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DWINELL-WRIGHT CO. V. CO-OPERATIVE SUPPLY CO.
tioner to be guilty of contempt and committed him to the United States marshal for imprisonment in Ludlow Street jail for two months.
It is objected on behalf of the petitioner that he has not been charged with misbehavior within the provisions of Rev. St. U. S. § 725 [U. S. Comp. St. 1901, p. 583]. It is true that this word is not used; but the District Court has found that the petitioner's testimony is false, vague, and evasive, with the intent of misleading the court and concealing assets of his estate. It is as clear an instance of misbehavior as if the petitioner had refused to testify at all. Mr. Collier's work on Bankruptcy (page 125) is cited as showing that unsatisfactory answers, even if contemptuous, are not contempt in law, and cannot be punished as such. If he includes within the category of unsatisfactory answers such testimony as the petitioner's, I prefer to follow the decision of Hough, J., in the Matter of Fellerman (D. C.) 149 Fed. 244.
The petitioner also contends that the proceeding before the District Court was a criminal proceeding for the punishment of perjury, and that he was, therefore, entitled to a trial by jury. The proceeding was not an indictment or criminal proceeding to punish him for perjury, but was a proceeding to punish him for contempt of court, in which he was not entitled to a trial by jury.
It is also suggested that, as the order to show cause was founded on the petitioner's testimony before the special commissioner, the court could not punish him for contempt because of his testimony before the court. I think the special commissioner was only the instrument of the court to take the testimony, and that his testimony was really before the court. Were this not so, the testimony before the special commissioner and before the court was upon the same subject, and was the same contempt, for which he might have been committed on either or both occasions. This court has no appellate jurisdiction over the District Court, and, if there were any error or irregularity in the proceedings, that could only be corrected by appeal.
As I find that the District Court had jurisdiction of the petitioner and of the subject-matter, and was competent to pass upon his conduct, which it has found to be a contempt, the writ is discharged, and the petitioner remanded.
DWINELL-WRIGHT CO. V. CO-OPERATIVE SUPPLY CO.
(Circuit Court, E. D. Pennsylvania. May 29, 1907.) TRADE-MARKS AND TRADE-NAMES.
The name “White House," and the picture of the White House at Washington, held, upon final hearing, to constitute a valid trade-mark and trade-name for plaintiff's coffee.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trade Marks and Trade-Names, $$ 8, 11.)
HOLLAND, District Judge. For prior report of this cause, upon preliminary injunction being granted, see 148 Fed. 242. The case is now heard on bill, answer, and proofs, and these proofs are found to fully maintain the allegations of the bill, and a final decree is to be entered, permanently enjoining the defendants from selling or offering for sale, directly or indirectly, any coffee inclosed in wrappers upon which appears a picture or representation of the White House at Washington, or any coffee under the name of "White House," with or without said picture.
DUVALL et al. v. SULZNER et al.
(Circuit Court, W. D. Pennsylvania. August 21, 1907.)
1. ABBITRATION AND AWARD-VALIDITY OF AWARD-NOTICE OF HEARING.
Mere statements made by one claiming the ownership of certain stock of a corporation that, if he recovered it, he would use or dispose of it for the benefit of the corporation, did not constitute a transfer which gave the corporation the right to notice of a hearing before arbitrators to determine the ownership of the stock under an agreement to which it was not a party, or to join in a bill to set aside the award and for the re
covery of the stock. 2. SAME.
A dispute having arisen between several persons as to the ownership of certain shares of stock in a corporation, an agreement was made to submit all questions as to such ownership to arbitration, and arbitrators were selected, the most of whom were stockholders, and had heard the claims of the respective parties discussed. Complainant, who was one of such parties, after the arbitrators were selected, repeatedly stated to them that he had said all he wished to say, and that, as he was going away, they should proceed without him, which they did, making an award before his return. Held, that complainant could not impeach the award because no notice of the hearing was given to him, nor because the arbitrators may have considered evidence which would not have been admissible in court, having evidently intended that they should do so in re
spect to his own claim. 3. SAME-IMPEACHMENT OF AWARD-GROUNDS.
An allegation that arbitrators acted "with manifest unfairness, and with such partiality as to destroy the judicial character of the proceedings," does not state any ground for impeachment of their award, in the absence of any allegation that the party benefited participated in any misconduct or was guilty of fraud or collusion.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 4, Arbitration and Award, 88 322, 415.
Setting aside award for interest, prejudice on misconduct of arbitrator,
see note to Nolan v. Colorado Cent. Consol. Min. Co., 12 C. C. A. 589.) 4. SAME-WAIVER OF OBJECTIONS.
