3. VENDOR AND PURCHASER 274-SUIT TO ENFORCE LIEN FOR PURCHASE MONEY-DEFENSES-DEFECT IN TITLE OF VENDOR. Under the law of Washington by which the registration of a deed is not essential to its validity as between the parties nor as to others except subsequent purchasers for value without notice, the fact alone that a deed was by mistake recorded in the miscellaneous record, and that the grantor therein afterward made a conveyance to another, without any showing that the second grantee was a bona fide purchaser, or even that he claimed title, does not make out a defense of failure of title in behalf of a subsequent grantee under the first deed in a suit to enforce a lien for the purchase money. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 769-771; Dec. Dig. 274.] On Appeal from the District Court of the United States for the Southern Division of the Western District of Washington; Edward E. Cushman, Judge. Suit in equity by Mary C. E. Morley and Fred Morley against R. C. Bell, Mary A. Bell, and the American Surety Company of New York. Decree for complainants, and defendants appeal. Affirmed. Kollock, Zollinger & McDowall, of Portland, Or., for appellants. Platt & Platt and Hugh Montgomery, all of Portland, Or., for appellees. Before GILBERT and ROSS, Circuit Judges, and RUDKIN, District Judge. RUDKIN, District Judge. This is an appeal by the defendants from a decree foreclosing a purchase-money mortgage on certain timber lands in the state of Washington. The answer contains two defenses, or partial defenses: The first is that the agent who acted for the appellees in the sale of the property to the appellants for the purpose of inducing the appellants to make the purchase represented that the firm of James D. Lacey & Co., with whom he was connected, had carefully and accurately cruised the property; that there was on the property as shown by such cruise, exclusive of hemlock, 11,584,000 feet, board measure, of good merchantable timber, that the appellants purchased the property relying on these representations; that in truth and in fact there was upon the property only 7,916,919 feet of merchantable timber, exclusive of hemlock, and that the appellants were damaged thereby in the sum of $9,167.57. As a further partial defense it was averred that the title to 40 acres of the timber land had failed to the damage of the appellants in the sum of $2,500. The court below overruled both of those defenses, and upon these rulings the assignments of error are based. [1] It is a sufficient answer to the first assignment of error to say that, on conflicting testimony of the two witnesses who conducted the negotiations leading up to the sale, the court below found against the charge of fraud, and there is nothing in the record to lead us to a different conclusion. But aside from all this, the representations, if made, were not actionable. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes To constitute actionable fraud it must appear: "(1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury.” 20 Cyc. 13. [2] In the present case the parties had before them, pending the negotiations for the sale, certain estimates showing the quantity of timber on the land according to a cruise made some years before. This cruise was not made by the agent who represented the appellees in the negotiations for the sale of the property; he had no personal knowledge as to the quantity of timber on the land, and did not claim to have. Any statement made by him was therefore a mere matter of opinion, based on information furnished by third persons, known by the appellants to be such, and, so far as the record discloses, that opinion was expressed in the utmost good faith. "To furnish grounds for an action of deceit the representation must be of a matter susceptible of approximately accurate knowledge, and must be in form or substance an assertion importing knowledge on the part of the speak er. A statement which by reason of its form or subject-matter amounts merely to an expression of opinion is not actionable, for it is one upon which reliance cannot safely be placed." 20 Cyc. 17. "It is clear, however, that if the misrepresentation is made, not in the form of an unqualified assertion implying personal knowledge, but as upon information and belief, and the speaker really believes the statement to be true, he cannot be held liable, although the person to whom it is made suffers injury from acting in reliance thereon." 