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In Error to the District Court of the United States for the Eastern District of New York.

7 F.(2d) 67 Fifth Amendments to the Constitution of the United States. There is no evidence in this record which brings this case within the doctrine of Flagg v. United States, 233 F. 481, 147 C. C. A. 367, and we think the case is disposed of by the decision of this court in Schroeder v. United States, 7 F. (2d) 60, handed down this day.

[2] Before concluding this opinion, we may call attention to the fact that it is not necessary, even in the case of federal officers, that they should in all cases have a search warrant to justify a search and seizure. The Fourth Amendment only provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. And section 26, title 2, of the National Prohibition Act, provides in part as follows: "When the commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law. ⚫

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The right of a federal agent to search and seize without a warrant intoxicating liquors being transported in an automobile contrary to law was considered very fully in the decision of the Supreme Court in the recent case of Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, decided on March 2, 1925. It is not necessary for us to consider whether the decision of the in

stant case would have been different, if a federal officer had searched and seized the truck containing the liquors herein involved. If he had done so without a warrant, the seizure would still have been lawful, unless it appeared that the circumstances were such as to make his conduct unreasonable. Judgment affirmed.

KATZ v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. May 4, 1925.)

No. 291.

Criminal law 393 (1)-Searches and seizures 7-Const. U. S. Amends. 4, 5, held inapplicable, where seizure of liquor was by state police officer.

Const. U. S. Amends. 4, 5, have no application, where seizure of liquor without search warrant was by a municipal police officer.

Harry Katz was convicted of possessing and transporting intoxicating liquor, and he brings error. Affirmed.

The defendant below was convicted under an information which charged him with violation of the Act of October 28, 1919, which is the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.). The information contained two counts.

The first count charged that the defendant, on January 8, 1924, in the borough of Queens, city and state of New York, unlawfully, willfully, and knowingly possessed, in a place other than a private dwelling, certain intoxicating liquor fit for beverage purposes, to wit, beer, which contained one-half of 1 per centum or more of alcohol by volume, and that the said beer was not to be used for nonbeverage, medicinal, or sacramental purposes; and it was alleged that this was contrary to section 3, title 2, of the act before mentioned.

The second count charged him with unlawfully, willfully and knowingly transporting, at the time and place mentioned in the first count, the said liquor, contrary to sections 3 and 26, title 2 of the said act.

The defendant was found guilty on both counts, and was sentenced to pay a fine of $500.

Bertram N. Manne, of Brooklyn, N. Y., for plaintiff in error.

Ralph C. Greene, U. S. Atty., of Brooklyn, N. Y. (Wm. A. De Groot, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for the United States.

Before ROGERS, MANTON, and HAND, Circuit Judges.

ROGERS, Circuit Judge (after stating the facts as above). This case in its essential facts is like the case of Schroeder v. United States, 7 F. (2d) 60, decided this day, except that it does not appear from the record that the defendant was sentenced on both counts. The only witness, in addition to the chemist, who testified against the defendant, was a police officer of the city of New York, whose testimony was objected to on the ground that the liquor was obtained through an illegal search and seizure, in violation of the constitutional rights of the defendant, as secured to him by the Fourth Amendment to the Constitution.

The case having been brought into this

court by writ of error, the counsel for the defendant stated that the practical question in the case is whether a police officer in the city of New York, in an arrest for violation of acts prohibited by the National Prohibition Act, can give testimony forbidden to be given by a federal officer, and whether in fact such testimony should not have been prohibited, on the theory that the said police officer was an agent of the United States government, and to be held in contemplation of the Amendments of the Constitution. The police officer testified as follows:

"Q. Will you tell us exactly what occurred with reference to this defendant Harry Katz, on that day? A. I saw him driving a one-ton truck which was all inclosed, along the Bridge Plaza. He was driving east. He came up and turned on the Bridge Plaza over onto Jackson avenue, and the car continued going about half a block, turned around, and went back, and I stopped him on the opposite side of the street, on the west side of Jackson avenue, near Jane street. I stopped him, and asked him what he had on his truck. He said, 'Beer.' I asked him to let me see. He opened up the back of the truck, and there were 25 cases containing bottled beer. One of the cases I opened up, took a bottle out, sealed it

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"Q. What did you see, when you looked into the truck, after it was opened? A. I saw cartons-I did not see the contents until after I had opened up one of them.

"Q. You had opened up one, and took one of the bottles out? A. I did.

"Q. What did you do with respect to that bottle? A. I sealed the bottle, and marked the defendant's name on, and the date, and brought it to the chemist the following morning.

