be presumed that the jury erroneously included in the verdict an excessive estimate of goods which deteriorated during the storage period, especially in view of instruction that they must find that the goods had not deteriorated.

ed States for the Southern District of New

York.

Suit by Anna Fournial against William M. Barrett, as president of Adams Express Company. Judgment for plaintiff, and defendant brings error. Affirmed.

This suit was instituted by Madame Fournial, a French woman residing in Bucharest, Roumania, to recover the value of household goods and personal effects deposited, as she claims, for storage, with F. Massonneau & Cie. in Paris in 1911. Massonneau is the name under which the defendant Adams Express Company conducted a storage and transportation business in Paris at that time. The defendant admits receipt of the goods and failure to return them when demanded on March 5, 1919, but contends that its liability is limited to the sum of 250 francs for each of the nine cases not returned, by reason of a receipt delivered to Madame Fournial four days after the deposit of her goods. This document, dated April 15, 1911, acknowledged receipt of nine cases and one trunk, said to contain used furniture, "to be shipped by the most accessible route by rail or water and according to the conditions printed on the back of this receipt to Bucharest." On the back thereof were printed "Conditions of Transport and of Insurance." They start with the statement, "This shipment is accepted by F. Massonneau & Cie. as carriers," and paragraph numbered 5 limits liability to "250 francs per case, unless the exact value of the merchandise has been placed in letters upon the declaration of the shipment, and the additional rate upon the total value has been included in the transportation charges." The trunk mentioned in the above receipt was subsequently redelivered to Madame Fournial and is not involved in this litigation.

The case was submitted to the jury under a charge to the effect that the contract under which the goods were held and upon which the plaintiff was suing was a contract for storage, not for transportation, and that the provision of the receipt which limited liability to 250 francs for each case undelivered had no application. The only issue left to the jury's decision was that of the reasonable market value of the goods in Paris in March, 1919, when they should have been returned. The

Moffat & Devlin, of New York City (Frederick J. Moses, Stanley M. Moffat, Edward I. Devlin, Jr., and De Witt C. Jones, Jr., all of New York City, of counsel), for defendant in error.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

We

SWAN, Circuit Judge (after stating the facts as above). [1] Numerous assignments of error are addressed to the court's ruling that the plaintiff's recovery was not limited to the equivalent of 250 francs per case. think the evidence is clear that, whatever may have been the original arrangement between the parties, the goods were ultimately held on a bailment for storage. Plaintiff's Exhibit No. 6 is a receipted bill, paid January 5, 1914, for 18 months' storage and insurance. The defendant's letter of February 12, 1914, introduced as Plaintiff's Exhibit No. 7, states that they will hold the goods in storage as long as plaintiff wishes. Plaintiff's brother testified to paying his sister's bills to defendant during the years of the war and to seeing the cases in the basement of the Express Company's office in January, 1917.

Assuming that the contract was originally one for transportation and evidenced by the receipt dated April 15, 1911, and that some delay in starting transportation might have fallen within the contract, 7 years' delay was certainly never intended, and we cannot accede to the contention that the transportation contract remained in force all those years. We consider the evidence so clear as to justify the court in instructing the jury that the goods were held on a bailment for storage when their return was demanded. [2] The expert witnesses to French law seem to be agreed that, granted the making of a subsequent contract for storage, the limitation of liability stated in the receipt would not apply to it. M. Fabry unequivocably so states. M. Caen does not appear to dispute this as a statement of law, but to question whether the transportation contract was in fact superseded by a deposit contract. He

says:

"As regards the answers made by M. Fabry, I admit that, as far as principles of French law are concerned, his replies are correct, but in his cross-examination he gives

a very contestable answer when he affirms that the payment of warehousing charges necessarily implies the existence of a deposit contract."

