One accused of devising scheme to defraud class of individuals is not entitled to be informed of names of parties, who were not capable of definite ascertainment by the pleader. -Id. Indictment alleging scheme for using mails to defraud dealers in shoes held not demurrable for failure to name persons intended to be defrauded.-Id. 48 (4) (U.S.C.C.A.Ga.) Immaterial allegation in indictment respecting defendant's indebtedness held surplusage, and not such as to affect independent allegation that he had falsely represented indebtedness to be less than it was (Criminal Code, § 215 [Comp. St. § 10385]).-Tenenbaum v. Snook, 15 F. (2d) 372. 48(4) (U.S.C.C.A.Neb.) Indictment Criminal Code, § 215 (Comp. St. § 10385), for under use of post office in execution of scheme to defraud, must set out scheme sufficiently to acquaint defendant with particulars, but not to extent required if scheme was gist of offense. Mathews v. U. S., 15 F. (2d) 139. 48 (6) (U.S.C.C.A.Minn.) Indictment knowingly having in possession articles stolen for from mails need not set out particular car or sack from which they were stolen (Penal Code, $194 [Comp. St. § 10364]).-Murdick v. U. S., 15 F.(2d) 965. 48 (8) (U.S.C.C.A.Neb.) In prosecution under Criminal Code, § 215 (Comp. St. § 10385), for use of mails in furtherance of scheme to defraud, proof must establish scheme substantially as alleged, though variance in matters not of vital importance is not fatal.-Mathews v. U. S., 15 F. (2d) 139. In prosecution under Criminal Code, § 215 (Comp. St. § 10385), for use of mails in furtherance of scheme to defraud by sale of corporate bonds, variance between allegations of ownership of lands securing bond issue and proof held not fatal.-Id. In prosecution under Criminal Code, § 215 (Comp. St. § 10385), for use of mails to defraud by sales of corporate bonds all of false representations alleged need not be proved, if proof of lesser number will support finding that scheme existed.-Id. 49 (U.S.C.C.A.Neb.) In prosecution under Criminal Code, § 215 (Comp. St. § 10385), for use of mails in execution of scheme to defraud, no particular element of scheme need be proven, if other elements are sufficiently proven to establish it.-Mathews v. U. S., 15 F. (2d) 139. 51 (U.S.C.C.A.Kan.) Defendant, convicted on several counts, each charging theft of different mail bag, held improperly sentenced to seven years on each count (Penal Code, § 35, as amended, and section 190 [Comp. St. §§ 10199, 10360]).-Phillips v. Biddle, 15 F. (2d) 40. PRACTICE. For practice in particular actions and proceedings, see the various specific topics. PRESCRIPTION. See Limitation of Actions. PRINCIPAL AND AGENT. See Attorney and Client; Brokers. II. MUTUAL RIGHTS, DUTIES, AND LIA BILITIES. (A) Execution of Agency. 66 (U.S.C.C.A.Kan.) Agents held liable to principal for money received on contracts made for his benefits.-Downer v. Goodwin, 15 F. (2d) 807. III. RIGHTS AND LIABILITIES AS TO (B) Undisclosed Agency. 1074 name inures to benefit of undisclosed principal.-Downer v. Goodwin, 15 F. (2d) 807. (E) Notice to Agent. senting both parties held notice to party.-Law- II. NATURE AND EXTENT OF LIABILITY 81 (U.S.C.C.A.Or.) Surety on bond to indemnify purchaser from loss resulting from breach of contract to manufacture held not to liable thereon.-Pacific Automatic Device Co. v. have become party to original contract, and not U. S. Fidelity & Guaranty Co., 15 F. (2d) 164. harmless from any loss resulting from breach 167 (U.S.C.C.A.N.C.) Surety, completing work on school building, may recover from school board amount required to be retained, where loss exceeded such amount (Pub. Laws N. C. 1923, c. 100).