20 Cyc. 31. [3] The second defense is equally without merit. It appears from the testimony that the appellees deraigned their title to 40 acres of the timber line embraced in the mortgage through mesne conveyances from Christopher William Whitford and wife. Whitford and wife conveyed the property to one Ernest Strong, Strong conveyed to the appellee, Mary E. C. Morley, and the appellees to the appellants. Through inadvertence or mistake the deed from Whitford to Strong was recorded in the Miscellaneous Records in the office of the county recorder. Subsequent to the deed to Strong the Whitfords, by a second deed, conveyed the same property to certain parties in New Mexico. The appellants contend that the registration of this deed in the Miscellaneous Records did not constitute constructive notice, and that the title of the appellants was defeated by the subsequent conveyance from the Whitfords to the parties in New Mexico. This conclusion does not follow. Under the laws of the state of Washington registration is not essential to the validity of a deed. A deed is valid without registration as between the parties, and as to all others, except bona fide purchasers and incumbrancers for value and without notice. No proof was offered here tending to show that the New Mexico parties were purchasers for value and without notice. Indeed, there was an entire absence of testimony tending to show that they even claimed an interest in the property. The defense of failure of title was therefore not established, and we deem it unnecessary to consider either the ef fect of the warranty contained in the deed, or of the collateral agreement entered into at the time of the conveyance. There is no error in the record, and the judgment is affirmed. (223 Fed. 631) DELAWARE, L. & W. R. CO. v. CABONI. (Circuit Court of Appeals, Second Circuit. April 13, 1915.) No. 205. 1. COURTS 406-REVIEW-ACTION TRIED BEFORE REFEREE. Where an action at law was by stipulation tried before a referee, the only question reviewable by an appellate court is whether the conclusions of law are supported by the findings of fact. [Ed. Note.-For other cases, see Courts, Cent. Dig. § 1103; Dec. Dig. 106; Appeal and Error, Cent. Dig. §§ 3385, 3387-3391, 3393.] 2. MASTER AND SERVANT 137-MASTER'S LIABILITY FOR INJURY TO SERVANT -NEGLIGENCE OF TRAIN ENGINEER. A train engineer held not chargeable with negligence for failing to give proper warning of his approach to a gang of track workmen, where he blew the whistle when half a mile distant. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 269, 270, 273, 274, 277, 278; Dec. Dig. 137.] 3. MASTER AND SERVANT 137-MASTER'S LIABILITY FOR INJURY TO SERVANT -FAILURE TO MAINTAIN LOOKOUT FOR TRACK WORKMEN. A finding that a railroad company was negligent in failing to station a watchman or lookout to give warning of the approach of trains to laborers working on the track held supported by findings of fact that there were some 30 or 40 workmen in different gangs, and that when at work some of them could not well see approaching trains. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $8 269, 270, 273, 274, 277, 278; Dec. Dig. ~137.] In Error to the District Court of the United States for the Western District of New York. This cause comes here upon writ of error to review a judgment in favor of defendant in error who was plaintiff below. The action was brought to recover damages for the death of Salvatore Orsini, who was killed by being run over by a train on defendant's railroad. The action was brought under the federal Employers' Act of 1908 (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1913, §§ 8657–8665]). E. Hollister and Rogers, Locke & Babcock, all of Buffalo, N. Y., for plaintiff in error. Lanza & Miceli, of Buffalo, N. Y., for defendant in error. LACOMBE, Circuit Judge. [1] This cause was tried before a referee; the only questions open to us are whether the conclusions of law are supported by the findings of fact. We cannot pass upon alleged errors in finding or in refusing to find; nor can we supplement the findings by reference to the testimony. Campbell v. Boyreau, 21 How. 223, 16 L. Ed. 96; Andes v. Slauson, 130 U. S. 435, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & indexes 139 C.C.A.-12 9 Sup. Ct. 573, 32 L. Ed. 989; David Lupton's Sons Co. v. Automobile Co., 225 U. S. 489, 32 Sup. Ct. 711, 56 L. Ed. 1177, Ann. Cas. 1914A, 699; Edenborn v. Sim, 206 Fed. 275, 124 C. C. A. 339. The findings are inartificially drawn, conclusions of law being in some instances embodied in what purport to be findings of fact. Redistributing them the facts are as follows: Plaintiff's intestate was a track laborer in the employ of defendant, working with a pick, loosening dirt between the ties of the westbound track of defendant's railroad near Owego station; five other workmen were engaged in the same gang at that place. He was struck by a west-bound work train of defendant, receiving injuries from which he died. The work in which he was engaged was of a nature which required him to work in a bent and inclined position. The defendant had