Practice, § 522; May v. United States, 199 Fed. 53, 117 C. C. A. 420. And what is said on this point applies as well to the contention as to failure to allege the relation of defendants to the "agency." Whether they constituted it or were employed by it, or whether they had or had not a right to make representations concerning it, were matters, not of allegation, but of evidence, bearing on the proof of the scheme and its conception and operation.

[3] 3. It is insisted that the letters set forth in the several counts as having been mailed inherently show they had no power or tendency to execute the alleged scheme, and that it is not sufficiently alleged that they were mailed for the purpose of executing the scheme. Our reading of the indictment letters, far from convincing us that on their face they had no power or tendency to execute the fraudulent scheme, induces the opposite conclusion. The letters set forth in 14 of the counts are presumably to various of the intended victims, signed by defendant Wendler, and are all in substantially the following form appearing in count 11:

"Stromberg Motor Devices Co., Chicago, Illinois-Gentlemen: We are in receipt of advice from our solicitor of the list of your present delinquent claims, that you had handed him, for the purpose of arriving at the basis for charge covering our service, and one of our special representatives will call upon you in the near future regarding the same. Thanking you for your courtesy in the matter, we beg to remain. very respectfully, Barr & Widen Mercantile Agency, F. L. Wendler, General Manager. April 23, 1912. L-30.”

Surely such letters advising of the receipt of the list of claims, and of the intended call of a special agent to close a contract, show on their face they had some power or instrumentality in the execution of the scheme to defraud.

[4] In most of the other counts under section 215 the letters set forth as having been mailed in execution of the scheme to defraud are from Preeman to various agents in the field, some referring to the sending of lead cards, other encouraging the agent, or giving directions relating to the business of realizing on the alleged plan fraudulently to secure money from victims. The letter which is mailed need not be one to or from the intended victim of the fraud, in order to come within the terms of section 215. The execution of the scheme may be, and here was, most effectively furthered, and the purpose of its execution or attempted execution most directly served, through communications by mail between the persons who concocted or entered into it.

[5] Some of the indictment letters refer to the stoppage by the victims of payment on checks given for realization charges, and one of them (count 22) is an acknowledgment of receipt of a list of claims and of a contract, promising prompt attention and enclosing further blanks for claims. The scheme alleged, being one for obtaining money through the fraudulent representations and practices set forth, the use of the mails, even after the money is received, for the purpose of assisting in retaining the money, or to convey to the victim assurances calculated to lull him into inaction and to postpone, perhaps indefinitely, his taking action in respect to his loss, is within the purview of the

law which condemns depositing in or taking from the mails any letter, etc., for the purpose of executing any scheme to defraud. Farmer v. United States, supra.

[6] The counts charge that the letters therein set out were mailed "for the purpose of executing the said scheme and artifice to defraud, and for the purpose of attempting so to do"; and as the letters themselves do not indicate that they could not and did not have such tendency, but, on the contrary, carry the inference that they could and did, we find no merit in the contentions in this regard.

[7] 4. The conspiracy counts (25, 26, and 35) are criticized mainly for their alleged failure sufficiently to aver that the conspiracy charged does not include in its purview the use of the mails in the execution of the contemplated fraud, and that the indictment letters and the other things stated therein as overt acts manifestly had no power to effect the object of the conspiracy. The counts charge:

"That the defendants *

unlawfully, etc., conspired, etc., together,

for the purpose of executing the said scheme and artifice to defraud and attempting to do so, to place and cause to be placed letters in

the post office."

We regard this as sufficient averment of a conspiracy to use the mails in execution of the alleged scheme to defraud. Stokes v. United States, 157 U. S. 187, 15 Sup. Ct. 617, 39 L. Ed. 667; Emanuel v. United States, 196 Fed. 317, 116 C. C. A. 137.

In each of these counts the sending of letters of the same general purport as those heretofore referred to is charged by way of overt acts, and in counts 25 and 26 there are further charged as overt acts such things as sending lead cards, securing. lists of delinquent accounts, the meeting of certain of the defendants at particular places-all charged as having been done in pursuance of the conspiracy and to effect its object.