-National Surety Co. v. County Board of Education of McDowell County. 15 F. (2d) 993. Excess payment to contractor in violation of agreement to retain percentage may be recovered by surety completing work after contractor's default.-Id. Payment on order of contractor to bank may be recovered by surety, completing work after contractor's default, where contractor's assignment of funds to be retained on contract to surety was made long before order was given and defendants required to retain percentages had been given express notice of assignment before they honored order.-Id. Since, under Pub. Laws N. C. 1923, c. 100, claims for labor and material do not constitute lien on school building, school board, making such payments after contractor's default out of sums required to be retained, is liable to surety therefor.-Id. II. SURVEY AND DISPOSAL OF LANDS OF 35(3) (U.S.C.C.A.Wyo.) Homestead entry(B) Entries, Sales, and Possessory Rights. man's absence for unauthorized time held sufficiently explained (Rev. St. § 2291, as amended by Act June 6, 1912 [Comp. St. § 4532]). -U. S. v. Bucher, 15 F.(2d) 783. 103 (4) (U.S.C.C.A.Wash.) Courts (I) Proceedings in Land Office. determine private rights in public land title to cannot For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER which is in United States.-Proctor v. Painter, ly protected by foreclosure decree of sale of 15 F.(2d) 974. railroad.-Id. 106(1) (U.S.C.C.A.Wyo.) Findings of fact 192 (U.S.D.C.III.) Plaintiffs in proceedby Land Department are final, in absence of ing to foreclose railroad mortgage held enfraud, imposition, or mistake.-Ú. S. v. Bucher, titled to have date of sale fixed.-Guaranty 15 F.(2d) 783. Trust Co. of New York v. Chicago, M. & St. (J) Patents. P. Ry. Co., 15 F. (2d) 434. 113 (U.S.C.C.A.Wash.) Patents for land previously granted, reserved, or appropriated are void.-Proctor v. Painter, 15 F.(2d) 974. 114(4) (U.S.C.C.A.Wash.) Homestead patent to coal lands held ineffective to pass title to coal (Comp. St. §§ 4666–4668).-Proctor v. Painter, 15 F.(2d) 974. 116 (U.S.C.C.A. Wash.) Patent not void because of erroneous determination of facts. Proctor v. Painter, 15 F. (2d) 974. (K) Remedies in Cases of Fraud, Mistake, or Trust. 120 (U.S.C.C.A.Wyo.) Evidence of fraud in making final proof as to residence on homestead held insufficient to warrant cancellation of patents (Rev. St. § 2291, as amended by Act June 6, 1912 [Comp. St. § 4532]; Act Feb. 19, 1909 [35 Stat. 639]).-U. S. v. Bucher, 15 F.(2d) 783. X. OPERATION. (B) Statutory, Municipal, and Official Regulations. 225 (U.S.C.C.A.Ark.) If public necessity requires, railroad can be required to install public track, where there is private spur track constructed and maintained under private contract.-Harper v. St. Louis Southwestern Ry. Co., 15 F. (2d) 352. Public necessity for additional industrial side trackage ordered by commission held not shown. -Id. 249 (U.S.C.C.A.OKI.) State Legislature may make railroads absolutely liable for damages from fire originating from operation of road.-Sunlight Carbon Co. v. St. Louis & S. F. R. Co., 15 F. (2d) 802. (F) Accidents at Crossings. Evidence of fraud must be clear and convinc-312(7) (U.S.C.C.A.Ala.) Automobile driver, ing to justify annulling of patent.-Id. PUBLIC SERVICE CORPORATIONS. See Carriers; Railroads; Street Railroads. QUANTUM MERUIT. See Work and Labor. QUIETING TITLE. 1. RIGHT OF ACTION AND DEFENSES. 2 (U.S.C.C.A.N.Y.) At common law there could be no bill quia timet, except for land or incorporeal hereditaments, though jurisdiction in such cases has been extended to include interests in personalty by Judicial Code, § 57 (Comp. St. 8 1039).-Flagler v. Spellman, 15 F. (2d) 292. 