natures, carried on the business as secretary of the Wholesaler's Board of Trade, that the busi.ess was not insolvent, and that the creditors, including interveners, had been paid. Evidence was heard, and thereafter the master concluded that Housman had committed an act of bankruptcy, that the petitioners and intervening creditors were not estopped from filing and maintaining their petition, and that Housman, doing business as Housman's Variety Store, should be adjudged a bankrupt.

Mathonihah Thomas, of Long Beach, Cal., for appellant.

Adams, Adams & Binford, of Los Angeles, Cal., for appellees.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

containing the agreement, which, because of the levy, justified the action taken by the creditors. Moulton v. Coburn, 131 F. 201, 66 C. C. A. 90; Ex parte Potts, Fed. Cas. No. 11344.

[3] It is said that, by reason of the reservation excepting leases, leasehold interests, real estate, and oil interests, from the general transfer, the assignment is not a general one, and therefore, there was no act of bankruptcy by Housman. That question, however, was not presented to the District Court nor to the master. On the contrary, it appears affirmatively that at the hearing before the master the parties regarded the assignment as a general one, and proceeded to try the single issue, whether the petitioning creditors who had signed the agreement were estopped from maintaining the petition to put Housman into bankruptcy. The question of insolvency was recognized by the parties as irrelevant (West Co. v. Lea, 174 U. S. 591, 19 S. Ct. 836, 43 L. Ed. 1098), and the issue narrowed as herein above indicated.

Housman and the creditors having consistently treated the assignment as general, the District Court was right in confirming the report of the master. Lookout Bank v. Noe, 86 Tenn. 21, 5 S. W. 453. Decree affirmed.

MILLER, Alien Property Custodian, et al. v.
HUMPHREY.*

(Circuit Court of Appeals, Ninth Circuit. August 3, 1925.),

HUNT, Circuit Judge (after stating the facts as above). [1, 2] It is well established that ordinarily where the alleged act of bankruptcy is that the creditor has made a general assignment, those who have assented to the assignment cannot be parties to a petition to have the one who has made the assignment declared a bankrupt. The obvious reason is that, by accepting the assignment, the signing creditors have released their claims against the assignor and in lieu thereof have accepted claims under the assignment, and therefore should not be per-1/ mitted to rely upon the ground that the assignment they consented to and participated in is the sole act upon which the assignor should be declared a bankrupt. But in Housman's assignment the creditors agreed to accept the pro rata and to release the assignor with the reserved right that such agreement of acceptance and release should become inoperative and void at the option of any of such creditors, if anything intervened to prevent the payment of the pro rata to the creditors, by act of any creditor of the assignor. When Swift & Co., a bona fide creditor, who did not assent to the assignment and release, levied an attachment upon the funds in the hands of Boteler, assignee, any creditors who had signed the release could avail themselves of the option reserved and treat the agreement of acceptance and release as inoperative and void. If there were any evidence of fraud or collusion, or that Housman was induced by deception or other improper means to execute the assignment with a view to having him commit an act of bankruptcy, the case would be different. But, as found by the master, Housman voluntarily made the assignment

No. 4447.

1. War 12-Evidence sufficient to show demand by American depositor for money in German bank.

In suit under Trading With the Enemy Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115a et seq.), by American citizen, to establish a debt claimed against a German bank, and have judgment paid from moneys impounded by Alien Property Custodian for United States, evidence held sufficient to show demand for payment of entire account prior to entry of United States into war.

2. War 12-Bank, telling depositor that it availed itself of privilege of moratorium, not entitled to object that demand for payment was oral.

A German bank, having told an American depositor, attempting to withdraw funds prior to entry of United States into war, that it availed itself of privilege of moratorium, and refusing to pay deposit in full, held not entitled to object that demand was oral and not in writing.

*Certiorari granted 46 S. Ct. 106, 70 L. Ed.

