(271 F.) The question whether a stipulation to that effect would have made the transaction valid as against the mortgagor's creditors is not presented. The trustee acquired the status of a lien creditor as of the time when the petition in bankruptcy was filed. Bankruptcy Act, § 47a (Comp. St. § 9631); Bailey v. Baker Ice Machine Co., 239 U. S. 268, 36 Sup. Ct. 50, 60 L. Ed. 275. The retention up to that time of possession by the mortgagor under the circumstances above stated kept the mortgage from being valid as against the bankrupt's creditors. As conditions. existing up to the time the petition was filed were such as to deprive the mortgagee of a claim valid as against the mortgagor's creditors, the right conferred on the petitioner by the mortgage was subordinate, not paramount, to that acquired by the mortgagor's trustee in bankruptcy. American Bridge Co., v. Heidelbach, 94 U. S. 798, 24 L. Ed. 144; Freedman's Savings & Trust Co. v. Earle, 110 U. S. 710, 4 Sup. Ct. 226, 28 L. Ed. 301. The conclusion is that the court properly ruled against the claim asserted by the petitioner. The petition is denied. BARNES v. RED BAYOU OIL CO., Inc. (Circuit Court of Appeals, Fifth Circuit. February 2, 1921.) No. 3570. 1. Corporations 406 (1) Joint agent is not authorized to act alone, after other disposes of interest. Authority by directors to several parties to contract for the corporation does not authorize one of them, acting alone, to bind the corporation, in the event of the others disposing of their interest in the corporation, so that he and the directors were the only stockholders. 2. Corporations 426 (11)-Approval of directors held necessary, notwithstanding agent's authority to bind corporation. Though an agent is given by directors authority to bind a corporation, it is not bound by contract entered into by him which expressly states that approval of directors is necessary to make it binding, and which is not shown to have been approved. Appeal from the District Court of the United States for the Western District of Louisiana; George W. Jack, Judge. Suit for specific performance by J. William Barnes against the Red Bayou Oil Company, Incorporated. From a decree dismissing the bill, complainant appeals. Affirmed. J. D. Wilkinson, of Shreveport, La. (Wilkinson, Lewis & Wilkinson, of Shreveport, La., on the brief), for appellant. T. H. McGregor, of Shreveport, La., for appellee. Before WALKER, BRYAN, and KING, Circuit Judges. WALKER, Circuit Judge. This was a suit by appellant, J. William Barnes, against the appellee, the Red Bayou Oil Company, a pri For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes vate corporation, to enforce the specific performance by the latter of a sale provided for by a written instrument signed in its name by its attorney, Huey P. Long. That instrument, which was signed by the appellant, also provided for the granting by the appellee to the appellant of an exclusive right to purchase at a stated price, payable in installments, a mineral, oil, and gas lease, owned by the appellee on a described tract of land, and certain properties, equipment, and appurtenances belonging to the appellee, including two wells drilled on the land covered by the lease. The concluding paragraph of the instrument mentioned was the following: "It is agreed that this act, in order to be fully binding, shall have the approval of the board of directors of the Red Bayou Oil Company." The bill as amended showed that prior to the making and signing of the instrument mentioned the following letter was sent to the person addressed; the signers constituting a majority of the appellee's board of directors: “April 12, 1920. Huey P. Long, 318 Merchants' Building, Shreveport, La. Any deal you and the Thompsons make for the Red Bayou Oil Co. will be satisfactory with us. R. H. Fletcher, John F. Calhoun, O. K. Allen, W. A. Wright, Directors of Red Bayou Oil Co., Inc." It was not shown that "the Thompsons" participated in the transaction evidenced by the instrument, unless the following averment so shows: "The said parties mentioned in paragraph 4 of this bill [who were the persons whose names appear in the above set out letter], together with the said Thompsons, constituted all of the stockholders of the said Red Bayou Oil Company, Incorporated, and that by some sort of deed or arrangement, the details of which he is unable to learn, the interest of the said Thompsons had been disposed of, or at least that they were satisfied with the said contract made by the said Long attached to the original bill, and that the same was made with their full knowledge, acquiescence, and consent, and that they concurred in said deal made by the said Long with your