"Q. You put a label on it, you mean? A. Yes, sir.

"Q. And wrote your name on the label? A. Wrote my name on the label.

"Q. He did not know? A. He did not know.

"By the Court: Q. Is that all you asked? A. I asked who owned the truck, and he told me he was driving for a party, and showed me the license card for the truck, who owned the truck and all.

"Q. Did you do anything with reference to the truck or the other liquor? A. I sealed all the cartons.

"Q. What did you do? A. I also sealed the door of the truck, and left it at the station house, and the defendant had it sent down

"The Court: You left it at the station house.

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On cross-examination he testified as follows:

"Q. The only reason that you had for stopping this wagon at all was that it was a closed wagon; is that right? A. That is the reason, the only reason.

"Q. That is the only reason? A. That is the only reason.

"Q. Isn't it a fact that this man told you that he didn't know what was in these bottles at all? A. He told me there was beer in them.

"Q. They were carton boxes, were they? A. Yes, sir.

"Q. And each one of these boxes was closed, was it? A. They were.

"Q. In order to find out what was inside, you had to rip open a cover; is that right? A. That is right."

The testimony of the officer was, in some particulars, contradicted by the defendant. But the jury evidently believed the officer, and rejected the testimony of the defendant.

There is no testimony in the case which shows that this officer was acting upon the instigation of any federal official, or had any understanding with any one connected with the United States government. Undoubtedly the arrest and seizure was for a federal

"Q. Was the bottle a full bottle when you offense and in enforcement of a federal law. took it out? A. The bottle was.

"Q. Did you have any conversation with the defendant? A. I asked the defendant what kind of beer it was? He said he did not know what kind of beer was in the bottles.

But the Fourth and Fifth Amendments have no application to the facts in this case. And upon the authority of Schroeder v. United States, 7 F.(2d) 60, referred to at the beginning of this opinion, Judgment is affirmed.

7 F.(2d) 69 CANADIAN GOVERNMENT MERCHANT MARINE, Limited, v. UNITED STATES.

(Circuit Court of Appeals, Second Circuit. April 13, 1925.)

No. 305.

the beach and flood her." She was then lying in about 35 feet and drawing 28. The object of this effort, as stated by the agent in Trinidad of Canadian Farmer, was that "there was danger of the Zaca sinking if the fire was not subdued; rather than this should

1. Shipping 61-Owner acts through ship's happen in the anchorage ground of the har

master.

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2. Salvage 31-Award of salvage for beaching and flooding steel ship reduced from $31,250 to $15,000, plus expenses and costs of District Court.

Award of $31,250 salvage for beaching and flooding a burning steel ship laden with coal in harbor held excessive, and reduced to $15,000,

plus expenses and court costs, where work occupied about 11 hours, extending until about midnight, and was attended with nothing more than discomfort by the salvors; value of hull being in excess of $250,000.

Appeal from the District Court of the United States for the Eastern District of New York.

Libel for salvage by the Canadian Government Merchant Marine, Limited, against the United States. Decree for plaintiff, and the United States appeals. Modified and affirmed.

Appeal from final decree in suit under Suits in Admiralty Act, entered in the District Court for the Southern District of New York. Libelant, as owner of steamship Canadian Farmer, sued for salvage services rendered by that vessel to United States Shipping Board vessel Zaca in the harbor of Port of Spain, Trinidad, during about 11 hours of the afternoon and night of October 19, 1920.

Zaca was a steel ship some 426 feet long and laden with a full cargo of 7,400 tons of coal. She burned oil as fuel. While at anchor in Port of Spain, and in or so near the fairway as if sunk to be a menace to navigation, she caught fire on October 18th. The character of her cargo and fuel rendered it impossible to extinguish the flames by any means on board Zaca. There were other merchantmen in the harbor, and a British man-of-war, but nothing more helpful than the suggestion that the war vessel sink Zaca by shell fire was done until about noon of the 19th. By this time the coal cargo was burning, although that fact was not discovered until later.

Before noon of the 19th a survey was held on the Zaca by certain master mariners in port, and it was decided "to tow the ship to

bor, it was considered wise to make an attempt to move the Zaca and beach her beyond the harbor limits." This was done by the Canadian Farmer, a vessel then light and drawing only about 17 feet, 251 feet over all, and capable of 3,850 D. W. tons.

The work occupied about 11 hours, extended until about midnight, and was attended with discomforts (nothing more), in that men from the Farmer went, as did members of the Zaca's crew, on board the burning vessel, worked the hawsers and fasts, and directed the streams of water which were

pumped into the Zaca. Finally the burning vessel was gotten beyond harbor limits, and beached in 25 feet of water on soft mud bottom; at which time "fire in Zaca's engine room, stokehold and poops extinguished. Fire in holds well under control, but smouldering." (This appears from a log kept by Canadian Farmer, signed by Zaca's master, and offered in evidence by libelant.)