7 F.(2d) 330

sons, "subject only" to Humphrey's order, or, in the event of his death, to the order of his wife. The answer of the bank denied the indebtedness as alleged, pleaded that the complaint was insufficient in failing to allege a demand for the payment, and that no demand had been made upon the bank by or on behalf of Humphrey. The Alien Proptually existed from April 6, 1917, until July erty Custodian and the Treasurer of the

the purpose of expressing the judgment should be ascertained and determined as of the date of the breach of duty, to pay, or accrual of the cause of action; and that Humphrey was entitled to recover interest from the time of the demand until the entry of the United States into the war, April 6, 1917, at the rate agreed upon by Humphrey and the bank. Between April 6, 1917, and July 3, 1919, no interest was allowed. Then from the time of the cessation of the war, July 3, 1919, interest was allowed at the legal rate of interest in California. Decree was made accordingly against the bank, and directed that payment should be made out of $34,508.13, moneys belonging to the bank which were in possession and under the control of the Alien Property Custodian and White as Treasurer, as aforesaid.

Dunne, Brobeck, Phleger & Harrison, of San Francisco, Cal., for appellant bank. William P. Hubbard and Grant & Zimdars, all of San Francisco, Cal., for appellee.

Before GILBERT, HUNT, and MORROW, Circuit Judges.

HUNT, Circuit Judge (after stating the facts as above). Appellant bank presses the contention that, as to the joint account of Humphrey and his wife, there never was a demand for closing such account and withdrawal of the sum therein credited, and that therefore no cause of action accrued to Humphrey against the bank, and that there was no demand with respect to the account of the

two sons.

kind to the testimony of plaintiff, and called no officer or representative of the bank to refute what Humphrey said. The bank, however, endeavors to break the force of Humphrey's evidence by reference to certain correspondence between Humphrey and the bank. It is unnecessary to set out these writings, but for convenience they may be placed in three groups: Letters exchanged before June 12, 1915; a letter written by the bank to Humphrey on June 12, 1915; and letters that were exchanged after June 12, 1915. Those exchanged before June 12th referred to deposits, interest accumulations, and to collections of bonds by the bank for the account of Humphrey. We can infer nothing more from them than that Humphrey was carrying on, and then apparently expected to continue, relations with the bank. The letter of June 12, 1915, from the bank, addressed to Humphrey at Vevey, Switzerland, contained advices to Humphrey that upon that day the bank had received from Geneva and redeemed a certain deposit cer

tificate of the writing bank for 41,000 marks,

and would render interest statement together with semiannual statement as per June 30th. We do not find anything in the letter that is inconsistent with the testimony of Humphrey that upon that day he was in Nurnberg and made a demand for all his funds. The bank, in ordinary course of business, might have formally written to Humphrey of the transaction referred to in the letter, either before or after his visit to the bank. The letters that were dated and exchanged after June 12th also impress us as ordinary correspondence pertaining to banking transactions; one directed the bank to pay certain costs of insuring and sending bonds to the Berlin bank (defendant bank's associate), another referred to a contemplated loan, with request for statements, and in one Humphrey asked for the assent of the bank to his drawing money from the bank's funds held by the Alien Property Custodian in the United States. In weighing the several letters in connection with Humphrey's oral testimony, we may look in retrospect and consider the history of the times, the unusual conditions which prevailed in Germany about and after August 1, 1914, the serious situation which then surrounded Humphrey which may have influenced his actions.

[1] The substance of Humphrey's testimony was that in August, and November, 1914, and about June 12, 1915, he made a demand for the payment of the whole sums represented in the several accounts, that a director in charge of the bank told him that a moratorium had been declared, and that he could have the usual amounts that he had been accustomed to use, but not the total sum represented by the accounts. Humphrey said that after June 12, 1915, he had deposited coupons on German bonds and dividends on the bank's shares. He could not recall all the different conversations with the bank officials, but testified that in August, 1914, the bank officials looked up his accounts, asked how much he had used, and told him that he should not take any securities out of [2] We attach no significance to the fact The Germany; that after the August demand he that Humphrey's demand was oral. had left certain German and Hungarian se- bank having told the depositor that it availed curities in the bank for collection. itself of the privilege which usually goes Defendant bank made no objection of any with a moratorium, should not now be heard

7 F.(2d) 330

to say that because the demand was not in writing it can avoid recognition of the obligation.