It seems clear that all such acts from their very nature may well have been influential in effecting the object of the conspiracy, and without here presenting analysis or discussion of counsel's elaborate argument to the contrary, we find the counts sufficient in this respect.

Other objections to the indictment are urged with much detail of argument and authority, but they seem to be largely refinements of such matters as we have considered, and in most instances quite too hypercritical to serve as substantial and fatal objections to the indictment or any of its counts, which, upon careful consideration, we conclude duly and sufficiently advised defendants of the nature of the charges thereby preferred.

[8] 5. Error is assigned on the admission in evidence of a certain book in which were entered the "realization charges" which were received at Preeman's office for about three months of 1912. A tabulation of these showed a total of about $130,000 received for this period. It is claimed not only that the book was inadmissible as not being properly authenticated, but that in no event were its contents competent evidence, and that great harm accrued to the defendants through its admission, because it showed not only the realization charges as

to which there was offered evidence of fraud, but also realization charges as to which there was no evidence of any fraud offered, and also many which were not sent in by defendants, but by other agents in the field.

As to the authentication of the book, it appears that it was regularly kept in the Chicago office, where defendant Preeman was in control. Those who kept the book were his employés, and it may well be concluded that it was under his general direction that the book was kept, although he made no entries in it. Preeman and the other defendants were interested in the book, in that it was the record of the realization charges, of which Wendler, Preeman, the solicitors, and the list men were to receive certain proportions. The men who kept the book testified to the correctness of its entries, which were made as the checks were received, and even if the book were required to be authenticated with the particularity of account books offered in evidence on behalf of those by or for whom they were kept, we find such requirements to have been substantially complied with. But the book was offered and admitted rather in the light of an admission or declaration by the defendants or some of them, and as such the book would be sufficiently identified if shown to have been kept with the knowledge and under the general direction of defendant. Bettman v. United States, 224 Fed. 819, 140 C. C. A. 265.

[9, 10] As to the contention of the incompetency of the book, it did not appear that the fraudulent scheme proved was concocted with reference to any definitely intended victims, but should be operative as to any and all whom the agents might undertake thereby to influence. Indeed many of the other agents shown by the book to have secured such realization charges, were of the witnesses by whom the fraudulent scheme was proved. The fraudulent scheme being shown, it was competent to prove the extent to which realization charges were solicited and secured, as bearing on the motive and intent of those who concocted the scheme, even though in many cases it did not appear whether fraudulent representations were made to secure them. It must be borne in mind, however, that the extent of success of the scheme as charged under section 215 was in no manner necessary to be shown, the only essential elements being the fraudulent scheme and the use of the mails in its execution. But in any event no prejudice to the defendants resulted from this evidence. Even had the jury believed that the total amount of realization charges shown in the account book had been secured by the defendants, and by fraud, nevertheless they could only have found the defendants guilty, which was all they could do with the proof showing only $10,000 of these realization charges to have been so secured by them.

And in this connection it may be noted that one line of defense consisted in showing by witness Salter the great volume of business which the agency had transacted-the many thousands of claims handled, and of dollars collected since the year 1901. And one item of evidence was a long list of realization charges aggregating many thousands of dollars, collected from concerns not in evidence as complaining, showing in each such case where collections had been made of at least two and

one-half times the amount paid. On cross-examination Salter testified without objection that about 12,000 had paid realization charges. Surely all this evidence coming from practically the only witness of importance offered for the defendants, and designed to show the magnitude of the business which the agency transacted, is quite inconsistent with any claim of prejudice arising from evidence offered by the government of large receipts of realization charges within a given time.

[11] 6. It is seriously contended that all evidence was incompetent whereby it was shown that defendants had made representations of promises to intended victims inconsistent or conflicting with the terms of the contracts which were executed, on the ground that, the contracts being in writing and signed by the parties to them, no evidence was admissible to vary their terms. As before observed, the indictment charges the use of the mails by defendants for the purpose of executing the alleged scheme or artifice to defraud, and if the evidence shows that the scheme devised or intended to be devised was the false representation of past or existing facts to induce belief of ability to collect certain stale accounts, and that thereby the intended victims were to be defrauded of their money, it is not essential that one of the steps in the carrying out of the fraudulent scheme was the signing of a contract. The rule against the varying of written contracts by parol, applicable to instances where the contract is the subject-matter of the controversy, has no relevancy here, where the contract is merely one of a series of evidentiary facts bearing upon the ultimate question whether a scheme or artifice to defraud was in fact devised or intended to be devised.