not stationed near these six workmen any person to be on the lookout and to give them warning of the approach of trains. The train in question consisted of an engine, 15 ballast cars, and a caboose; the engine was at the westerly end of the string of cars, runing backwards, with its tender first, drawing the cars behind it. The engine whistle was blown half a mile from the place of the accident, and the train was in plain sight from that point up to the point where the accident occurred. After the engine whistled and while it was approaching the track gangs, the foreman and two assistant foremen blew their hand whistles as notice to all of the men to keep clear of both tracks while the train passed. There is no finding as to how many gangs there were, nor as to the location of defendant's gang relatively to the others. It is further found that deceased must have heard the engine whistle blow one-half mile away. As conclusions of law from these facts it was found that: (1) The engineer was negligent in not giving proper and sufficient warning of the approach of the train. (2) That defendant was negligent in not stationing near deceased's gang any person to be on the lookout and to give them warning of the approach of trains. (3) That deceased should have exercised more care when he heard the engine whistle blow, and that he thus contributed somewhat to the accident. (4) That plaintiff is entitled to judgment for $2,500. The third conclusion is clearly supported by the findings. There is no finding as to the speed of the train; certainly, if it had been going at any unusual or extraordinary speed, some such finding would have been made. Moreover, even if it were going at the speed of 60 miles an hour-a most unreasonable hypothesis in the absence of any proof in its support-the deceased had 30 seconds after the whistle blew to take care of himself; two or three steps would have put him in a place of safety. [2] The first conclusion is not supported by the findings. The engine whistle, indicating the approach of this work train, was blown a half mile off from the place where the deceased was working; it gave him ample warning to protect himself if he heard and heeded it. The conclusion that the engineer was negligent is not warranted by the findings. [3] As to the second conclusion we think that reasonable prudence required the stationing of some one to look out for the approach of trains and to warn the workmen when such approach was seen. The men were in a position where, some of them at least, could not see an approaching train; they were engrossed in their occupation, and conditions of wind and weather might be expected to prevent the engine whistle from attracting their attention. Since it is found as a fact that no one was so stationed to look out for and warn this body of workmen there were some 30 or 40 of them in the different gangswe are satisfied that the second conclusion was a proper one. The fourth conclusion naturally follows as an inference from the second and third; $2,500 is a very moderate award for the death of Orsini, even though his own negligence contributed. Judgment affirmed. (223 Fed. 633) HOME BANK FOR SAVINGS v. LOHM. (Circuit Court of Appeals, Fourth Circuit. May 25, 1915.) No. 1339. BANKRUPTCY 440-REVIEW-APPEAL OR REVISION AS PROPER REMEDY. Bankr. Act July 1, 1898, c. 541, § 24b, 30 Stat. 553 (Comp. St. 1913, § 9608), gives the Circuit Courts of Appeals jurisdiction to superintend and revise in matters of law the proceedings of the bankruptcy courts. Section 25a (3) authorizes appeals from judgments allowing or rejecting debts or claims of $500 or more. Held that, where a claim of $3,500 was presented for allowance as a preferred claim, the claim of preference being based upon an attachment levy within four months before bankruptcy, a decree denying the claim of preference should have been reviewed by appeal, and not by petition to revise. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 915; Dec. Dig. 440. Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.] Petition to Superintend and Revise, in Matter of Law, Proceedings of the District Court of the United States for the Northern District of West Virginia, at Clarksburg, in Bankruptcy; Alston G. Dayton, Judge. In the matter of Wilhelmina Wittigschlager, bankrupt; A. L. Lohm, trustee. On petition by the Home Bank for Savings to superintend and revise. Petition dismissed. Homer W. Williams, of Clarksburg, W. Va., for petitioner. Before PRITCHARD, KNAPP, and WOODS, Circuit Judges. PRITCHARD, Circuit Judge. This is a petition to superintend and revise, in matter of law, proceedings in the District Court of the United States for the Northern District of West Virginia. It appears For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |