CROCKER FIRST NAT. BANK OF SAN FRANCISCO (substituted for CROCKER Circuit Court of Appeals, Ninth Circuit. Rehearing Denied August 20, 1928. No. 5456. 1. Banks and banking 191-Documents accompanying drafts calling for granulated and fine sugar No. 24 held fatally defective, where letter of credit called for refined granulated and refined fine granulated sugar. Documents accompanying drafts calling for "white Java granulated sugar No. 24" and "white Java fine sugar No. 24" held fatally defective, where letter of credit called for 150 tons of "white Java refined granulated sugar" and 350 tons of "white Java refined fine granulated sugar." 2. Banks and banking 191-Bank issuing letter of credit need not look beyond documents accompanying draft to ascertain whether sugar complies with sales contract. Bank issuing letter of credit, and agreeing to accept drafts against shipment of sugar accompanied by certain documents, is not required to look beyond accompanying documents to ascertain whether sugar complied with contract of sale. 3. Contracts 346(2)-Party need not make good every defense urged against contract, or every reason assigned for nonperformance. Party is not bound to make good every defense urged by him against contract, or every reason assigned for nonperformance, but if party maintains any one of grounds relied on, and that ground is legally sufficient, he is entitled to prevail. Appeal from and in Error to the District Court of the United States for the Southern Division of the Northern District of California; Frank H. Kerrigan, Judge. Action by E. V. M. R. De Sousa and another, doing business as copartners under the firm name and style of De Sousa & Co., against the Crocker First National Bank of San Francisco, substituted for the Crocker National Bank of San Francisco. Judgment for plaintiff (23 F.[2d] 118), and defendant brings error. Reversed and remanded. Morrison, Hohfeld, Foerster, Shuman & Clark and J. F. Shuman, all of San Francisco, Cal., for appellant and plaintiff in error. T. T. C. Gregory and C. J. Goodell, both of San Francisco, Cal., and Frank V. Cornish, of Berkeley, Cal., for appellees and defendants in error. Before RUDKIN, DIETRICH, and HUNT, Circuit Judges. RUDKIN, Circuit Judge. Early in May, 1920, De Sousa & Co., a copartnership, as vendors, entered into a contract with Hind, Rolph & Co., a copartnership, as purchasers, for the sale of 500 tons of sugar. On May 20, 1920, in compliance with the contract of sale, the purchasers procured from the Crocker National Bank of San Francisco a letter of credit in the sum of $208,000 in favor of the vendors, in which the bank agreed that it would accept upon presentation, and pay in 60 days, drafts not to exceed $208,000 against a shipment of 500 tons, net, white Java refined granulated sugar, 97/98° polarization, at 2012 cents per pound, gross shipped weight, c. i. f. San Francisco; shipment from Hongkong during May/June, 1920, accompanied by full sets of invoices, consular invoices, marine and war risk insurance certificates, surveyor's certificate of quality, weight certificate, and negotiable ocean bills of lading made out to order of shipper and indorsed in blank. Later, on May 29, 1920, the letter of credit was amendlows: 150 tons granulated, 350 tons fine ed so as to cover 500 tons of sugar as folgranulated. Early in July, 1920, drafts were presented to the bank for acceptance, accompanied by commercial invoice, consular invoices, marine and war risks insurance certificate, surveyor's certificates of quality, weight certificates, certificates of polarization, and bills of lading, but acceptance was refused on the ground that the documents accompanying the drafts were not in order. The present action was thereupon commenced by De Sousa & Co. against the Crocker First National Bank of San Francisco, as successor to the Crocker National Bank, to recover the amount of the drafts, less the net proceeds derived from the sale of the sugar. A judgment in favor of the plaintiff (23 F. [2d] 118) is now before us for review. In the court below there was apparently some controversy between the parties as to the description of the sugar called for by the letter of credit in the light of the amendment of May 29, but it seems to be now conceded that the amendment made no change in the description of the smaller lot of 150 tons and simply added the word "fine" before the word "granulated" as to the larger lot of 350 tons, so that the description in the letter of credit as amended read: 150 tons white Java refined granulated sugar and 350 tons white Java refined fine granulated sugar. [1] In an early stage of the case the plaintiff in error likewise contended that it was under no legal obligation to accept or pay the drafts unless each and every of the documents accompanying them described the sugar word for word as the same was de 27 F.(2d) 462 scribed in the letter of credit as amended. But it seems to have receded from that extreme position, and now apparently concedes that it is perhaps sufficient if what it terms the essential documents so describe the sugar, and that the essential documents are the consular invoices, certificates of quality, and certificates of polarization. We think this latter view is the correct one, because it is hardly to be expected that ordinary insurance certificates, bills of lading, and certificates of weight will describe a commodity with greater particularity than is required by the nature of the documents and the purpose for which they are executed. And, without expressing any opinion as to the particular documents that must describe the commodity with precision, we will confine ourselves to the consular invoices and the certificates of quality, because in these the most complete description is found. The consular invoices described the smaller lot as "white Java granulated sugar No. 24," and the other lot as "white Java fine sugar No. 24," and the certificates of quality describe the two lots in the same words. It will thus be seen that the descriptive word "refined" is omitted from the description of the smaller lot, and the descriptive words "refined" and "granulated" from the description of the larger lot and that the figures "No. 24" are added to the description of both lots. . There was considerable discussion on the argument as to the rule of construction applicable to contracts of this kind. In Wells Fargo Nevada Nat. Bank of San Francisco v. Corn Exchange Nat. Bank (C. C. A.) 23 F. (2d) 1, the court said: "Letters of credit in large numbers for vast sums are used in oversea commercial transactions by people whose laws, language, and customs are often different from those of the people where the letter is issued. The safety of the issuing bank, of the buyer for whose account it is issued, and of the seller who often expends much and risks much on the faith of the promise in the letter, require that the terms of the letter shall be sharply defined and strictly complied with in all respects." We think this view is in harmony with the decisions of the Supreme Court. Thus, in Harrison v. Fortlage, 161 U. S. 57-63, 16 S. Ct. 488, 489 (40 L. Ed. 616), it is said: "The court is not at liberty, either to disregard words used by the parties, descriptive of the subject-matter, or of any material incident, or to insert words which the parties have not made use of." National Bank of Commerce, 48 S. Ct. 378, 72 L. Ed., decided April 9, 1928, the same court said: "The defendant is obviously not liable, unless there was a tender of sugar which met the requirements of the letter of credit as to amount and quality of the sugar, as to the time (Norrington v. Wright, 115 U. S. 188, 6 S. Ct. 12, 29 L. Ed. 366), and the place (Filley v. Pope, 115 U. S. 213, 6 S. Ct. 19, 29 L. Ed. 372) of shipment; and as to the manner of shipment and the ultimate destination." See, also, Moss v. Old Colony Trust Co., 246 Mass. 139, 140 N. E. 803; G. Jaris Co. v. Banque D'Athenes et al., 246 Mass. 546, 141 N. E. 576; Banco Nacional Ultramarino v. First Nat'l Bank of Boston (D. C.) 289 F. 169-175; Lamborn v. Lake Shore Bank & Trust Co., 196 App. Div. 504, 188 N. Y. S. 162, affirmed under same title in 231 N. Y. 616, 132 N. E. 911; Camp v. Corn Exchange Nat. Bank, 285 Pa. 337, 132 A. 189; Old Colony Trust Co. v. Lawyers' Title & Trust Co. (C. C. A.) 297 F. 152. As thus construed, we think the documents accompanying the drafts were fatally defective. Thus, in National City Bank v. Seattle National Bank, 121 Wash. 476, 209 P. 705, 30 A. L. R. 347, the letter of credit called for "standard white granulated sugar" while the documents described the commodity as "granulated white sugar Java No. 24," and the court held that the variance was fatal. In Banco Nacional Ultramarino v. First Nat. Bank of Boston, supra, the letter of credit called for "Brazil white crystal sugar," but the sugar was described in some of the documents as "white crystal sugar," and again the variance was held fatal. In bank of Italy v. Merchants' Nat. Bank, 236 N. Y. 106, 140 N. E. 211, the Merchants' National Bank guaranteed the payment of the purchase price of two carloads of dried grapes upon presentation of the original bill of lading. The bill of lading described the comm.odity as raisins, and the court held there could be no recovery. In Lamborn v. Lake Shore Bank & Trust Co., supra, the letter of credit described "Java white granulated sugar," while the bill of lading described it as "Java white sugar," and the variance was held fatal. As already stated, this case was affirmed on appeal. See, also, International