orator." [1, 2] It would seem that by reason of the alternative feature of the last quoted averment it could be sustained by evidence that "the interest of said Thompsons had been disposed of." That fact would not have given to the above set out letter to Long the effect of authorizing him alone to make a deal for the appellee. But it may be assumed that the appellee corporation would have been bound by a contract purporting to bind it, which might have been made by Long alone. It was not shown that any such contract was attempted to be made. By the express terms of the instrument signed and relied on, a contract pursuant to its terms was not to come into existence or be binding until it was approved, ratified, and sanctioned by the appellee's board of directors. Favorable action by the appellee's governing board subsequent to the signing of the instrument was made a condition precedent to the coming into being of a contract binding upon it. Such action was not averred. The fact that an agent who signs an instrument in the name of his principal is authorized to bind the latter does not have the effect of making such instrument a contract (271 F.) before that is done which the terms of the instrument itself require to be done before it is to be binding on any one. The averments of the bill as amended do not show that in any way the appellee had become obligated to make the sale sought to be specifically enforced. The decree dismissing the amended bill was proper, and it is affirmed. CHARLES R. McCORMACK & CO. v. KEEVENY. (Circuit Court of Appeals, Second Circuit. February 9, 1921.) No. 149. Brokers 66-Agreement to share commission with firm of which purchaser was a member held not to affect right to agreed commission. A broker held not deprived of the right to his agreed commission for the sale of a ship, where he procured a purchaser who was accepted by his principal, because such purchaser was a member of a firm with which he had agreed to divide the commission, where the transaction was in good faith and the facts were known to the principal. In Error to the District Court of the United States for the Southern District of New York. Action at law by Eugene D. Keeveny against Charles R. McCormack & Co. Judgment for plaintiff, and defendant brings error. Affirmed. This case is here again after the retrial directed in Keeveny v. McCormack, in 266 Fed. 314. All of the facts stated in that report were again (in substance) proved. It now appears that by bill of particulars the plaintiff Keeveny specifically alleged that the ready, able, and willing purchaser by him procured was Theodore Dougherty. There was evidence at this retrial tending to show that Dougherty was purchasing the vessel for himself and was able by the assistance of or through his firm of J. F. Whitney & Co. to procure the full purchase price of $460,000 when and as it became due. The court charged the jury in substance that it was for them to say whether, "when Dougherty's name was submitted by Whitney & Co. to [defendants below] they accepted him as the purchaser of this ship, and were willing to deal with him as being a man ready, willing, and able to perform the contract." The jury by their verdict found in effect that defendants below had accepted Dougherty as such purchaser. There being a general verdict for plaintiff for the commissions claimed under the second cause of action (see 266 Fed. 315), judgment was entered accordingly, and McCormack & Co. brought this writ. Wherry & Mygatt, of New York City (Frederick E. Mygatt and William M. Wherry, Jr., both of New York City, of counsel), for plaintiff in error. John M. Gardner, of New York City, for defendant in error. HOUGH, Circuit Judge (after stating the facts as above). At the last trial Keeveny gave evidence tending to prove that he had produced in the person of Dougherty, an American citizen who was ready, willing and able to pay defendant's price of $460,000, for the motor For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes ship City of St. Helens, and the jury so found. The foregoing would dispose of this writ, but for a point now first advanced in this court. Dougherty was admittedly a member of the firm of Whitney & Co., which firm, by an arrangement with Keeveny, was to get $10,000 out of the latter's commissions. The fact appears to be that Keeveny procured the assistance of Whitney & Co. in his quest for a purchaser, and they charged him for the service, but that such charge was to be made was plainly well known to McCormack before Dougherty was offered, and no objection thereto was ever made. It is now said that this transaction made Whitney & Co., and therefore Dougherty, as much brokers for