had sold, identification of 250 shares, which belong to Gorman, was made out-the bankrupts had 350 shares free from any claim, except Gorman's to 250 of them. The Supreme Court says: "It is said, however, that the shares in this particular case are not so identified as to come under the rule. But it does appear that at the time of bankruptcy certificates were found in the bankrupt's possession in an amount greater than should have been on hand for this customer, and the significant fact is shown that no other customer claimed any right in those shares of stock." (Italics ours.) * In the case at bar, however there are claimants-even leaving out Bamberger, whose certificate is conclusively identified-to more than twice the number of shares found in the box. The facts are much the same as In re McIntyre, Petition of William Grace, 181 Fed. 960, 104 C. C. A. 424, where we held identification had not been shown. Grace claimed 200 shares of Southern Pacific stock, the bankrupts had 107 shares of that stock on hand or hypothecated and owed their customers 1,651 shares of the same variety of stock. The theory now relied on was submitted with petition for certiorari in the McIntyreGrace Case, but certiorari was refused. Grace v. Burlingham, 218 U. S. 672, 31 Sup. Ct. 221, 54 L. Ed. 1204. We are not persuaded that the decision in the Gorman Case requires a modification of the rule followed in the McIntyre-Grace Case. The rights of general creditors are likely to be seriously impaired if the theory of constructive identification based on presumptions of intent be carried to the extent here asked for. The order is reversed. (219 Fed. 547) MASON et al. v. UNITED STATES. (Circuit Court of Appeals, Eighth Circuit. January 4, 1915.) No. 4142. 1. APPEAL AND ERROR 854-REVIEW-REASONS FOR DECISION. Assignments of error must be based on the court's rulings, and not on its reasons therefor, as stated in a memorandum opinion filed by the court. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3403, 3404, 3408-3424, 3427-3430; Dec. Dig. 2. APPEAL AND ERROR 854.] 671-RESERVATION OF GROUNDS OF REVIEW-FINDINGS OF FACT AND DECLARATIONS OF LAW. Under Rev. St. U. S. § 700, providing that, when an issue of fact is tried without a jury, the court's rulings in the progress of the trial, if excepted to at the time and duly presented by a bill of exceptions, may be reviewed upon a writ of error or appeal, and that when the finding is special the review may extend to the determination of the sufficiency of the facts found to support the judgment. where no ruling appeared in the record except the judgment, and no findings of fact or declarations of law were requested, the trial court's views regarding the law and the evidence could not be reviewed, as the judgment so far as it could be called a finding was equivalent to a verdict, and not the subject of exception. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 28672872; Dec. Dig. 671.] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes In Error to the District Court of the United States for the Southern District of Iowa; Thomas C. Munger, Judge. Action by the United States against Edward R. Mason and others. Judgment for plaintiff (211 Fed. 233), and defendants bring error. Affirmed. Roy E. Cubbage, of Des Moines, Iowa (Read & Read, of Des Moines, Iowa, on the brief), for plaintiffs in error. Sylvester R. Rush, of Omaha, Neb., for defendant in error. CARLAND, Circuit Judge. This is an action at law to recover from Edward R. Mason, late clerk of the Circuit Court of the United States for the Southern District of Iowa, certain moneys claimed to be due from him to the United States. A jury was duly waived in writing and the case tried to the court. After hearing the evidence and giving the case due consideration, the following judgment was rendered: "On this day this cause came on for further hearing, plaintiff appearing by Sylvester R. Rush, its attorney, and the defendants by Read & Read and Roy E. Cubbage, their attorneys, and it is thereupon ordered, adjudged, and decreed by the court that the United States of America have and recover of and from Edward R. Mason and the United States Fidelity & Guaranty Company of Baltimore, Md., the sum of $358.79, together with the costs of this action taxed at $ to which finding, judgment, and entering thereof both the plaintiff and the defendants and each of them in open court and at the time except." [1, 2] There were no requests for findings of fact, either general or special, by either party, nor any requests for declarations of law. The judgment above quoted is the only ruling of the court appearing in the record. The court filed a memorandum opinion which appears in the record, but it is what the trial court does, not its