Banking Corporation v. Irving National Bank (D. C.) 274 F. 122; Brown v. Ambler, 66 Md. 391, 7 A. 903. It is perhaps unnecessary to consider the significance of "No. 24," added to the deAnd in the recent case of Lamborn v. scription of each lot of sugar. The appellee contends that these numerals refer to the Dutch standard, that No. 24 is one of 18 different shades, ranging from No. 8 to No. 25, that the numerals refer to the color of the sugar, and that the court must take judicial cognizance of their meaning, because the Dutch standard of colors was used by the government for many years prior to 1913 as the principal basis for computing duties on imported sugar. How far the judicial knowledge of the court should properly be extended we need not inquire, because private individuals are not chargeable with notice of laws long since repealed, which in no wise affect their rights, and we think it can safely be said that the significance of such figures when applied to sugar is not generally or commonly known. Such knowledge is confined largely to those engaged in the sugar trade, and it is at least questionable whether it extends to those engaged in the banking business. But if it be conceded that the bank was chargeable with knowledge of the Dutch standard, and that the figures have held, so far as we are advised, that a party is bound to make good every defense urged by him against a contract, or every reason assigned for nonperformance. In practice it is not uncommon to refuse performance on different grounds, some of which are untenable; but if the party maintains any one of the grounds, and that ground is legally sufficient, he is entitled to prevail. In view of the conclusion reached on the merits of the case, it becomes unnecessary to consider assignments of error based on the admission of testimony. Upon full consideration of the record we are of opinion that the court below erred in denying the request to find for the defendant below, the appellant here, and for that error the judgment is reversed, and the cause is remanded for a new trial. the significance now attributed to them, the MUTUAL LIFE INS. CO. OF NEW YORK v. question would still remain whether the sugar described in the letter of credit was in fact No. 24 Dutch standard. [2] It is agreed on all sides that the bank was a purchaser of documents, not of sugar, and that it had no concern with the contract of sale between the vendors and the purchasers, or with the performance of that contract. See cases above cited. For this reason the bank was not required to look beyond the accompanying documents, to ascertain whether the sugar complied with the contract of sale. If the accompanying documents satisfied the call of the letter of credit, it was the duty of the bank to accept and pay the drafts; but, if they did not, it was its right and duty to refuse acceptance or payment. The motives or the reasons which prompted the refusal are not involved in the case, and for that reason much of the testimony admitted at the trial and some of the arguments advanced in the briefs have no bearing upon the question at issue. [3] Again, the appellee contends that the appellant took the position at the outstart that each and every document must describe the sugar word for word and term for term as described in the letter of credit, that its position in that regard was untenable, and for that reason alone the appellee was entitled to judgment. No doubt, if a person refuses to perform a contract on a specific ground or for a specific reason, he will not generally be permitted to defend on another and different ground; but it has never been BONDURANT et al. MASSACHUSETTS Circuit Court of Appeals, Sixth Circuit. Nos. 5012-5014. I. Interpleader 35-Stakeholder, bringing nonstatutory equity interpleader bill, is entitled to reasonable attorney's fees. Stakeholder, who brings the nonstatutory equity interpleader bill, is entitled to reasonable attorney's fees, as well as other costs. 2. Interpleader35-Act does not indicate that rules as to costs and attorney's fees in statutory interpleader should be different from those prevailing in ordinary equity Interpleader (Interpleader Act 1926; 28 USCA § 41(26). Interpleader Act 1926, 28 USCA § 41(26), merely enlarges the jurisdiction of federal courts over the necessary parties to certain inrules as to costs and attorney's fees in a statterpleader suits, and indicates no intent that the utory interpleader should be different from those that prevail in the ordinary equity interpleader, whether it be in the federal or state courts. 