A party to an arbitration agreement who voluntarily joins in the selection of persons as arbitrators, who are known to have formed opinions upon the merits of the controversy, cannot impeach the award on the
ground that the arbitrators were not impartial.
EWING, District Judge. Upon the organization of the Gold Bullion Mining & Development Company, 250,000 shares of the capital stock, of the par value of $1 per share, were given William B. Duvall, in consideration of his transfer to said company of certain options on mineral lands in Mexico. One hundred and twenty five thousand shares of this stock said Duvall put aside, and proposed appropriating towards financing and developing the property of said company,
The finances of the company were causing some trouble, and some time during the year 1904 certain certificates of stock were placed in escrow with the Mercantile Trust Company, under the following agreement:
"The undersigned, being the owners of the certificates of stock of the Gold Bullion Mining & Development Company, which are herewith inclosed, have agreed as follows:
No. Shares. Joseph F. Sulzner...
..21 26,250 L. L. Duvall....
4 62,500 E. P. Coles..
1,667 M. D. Judah....
.24 24,583 K. C. Tebbetts..
...25 26,250 Jos. F. Sulzner.
.22 5,000 E. P. Cole...
.20 26,250 E. P. Cole...
5,000 W. B. Duvall..
..11 57,500 "(1) The certificates are hereby deposited in escrow in the hands of the Mercantile Trust Company, upon the following condition and purposes :
"(2) To prevent the parties named in certificates from selling or transferring the same pending the organization and financing of the Company.
"(3) The sum of $12,500 shall be raised in cash, by sale of stock, and paid into the treasury of the company on or before the 1st day of January, 1905, and if so paid in, then upon the certificate of the Company Treasurer showing that fact, the said The Mercantile Trust Company, Trustee, is authorized thereupon to deliver the said parties respectively, the certificates above mentioned.
“(4) Should the parties signing this paper fail to raise the money as above (No. 3) stated, then the said the Mercantile Trust Company, trustee, shall (and hereby authorized to) deliver all of the said certificates to W. B. Duvall,
"Jos. F. Sulzner. [Seal.] “E. P. Cole.
[Seal.] “W. B. Duvall.
[Seal.] "M. Douglas Judah. [Seal.] “K. C. Tebbetts.
[Seal.] "For J. C. Tebbetts, Atty."
The certificates embraced in said deposits numbered 21, 24, 25, and 20, aggregating 103,333 shares of said stock, constituted what was then left of the 125,000 shares which Duvall purposed using in financing the company and developing its property; the balance of the stock having been disposed of. The terms of the agreement under which said stock was deposited were not complied with, and in January, 1905, according to the provisions of said agreement, this stock was returned to Mr. Duvall, and he then obtained from the company one certificate for said 103,333 shares in his own name. Subsequently he delivered that certificate, after having signed the power of attorney on back thereof for its transfer, to Joseph F. Sulzner, and said Duvall, as against it, gave orders to various parties for certain blocks of the stock represented thereby. This certificate Sulzner turned over to the company, and received in exchange therefor a certificate to him
a self as trustee.
Thus matters stood until January, 1906, when, on the 6th of that month, Duvall filed a bill in equity in this court at No. 19 May term, 1906, against Sulzner, praying for an injunction to restrain Sulzner from voting that stock at the annual election of the company to be held on January 9, 1906, and for an order directing said stock certificate to be delivered up to the company and a new one, representing the same amount of stock, to be issued in his name. The injunction was not granted; but at the meeting on January 9th there was considerable discussion about the trouble among the stockholders regarding this stock, and the proposition was made that the entire matter be settled by arbitration. At that meeting Mr. Duvall moved “that a committee be appointed to arbitrate the differences between all parties claiming equity in the 103,333 shares of stock of the Gold Bullion Mining & Development Company and William B. Duvall, that the stockholders appoint a man to represent the stockholders' interest, and Joseph F. Sulzner appoint a man and William B. Duvall appoint a man, and these three men appoint two men, and all parties in interest in said 103,333 shares of stock of the Gold Bullion Mining & Development Company shall agree to whatsoever the committee may decide upon," which motion was carried. It was also moved and carried at said meeting that Thomas Maxwell be selected to represent the stockholders on such committee. Pursuant to this action of the stockholders of said company, Duvall and Sulzner agreed that the committee of arbitration should settle all matters regarding this stock, and Mr. Duvall selected Henry D. Gamble, one of the stockholders, as his representative, and Mr. Sulzner selected Harvey Miller, another stockholder and his attorney, to represent him, and subsequently these gentlemen and Mr. Maxwell
, with the acquiescence and agreement of Messrs. Duvall and Sulzner, selected H. G. Moore, another stockholder and director of this company, and James G. Marks, as the other members of the board of arbitration. Just when this board was completed does not clearly
. appear; but on the afternoon of January 10th all the arbitrators, unless Mr. Marks be excepted, as to which there is considerable difference of opinion, and Mr. Duvall, Mr. Sulzner, Mr. Tebbetts, and others, met in Mr. Gamble's office in the Federal Building, Pittsburgh, and completed all preliminary arrangements respecting arbitration.
