ann. Supp. 1923, & 1215a). attending to his duties, the inspector turned

In Error to the District Court of the to come out of the building, and in doing United States for the Eastern District of so faced a window. Hearing the sound South Carolina, at Columbia; Henry A. ordinarily made in the yard by the impact Middleton Smith and Ernest F. Cochran, of two cars, the inspector raised his eyes and saw a man—who subsequently proved

Judges. to be the decedent-lying under the wheels

Action by David C. Shaw against R. H. of a car which had struck the cars along- Hassler, Inc. Judgment for plaintiff, and side of which he had last seen the decedent. defendant brings error. Transferred to The striking car had neither engine nor

Supreme Court. other car attached to it. There was no

See, also, 295 F. 854. evidence whatever how or for what purpose Charles Martindale, of Indianapolis, Ind., the decedent came to be on the track, what and Simeon Hyde, of Charleston, S. C. brought the striking car to the standing (Rutledge, Hyde, Mann & Figg and Benones, or, indeed, any fact or circumstance jamin H. Rutledge, all of Charleston, S. C., showing how the accident happened. Such on the brief), for plaintiff in error. being the case, the court rightly told the L. D. Jennings and A. S. Harby, both of jury, and it could do no otherwise:

Sumter, S. C., for defendant in error. "I cannot see in any of this evidence any- Before WOODS, WADDILL, and ROSE, thing which would enable a jury to do more Circuit Judges. than speculate; that would enable a jury to fall back upon any proof as to what ROSE, Circuit Judge. [1,2] In what caused the accident. The whole evidence, we have to say we will refer to the parties so far as it has to do with the accident, as they were below; that is to say, we will seems to me to be rather as to a date, a call the plaintiff in error, Robert H. Hasstime, subsequent to the accident; to be ler, Inc., an Indiana corporation, the desure, immediately after the crash, but there fendant, and the defendant in error, David is no evidence that I can see at all that a C. Shaw, a citizen of South Carolina, the jury could consider as proving anything of plaintiff. The suit was originally brought negligence on the part of the officers, in a state court and was removed to the agents, or employees of the railroad. It federal. In the latter, the plaintiff secured impresses me as being one of those unfor- a personal judgment against the defendant. tunate, but inexplicable, happenings, which The only questions raised by the assignis not susceptible of proof, and in the ab- ments of error are whether the state court, sence of proof it seems to me that the plain- in the first instance, and subsequently the tiff's action must fail."

District Court of the United States, acThe judgment below is affirmed.

quired such jurisdiction over the defendant

affed 127 (ad) 250 .

as would sustain a judgment in personam 5. Fraud Om 48—Pleas traversing vendee's ig. against it. The case as here presented is

norance held proper. therefore one in which the jurisdiction of

In action for damages for inducing accept

ance of option by false representations as to the District Court, and that alone is in is

acreage, pleas traversing plaintiff's ignorance of sue within the meaning of section 238 of property, bis reliance on vendor's representathe Judicial Code being Comp. St. § 1215 tions of acreage, or setting up his familiarity (Remington v. Central Pacific Ry. Co., 198

with property, were proper. U. S. 95, 25 S. Ct. 577, 49 L. Ed. 959; 6. Fraud Om 48—Plea setting up vendor's ig. Shepard v. Adams, 168 U. S. 618, 18 S. Ct. norance of acreage and honest intention held

demurrable. 214, 42 L. Ed. 602; Board of Trade v. Hammond Elevator Co., 198 U. S. 424, 25

In action for damages for inducing accept

ance of option by false representations as to S. Ct. 740, 49 L. Ed. 1111), and is there

acreage, plea setting up vendor's ignorance of fore one over which we have no jurisdiction actual acreage, and an honest intention in mak(The Carlo Poma, 255 U. S. 219, 41 S. Ct. ing representation, held demurrable. 309, 65 L. Ed. 594).

7. Fraud 48 - Plea denying assignment of In obedience to section 238a of the Ju- option stricken as improper. dicial Code, Act of September 14, 1922, 42

In action for damages for inducing acceptStat. at Large 837 (Comp. St. Ann. Supp; acreage, plea denying assignment of option as

ance of option by false representations as to 1923, § 1215a), the writ will be transferred alleged should be stricken as improper pleading. to the Supreme Court.

8. Fraud ww48-Plea alleging purchaser knew

vendor did not know area of land held demur. rable.

In action for damages for inducing accept

ance of option by false representations as to FOSGATE V. NOCATEE FRUIT CO.

acreage, plea that purchaser knew vendor did

not know area of land was demurrable, since (District Court, S. D. Florida. December 12, 1924.)

vendor was not thereby necessarily relieved

from results of misrepresentation; pleading beNo. 980-T.

ing more strictly.construed against pleader. 1. Pleading 96—Plea should state facts un. 9. Fraud 48–Equitable plea held insuffider oath, showing defenses relied on, and not cient to show estoppel or fraud on plaintiff's mere denials of plaintiff's pleading.

part. Plea should state facts under oath, showing In action for damages for misrepresenting defenses relied on, and not that defendant "de. acreage of land in giving option, equitable plea nies” allegations of plaintiff's pleading.

held insufficient to show estoppel or fraud on

part of plaintiff in obtaining option or procur2. Fraud m3_Essential elements in action ing the representation as to acreage. for damages stated.