Raising and repairing Zaca at Port of Spain was impossible; much of her coal cargo and some fuel oil was ultimately saved, but this suit has nothing to do with cargo. The allegation of libel is that, but for the Farmer's service, Zaca would have "sunk in the fairway of said harbor, thereby subjecting her owners to heavy expenses in raising her or in moving her wreck to a position where it would not obstruct navigation."

The Shipping Board had Zaca pumped out and floated, her cargo and fuel were removed, and efforts made to sell the wreck in Trinidad. An offer of $125,000 was refused or permitted to lapse, and finally, in July, 1921, the hull was towed to New York by another Shipping Board vessel, and, after lying in yard for over two years, was, in the fall of 1923, sold for scrap at $10,500. Evidence is uncontradicted that her engines were, after fire, in such condition that they could never function again. The actual cost (without attributing any value to the towing vessel's effort) of bringing the wreck to New York, was over $100,000.

In October, 1920, the sound value of Zaca was about $1,300,000. On this record her injured value is matter of speculation. In fact, before she could have been repaired, had that been desired, deflation in shipping set in acutely, and vessels like Zaca, even in

good condition, were a drug on the market. The court below gave an award of $31,250apparently 25 per cent. of what some unidentified person offered for the wreck as it lay on the beach. The United States appealed.

Ralph C. Greene, U. S. Atty., of Brooklyn, N. Y. (Horace M. Gray, Sp. Asst. U. S. Atty., of New York City, of counsel), for the United States.

Cadwalader, Wickersham & Taft, of New York City (Charles R. Hickox and Edwin S. Murphy, both of New York City, of counsel), for appellee.

values were still very high, and the story of bad management above outlined may serve as a national caution, but does not affect the legal merits of this case. We find that she was worth whatever such a hull was worth so far from markets; her engines were ruined. But to express that in dollars is impossible with exactitude; it was, however, more than $125,000, and certainly less than the book estimates of some witnesses for li

belants, who take 55 per cent. off her sound value, and call the result their opinion of injured value. We do not think it necessary to be more accurate than to say that the wreck was worth, if any one had wanted a Before ROGERS, HOUGH, and HAND, wreck in October, 1920, more than twice Circuit Judges.

what is said to have been offered for her.

HOUGH, Circuit Judge (after stating the left in the case, for whether the injured value After this finding no question of law is facts as above). It is idle to attempt any be taken at our very roughly indicated fighard and fast definition of salvage; it has often been described as a service of benefit below violates the principles of The Bay of ure or one substantially higher, the award to a vessel in distress (e. g. The Menominee [C. C. A.] 300 F. 464). But that is not and Naples, 48 F. 737, 1 C. C. A. 81, in that does not pretend to be a definition, for that ty. The service was of almost the lowest orit departs wholly from the path of authoriword imports finality, and no branch of marine law has grown more since printed reports began, and none is growing more now, than salvage.

The classic tests of Clifford, J., in The Blackwall, 10 Wall. 2, 19 L. Ed. 870, are still useful, because they serve as a category of reasons for giving much or little; but the learned judge who made the category would have been puzzled to assign this libelant's claim for services in preventing Zaca from sinking in the fairway (ut supra) to any then known branch of salvage. Indeed, if one sticks close to the libel, it is still quite impossible to find justification for an award; for there is no proof at all that, if the steamer had sunk in the fairway, there would have been the slightest obligation on the United States to do anything about it, except let her lie there, a total loss.

[1] But we do not think salvage should be so technically considered. The owner was acting through the Zaca's master. What he thought best was the owner's intent, within very wide limits. Therefore we are con

Ivinced that the case should be treated as though the owner had asked libelant to do what he could to fill up the ship with water in a soft berth; though the real reason for taking her out of the harbor was not the vessel's saving, but the saving of annoyance to other vessels.

[2] Therefore the leading inquiry is,

What was Zaca worth when she was beached . and filled? This happened when shipping

der of salvage; it was a simple harbor service, and to recount the long roll of such awards in the harbor of New York alone would be a display of pseudo learning.

It is enough to say that, having regard is a full reward for what the Canadian Farmto the reported cases in this circuit, $15,000 er did; and in so finding we wholly disregard the amazing story of inept management after disaster, and the sudden fall in shipping values so evident just when the remnants of Zaca were being expensively towed to the scrap pile.