3. Interpleader 35-Insurance companies, filing bill of interpleader and paying amount of policies into court, held entitled to reasonable attorney's fees (Interpleader Act 1926; 28 USCA § 41(26). Insurance companies, filing interpleader under Interpleader Act 1926, 28 USCA § 41 (26), and paying amount of policies claimed by different parties into court, held entitled to rea sonable attorney's fees out of such fund under 28 USCA §§ 572, 830, to be determined by the District Court. 27 F.(2d) 464 4. Interpleader 35-Final decree, sustaining interpleader and granting injunction prayed for therein, entitled interpleader plaintiff to statutory attorney's docket fee; "prevailing party." Where final decree sustained interpleader and granted injunction prayed for therein, interpleader plaintiff was a "prevailing party" and entitled to statutory attorney's docket fee; it being immaterial that final decree was by consent of claimants and based on settlement as between themselves. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Prevailing Party.] 5. Interpleader 35-That interpleader plaintiffs brought proceedings under act, instead of in state court, did not defeat right to clerk's fee; "in pursuance of any statute" (28 USCA § 555(8); Interpleader Act 1926, 28 USCA § 41 (26). MACK, Circuit Judge. Appeal by insurance companies, plaintiffs in a proceeding under the Federal Interpleader Act of 1926 (44 Stat. 416, 28 USCA § 41(26), from so much of the final decree as refused them counsel fees and solicitor's docket fees out of the fund in controversy, and by the claimants, to whom the fund was awarded, from an order overruling their motion for a retaxation of costs, to eliminate the clerk's fee of 1 per cent. therein included. On The policies, issued payable to the estate of the insured, Chester T. Bondurant, were assigned to his wife and son. his death a creditor, asserting that the assignment was fraudulent, notified the companies not to pay the assignees. Thereupon each company filed an interpleader bill under the Interpleader Act, paying the amount of the policy into court. After the usual preliminary injunction against suits in other courts, the two claimants reached a settlement, under which the creditor filed an answer consenting to the payment to the assignees of the fund in court, "except such costs as are properly chargeable against said fund." The final decree permanently enjoined both claimants from other suits Appeal from the District Court of the and awarded the fund pursuant to the settle Where fund was paid into court and kept there in pursuance of Interpleader Act 1926, 28 USCA § 41(26), and was paid out pursuant to decree, that interpleader plaintiffs chose to bring proceedings under such act, instead of in state court, did not make payment of money into registry of court any the less "in pursuance of a statute," within 28 USCA § 555 (8), authorizing clerk's fees for receiving, keeping, and paying out money "in pursuance of any statute." United States for the Western District of Interpleader proceeding by the Mutual Life Insurance Company of New York and another against Kate R. Bondurant and oth ers. From so much of the final decree as refused them counsel fees and solicitor's docket fees out of the fund in controversy, the Mutual Life Insurance Company of New York and the Massachusetts Mutual Life Insurance Company of Springfield, Mass., appeal, and from an order overruling their motion for a retaxation of costs, to eliminate the fee of Lilburn Phelps, as Clerk of the United States District Court for the Western District of Kentucky, Kate R. Bondurant and another appeal. Decree reversed, as to part appealed from, and order affirmed. Wm. Marshall Bullitt, of Louisville, Ky. (R. Lee Blackwell and Bruce & Bullitt, all of Louisville, Ky., on the brief), for Massachusetts Mut. Life Ins. Co. G. T. Fitzhugh, of Memphis, Tenn. (Millsaps Fitzhugh, of Memphis, Tenn., on the brief), for Mutual Life Ins. Co. of New York. W. J. Webb, of Mayfield, Ky., for Bondurant and others. ment. The Interpleader Act provides that the "court shall hear and determine the cause and shall discharge the complainant from further liability; and shall make the injunction permanent and enter all such other orders and decrees as may be suitable and proper." Like the 1925 act it omits the See 28 USCA clause of the original 1917 act permitting court [1-2] It is well settled that a stakeholder, who brings the nonstatutory equity interpleader bill, is entitled to reasonable attorney's fees, as well as other costs. McNamara v. Provident Sav. Life Assur. Soc. of New York (C. C. A.) 114 F. 910; Louisiana State Before DENISON, MACK, and MOOR- Lottery Co. v. Clark (C. C.) 16 F. 20. The MAN, Circuit Judges. Interpleader Act effects no important change 27 F. (2d)-30 in the substantive rights of parties to an interpleader suit; it merely enlarges the jurisdiction of federal courts over the necessary parties to certain interpleader suits. Nothing in the language or in the history of this essentially jurisdictional act evidences an intent that the rules as to costs and attorney's fees in a statutory interpleader should be different from those that prevail in the ordinary equity interpleader whether it be in the federal or state courts. [3] Whatever inferences might have been drawn under the 1917 act from the words "actual court costs" as possibly denying to the plaintiff attorney's fees, are inapplicable to the 1926 act; it omits this clause and grants power to enter all orders that may be suitable. Indeed, this omission strongly supports the view that Congress intended no restrictions on costs under the new act. Terry v. Supreme Forest (D. C.) 21 F.