McCormack as was Keeveny; wherefore, when Keeveny produced Dougherty as the purchaser, the latter, by reason of his partnership in Whitney & Co., was prevented by law from qualifying as such. When plaintiff rested, and again at the close of evidence, defendant moved for dismissal or direction on the ground that "When defendant found that his purchaser was his own broker, he was entitled to repudiate or refuse to carry out any negotiations on any prior offer which had been made." This motion was denied over due exception and objection. The defense cannot prevail for several reasons. First. Defendant never pleaded that Whitney & Co. were their brokers in whole or part. Keeveny's employment, and the production of any able, ready, and willing purchaser were fully denied; but we fail to discover any plea which said or suggested that Whitney & Co. had employment, express or implied, from McCormack. Second. A broker may employ subagents or associate brokers, to whom he is pecuniarily responsible, and recover for what they accomplish, if good faith is present. Canadian Improvement Co. v. Cooper, 161 Fed. 279, 88 C. C. A. 325. Third. Defendants did not prove that in respect of the Dougherty sale (as distinguished from the earlier attempt to sell to a French-controlled corporation) Whitney & Co., or any member of that firm, had any relation to defendant or Keeveny, other than that of a purchaser, with whom Keeveny had agreed to split his commission. This, if done honestly, is lawful, even though the splitting be not disclosed to the principal. Hobart v. Sherburne, 66 Minn. 171, 68 N. W. 841, and other cases cited; 9 Corp. Jur. 571. In the present instance all was known to defendant below, and (disregarding all defects of pleading) we discover in the evidence nothing to cause even suspicion of wrong in act or intent. Judgment affirmed, with costs. (271 F.) HOWARD et al. v. UNITED STATES. (Circuit Court of Appeals, Sixth Circuit. February 8, 1921.) No. 3452. 1. Criminal law 1159 (4)—Credibility of witnesses is for jury. A conviction cannot be reversed for the reasons that the testimony of a witness for the government relating to an admission by a defendant was incredible, that numerous witnesses testified the offense was committed by persons other than defendant, and that there was testimony that defendants were of good character, while important witnesses for the government had a bad reputation for truth. 2. Criminal law 1156 (1)-Denial of new trial reviewable only for abuse of discretion. The ruling on motion for new trial cannot be reviewed, in the absence of a clear showing that discretion was abused. 3. Criminal law 1159 (2) -Appellate court cannot weigh testimony. A conviction will not be reversed for insufficiency of the evidence, where there is substantial evidence tending to sustain the conviction. 4. Internal revenue 2-Volstead Act did not impliedly repeal revenue laws as to past offenses. The National Prohibition Act, which did not expressly repeal the internal revenue laws relating to distilling liquors, did not impliedly repeal them, at least so far as they related to violations already committed. In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge. Henry Howard and others were convicted of illegally distilling liquor contrary to the statutes relating to internal revenue, and they bring error. Affirmed. T. A. Lancaster, of Lexington, Tenn. (W. H. Lancaster, of Lexington, Tenn., on the brief), for plaintiffs in error. Wm. D. Kyser, U. S. Atty., of Memphis, Tenn. Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges. KNAPPEN, Circuit Judge. Plaintiffs in error were charged with so-called "moonshining," under an indictment containing seven counts, based upon sections 3257, 3258, 3260, 3279, and 3296 of the Revised Statutes of the United States (Comp. St. §§ 5993, 5994, 5997, 6019, 6038), which relate to internal revenue. Bird was convicted upon the fifth count only. Howard and Stanford were convicted upon each of the seven counts, but their respective sentences were no greater than might have been imposed on one only of the counts. It is enough, as to them that the conviction be good as to either of the counts. Abrams v. United States, 250 U. S. 616, 619, 40 Sup. Ct. 17, 63 L. Ed. 1173. There was no motion to direct verdict, and no exception was taken to the charge of the court. The error here complained of is addressed to the refusal of the court below to grant a new trial, by reason of alleged insufficiency of evidence to support the conviction. [1] There was substantial and direct testimony tending to show the defendants guilty. The contention made here is that the conviction For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |