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the libel of the steam tug against the steamship. The cargo of the Lansing belonged to the Seaconnet Coal Company, which intervened pro interesse suo in the action against the Transfer No. 15. The intervener also appealed.

James T. Kilbreth and Irving Miller, both of New York City, for the Transfer No. 15.

Robinson Leech, of New York City, for the Lansing.

Blodgett, Jones, Burnham & Bingham, of Boston, Mass. (Edward E. Blodgett, of Boston, Mass., of counsel), for intervener.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

HOUGH, Circuit Judge. [1] The collision out of which these litizations arose occurred off the ferries at the foot of Whitehall street, Vanhattan, on a fair afternoon (April 19, 1916), when the wind was light, the weather clear, and the East River tide still running ebb, although the tide had begun to rise. The Lansing is a steamer 250 feet long, originally built for traffic on the Great Lakes, and of very slow speed. The Transfer No. 15 is an able tug 125 feet long, and had in tow a loaded carfloat on each side, each float being 327 feet long. The Lansing was bound up the East River; the Transfer, with her floats, was coming down, intending to round the Battery and proceed to the New Jersey shore. There was no unusual amount of traffic in the neighborhood, and the evidence contains no suggestion that any vessel not proceeded against interfered with navigation. The collision was a violent one between the bow of the Lansing and the port side of the Transfer's port carfloat, about 50 feet abaft her forward end. That such a collision could happen in broad daylight is of itself almost evidence of negligence. The Tugboat No. 6, 170 Fed. 306, 95 C. C. A. 502.

On consideration of the pleadings and the testimony of those in charge of the navigation of the colliding vessels, we find it impossible to harmonize their statements or to arrive at any story of collision not somewhere denied in vital details. There are some points, however, so conclusively proven as to dominate, and from these controlling facts we deduce a result favorable to the Lansing. That steamer entered the channel between the Battery and Governor's Island upon the "deep water range." Such is the testimony of her master, while the captain of the Transfer admitted that when he first noticed the steamship (he being above Pier 7, East River) she was on that range. The Transfer and her tow, by the statement of her own master, “came down the East River to go under the Brooklyn Bridge, and proceeded down about in the middle of the river, favoring the New York shore." master's intention was “to follow the middle of the river as near as possible, and as we proceed down we keep drawing in to the New York

The Lansing against the tide was making not over 3 miles an hour by the land, while the Transfer on her own testimony was similarly going at the rate of at least 9 miles an hour. The place of collision was off the ferries nearest to Pier 4 East River, and about 1,000 feet off the pier ends. This is the evidence of the master of a

The tug

tug which was lying off the ferries, who had a full view of the collision, and was introduced as a witness on behalf of the Transfer. The distance from the pier end given by him puts the place of collision on the “deep water range.” The heading of the Transfer and her floats at the moment of impact is plainly testified to by her master, who, when asked how his boat was heading at the time they came together, replied : I should think that my boat was heading directly toward

the Staten Island ferry rack."

With the place of collision thus fixed, and the bearing of tug and tow also fixed within narrow limits, we next inquire as to the angle of collision. On this point there is practical unanimity among the witnesses—it was a right-angled blow-a statement amply confirmed in our opinion by the nature of the wounds. But if the blow was right-angled, the point of contact substantially on the deep water range, and the tug and carfloats heading for the ferry racks nearest Pier 4, the conclusion is mathematical that the Lansing at collision was on the range, and had never substantially altered her course from the moment she was first seen by the Transfer. Such is her evidence, which in our judgment is confirmed by the foregoing.

The hopeless conflict of evidence herein relates to the signals given and the relative bearings of the two vessels at the time of giving them. There is a fair preponderance of evidence that the Lansing blew first, giving a signal of two whistles. That the first signal was given by the Lansing is admitted in the Transfer's pleadings, but it is said to have been a signal of one blast. It is proved as a two-whistle signal, and we perceive no reason why it should not have been heard and understood by the Transfer, which undoubtedly replied with one whistle.

The vital point is whether, when the Lansing blew two whistles, she had the Transfer on her port or starboard bow. The testimony on this is utterly irreconcilable; but when it is observed that the vessels when not over half a mile apart were approaching each other at the rate of at least 1,100 feet a minute, that the collision occurred on the deep water range, with the port side of the Transfer's floats in the act of crossing the Lansing's bow, and the floats and tug heading for the upper ferry slips, we think it demonstrated that in order to produce collision the tug and tow must have come (under a port helm) from the Lansing's starboard side.

It is not thought that the Transfer was as far over to Brooklyn (or starboard), when the Lansing blew two whistles, as the captain of the steamer asserts; but she was enough to starboard of the Lansing's course to render a two-whistle signal (under the meeting rule) proper. This is in accord with the Lansing's evidence, and is very nearly admitted by the master of the Transfer when he assented to counsel's proposition that, if he had understood the Lansing's first signal as of two whistles, he could "have answered with two and safely gone down on her starboard side."

Thus we find that this disaster occurred through a misunderstanding of whistles, for which no excuse is proffered; as a result thereof

the Transfer ported and hard-aported, and so threw herself directly across the path of the Lansing, which immediately upon hearing the Transfer's single whistle stopped, reversed, and gave the alarm. The steamer was struck substantially on the deep water range; she did not change her course, and indeed scarcely had time so to do.

The reason for this misunderstanding of signals is largely found in the insufficiency of the Transfer's lookout. The master of that tug had a deckhand on top of the cars on the starboard float. His duties seem to have been for the most part to announce “small craft, gasoline boats, and rowboats." He must have seen the Lansing; should have heard her whistles and understood them and reported them. But (according to his captain) the only attention he paid to the steamer was, after the Transfer had put her wheel hard aport, to ejaculate, “I wonder where that fellow thinks he is going.”

[2] We have recently insisted upon the necessity of a lookout, and a good one, even in the daytime. Delaware, etc., Co. v. Central R. R. Co., 238 Fed. 560,- C.C. A. —). The rule is equally to be insisted upon here, for it can hardly be doubted that a vigilant lookout would have announced the Lansing's signal which the master (who was solely in charge of a flotilla of the weight and capacity of a large ocean steamer) might easily misinterpret, as he unquestionably did.

Finding that the situation of these vessels when they were between a quarter and a half a mile apart was such that the Lansing had the Transfer on her starboard bow on a course which made a passing starboard to starboard proper within the meeting rule, it is ordered that the decrees below be reversed, with one bill of costs to the appellants in this court, and the cause remanded, with directions to dismiss the libel against the Lansing and sustain that against the Transfer No. 15.

HANSEN et al. v. UNIFORM SEAMLESS WIRE CO.

(Circuit Court of Appeals, First Circuit. June 15, 1917.)

No. 1259.

1. CORPORATIONS 308(6)-OFFICERS-SALARY-AMOUNT.

Where the general manager of a corporation abandoned all claim for salary at the rate fixed in a written contract for ten years, and it was understood between him and the treasurer of the corporation that the sums paid to him as salary should be in full for his services, in view of the corporation's financial condition, he had no claim against the company for additional salary, either on express contract or under a claim in quantum meruit.

[Ed. Note.–For other cases, see Corporations, Cent. Dig. &1341, 1342.) 2. FBAUDS, STATUTE OF CM 44(3), 139(1)-CONTRACTS OF EMPLOYMENT-TIME OF

PERFORMANCE.

The agreement under which such general manager was paid was not within the statute of frauds, as it did not cover any fixed period, and was fully executed by both parties.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. $$ 66, 334, 337.)

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

243 F.-12

3. BANKRUPTCY C60_ACTS OF BANKRUPTCY-APPLICATION FOR RECEIVER

SHIP.

The directors of a foreign corporation voted to apply for a receivership or for bankruptcy, and a committee was appointed with power to act; but no action was taken pursuant to the vote, and the application for a receiver was made by four stockholders, three of whom were credi. tors, under Gen. Laws, R. I., c. 213, § 27, as amended by Laws 1909, c. 424, which authorizes the appointment of a receiver for a foreign corporation on the petition of any stockholder or creditor. Held, that the corporation did not apply for a receiver, thereby committing an act of bankruptcy, especially as, under the statute, the application could not have been made by the corporation.

[Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. $ 80.) Appeal from the District Court of the United States for the District of Rhode Island; Arthur L. Brown, Judge.

Petition by Charles E. Hansen, doing business as the Platinide Company, and others, to have the Uniform Seamless Wire Company adjudicated a bankrupt, in which Conley & Straight intervened. From a decree dismissing the petition (235 Fed. 616), the petitioning creditors appeal. Affirmed.

Peter C. Cannon, of Providence, R. I. (James T. Egan, of Providence, R. I., on the brief), for appellants.

E. Butler Moulton and J. Jerome Hahn, both of Providence, R. I. (Mumford, Huddy & Emerson, Hahn, Joslin & McCanna, and Charles C. Mumford, all of Providence, R. I., on the brief), for appellee.

Before DODGE and BINGHAM, Circuit Judges, and HALE, District Judge.

BINGHAM, Circuit Judge. This is an appeal from a decree entered in the United States Court for the District of Rhode Island in favor of the respondent, the Uniform Seamless Wire Company, a Maine corporation, doing business at Providence, and Conley & Straight, interveners, dismissing a petition brought by Charles E. Hansen, doing business under the name of the Platinide Company, William H. Miller & Sons, J. M. Anthony & Co., and Joseph T. Boland, all of Providence, asking to have the Uniform Seamless Wire Company declared a bankrupt.

In the petition it was alleged that the petitioners were creditors the Wire Company, whose claims amounted to more than $500, and that the company had committed an act of bankruptcy, in that, being insolvent, it had, on the 7th day of March, 1916, applied for the appointment of a receiver under the laws of the state of Rhode Island. In answering the petition, the respondents denied that the Wire Company had committed an act of bankruptcy, and that Boland was a creditor of the company. If Boland was not a creditor, the claims of the other petitioners did not equal the requisite jurisdictional amount. The application for the receiver alleged that the corporation was insolvent, in that it was unable to pay its debts as they matured. In re William S. Butler & Co., Inc., 207 Fed. 705, 125 C. C. A. 223; s. C., Palmenberg v. William S. Butler & Co., 231 U. S. 752, 34 Sup. Ct. 322,

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

58 L. Ed. 467; Maplecroft Mills v. Childs, 226 Fed. 415, 141 C. C. A. 245.

In the District Court, Boland was found not to be a creditor, for the reasons:

(1) That the contract purporting to be executed May 20, 1909, between the corporation and Boland, employing the latter as general manager of the corporation at a salary of $100 per week for the term of ten years from May 14, 1909, was not a contract in substance, but in form only, and was never assented to at any time by any person representing the corporation independently; (2) that Boland abandoned all claim for salary at the contract rate; (3) that Boland, by his failure for about six years to assert his claim for salary at the contract rate, and by his knowledge that no indebtedness for the claim was stated as a liability of the corporation, was estopped as against all other stockholders and all creditors from asserting his claim against the corporation; and (4) that, as the corporation was without funds with which to conduct its business unless its preferred stock could be sold, Boland, as owner of substantially all the common stock, was interested in creating and maintaining a credit for the company, and, through an arrangement with the treasurer, accepted sums from time to time in payment for his services as general manager, and thereby foreclosed any right he may have had to recover a larger sum on quantum meruit.

[1,2] Various contentions are made; but we do not find it necessary to consider all of them, and in particular whether the court erred in holding that the contract of May 20, 1909, between Boland and the Wire Company was invalid, or in holding that Boland was estopped to assert his claim as a creditor, for it seems to us that the evidence fully warrants the finding of the court below that Boland abandoned all claim for salary at the rate named in the contract of May 20th, and that, in view of the financial condition of the company and his conduct in the premises, it was understood between him and Astle, the treasurer, that the sums paid to him as salary should be in full for his services, and that, having waived or abandoned his right to the salary stipulated for in the contract of May 20th, and agreed to accept the sums paid him in satisfaction for his services, he has no claim against the company, either on the express contract or under a claim in quantum meruit. The agreement under which he was paid for his services was not within the statute of frauds, for it did not cover any fixed period and was fully executed by both parties.

[3] We are also of the opinion that the petition could have been dismissed on the ground that the Wire Company, if insolvent, had not committed an act of bankruptcy as alleged in the petition. The allegation was that the corporation, being insolvent, on the 7th day of March, 1916, applied for a receiver of its property under the laws of the state of Rhode Island; and the question is whether the corporation, assuming it to have been insolvent within the meaning of the Bankruptcy Law (which it was not, if Boland was not a creditor), applied for a receiver. It appeared in evidence that, at a meeting of the directors of the corporation on March 6, 1916, it was voted to apply for receivership or for bankruptcy, and a committee, consisting of two of the direc

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