(2d) 158, and certain unreported cases in the Northern district of Illinois, allowed attorney's fees in suits under the 1926 act; in some, at least, it was by consent. In N. Y. Life Ins. Co. v. Bidoggia (D. C.) 15 F. (2d) 126, the point was not decided; delay in bringing suit was held to bar recovery of cost and fees. The insurance companies, therefore, are entitled to a reasonable attorney's fee out of the fund paid into court; the amount should be determined by the District Court. [4] Inasmuch as the final decree sustained the interpleader and granted the injunction prayed for therein, the interpleader plaintiff is a "prevailing party," and entitled to the statutory attorney's docket fee. That the final decree was by consent of the claimants and based upon their settlement as between themselves does not affect plaintiff's right as against both of them. [5] The fund was paid into court and kept there in pursuance of the Interpleader Act, and was paid out pursuant to a decree of the court. The fact that the interpleader plaintiffs chose to bring the proceedings under the Interpleader Act instead of in a state court, does not make the payment of the money into the registry of the court any the less "in pursuance of a statute" within the Code section above recited. The statute in express terms required such payment and only by virtue of the statute could these suits have been instituted in the federal court. Therefore the taxation of 1 per cent. of the fund as clerk's fee was entirely proper. Decree in 5012 and 5013 reversed as to part appealed from. Order in 5014 affirmed. MONTGOMERY WARD & CO., Inc., v. GIBBS. Circuit Court of Appeals, Fourth Circuit. June 12, 1928. No. 2705. 328-Patent No. 1. Patents 1,540,691, claim 16, for improvements in animal traps, held valid, and infringed by trap covered by patent No. 481,582. Gibbs patent, No. 1,540,691, claim 16, for improvements in traps for capture of fur-bearing animals, held valid, and infringed by trap covered by Green patent, No. 481,582. 2. Patents 185-Component, valuable and patentable part of whole patented article, is inventor's property. A component part, in itself valuable and properly patentable, claimed as part of whole patented article, is the property of the inven tor. 3. Patents 328-Patent No. 1,540,691, for improvements in animal traps, held not void, as embodied in prior Gibbs patent, No. 1,458,286. Gibbs patent, No. 1,540,691, claim 16, for improvements in traps for capture of fur-bearing animals, held not void for double patenting. as embodied in prior Gibbs patent, No. 1,458,286, which was copending and described, but did not claim, similar trap. 4. Patents 120-That two copending patents make identically same disclosure is immaterial, if same elements are not found in combination set forth in two claims. That earlier and later of two copending patents make identically the same disclosure is immaterial, if the same elements are not found in combination set forth in the two claims. 5. Patents 120-All features of patented article need not be claimed in first patent issued. There is no law requiring that all features of a patented article must be claimed in the first patent issued. 6. Patents 120-Disclosure of Invention of second patent in earlier copending patent, not claiming it, is not fatal. That invention of second patent is disclosed in earlier patent is not fatal, if it is not claimed therein and applications for both patents were copending. 7. Patents 120-Issuance of first patent, not disclosing invention claimed in copending application for second patent, does not abandon unclaimed matter. Where two applications for patents on separate inventions are copending, issuance of the first patent does not abandon unclaimed matter in its disclosure; pendency of second application rebutting such inference. 8. Patents 226-Equity court, in patent infringement suit, considers very seriously lack of good faith, as in taking basic principles of employer's invention on returning to competing employer. Lack of good faith, as in taking basic principles of employer's invention on leaving em |