The difference between them seems to be what we should call one of fact; that is, whether the parties intended to change the obligations evidenced by the receipt of April 15, 1911. That fact the court directed the jury to find for the plaintiff, and, as already stated, we think the evidence clearly justified this. Consequently there was no error in ruling that the limitation of 250 francs per case did not apply.

The other assignments of error necessary to consider relate to the contentions that the verdict is not supported by competent evidence establishing damages, and that incompetent evidence of value was admitted over defendant's objections and exceptions.

To establish the value of the goods on the date of default, March 5, 1919, the plaintiff introduced evidence of their value in April, 1911, when delivered to defendant, the testimony of the expert Benguiat that he did not think their physical condition would deteriorate during storage, if properly packed, and that general values in Paris, particularly of antiques, increased between 1911 and 1919, and the opinion of Benguiat as to the minimum values in Paris in 1919 of antique Oriental rugs, etc., of the kind described by the plaintiff.

Madame Fournial testified that the cases and their contents were in very good condition when delivered, that before delivering them she made an itemized list thereof, and that she knew the prices in francs in Paris in April, 1911, for articles similar in quality and condition to those listed. She then produced the list, and wrote opposite each item a price in gold francs which she says she knew represented the fair amount which could have been realized upon the sale of said articles in Paris on April 11, 1911. This list was introduced in evidence as Plaintiff's Exhibit No. 3. She also prepared a second list, in which she gave a more specific description of each of the articles, with a statement in many instances concerning its quality, age, appearance, condition, and, when known to her, its purchase price. This list was introduced as Plaintiff's Exhibit No. 10.

[3] The defendant objected to this evidence on the ground (1) that the plaintiff was not qualified to testify as to values; and (2) that the value and condition of the goods in 1911 was not relevant to their market value in March, 1919.

As to the competency of the plaintiff to testify to the value of her household furniture and personal effects we have no doubt. In discussing the "Knowledge of Value Standard" the learned author of Wigmore on Evidence (2d Ed.) § 716, writes as follows:

"Personal Property Value. Here the general test, that any one familiar with the values in question may testify, is liberally applied, and with few attempts to lay down detailed minor tests. The owner of an article, whether he is generally familiar with such values or not, ought certainly to be allowed to estimate its worth; the weight of his testimony (which often would be trifling) may be left to the jury; and courts have usually made no objection to this policy."

This statement is amply supported by the cases. Gorman v. Park & Tilford, 100 F. 553 (C. C. A. 2); Union Pac. R. Co. v. Lucas, 136 F. 374 (C. C. A. 8); Chicago & E. R. Co. v. Ohio City Lumber Co., 214 F. 751 (C. C. A. 6); Berry v. Ingalls, 199 Mass. 77, 85 N. E. 191; Jones v. Morgan, 90 N. Y. 4, 43 Am. Rep. 131; Bailey v. Ford (Md.) 135 A. 835.

[4-6] The objection that the value and condition of the goods in 1911 was too remote to be relevant we regard as also without merit. In Jones v. Morgan, supra, which was an action against a warehouseman for failure to redeliver household furniture, a similar objection was made. The court ruled that within what range of time testimony of value should be admitted was a matter within the discretion of the trial judge. There the original cost of the property, some of which was purchased 7 years before the deposit for storage, and the manner in which it had been used, and its condition were proved. See, also, Prior v. Morton Boarding Stables, 43 App. Div. 140, 59 N. Y. S. 287; Cheever v. Scottish Union & Nat. Ins. Co., 86 App. Div. 328, 83 N. Y. S. 730: Jeffries v. Snyder, 110 Iowa, 359, 81 N. W. 678; Pitt v. Texas Storage Co. (Tex. App.) 18 S. W. 465. The defendant, having by its loss of the goods made it impossible for the plaintiff to give direct evidence of their condition and value at the date of the default, is in no position to complain that she resorts to circumstantial proof by showing their value and condition when deposited. See Markoe v. Tiffany & Co., 26 App. Div. 95, 49 N. Y. S. 751. We are satisfied that the trial judge did not abuse his discretion in receiving the evidence. In his charge he carefully limited the effect of the evidence of value in 1911 in its bearing upon the ultimate issue of value in 1919.