To recover damages for vendor's misrepre- At Law. Action by L. E. Fosgate against sentations, purchaser must show that misrepre- the Nocatee Fruit Company. On plaintiff's sentations were false, or recklessly made, that vendor knew, or ought to have known, of their motion to strike and demurrers to pleas. falsity, that they were material in inducing Motion sustained in part, and denied in contract, and that purchaser was ignorant of part. their falsity, and was deceived thereby.

See, also, 299 F. 963. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Fraud.]

Marks, Marks & Holt, of Jacksonville, 3 F.(2d) 606 (1) Plea, to first additional count: The in the option, then in the possession of and defendant says "that on and between said being operated by the plaintiff, as directed dates, and at all times charged in the dec- by him; about the time the entire crop was laration, where such representations are al- marketed in the late spring of 1922, the leged to have been made, the defendant did plaintiff opened negotiations with the denot know the actual area of said property, fendant for the purchase of different groves and made the alleged statements in the con- and properties mentioned in the option; tract and option honestly and in the utmost that the groves and tracts were known to good faith."

Fla., for plaintiff. 3. Fraud Omm 49-Evidence to negative allega

Leitner & Leitner, of Arcadia, Fla., and tions of fraud admissible under general issue.

Under Laws Fla. c. 10024, § 1, evidence in Mabry, Reaves & Carlton, of Tampa, Fla., action for vendor's misrepresentation as to for defendant. acreage, tending to negative allegations that misrepresentation was knowingly false, that it CALL, District Judge. [1] The defendwas recklessly made, and that vendor knew, or

ant filed, by leave of court, seven amended ought to have known, representation was false, held admissible under general issue, and other pleas, the substance of each, omitting that matters must be specially pleaded.

the defendant “denies” certain matters in 4. Evidence w434(11)-Oral testimony as to

the counts, which I do not understand to be transactions relating to execution of option good pleading at law. The plea should held admissible in action for fraud.

state facts, showing the defenses relied upOral testimony relating to transaction at on, which his oath to the plea affirms as and before execution of option to purchase land true, not that he "denies” said allegations in was admissible in action for damages for vendor's fraudulent misrepresentations as to acre

plaintiff's pleading, and I have therefore age, parol evidence rule not being applicable, taken the affirmations only in the pleas as since action was not one to enforce option. a test of their sufficiency.

both plaintiff and defendant by local names, (2) "But that the plaintiff, at the time which local names had been used by the of taking said option, well knew the said plaintiff and defendant in their transactions property and the boundaries thereof, and in in handling the fruit, and were used to destaking the said option relied upon his own ignate the tracts in the contract and option; judgment of the value of said property and that the Nocatee grove was a consolidation the other properties described in said op- of eight tracts, each tract being designated tion, and upon his own estimate of the area in the contract and option by its particular thereof."

name; that said negotiation resulted in a (3) “But, on the contrary, the defendant verbal agreement upon the price and terms says that the citrus grove was the chief val- of sale of all the property, real and personue of said property, and its value was esti- al, for $350,000; that during said negotiamated by the plaintiff and defendant for tions plaintiff asked defendant for detailed the purposes of said contract and option, information of fruit production for several by the bearing capacity and average yield preceding years, and such information was in fruit, age of said grove, with which the furnished from the books of defendant; plaintiff was familiar, and about which he that plaintiff made no inquiry and defendant was well and truly advised at the time and gave no information about the area of said long before the dates of taking said con- properties until after the transaction had tract and said option."

been verbally made, when it came to pre(4) Denies that sale was made to the as- paring memoranda from which the contract signee upon the terms alleged in the count might be drawn, covering the agreed purand the option assigned on the condition chase and sale of the properties; plaintiff that 175 acres of grove, etc., should be con- then stated to the defendant that he deveyed.

sired to form a company to take over said (5) “But, on the contrary, says the plain- properties, and for that reason desired to tiff then and there well knew that the de- state in the contract the approximate numfendant did not know the area of said ber of acres in the several properties, wheregrove and lands surrounding."

upon the plaintiff and defendant designated (6) "But defendant says that the said es- the several properties in their memoranda timate of area was put into said contract at by the name, and placed opposite each propthe special instance and request of the plain- erty, the approximate number of acres which tiff, after the plaintiff had been advised by they believed to be in grove and lands surthe defendant that the defendant did not rounding in each separate tract. When the know the number of acres in said grove or Nocatee grove was reached, the defendant in the lands surrounding, and was simply explained to the plaintiff that it did not copied into the option from the contract know the number of acres in said grove, without further discussion or directions in nor in the lands surrounding; that it was reference thereto."

