William Price and Theodore Price and two others were convicted on two counts of an indictment, the first charging conspiracy under section 37 of the Criminal Code (Comp. St. § 10201) to violate the provision of section 65 which denounces assaults upon and resistance to customs officers in the performance of their duties, and the second charging violation of the provision of the same section which forbids attempts to rescue property seized by officers so authorized. Two of the defendants submitted to sentence, but William Price and Theodore Price sued out this writ of error and, on a record 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 the court's refusal of the defendants' motion for a directed verdict. But assuming that the testimony, if it were here, would show the facts recounted by the court in its charge and repeated by counsel for the plaintiffs in error in their statement of the case, we are of opinion the evidence justified the submission of the case to the jury. This brings us to the indictment.

In the case of Cooper v. United States, 299 F. 483, this court held in substance that to constitute the offense under section 65 of the Criminal Code of rescuing property seized under the internal revenue laws, there must be an unlawful rescue of property lawfully seized, indicating that a lawful seizure is a prerequisite to an unlawful rescue and that it must be shown in the indictment,

not by mere assertion or conclusion but by allegation of facts. This statement of the law was made in a case where the indictment alleged that a federal prohibition agent made a lawful search and seizure without showing that he was acting under authority of a valid search warrant, and that he was assisted by a deputy collector of internal revenue, yet in a place and under circumstances beyond the scope of the authority of such an officer. We held that the authority of both officers to search and seize should appear in the indictment. Re

lying upon this case the defendants urge that both counts of the indictment are bad because they do not allege facts showing an antecedent lawful seizure. As this question was not raised at the trial, or after trial by motion in arrest of judgment, and in view of our inability to discover a plain error which (under our rule) we could notice of our own motion, we advert to the matter only to distinguish this indictment from the one in Cooper v. United States, supra, and thereby prevent confusion. While the indictment in this case is not a model of criminal pleading, it satisfies the law in that it shows the inspector of customs had authority to make the search and seizure and gives enough of the circumstances under which the search and seizure were made to justify the conclusion that the boat and its cargo of liquor were at the time being used in violation of the customs law and enough to apprise the defendants of the lawful character of the seizure.

The judgment is affirmed.

SMITH v. PHILADELPHIA & R. RY. CO. (Circuit Court of Appeals, Third Circuit. February 3, 1925.)

No. 3216.

Master and servant 285(2)—Evidence of cause of freight conductor's death held insufficient for jury.

In action for death of freight conductor, last seen alive walking alongside freight cars, and found lying under car which had struck car along which he had been walking, evidence held insufficient for submission to jury of question of railroad's negligence; the cause of the accident being a matter of speculation.

In Error to the District Court of the United States for the District of New Jer

sey; William N. Runyon, Judge.

Action by Mabel P. Smith, as administratrix of William J. Smith, deceased, against the Philadelphia & Reading Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Frank F. Davis, of New York City, for plaintiff in error.

Katzenbach & Hunt, of Trenton, N. J., for defendant in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

400 46 479.

BUFFINGTON, Circuit Judge. The question involved in this case is whether there was any evidence produced which tended to show negligence on the part of the defendant railroad. The court below held there was not, and instructed the jury to find for the defendant. This action is here assigned for error.

A study of the records clearly shows such instruction was right. The husband of the plaintiff was a freight train conductor. His train had entered a freight car classification yard, where it made a switching movement. In the course of his duty, the deceased had to go alongside of his freight cars, and compare their numbers with tickets he had in his possession in order to classify the cars and shunt them to their proper tracks. He was walking alongside two standing cars, which had no engine attached to them, when last seen alive by a car inspector, who passed him in going to a shanty where car repair parts were kept. After attending to his duties, the inspector turned to come out of the building, and in doing so faced a window. Hearing the sound ordinarily made in the yard by the impact of two cars, the inspector raised his eyes and saw a man-who subsequently proved to be the decedent-lying under the wheels of a car which had struck the cars alongside of which he had last seen the decedent. The striking car had neither engine nor other car attached to it. There was no evidence whatever how or for what purpose the decedent came to be on the track, what brought the striking car to the standing ones, or, indeed, any fact or circumstance showing how the accident happened. Such being the case, the court rightly told the jury, and it could do no otherwise:

"I cannot see in any of this evidence anything which would enable a jury to do more than speculate; that would enable a jury to fall back upon any proof as to what caused the accident. The whole evidence, so far as it has to do with the accident, seems to me to be rather as to a date, a time, subsequent to the accident; to be sure, immediately after the crash, but there is no evidence that I can see at all that a jury could consider as proving anything of negligence on the part of the officers, agents, or employees of the railroad. It impresses me as being one of those unfortunate, but inexplicable, happenings, which is not susceptible of proof, and in the absence of proof it seems to me that the plaintiff's action must fail."