Objection is also made to the testimony of Mr. Benguiat, a dealer in rugs, fabrics, antiques, and objects of art. After he had been qualified as an expert appraiser of articles of that character, familiar with prices in London, Paris, and New York, he was read the description of certain articles listed in Exhibit No. 10 and asked to give his opinion of their value in Paris in March, 1919, assuming them to have been of the quality and kind described and to have been stored in a warehouse from 1911 to 1919. The questions related to antiques, being Oriental rugs, portières, and objects of art. He gave values for these items, which he'said represented the minimum values for the poorest quality of goods of the kind described. He also testified that, if the goods were properly packed, their physical condition would not depreciate during storage, and that the value of such goods had increased more than 50 per cent. between 1911 and 1919.

Mr. Benguiat was cross-examined, and the defendant produced its own expert, whose testimony was chiefly directed toward showing that it was impossible to place a market value upon the Oriental rugs and other articles valued by Benguiat without seeing them. At the close of the case, defendant moved to strike out all of Benguiat's testimony, on the ground that he was not properly qualified as an expert, and also that the description of the goods was too incomplete, and their condition in 1919 too uncertain, to be used as the foundation for a hypothetical question as to their market value.

[7,8] We are satisfied that he was sufficiently qualified as an expert. The other grounds of objection affect, we think, the weight of his testimony, rather than its competency. He could not, of course, examine the goods; the defendant had made that impossible. He finds the descriptions sufficiently definite, so that he says he knows the market value of the articles. He gives the minimum value for articles of the kind described, and says he takes into account the fact that they have been in storage for eight years. They were in good condition when delivered, and there no evidence of anything to cause deterioration, except the passage of time. To hold that under such circumstances expert testimony as to value is incompetent would preclude proof of the damage caused by the defendant's wrongful act. We think the evidence competent and sufficient to have been submitted to the jury.

is

for loss of articles of clothing, valued at that figure in 1911, but necessarily of little or no value in 1919, because of change in style. It is impossible, however, to say that the jury included that sum, or any sum, for loss of clothing. The articles valued by Benguiat, if the jury accepted his figures, had a value of $8,000. The other goods, excluding all items of clothing, might under the evidence have been found to be worth more than enough to bring the verdict up to $9,637. The jury were charged that, in order to make applicable to 1919 values the values of 1911, they must find that the physical condition of the goods had not deteriorated. Many of the goods, such as silverware, china, and glass, could not deteriorate in storage by mere lapse of time; others were of a kind which the jury may have thought did deteriorate. It is impossible to determine for which articles the jury allowed recovery in its general verdict. The trial judge was satisfied that the verdict was not excessive, for he refused to set it aside.

We find no error in the conduct of the trial, and the judgment is therefore affirmed, with costs.

In re AMY et al.

Circuit Court of Appeals, Second Circuit. July 26, 1927.

No. 391.

1. Partnership 67-Seat on Stock Exchange, as treated by son and father, who were partners, held individual property of son.

Where seat.on Stock Exchange was purchased by son with money given by father, with whom he formed partnership, and in liquidation of firm on father's death, and in settlement of father's estate, latter was treated as having no interest in seat, which had not been carried on books of firm, it was individual property of son, on his formation of partnership with his brother..

3. Partnership

even agreement for interest on stipulated valuation for Stock Exchange seat in articles of partnership was not conclusive evidence that it was contributed as partnership assets.