[3] Recurring to the account standing in the names of the two sons, we think it clear that Humphrey himself had control of the account during his lifetime, and that his attitude of control was made plain in December, 1913, when he wrote to the bank, saying the funds were "only drawable by me," but by Mrs. Humphrey in case of his death. Furthermore, as showing that the bank understood his letter, there are the accounts rendered by the bank, exhibiting the aggregate of the balance of the two accounts in one statement. It is true that in December, 1922, the two boys and their father made a verified petition in the way of a claim to the Secretary of State for 23,683 marks, as of April, 1917, as sole owners of the funds claimed, deposited to their order. Humphrey's explanation of this is that he had previously asserted his claim for all the money involved in this suit, and that the funds were always his and never belonged to his children; that in order to get the claims filed with the Mixed Claims Commission by January 1, 1924, he and his wife had signed the claims which were filed. There was no attempt to change the legal status or to repudiate the theretofore asserted claim of ownership, by the father, and in our opinion it would be very unjust to construe the petition as estopping him from asserting the true ownership.

It is said that the amount represented by the account standing in the names of the boys was not filed with the Alien Property Custodian, and that no notice thereof was given to the President. But the stipulated facts are that all the sums deposited in either of the accounts mentioned in the preceding paragraph of the statement were made by plaintiff from moneys which before they were deposited were the sole property of the plaintiff or of the plaintiff and his wife; also that about October 15, 1918, this plaintiff filed with the Alien Property Custodian of the United States his notice of claim in form as required by the Trading with the Enemy Act, claiming payment from funds deposited in the bank by the plaintiff, and that subsequently, about June 24, 1920, Humphrey made application to the President for the allowance of his claim, but that no action was taken then or thereafter by the President. Both accounts, one in the names of Humphrey and his wife, and the other in the names of the boys, are attached to the

statement of facts as exhibits, and the statement relates to the two. Our conclusion being that Humphrey is sole owner of the funds, we must decide what interest he should be allowed.

[4,5] It must be accepted that between the date of Humphrey's demand, June 12, 1915, and June 30, 1917, when the German custodian took his money, the bank could and should have paid him. But it failed to do so, as did it fail to authorize payment after October, 1919, when Humphrey wrote requesting assent to his drawing the money out of funds on hand with the Alien Property Custodian for payment of American claims. The argument that Humphrey was guilty of laches ought not to prevail, for he instituted this suit in July, 1921, which fact considered with the dates given in the record, are evidence that he moved with reasonable diligence in asserting his claim. Thus far, however, he has never received an offer by the bank to pay any sum. Under such circumstances, it is fair that he should be allowed interest at the rate agreed upon by Humphrey and the bank from June 12, 1915, when the United States entered the war. From April 6, 1917, to July 3, 1919, all communication between the bank and Humphrey was cut off, and, as the lower court did not allow interest for that period, no question is presented upon the point. But after July 3, 1919, communication between the parties was available, although until July, 1921, a state of war between the United States and Germany still existed.

In Miller v. Robertson, 266 U. S. 243, 45 S. Ct. 73, 69 L. Ed. 265, a suit brought under section 9 of the Trading with the Enemy Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 31151⁄2e), to establish a debt claimed to be owing by enemy defendants, the court said: "The proposition that the enemy defendants, as a matter of law, are entitled to be relieved from interest during the war, That statement, cannot be sustained." taken as the law generally, must rest as authority for sustaining the less comprehensive proposition involved in the present case, that the enemy defendant, as a matter of law, cannot be relieved from interest after the cessation of the war and after July 3, 1919, the date when restrictions of intercourse between Germany and this country were removed. Robertson v. Miller (C. C. A.) 286 F. 503; Guinness v. Miller (D. C.) 291 F. 769.

[6] The contract fixed no rate of interest after Humphrey made his demand and it was refused. The court therefore was justi