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Customarily this pump was not used at all during the night. January 13, 1914, was one of the coldest days in the winter.' At 5:30 in the afternoon, near the end of his period of service, Hoover found that, because of a defect which had developed in some unknown way, the pipe leading from the pump to the tank could not be drained, and he knew that, if the water was allowed to stand in it without any pumping being done, it would freeze and the water supply system would be disabled. It thereupon became apparent that some one must stay during the night, keep up steam in the boiler, and run the pump for a few minutes at frequent intervals. He wired the division superintendent, and was directed to stay until relieved. He was not relieved until 6:30 a. m., January 14th, making nearly 24 hours of continuous service. It may be assumed that it was impossible to obtain any help or relief from the nearby village of Sandyville, and that after the report reached the superintendent's office there was no regular train, on which relief could have been sent from division headquarters or from any station where employés were available, until the train on which the relief was sent; but at Valley Junction, five miles away, three engines customarily lay overnight, and did so the night of January 13th.

[1] Those sections of the Hours of Service Act which are here involved are sections 2 and 3, and they are quoted in the margin. It is plain that Hoover belonged in the class of telegraph operators, and that the proviso of section 2, considered by itself, was an absolute prohibition of his employment for more than 17 consecutive hours; but it is claimed that the proviso of section 3 contemplates certain instances where the act should not apply at all, and it is said that what happened here was a “casualty or unavoidable accident," and hence that service even for more than 17 hours was not, necessarily, a violation of

1 Sec. 2. That it shall be unlawful for any common carrier, its officers or agents, subject to this act to require or permit any employé subject to this act to be or remain on duty for a longer period than sixteen consecutive hours, and whenever any such employé of such common carrier shall have been continuously on duty for sixteen hours he shall be relieved and not required or permitted again to go on duty until he has had at least ten consecutire hours off duty: * * * Provided, that no operator, train dispatcher, or other employé who by the use of the telegraph or telephone dispatches, reports, transmits, receives, or delivers orders pertaining to or affecting train movements shall be required or permitted to be or remain on duty for a longer period than nine-hours in any twenty-four hour period in all towers, offices, places, and stations continuously operated night and day, nor for a longer period than thirteen hours in all towers, oflices, places, and stations operated only during the day time, except in case of emergency, when the employés named in this proviso may be permitted to be and remain on duty for four additional hours in a twenty-four hour period on not exceeding three days in any week.

Sec. 3. That any such common carrier, or any officer or agent thereof, requiring or permitting any employé to go, be or remain on duty in violation of the second section hereof, shall be liable to a penalty of not to exceed five hundred dollars for each and every violation: * * * Provided, that the provisions of this act shall not apply in any case of casualty or unavoidable accident or the act of God; nor where the delay was the result of a cause not koown to the carrier or its officer or agent in charge of such employé at the time said employé left a terminal, and which could not have been foreseen: Provided, further, that the provisions of this act shall not apply to the crews of wrecking or relief trains.

the law. In reply, it is urged that telegraphers and those of similar duties, and who are covered by the proviso of section 2, constitute a class by themselves, the burdens and exemptions of which are exhaustively covered by this section 2 proviso, and which class is wholly beyond the scope of the proviso of section 3.

We are constrained to think that the proviso of section 3 may apply to telegraphers as well as to other employés. The interrelation of the two sections compels this conclusion. Section 2 is the only section which undertakes to say what acts shall be prohibited, and section 3, as an independent section, has no office except to provide for the punishment of those who violate section 2. In its opening lines, it expressly refers to section 2, and there is no penalty for the employment of a telegrapher for more than 17 hours, excepting as section 3 prescribes a penalty. So it cannot be thought that, because the proviso is found within the limits of section 3, it does not apply to section 2 with percisely the same force as if it had been appended to section 2.

Further, the language of the proviso is all-embracing. It says "that the provisions of this act shall not apply in any case of casualty. * * *" To hold that in spite of this declaration some of the "provisions of this act” nevertheless did apply in case of casualty, just the same as if this proviso did not exist, it seems to us would be to ignore the plain terms of the law. The “emergency” provision itself, of section 2, is one of the things superseded when the “casualty” happens.

[2] If the “emergency” which will permit 17 hours' service under section 2, and the "casualty or unavoidable accident" required to invoke the proviso of section 3, were the same thing, there would be reason to say that the latter proviso did not cover the cases reached by the former; but there is not only a presumption of a difference in meaning from the fact that the words are selected and put into contrast, but they inherently imply distinction. Congress would naturally have foreseen that, in the course of railroad service, there would be a great number of unexpected conditions which would require the service of a telegrapher for a few extra hours, and which well might be termed emergencies, but which would not at all rise to the scope of an act of God, an unavoidable accident, or a casualty. While “casualty” and "unavoidable accident” are terms broad enough to cover many rather trilling things, yet their association in this section and their contrast with the “emergency” of another section indicate that they were not used in any such broad sense, but only with reference to those extremer cases which justify coupling them' up with "act of God.” This construction has been adopted by those Circuit Courts of Appeals which have passed on the question. United States v. Mo. Pac. (C. C. A. 8) 213 Fed. 169, 130 C. C. A. 5; San Pedro Ry. v. United States (C. C. A. 9) 220 Fed. 737, 136 C. C. A. 343; Denver Ry. v. United States (C. C. A. 8) 233 Fed. 62, 65, 147 C. C. A. 132.

With this view of the act, we cannot regard the accident which happened here as a thing justifying the exemption given by the proviso of section 3. It rather belonged, and distinctly so, in the class of “emergencies.” The record does not disclose the precise nature of the occurrence, but the pipe leading up from the pump through the bottom of the tank, up through the water and discharging near the top, in some way sprung a leak or broke off in that part which was submerged in the water in the tank, with the result that the pipe could not be drained at the pump without also draining the tank. No one knows why this occurred. It apparently was one of the ordinary defects which continually develop in the operation and use of any mechanical apparatus. It cannot rightly be called a "casualty," under this section, and, though it was an "accident,” no one can say it was unavoidable. If this precise occurrence had occurred to the mind of the draftsman of the act, his very natural inference would have been that 4 hours of extra time was enough to allow for such a contingency. For definitions of “emergency,” confirming or supporting our interpretation, see United States v. Denver Ry. (Č, C. A. 8) 220 Fed. 293, 136 C. C. A. 275;. United States v. So. Pac. (C. C. A. 8) 209 Fed. 562, 126 C. C. A. 384; United States v. Mo. Pac. (D. C.) 235 Fed. 944.

A consideration of some further facts shows that this construction does not put upon this railroad any such degree of hardship as to make us hesitate to adopt it. If it was not practicable to instruct Hoover to let the water run, even if it drained the tank, all that was needed was a man with the skill of an ordinary fireman. There were, at this time, three firemen, not on duty, only 5 miles away, and no reason appears why the necessary relief could not have been had from that source with the slight trouble involved in sending an engine 5 miles. If this was not practicable, the city of Canton was only 12 miles away, and, in the absence of proof, it was right to presume that relief could well have been sent from Canton.

The judgment below is affirmed.

KNUPP et al. v. BELL et al.

(Circuit Court of Appeals, Fourth Circuit. May 1, 1917.)

No. 1495.

1. VENDOR AND PURCHASER Cm119–CONTRACTS-RESCISSION.

Complainants purchased land, paying part of the consideration, and executing notes and a deed of trust, for the remainder. A year thereafter they asserted that defendants' title was defective, but, after subinitting the question to an attorney, they paid the notes maturing at that time. When notes due two years after the execution of the contract matured, complainants demanded a rescission of the contract on account of the alleged defects, and refused to consummate their bargain. Defendants denied complainants' ground for rescission, and sold the property under the deed of trust. Eight years after their acceptance of the deed, complainants instituted a suit for rescission; a prior suit having in the incantime been dismissed. Held that, in view of their acceptance of the deed, complainants were not entitled to equitable relief, but were limited to relief on the covenants of warranty contained in the deed; this

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

being particularly true, as neither complainants nor the subsequent purchasers were disturbed in possession.

[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. $$

212–214.] 2. EQUITY Ow178-PLEADING-ANSWER IN COUNTERCLAIM.

In a suit to obtain rescission of a contract for the purchase of land, defendants, the vendors, who had taken up notes for the purchase money discounted at a bank, were entitled to set up in their answer as a counterclaim their demand for relief on the notes, equity rule No. 30 (201 Fed. v, 118 C. C. A. v) providing that the answer must state in short and simple form any counterclaim arising out of the transaction which is the subject-matter of the suit, for defendants' right to recover on such notes would be doubtful, did they not so claim relief.

(Ed. Note.--For other cases, see Equity, Cent. Dig. § 414.)

Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge.

Suit by William J. Knupp and others against J. Frank Bell, administrator of Oliver D. Jackson, deceased, and others, in which Hugh M. Kerr and another counterclaimed. From a decree for defendants, complainants appeal. Affirmed.