4. Bankruptcy 354-Failure of trustee In bankruptcy to separate proceeds of partner's Stock Exchange seat from firm's assets held not to affect rights of partner's creditors (Bankruptcy Act, §§ 5d, 5f [11 USCA § 23]). Where both firm and partners were adjudicated bankrupt, fact that trustee in bankruptcy, contrary to Bankruptcy Act, § 5d (11 USCA § 23 [Comp. St. § 95891), deposited proceeds of Stock Exchange seat, individual property of partner, and all other moneys collected by him, in bank account kept in name of firm, and filed

interim reports, in which no distinction was made between firm and individual assets, did not affect rights of individual partner under section 5f.

In the matter of Louis H. Amy and Ernest J. H. Amy, individually and as copartners doing business as H. Amy & Co., bankrupts. From an order decreeing proceeds of a Stock Exchange seat to be partnership property, the Asylum of St. Vincent de Paul and the Bankers' Trust Company, as substituted trustee, appeal. Reversed.

Gilman & Unger, of New York City, for appellant Asylum of St. Vincent de Paul.

Larkin, Rathbone & Perry, of New York City (William F. Unger and Thomas F. Dougherty, both of New York City, of counsel), for appellant Bankers' Trust Co.

Beekman, Bogue, Clark & Griscom, of New York City (Henry B. Hodge and W. Campbell Armstrong, both of New York City, of counsel), for appellee Marcuard & Co.

Humes, Buck & Smith, of New York City (Ben Le Roy Stowell and Prescott R. Andrews, both of New York City, of counsel), for appellee Cramer.

membership, and its proceeds, to be partnership property.

་

[1] Louis H. Amy purchased a membership in the New York Stock Exchange in 1888 with money given him by his father, Henry Amy. A partnership was formed between them, which continued from January 1, 1889, until the father's death in 1901. Thereupon this partnership was liquidated, and in such liquidation and in the settlement of the father's estate, the latter was treated as having no interest in the Stock Exchange seat. It had not been carried on the books of that firm. It is clear, therefore, that the seat was the individual property of Louis H. Amy when he formed, with his brother, Ernest J. H. Amy, the partnership which is now in bankruptcy. This was formed by formal articles of agreement dated December 31, 1901. After stating the purpose of the copartnership to be the carrying on of the general business of banking and brokerage under the firm name of H. Amy & Co., beginning January 1, 1902, the agreement sets forth, among others, the following provisions:

"Third. The said Louis H. Amy shall bring as his capital into partnership the sum of thirty-seven thousand five hundred dollars ($37,500), and the said Ernest J. H. Amy the sum of twenty-two thousand five hundred dollars ($22,500), and the said parties hereto agree to bestow all their skill, time, and attention upon the said partnership business."

"Fifth. Interest on the individual accounts of the two parties shall be charged and credited at the rate of 4 per cent. per annum; and the said Louis H. Amy shall be entitled to and interested in 622 parts and the said Ernest J. H. Amy shall be entitled to and interested in 371⁄2 parts of so much of the net gains and profits of said business as shall remain after the payment of the interest due on the accounts of the respective

SWAN, Circuit Judge. This is a contest between individual creditors of Louis H. Amy and partnership creditors of the firm of H. Amy & Co., of which he was a partner. Both the firm and the partners have been adjudicated bankrupts. The dispute originated in a petition by the appellants, who claim as individual creditors of Louis H. Amy, to have the proceeds of the sale of a seat in the New York Stock Exchange, amounting to $88,918.82, allocated as an asset of his individual estate. The District Court, confirming an order of the referee in bankruptcy, held the

defray all the losses and damages, which may be sustained by said copartnership in said business, in the same proportions as they are respectively entitled to in the net profits. Previous to any division of profits or losses the individual account of the said Louis H. Amy, party of the first part, shall be credited with an amount equal to interest at the rate of six per cent. per annum on sixty thousand dollars ($60,000) to wit: Three thousand six hundred dollars ($3,600) as compensation for and in consideration of his contributing to the firm the entire and exclusive benefit of his membership in the New York Stock Exchange free from all taxes,

"Whenever the capital of this business shall be increased, the present proportion of the capital put in by the parties, namely, thirty-seven thousand five hundred dollars ($37,500) and twenty-two thousand five hundred dollars ($22,500) shall remain the same, so that both the partners only can increase the capital and then only in the above-named ratio; and the respective shares of each in the profits and losses of the business shall remain the same as above stipulated."