difficult to make an estimate, owing to the (7) Equitable Plea.-The plaintiff bought irregular shape, and consisting of various a large portion of the citrus fruit from said town lots and blocks in the town of Nocatee, grove of the crop of 1920-21; in the sum- and the existence of the railroad, but it had mer of 1921 he purchased all of the fruit always believed that the grove contained produced that year by the grove and the about 175 acres, and lands surrounding apother groves covered by the option; that the proximately 300

Thereupon the price per box was arrived at by a thorough plaintiff stated it was all right about the inspection and careful calculation of the acreage, regardless of what the actual numnumber of boxes of the various kinds of ber should prove to be, but that he wanted citrus fruit on the properties; that during the estimate placed in the contract for the the season of 1921–22 the fruit from the reason previously explained; that the estigroves was picked by the defendant and mate of acreage was put in solely because delivered to the packing houses mentioned the plaintiff desired it, and with full knowl

acres.

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edge on the part of plaintiff that defendant defendant that he had arranged with Chase did not know, and was not purporting to to finance the exercise of said option, and represent, the acreage of said property; would exercise said option, and asked for that the price agreed upon for all of the information with reference to the number of properties, real and personal, was a lump boxes of fruit shipped by defendant during sum, and was intended to cover all the hold- the marketing season, etc., whereupon deings of the defendant, and to this end the fendant promptly furnished the information plaintiff stated to defendant that he desired requested. Subsequently Chase had the the estimate of quantities to be liberal to Nocatee grove surveyed, and informed deinsure this end. It was thoroughly under- fendant that the grove was 40 acres short, stood between them that plaintiff was famil- and the unimproved land 35 acres, and reiar with the holdings, and that all of said quested a reduction of $35,000 in the price; holdings should go under the contract, real whereupon defendant informed Chase that and personal, regardless of the quantity of it stood ready to convey according to the each; that the chief value of said property option; that nothing further was said by was groves, grove equipment, and personal Chase or the plaintiff until after the option property used in the cultivation of same, had been exercised, and the defendant had and the purchase price for same was ar- conveyed the properties for the considerarived at chiefly by the average fruit produc- tion set out in said option and the transaction of the groves; that after the plaintiff tion fully closed, whereupon the plaintiff had made the initial payment of $15,000, made demand for an abatement of the purand the first further payment of $35,000, chase price on account of the shortage in the plaintiff failed to care for said groves, area; that plaintiff was fully advised by as he was bound to do under the contract, Chase that defendant had refused to abate and thereupon, at the solicitation of plain- the purchase price, and the plaintiff protiff, the defendant guaranteed the bill for cured Chase to demand and receive the deed fertilizer in the sum of $8,000, but the of conveyance from this defendant; that plaintiff still being unable to meet the pay- plaintiff knew at the time he so procured ments and care for the properties according Chase to demand and receive the deed that to the contract, and in the month of Novem- defendant would not deed any particular ber, 1922, the plaintiff advised the defend- number of acres, nor convey at all except on ant that he could not carry out his contract the basis of conveying what the defendant and must forfeit the same, and asked the owned and for the price stated; that both defendant if it would not, in consideration Chase and plaintiff knew that defendant of his age and misfortune, give him a still would not convey the property, except to further chance in the form of an option for convey what it owned for the price stated, six months to buy or sell the property, and and, so knowing, the plaintiff willfully and this the defendant did, solely out of con- designedly refrained from making any comsideration for the plaintiff; whereupon plaint to this defendant until the conveyance plaintiff and defendant calculated the to Chase had been executed and delivered, amount which would be due on the basis of and for the fraudulent purpose of causing the original purchase price, after deducting the defendant to believe that no claim for therefrom the expense incurred by defend- abatement in price would be further made, ant on account of the default of plaintiff. and defendant did so believe, and would not The option was given, and at the same time otherwise have conveyed said properties. an obligation was given plaintiff to allow Each of these pleas are made applicable him the net income from said properties, if to the second and third additional counts. the plaintiff should exercise said option, The plaintiff interposed motions to strike which defendant did. Prior to giving said and demurrers to each of the seven pleas. option plaintiff had been allowed by the The several counts to which these pleas defendant to market 21 carloads of fruit were interposed are in substance as follows: from said property; that plaintiff knew de- "The first count in effect charges that the fendant would not take less than the price defendant, in consideration of the plaintiff fixed for said properties in said option, relinquishing any claim he might have unwhich price was fixed as heretofore stated, der a contract to purchase the properties, and that the area of said properties was not executed an option to him, his heirs and asmaterial, and that said price was fixed with signs, to purchase the properties covered by reference to the whole, and in no sense with the contract of sale at a price stated within reference to any unit or portion thereof; a stated time; that within the life of the that in March, 1923, the plaintiff advised option the plaintiff assigned it to a certain

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