William J. Breene, of Oil City, Pa., and Frank C. Miller, of Norfolk, Va. (P. A. Agelasto, of Norfolk, Va., and Edmond C. Breene, of Oil City, Pa., on the brief), for appellants.

Tazewell Taylor and Thomas H. Willcox, both of Norfolk, Va. (John L. Jeffries, of Norfolk, Va., on the brief), for appellees.

Before KNAPP and WOODS, Circuit Judges, and DAYTON, District Judge.

KNAPP, Circuit Judge. By contract of July 30, 1906, Jackson, Kerr, and Wolcott agreed to sell, and the appellant Knupp, with whom the other appellants were associated, agreed to buy, for $18,000 a tract of about 6,000 acres of timber lands in Carteret .county, N. C. Of the purchase price $1,000 was to be paid on signing the contract, $5,000 on delivery of the deed, and the balance by interest-bearing notes at one and two years, secured by deed of trust upon the property. The contract recited the condition of the title at that time, and the steps which the vendors would take to enable them to convey, or cause to be conveyed, the lands therein described “by a deed of general warranty * * * free and clear from all incumbrances of whatsoever kind or nature.' Accordingly there was a sale, under an outstanding lien, to the Jackson Corporation, a Virginia concern, and that corporation, by deed dated September 22, 1906, and containing the agreed covenants, conveyed the property to Knupp, who accepted the deed, paid the $5,000, and executed the notes and deed of trust as provided in the contract.

In the late summer of 1907, shortly before the one-year notes matured, Knupp put forward a claim of defective title, and employed Mr. Hughes, an attorney of Norfolk, to act for him in adjusting the matter. Wolcott, who represented the vendors, testified that it was am For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes agreed between Hughes and himself to submit the question to a North Carolina lawyer by the name of Noore, selected by Hughes, and abide by his decision. Just what question was referred to Moore is the subject of dispute, but he appears to have made a report or written a letter which satisfied Knupp, at least for the time being, and he thereupon paid the 1907 notes, half at that time and half in the following January. In 1908, however, when the two-year notes were about to become due, Knupp asserted that the title was worthless, refused to make further payments, and demanded rescission of the contract, cancellation of the notes, and return of the $12,000 theretofore paid by him. Claiming the title to be good, as they still do; the vendors refused this demand, and instead procured a sale of the property under the trust deed securing the notes. It was bid in for their account for $1,000, which was applied, less expenses and taxes, on the unpaid notes, and subsequently sold again to the parties now in possession. In the meantime the National Bank of Commerce of Norfolk, which had discounted the 1908 notes, brought suit to collect the same in the state of Pennsylvania, where Knupp and his associates resided. They interposed a defense, and also, in 1910, filed a bill in the Eastern district of Virginia, the residence of the appellees, to enjoin the prosecution of the Pennsylvania suit, to rescind the contract in question, and to recover the moneys that had been paid thereon. Answer was made in due course, but for some reason the case was not brought on for trial, and the bill was accordingly dismissed in November, 1913, under equity rule 57.

The present bill, filed in January, 1915, alleges with much detail that the plaintiffs were induced to enter into the purchase contract by false and fraudulent representations, both as to the title to the property and the amount of timber on the tract. In effect, if not in terms, a conspiracy is charged to get from the plaintiffs a large sum of money by deliberate and intentional deceit. The relief prayed for is a rescission of the contract, cancellation of the unpaid notes, and recovery of the $12,000 which had previously been paid. The answer sets forth a full and circumstantial account of the transaction, and meets with explicit and positive denial every averment of fraud or misrepresentation. It aiso alleges that defendants Wolcott and Kerr own the 1908 notes, having taken them up from the bank, and demands judgment in their favor for the amounts due thereon. Upon consideration of the voluminous proofs submitted, oral and documentary, the learned District Judge dismissed the bill for want of equity, and ordered judgment against the appellants on the counterclaim set up in the answer.

In the view we take of the case, it may be disposed of without extended discussion. The decree appealed from necessarily involves a finding in favor of defendants upon the issue of fraud, and careful study of the record fails to convince us that this finding should be disturbed. True, the testimony of Knupp, chief witness for plaintiffs, makes out a case of purposeful and aggravated deception. On the other hand, Wolcott, who represented the defendants, maintains earnestly that the negotiations were carried on from first to last with honesty and fair dealing. Both these witnesses, and most of the others, were

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