The judgment below is affirmed.

الهلا

R. H. HASSLER, Inc., v. SHAW.

(Circuit Court of Appeals, Fourth Circuit. January 20, 1925.)

No. 2297.

1. Courts 405 (5)—Supreme Court, and not Circuit Court of Appeals, had jurisdiction of writ of error involving question as to whether District Court had jurisdiction.

Where the only question raised by assignments of error is whether District Court acquired jurisdiction to render judgment in personam against defendant, the Circuit Court of Appeals has no jurisdiction; Judicial Code, § 238 (Comp. St. § 1215), giving Supreme Court exclusive jurisdiction of such question. 2 Courts 5272, New, vol. 17A Key-No. Series-Circuit Court of Appeals will transfer to Supreme Court writ of error of which Supreme Court has jurisdiction.

Where Circuit Court of Appeals has no jurisdiction on writ of error, because question involved is whether District Court had jurisdiction, the writ will be transferred to the Supreme Court, under Judicial Code, § 238a (Comp. St. Ann. Supp. 1923, § 1215a).

In Error to the District Court of the United States for the Eastern District of Middleton Smith and Ernest F. Cochran, South Carolina, at Columbia; Henry A. Judges.

Action by David C. Shaw against R. H. Hassler, Inc. Judgment for plaintiff, and defendant brings error. Transferred to Supreme Court.

See, also, 295 F. 854.

Charles Martindale, of Indianapolis, Ind., and Simeon Hyde, of Charleston, S. C. (Rutledge, Hyde, Mann & Figg and Benjamin H. Rutledge, all of Charleston, S. C., on the brief), for plaintiff in error.

L. D. Jennings and A. S. Harby, both of Sumter, S. C., for defendant in error.

Before WOODS, WADDILL, and ROSE, Circuit Judges.

ROSE, Circuit Judge. [1,2] In what we have to say we will refer to the parties as they were below; that is to say, we will call the plaintiff in error, Robert H. Hassler, Inc., an Indiana corporation, the defendant, and the defendant in error, David C. Shaw, a citizen of South Carolina, the plaintiff. The suit was originally brought in a state court and was removed to the federal. In the latter, the plaintiff secured a personal judgment against the defendant. The only questions raised by the assignments of error are whether the state court, in the first instance, and subsequently the District Court of the United States, acquired such jurisdiction over the defendant

as would sustain a judgment in personam against it. The case as here presented is therefore one in which the jurisdiction of the District Court, and that alone is in issue within the meaning of section 238 of the Judicial Code being Comp. St. § 1215 (Remington v. Central Pacific Ry. Co., 198 U. S. 95, 25 S. Ct. 577, 49 L. Ed. 959; Shepard v. Adams, 168 U. S. 618, 18 S. Ct. 214, 42 L. Ed. 602; Board of Trade v. Hammond Elevator Co., 198 U. S. 424, 25 S. Ct. 740, 49 L. Ed. 1111), and is therefore one over which we have no jurisdiction (The Carlo Poma, 255 U. S. 219, 41 S. Ct. 309, 65 L. Ed. 594).

In obedience to section 238a of the Judicial Code, Act of September 14, 1922, 42 Stat. at Large 837 (Comp. St. Ann. Supp. 1923, § 1215a), the writ will be transferred to the Supreme Court.

aff'd (23 (2d)x50.

FOSGATE v. NOCATEE FRUIT CO. (District Court, S. D. Florida. December 12,

1. Pleading

1924.)

No. 980-T.

96-Plea should state facts under oath, showing defenses relied on, and not mere denials of plaintiff's pleading.

Plea should state facts under oath, showing defenses relied on, and not that defendant "denies" allegations of plaintiff's pleading.

2. Fraud 3-Essential elements in action for damages stated.

To recover damages for vendor's misrepresentations, purchaser must show that misrepresentations were false, or recklessly made, that vendor knew, or ought to have known, of their falsity, that they were material in inducing contract, and that purchaser was ignorant of their falsity, and was deceived thereby.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Fraud.] 3. Fraud 49-Evidence to negative allegations of fraud admissible under general issue.

Under Laws Fla. c. 10024, § 1, evidence in action for vendor's misrepresentation as to acreage, tending to negative allegations that misrepresentation was knowingly false, that it was recklessly made, and that vendor knew, or ought to have known, representation was false, held admissible under general issue, and other matters must be specially pleaded. 4. Evidence 434(11)—Oral testimony as to transactions relating to execution of option held admissible in action for fraud.

Oral testimony relating to transaction at and before execution of option to purchase land was admissible in action for damages for vendor's fraudulent misrepresentations as to acre

age, parol evidence rule not being applicable, since action was not one to enforce option.