Decree modified, so as to allow $15,000, plus $550.19 expenses, and costs of District Court. Interest will run only from date of

modified decree to be entered on our man

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ANDERSON v. PRESTON. (Circuit Court of Appeals, Ninth Circuit. Aug. 3, 1925.) No. 4484.

1. Brokers 40-Minds of parties held not to have met on terms of contract.

Owner's letter imparted to plaintiff that he had timber land for sale at named price, and in reply thereto plaintiff asked for plat and terms, and owner stated in letter, inclosing plat, that on sale of land at named price there would be

commission to plaintiff, and presumed that terms

could be made to a substantial purchaser. Held that, plaintiff having made no answer to offer

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7 F.(2d) 70

to pay commission, and giving owner no intimation that he accepted employment, minds of parties never met.

2. Contracts 16-When contract by correspondence complete stated.

Contract by correspondence is not complete until communications have passed beyond state of preliminary negotiations; minds of parties must have met, and at some point in correspondence there was definite proposal by one, which was unconditionally accepted by the other.

3. Brokers ~82(I)-Complaint held not to state facts sufficient to constitute cause of action.

Complaint in action to recover commissions for finding purchaser for timber lands, alleging owner's offer on January 25th to pay commissions, but which did not allege acceptance thereof by plaintiff, and which alleged that on June 16th plaintiff found purchasers and brought them to defendant's agent, held not to state

cause of action; there being no allegation that owner's agent ratified plaintiff's acts, recognized existence of contract, accepted purchaser, or agreed on terms.

In Error to the District Court of the United States for the Southern Division of the Western District of Washington; Edward E. Cushman, Judge.

Action by A. E. Anderson against Thad B. Preston. Demurrer to complaint was sustained, and plaintiff brings error. Judgment affirmed.

The court below, for want of facts to constitute a cause of action, sustained a demurrer to the complaint in an action brought by the plaintiff in error to recover commissions for services rendered in finding a purchaser for certain timber lands. The plaintiff, a real estate broker in the state of Washington, received from the defendant in error, who resided in the state of Michigan, the following letter, dated January 15, 1923: "We have a tract in township 22-1 west that I think is very desirable timber. The price of this is three dollars ($3) per thousand. If you would be at all interested, kindly let me know."

On January 20th the plaintiff answered: "In regard to the tract in 22-1 west, if you will give me the minutes of same (township plat, or section plat, with parcels marked off), so that there would be no mistake made in descriptions, I will put it up to this party, as he is anxious for a logging chance. I would like very much to have your terms on this tract, so that I may be able to talk to him intelligently on the condition of sale, and I presume that you pay commission out of the $3 per M. Thanking you in advance for this information."

On January 25 the defendant replied: "I am inclosing plat of the lands in 22-1, and that was the basis of our purchase of these lands. On sale of the lands at $3 per thousand there would be a 5 per cent. commission going to you. I presume terms could be made that would meet the views of a substantial purchaser."

The complaint set forth the three letters as constituting a contract, and alleged that on or about June 16, 1923, the plaintiff obtained and procured certain substantial pur chasers and brought them to the defendant, "who at that time was represented by one W. J. Patterson, of Aberdeen, Washington, as the agent of the defendant, with authority to make the sale and treat with the said intending purchasers." The complaint further alleged that thereupon said intending purchasers proceeded to cruise said lands, but that on November 1, 1923, the defendant refused to proceed with the sale. Judgment was demanded for a commission in the sum of $9,279.90. After the demurrer was sustained, the plaintiff refused to plead further, and the action was dismissed with prejudice.

Govnor Teats, Leo Teats, and Ralph Teats, all of Tacoma, Wash., for plaintiff in

John C. Hogan, of Aberdeen, Wash., for defendant in error.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

GILBERT, Circuit Judge (after stating the facts as above). [1] We agree with the court below that complaint failed to state facts sufficient to constitute a cause of action. It does not show that the minds of the parties ever met upon the terms of a contract. In the first letter the defendant imparts to the plaintiff the fact that he has timber land for sale at $3 per thousand. In the second letter the plaintiff answers, asking for a plat of the land and the defendant's terms, and adds: "I presume that you pay commission out of the $3 per M." In the third letter the defendant sends the plat and informs the plaintiff that, on sale of the lands at $3 per M., "there will be a 5 per cent. commission going to you. I presume terms could be made that would meet the views of a substantial purchaser." The date of that letter was January 25, 1923. There the correspondence closed. The plaintiff made no answer to the offer to pay a commission of 5 per cent. for effecting the sale, and he gave the defendant no intima

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