reasons therefor, which must form the basis of an assignment of error. It is stated in the record that in rendering the judgment herein the court refused to hold that the matters pleaded in counts 3, 4, and 5 of defendant's amended answer, constituted a good defense to the complaint of the plaintiff, and rendered judgment against the defendant for a sum which included the balance as shown by the evidence in the record not to have been disbursed by the defendant or turned over to or delivered by him to his successor in office, and that defendants excepted to this ruling. It is again stated that in rendering the judgment in this action the court included the balance testified to by the examiner as set out in certain equity cases and held that paragraph 3 of defendant's answer was not a good defense thereto, to which finding and holding the defendant excepted. It plainly appears, however, that the only time the court ruled was when it entered the judgment, and, if when the court entered the judgment it did so by reason of certain views it had in regard to the law and evidence, it was too late after judgment to raise the question as to whether these views were correct or not, unless counsel had placed the court upon record before the end of the trial in regard to the same. In form there were no findings made by the court either general or special, unless we consider the judgment entered a general finding, which seems to have been the view of the court and of counsel. Under the law this judgment, so far as it can be called a finding, was equivalent to the verdict of a jury and was not the subject of exception. Section 700, R. S. U. S., provides as to what rulings in a case tried to a court, without a jury, may be reviewed by this court. This court has, with what might seem to be tiresome repetition, established rules for the guidance of counsel as to how these questions may be preserved and reviewed. Experience teaches that it would serve no useful purpose to repeat these rulings. We content ourselves with again citing the cases. In the Supreme Court; Stanley v. Supervisors, 121 U. S. 535, 7 Sup. Ct. 1234, 30 L. Ed. 1000; Santa Anna v. Frank, 113 U. S. 339, 5 Sup. Ct. 536, 28 L. Ed. 978; Lehnen v. Dickson, 148 U. S. 71, 13 Sup. Ct. 481, 37 L. Ed. 373; Boardman v. Toffey, 117 U. S. 271, 6 Sup. Ct. 734, 29 L. Ed. 898; Norris v. Jackson, 9 Wall. 125, 19 L. Ed. 608; Cooper v. Omohundro, 19 Wall. 65, 22 L. Ed. 47; Martinton v. Fairbanks, 112 U. S. 670, 5 Sup. Ct. 321, 28 L. Ed. 862; Betts v. Mugridge, 154 U. S. 644, Append., 14 Sup. Ct. 1188, 25 L. Ed. 157; Insurance Co. v. Sea, 21 Wall. 158, 22 L. Ed. 511; Wilson v. Merchants' Loan & Trust Co. of Chicago, 183 U. S. 121, 22 Sup. Ct. 55, 46 L. Ed. 113. In this court: Mercantile Trust Co. v. Wood, 60 Fed. 346, 8 C. C. A. 658; United States Fidelity & G. Co. v. Board of Commissioners, 145 Fed. 144, 76 C. C. A. 114; National Surety Co. v. United States, etc., 200 Fed. 142, 118 C. C. A. 360; Seep v. Ferris-Haggarty Copper Mining Co., 201 Fed. 893, 120 C. C. A. 191; Eastern Oil Co. v. Holcomb, 212 Fed. 126, 128 C. C. A. 642. The record presenting no question which we can review, the judgment is affirmed. And it is so ordered. (219 Fed. 549) FRUTH et al. v. BENASSI. (Circuit Court of Appeals, Eighth Circuit. January 4, 1915.) No. 4216. 1. TRIAL 420-MOTION FOR DIRECTED VERDICT-WAIVER. A motion to direct a verdict at the close of plaintiff's evidence was waived by defendant by introducing evidence. [Ed. Note. For other cases, see Trial, Cent. Dig. § 983; Dec. Dig. ~420.] 2. APPEAL AND ERROR 242-RESERVATION OF GROUNDS OF REVIEW-NECESSITY OF RULING AND EXCEPTION. The sufficiency of the evidence to support the verdict was not reviewable, even though the statement of defendant's counsel at the close of all the evidence that he wished the record to show a formal renewal of a motion for a directed verdict was treated as renewing a motion made at the close of plaintiff's evidence and waived by introducing evidence, where the record showed no ruling by the court on the motion when so renewed or exception thereto. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 14171425; Dec. Dig. 242.] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 3. APPEAL AND ERROR 977-MATTERS REVIEWABLE-MOTION FOR A NEW TRIAL. In the federal courts, the ruling on a motion for a new trial is not reviewable. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 38603865; Dec. Dig. ~977.] In Error to the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge. Action by Cesira Benassi against George Fruth and another. Judgment for plaintiff, and defendants bring error. Affirmed. Jesse G. Northcutt, of Denver, Colo. (Charles Hayden, of Walsenburg, Colo., on the brief), for plaintiffs in error. George Allan Smith and F. W. Sanborn, both of Denver, Colo., for defendant in error. Before CARLAND, Circuit Judge, and T. C. MUNGER and YOUMANS, District Judges. CARLAND, Circuit Judge. This is an action to recover damages for the death of Luigi Benassi, alleged to have been caused by the negligence of plaintiffs in error. There was a judgment for defendant in error to reverse which the case has been removed here. The only points discussed in the brief of counsel for plaintiffs in error are: 1. There was no evidence introduced showing negligence on the part of plaintiffs in error. 2. The evidence showed that the defendant in error was guilty of contributory negligence. 3. The evidence showed that the death of Benassi was due to a risk which he had assumed. 4. That the verdict is contrary to the evidence. [1, 2] An examination of the record, however, does not disclose any ruling made by the trial court reviewable here upon these questions. Counsel for plaintiffs in error at the close of the evidence for plaintiff below, moved for a directed verdict in his favor. This being denied, he introduced evidence, which was a waiver of the motion. At the close of all the evidence, counsel said: "I wish the record to show a formal renewal of our motion for a directed verdict." This is all the record shows on this point. If we shall in a spirit of fairness treat the record as showing the motion renewed, it does not carry us far, as there must have been a ruling and exception thereto in order to review the questions sought to be raised, and in the same spirit of fairness towards the court we cannot treat the record as showing a ruling which, so far as the record shows, was never made. [3] The ruling on the motion for a new trial is not reviewable here, as we have had occasion to remark many times at each term of this court. In Liebing v. Matthews, 216 Fed. 1, 132 C. C. A. 245, Judge Smith, speaking for this court, said: "Bearing this in mind, it has been so long settled that the ruling on a motion for a new trial cannot be reviewed in an appellate court as to scarcely require the citation of authorities." For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes The judge, of course, was speaking of a federal appellate court. We might treat the errors assigned and not argued as abandoned, but we have considered them and find them without merit. The judgment below must be affirmed; and it is so ordered. (219 Fed. 551) SOUTHERN ICE CO. v. MORRIS et al.† (Circuit Court of Appeals, Fifth Circuit. January 19, 1915.) No. 2629. 1. ESTOPPEL 83-VALUE OF PROPERTY-REPRESENTATIONS. A buyer who acquires property at the price asked, half of which is paid in cash and the other half in stock represented by him and accepted by the seller as the equivalent of cash, is estopped to claim that such price was other than the value of the property, or that the seller was not damaged as a result of the stock being of substantially less value than represented. [Ed. Note. Dec. Dig. 2. EVIDENCE For other cases, see Estoppel, Cent. Dig. §§ 218, 227–229; 83.] 265-ADMISSIONS. Where defendant purchased an ice plant from plaintiffs at the price asked and fraudulently induced plaintiffs to accept certain corporate stock as a part of the price, the transaction involved an admission by defendant that the plant was worth the price, so that in plaintiffs' action for damages they were not required to prove the value of the plant. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1029-1050; Dec. Dig. 265.] 3. FRAUD VALUE. 59-DAMAGES-DIFFERENCE BETWEEN ACTUAL AND REPRESENTED Where plaintiffs were induced to accept certain stock in part payment for an ice plant and the stock was of much less value than represented, plaintiffs' measure of damage was the difference between the actual and represented value of the stock. [Ed. Note. For other cases, see Fraud, Cent. Dig. §§ 60-62, 64; Dec. Dig. 59.] In Error to the District Court of the United States for the Northern District of Georgia; Wm. T. Newman, Judge. Action by W. M. Morris and another against the Southern Ice Company. Judgment for plaintiffs (214 Fed. 168), and defendant brings error. Affirmed. Clifford L. Anderson and Daniel W. Rountree, both of Atlanta, Ga., for plaintiff in error. George Westmoreland and Churchill P. Goree, both of Atlanta, Ga.. for defendants in error. Before WALKER, Circuit Judge, and MAXEY and FOSTER, District Judges. PER CURIAM. The contention that the petition or complaint was subject to the demurrer interposed to it is sought to be supported on the ground that, because of its failure to allege or show the value of the property acquired by the defendant from the plaintiffs, it is to For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Rehcaring denied March 1, 1915. |