5. Fraud 48-Pleas traversing vendee's ignorance held proper.

In action for damages for inducing acceptance of option by false representations as to acreage, pleas traversing plaintiff's ignorance of property, his reliance on vendor's representations of acreage, or setting up his familiarity with property, were proper.

6. Fraud 48-Plea setting up vendor's ignorance of acreage and honest intention held demurrable.

In action for damages for inducing acceptance of option by false representations as to acreage, plea setting up vendor's ignorance of actual acreage, and an honest intention in making representation, held demurrable.

7. Fraud 48- Plea denying assignment of option stricken as improper.

In action for damages for inducing acceptance of option by false representations as to acreage, plea denying assignment of option as

alleged should be stricken as improper pleading. 8. Fraud 48-Plea alleging purchaser knew vendor did not know area of land held demur. rable.

In action for damages for inducing acceptance of option by false representations as to acreage, plea that purchaser knew vendor did not know area of land was demurrable, since vendor was not thereby necessarily relieved from results of misrepresentation; pleading being more strictly construed against pleader.

9. Fraud 48-Equitable plea held insufficient to show estoppel or fraud on plaintiff's part.

In action for damages for misrepresenting acreage of land in giving option, equitable plea. held insufficient to show estoppel or fraud on part of plaintiff in obtaining option or procuring the representation as to acreage.

At Law. Action by L. E. Fosgate against the Nocatee Fruit Company. On plaintiff's motion to strike and demurrers to pleas. Motion sustained in part, and denied in part.

See, also, 299 F. 963.

Marks, Marks & Holt, of Jacksonville, Fla., for plaintiff.

Leitner & Leitner, of Arcadia, Fla., and Mabry, Reaves & Carlton, of Tampa, Fla., for defendant.

CALL, District Judge. [1] The defendant filed, by leave of court, seven amended pleas, the substance of each, omitting that the defendant "denies" certain matters in the counts, which I do not understand to be good pleading at law. The plea should state facts, showing the defenses relied upon, which his oath to the plea affirms as true, not that he "denies" said allegations in plaintiff's pleading, and I have therefore taken the affirmations only in the pleas as a test of their sufficiency.

(1) Plea, to first additional count: The defendant says "that on and between said dates, and at all times charged in the declaration, where such representations are alleged to have been made, the defendant did not know the actual area of said property, and made the alleged statements in the contract and option honestly and in the utmost good faith."

(2) "But that the plaintiff, at the time of taking said option, well knew the said property and the boundaries thereof, and in taking the said option relied upon his own judgment of the value of said property and the other properties described in said option, and upon his own estimate of the area thereof."

(3) "But, on the contrary, the defendant says that the citrus grove was the chief value of said property, and its value was estimated by the plaintiff and defendant for the purposes of said contract and option, by the bearing capacity and average yield in fruit, age of said grove, with which the plaintiff was familiar, and about which he was well and truly advised at the time and long before the dates of taking said contract and said option."

(4) Denies that sale was made to the assignee upon the terms alleged in the count and the option assigned on the condition that 175 acres of grove, etc., should be conveyed.

(5) "But, on the contrary, says the plaintiff then and there well knew that the defendant did not know the area of said grove and lands surrounding."

(6) "But defendant says that the said estimate of area was put into said contract at the special instance and request of the plaintiff, after the plaintiff had been advised by the defendant that the defendant did not know the number of acres in said grove or in the lands surrounding, and was simply copied into the option from the contract without further discussion or directions in reference thereto."

(7) Equitable Plea.-The plaintiff bought a large portion of the citrus fruit from said grove of the crop of 1920-21; in the summer of 1921 he purchased all of the fruit produced that year by the grove and the other groves covered by the option; that the price per box was arrived at by a thorough inspection and careful calculation of the number of boxes of the various kinds of citrus fruit on the properties; that during the season of 1921-22 the fruit from the groves was picked by the defendant and delivered to the packing houses mentioned