The arbitrators held several meetings, the first on January 22d, and concluded their labors and made up their award on January 26, 1906. The agreement of arbitration executed by the parties, and the award made pursuant thereto, are as follows:
"Memorandum of Agreement. "Whereas disputes have arisen between William B. Duvall, Joseph F. Sulzner, J. C. Tebbetts, I. L. Courrier, M. D. Judah, and E. P. Cole, stockholders in the Gold Bullion Mining & Development Company, as to the ownership of shares of stock in said Gold Bullion Mining & Development Company, and whereas suit has been instituted in the court of common pleas No. 3 of Alle gheny county, Pa., by E. P. Cole, Joseph F. Sulzner, William B. Duvall, and the Gold Bullion Mining & Development Company respecting a portion of the stock of said company, and a suit instituted in the United States Circuit Court by William B. Duvall against Joseph Sulzner representing a portion of the stock of said company, and that certain other parties claim an interest in said stock.
"And, whereas, at the annual meeting of the stockholders held at the office of said company in the city of Pittsburgh, Pa., on the 9th day of January, 1906, it having been proposed and agreed by and between all of the parties to said disputes that the same be submitted to a committee of five as therein provided, to be selected to arbitrate and settle all matters in dispute concerning the same, which said resolution was unanimously adopted.
“Now, therefore, in pursuance of the verbal agreements and the said resolution above mentioned and in confirmation of the same, we do hereby agree to, and do submit all our rights and claims in, to, and concerning the stock of the Gold Bullion Mining & Development Company, and all disputes concerning the same, and do hereby select and appoint Thomas Maxwell, H. D. Gamble, Harvey A, Miller, G. H. Moore, and James G. Marks as a committee to arbitrate and adjust all said difference, disputes, and claims.
“Now, therefore, this agreement witnesseth:
"First. That the said parties hereto agree to submit their rights in and to the said stock to the Committee of arbitrators above named, and shall present to the said committee such evidence of their rights as may be relevant and proper.
"Second. That the said arbitrators, or a majority of them, acting as such committee or board, shall have the right and authority to hear and determine all matters in dispute between the parties hereto in and concerning the said stock, and shall set forth what portion, if any, of the said shares of stock is to be awarded to the various parties claiming a right or interest therein.
"Third. That the award of the said arbitrators shall be made in writing, and signed by the said arbitrators, or a majority of them, and a copy thereof delivered to each of the parties hereto, or mailed to their respective post-office addresses; and such award, when so made, shall be binding and conclusive upon the parties hereto without any right of action at law, or in equity, concerning the subject of this arbitration.
"Fourth. That the said William B. Duvall and the said E. P. Cole, in consideration of this agreement and by submitting their claims concerning the said stock to the said arbitrators, hereby settles and discontinues the said suits in the United States Circuit Court for the Western District of Pennsylvania, at No. 19 May term, 1906, and the said suit in the court of common pleas No. 3 of Allegheny county, Pa., at No.
November term, 1905, and agree to pay all costs therein accrued. “Witness our hands and seals this 10th day of January, A. D. 1906.
“W. B. Duvall. [Seal.] “Jos. F. Sulzner. [Seal.] "J. C. Tebbetts. [Seal.] "E. P. Cole. [Seal.] “I. L. Courrier.
[Seal.] "M. D. Judah. [Seal.]
“By I. L. C.,
"By virtue of assignment. "Witnesses."
“Award. “We, the undersigned, being the arbitrators agreed upon by William B Duvall and Joseph F. Sulzner and others, by agreement dated January 10, 1906, to hear and determine the claims of the said parties in and to the ownership of 103,333 shares of the stock of the Gold Bullion Mining & Development Company, and to make an award concerning the same, and to set forth what parties are entitled to the said stock, or portions thereof, as set forth in said agreement, hereby certify that we have heard the claims of the said parties and such evidence as they desired to offer, and, upon due consideration thereof, hereby make our award pursuant to the said agreement and adjudge