The relation of the contract to the transaction was well described in a letter of October 12, 1912, from Preeman to agent Lappe, when, as trouble seemed to be brewing for the "agency," he wrote:

"Relative to the contracts received, wish to advise you there has been still another change made in the contract, namely, as per sample herewith inclosed, and I understand this will be the final contract-at least, until the present agitation subsides. The firm has been compelled to make this change on account of certain statements made by the contract men regarding matters of fact relative to claims. If it were not for the fact that I have been on the firing line myself, and sold a great many contracts, I might be inclined to make the statement that it will be hard to close these contracts. My experience, however, teaches me that the contract has very little to do with it, and I think you will find this to be a fact after you get out on the proposition."

[12] 7. The claim is persistently made that under all of the evidence the conclusion of guilt is wholly unwarranted as to any of the defendants, mainly because: (a) The agency repeatedly instructed and warned agents against making any of the false representations charged and proved as constituting the alleged scheme to defraud, and the contract form as well as the printed letter heads of the agency carry on their face notice that the agents had no power to make representations or agreements not contained in the form of the contract; (b) the contract provides for a three-year term of service of the agency, during which time all delinquent accounts of the client must be sent to the agency for collection, and that not till the end of that period could it be known whether the contract was or would be fulfilled; (c) the

agency in good faith intended and tried to fulfill the contract, undertook to collect each account sent it, and did in fact collect large amounts for clients, and stood ready to serve them as in the contract provided during the term of its existence; that in practically every instance as to which proof showed the money was obtained through the fraud alleged the three-year period had not expired, and that the executed contract was broken by the client through failure to send to the agency current delinquent accounts, and that as a further consideration for the contract, the agency was to furnish and did furnish clients certain form letters for collection by the client of its own accounts, and that thus everything in the way of service and the like which was intended to be given and which the contract provided should be given the client was in fact given, or the agency in good faith stood ready to give it.

It appears that in most instances an agent entering the service of the "agency" was required to acknowledge receipt of a printed circular called "Instructions to Solicitors," in which it was stated, among other things, that the solicitor's power was limited to soliciting and closing the printed contracts unchanged, and forbidding the use of testimonials except such as were supplied by the agency, and from securing business by other than "legal, legitimate, and truthful methods," and from stating to prospective clients that the agency "has any knowledge whatever as to any matter of fact that would make possible or probable the collection at any time of any claim," or that the "agency has made any investigation as to the collectibility of any claim prior to the closing of the contract," or that the "agency will refund all or any part of the realization charge in case this agency fails to recover the amount of minimum recovery." In the contract forms and on other stationery was also printed notice of the solicitor's want of power to vary the form of contracts.

If all this has been in good faith, with expectation of observance of these instructions, it might carry inference of the innocence of wrongdoing of those in charge of the project, men like Preeman and Wendler; but if, on the other hand, these fulsome warnings and notices appear from the evidence to have been merely a hypocritical pretense devised and employed with the view only of protecting from possible evil consequences of the scheme, a foil to parry the charge of fraud in case of prosecution, the fraudulent scheme and purpose is thereby only intensified. That this was really "an anchor to the windward" to provide for safety in time of stress, the jury was well warranted in concluding from the evidence. On cross-examination by defendants' counsel of different agents, letter after letter from Wendler was produced reproving the agent for making misrepresentations complained of, and threatening discipline and discharge; but few, if any, were for such cause discharged, none permanently, notwithstanding the constant stream of complaints coming to Wendler from the victims of the misrepresentations and promises of the very kind so peremptorily forbidden to be made in the "Instructions to Solicitors." A significant instance occurred in 1909 when Preeman then a field man had been instrumental in obtaining a contract, with the result that shortly afterwards a letter from the victim reached Wendler calling attention to the representations which Preeman had made to secure it; whereupon