"Eleventh. In case the said Louis H. Amy shall die during the continuance of the partnership his legal representatives shall have the right, equally with the surviving partner, to liquidate the business; and if the party of the second part shall be desirous of continuing the business the party of the second part shall pay for the good will of the business such a sum as shall be determined by three disinterested persons, each party selecting one and the two selecting a third. In case Ernest J. H. Amy should die during the continuance of the partnership then the said Louis H. Amy shall be entitled to continue the business as before without the interference of the legal representatives of the deceased party and shall be entitled to the firm name and all the books, papers and good will of the business and shall pay one-third part of the moneys standing to the credit of the said Ernest J. H. Amy within three months after his death and shall pay the remaining two-thirds of such moneys within six months after his death, interest thereon to be allowed; and he shall duly pay his share of the net profits as soon as they shall have been ascertained."

[2] Whether property owned by a partner and used in the firm business shall be deemed an asset of the firm or of the individual depends upon the intention of the partners. See In re Swift (D. C. Mass.) 118 F. 348; In re Atwater, 266 F. 278 (C. C. A. 2), affirmed 254 U. S. 423, 41 S. Ct. 150, 65 L. Ed. 339. The above-quoted provisions of the partnership articles appear to express an intention not to contribute Louis' membership as capital, but to grant the firm the use of his seat for the stipulated compensation.

The third article deals with capital contributions and specifies that Louis shall bring as his capital $37,500 and Ernest $22,500. If the seat, apparently valued at $60,000 in the fifth article, is also to be deemed a capital contribution by Louis, this would entirely upset the relative contributions of the two

article, but also with the last paragraph of the fifth article, which deals with increasing the capital. Moreover, profits and losses are to be divided in the same proportion, namely, five-eighths to Louis and three-eighths to Ernest, and if the seat were included as a capital contribution, this proportional division would not be followed. It is, of course, true that the division of profits and losses need not accord with capital contributions, but these articles appear to be drafted on the theory that they shall.

[3] The fifth article deals chiefly with the division of profits and losses, and the mention of the seat appears to come in merely as a direction of how the profit or loss shall be calculated. Louis is to be credited "with an amount equal to interest at the rate of 6 per cent. per annum on $60,000 as compensation for ⚫ his contributing to the firm the entire and exclusive benefit of his membership." This item of $3,600 is an expense of the firm, to be deducted before profit or loss is ascertained. It is paid by the firm as compensation for its use of the seat. If the word "use" had been employed, no question could be raised. We attribute no different meaning, however, to "benefit" in the phrase "entire and exclusive benefit." Why should the firm pay "compensation," if a seat were already contributed as firm assets? It might have allowed interest on its value as a capital contribution, before figuring profits; but it is significant that the "compensation" is not spoken of as interest, but as "an amount equal to interest." This would be an unnatural way to refer to interest on a capital contribution. Even an agreement for "interest" on a stipulated valuation for the seat would not be conclusive evidence that it was contributed as partnership assets. Burleigh v. Foreman, 130 F. 13 (C. C. A. 1). Again, if the seat were firm assets, we should expect the firm to pay the taxes, fees and charges assessed upon it. See In re Hurlbutt, Hatch & Co., 135 F. 504, 506. Whereas, if it remains the property of Louis, of which the firm has only the use, the provision that he shall pay such charges is natural enough.

It is argued by the appellees that the phrase "good will" in the eleventh article includes the seat and hence indicates that it was a firm asset. We cannot accede to so strained a construction. We mention the argument merely to indicate that it has not been overlooked.

The conduct of the partners-at least,