in the option, then in the possession of and being operated by the plaintiff, as directed by him; about the time the entire crop was marketed in the late spring of 1922, the plaintiff opened negotiations with the defendant for the purchase of different groves and properties mentioned in the option; that the groves and tracts were known to both plaintiff and defendant by local names, which local names had been used by the plaintiff and defendant in their transactions in handling the fruit, and were used to designate the tracts in the contract and option; that the Nocatee grove was a consolidation of eight tracts, each tract being designated in the contract and option by its particular name; that said negotiation resulted in a verbal agreement upon the price and terms of sale of all the property, real and personal, for $350,000; that during said negotiations plaintiff asked defendant for detailed information of fruit production for several preceding years, and such information was furnished from the books of defendant; that plaintiff made no inquiry and defendant gave no information about the area of said properties until after the transaction had been verbally made, when it came to preparing memoranda from which the contract might be drawn, covering the agreed purchase and sale of the properties; plaintiff then stated to the defendant that he desired to form a company to take over said properties, and for that reason desired to state in the contract the approximate number of acres in the several properties, whereupon the plaintiff and defendant designated the several properties in their memoranda by the name, and placed opposite each property, the approximate number of acres which they believed to be in grove and lands surrounding in each separate tract. When the Nocatee grove was reached, the defendant explained to the plaintiff that it did not know the number of acres in said grove, nor in the lands surrounding; that it was difficult to make an estimate, owing to the irregular shape, and consisting of various town lots and blocks in the town of Nocatee, and the existence of the railroad, but it had always believed that the grove contained about 175 acres, and lands surrounding approximately 300 acres. Thereupon the plaintiff stated it was all right about the acreage, regardless of what the actual number should prove to be, but that he wanted the estimate placed in the contract for the reason previously explained; that the estimate of acreage was put in solely because the plaintiff desired it, and with full knowl

edge on the part of plaintiff that defendant did not know, and was not purporting to represent, the acreage of said property; that the price agreed upon for all of the properties, real and personal, was a lump sum, and was intended to cover all the holdings of the defendant, and to this end the plaintiff stated to defendant that he desired the estimate of quantities to be liberal to insure this end. It was thoroughly understood between them that plaintiff was familiar with the holdings, and that all of said holdings should go under the contract, real and personal, regardless of the quantity of each; that the chief value of said property was groves, grove equipment, and personal property used in the cultivation of same, and the purchase price for same was arrived at chiefly by the average fruit production of the groves; that after the plaintiff had made the initial payment of $15,000, and the first further payment of $35,000, the plaintiff failed to care for said groves, as he was bound to do under the contract, and thereupon, at the solicitation of plaintiff, the defendant guaranteed the bill for fertilizer in the sum of $8,000, but the plaintiff still being unable to meet the payments and care for the properties according to the contract, and in the month of November, 1922, the plaintiff advised the defendant that he could not carry out his contract and must forfeit the same, and asked the defendant if it would not, in consideration of his age and misfortune, give him a still further chance in the form of an option for six months to buy or sell the property, and this the defendant did, solely out of consideration for the plaintiff; whereupon plaintiff and defendant calculated the amount which would be due on the basis of the original purchase price, after deducting therefrom the expense incurred by defendant on account of the default of plaintiff. The option was given, and at the same time an obligation was given plaintiff to allow him the net income from said properties, if the plaintiff should exercise said option, which defendant did. Prior to giving said option plaintiff had been allowed by the defendant to market 21 carloads of fruit from said property; that plaintiff knew defendant would not take less than the price fixed for said properties in said option, which price was fixed as heretofore stated, and that the area of said properties was not material, and that said price was fixed with reference to the whole, and in no sense with reference to any unit or portion thereof; that in March, 1923, the plaintiff advised

defendant that he had arranged with Chase to finance the exercise of said option, and would exercise said option, and asked for information with reference to the number of boxes of fruit shipped by defendant during the marketing season, etc., whereupon defendant promptly furnished the information requested. Subsequently Chase had the Nocatee grove surveyed, and informed defendant that the grove was 40 acres short, and the unimproved land 35 acres, and requested a reduction of $35,000 in the price; whereupon defendant informed Chase that it stood ready to convey according to the option; that nothing further was said by Chase or the plaintiff until after the option had been exercised, and the defendant had conveyed the properties for the consideration set out in said option and the transaction fully closed, whereupon the plaintiff made demand for an abatement of the purchase price on account of the shortage in area; that plaintiff was fully advised by Chase that defendant had refused to abate the purchase price, and the plaintiff procured Chase to demand and receive the deed of conveyance from this defendant; that plaintiff knew at the time he so procured Chase to demand and receive the deed that defendant would not deed any particular number of acres, nor convey at all except on the basis of conveying what the defendant owned and for the price stated; that both Chase and plaintiff knew that defendant would not convey the property, except to convey what it owned for the price stated, and, so knowing, the plaintiff willfully and designedly refrained from making any complaint to this defendant until the conveyance to Chase had been executed and delivered, and for the fraudulent purpose of causing the defendant to believe that no claim for abatement in price would be further made, and defendant did so believe, and would not otherwise have conveyed said properties.

Each of these pleas are made applicable to the second and third additional counts. The plaintiff interposed motions to strike and demurrers to each of the seven pleas.

The several counts to which these pleas were interposed are in substance as follows:

"The first count in effect charges that the defendant, in consideration of the plaintiff relinquishing any claim he might have under a contract to purchase the properties, executed an option to him, his heirs and assigns, to purchase the properties covered by the contract of sale at a price stated within a stated time; that within the life of the option the plaintiff assigned it to a certain