12(1) (U.S.C.C.A.N.C.) Equity has not jurisdiction of suit to remove cloud, where plaintiff is not in possession.-Doak v. Hamilton, 15 F. (2d) 774. RAILROADS. See Street Railroads. I. CONTROL AND REGULATION IN using private crossing, held invitee, entitled to reasonable warning of approach of train, isrespective of whether many or few persons used crossing.-St. Louis-San Francisco Ry. Co. v. Ready, 15 F. (2d) 370. 344 (1) (U.S.C.C.A.Ala.) Declaration alleging negligent operation of train colliding with automobile held not too general, under Alabama rule.-St. Louis-San Francisco Ry. Co. v. Ready, 15 F. (2d) 370. (I) Fires. 469 (U.S.C.C.A.Okl.) Railroad company, in its private capacity as owner of property, may by contract be released from liability for damages by fire caused by negligence.-Sunlight Carbon Co. v. St. Louis & S. F. R. Co., 15 F. (2d) 802. Railroad company in its private capacity may relieve itself from absolute liability imposed by statute for fire, as well as from liability resulting from negligence.-Id. Release of railroad from liability for fire damages resulting from operation of spur track held not void as against public policy (Comp. St. Okl. 1921, § 5066).-Id. Release of liability for fire damages resulting from operation of spur track and maintenance of right of way held applicable only to spur, and not main right of way.-Id. 7 (U.S.C.C.A.Mich.) Uncompleted part of railroad, substantially completed before Transportation Act, is not such new line or extension as requires certificate of public convenience and necessity, under section 402. par. 18 (Comp. See Ejectment; Quieting Title. St. § 8563).-Detroit Terminal R. Co. v. Pennsylvania-Detroit R. Co., 15 F.(2d) 507. VIII. INDEBTEDNESS, SECURITIES, (B) Foreclosure of Liens and Mortgages. Majority of bondholders of railroad may control foreclosure, notwithstanding joinder in reorganization.—Id. 191 (U.S.D.C.III.) Junior bondholders of railroad held not entitled to anticipatory ruling in advance of foreclosure sale on adequacy of bid or fairness of reorganization.-Guaranty Trust Co. of New York v. Chicago, M. & St. P. Ry. Co., 15 F. (2d) 434. Rights of junior bondholders to be heard on objections to reorganization plan held sufficient REAL ACTIONS. RECEIVERS. 1. NATURE AND GROUNDS OF RECEIVERSHIP. (B) Grounds of Appointment of Receiver. 12 (U.S.D.C.N.Y.) Court of equity is withproperty in suit by simple contract creditor.out power to appoint receiver for defendant's Felice Perrelli Canning Co. v. Certified Food Stores, 15 F.(2d) 891. IV. MANAGEMENT AND DISPOSITION OF (A) Administration in General. In respect to obtaining consent of court to continue operation of a private corporation by receiver, the trustee in a trust deed represents the bondholders.-Id. V. ALLOWANCE AND PAYMENT OF CLAIMS. 149 (U.S.D.C.Tex.) An order limiting time for filing claims in receivership, which does not name the United States, is not binding on it. -Phelan v. Middle States Oil Corporation, 15 F. (2d) 88. Court has power to limit time for filing claims in receivership suit and to enforce penalty for noncompliance.-Id. After receivership suit is ready to be closed and property turned back to corporation owner, United States may not be permitted to delay payment of approved creditors by filing large claim for internal revenue taxes.-Id. REMOVAL OF CAUSES. I. POWER TO REMOVE AND RIGHT OF REMOVAL IN GENERAL. 3 (U.S.C.C.A.N.Y.) State Legislature cannot, by authorizing single action on separate causes of action, deprive defendant of right of removal as to severable actions.-Young v. Southern Pac. Co., 15 F. (2d) 280. 16 (U.S.C.C.A.N.Y.) Right of removal of cause to federal court is substantial.-Young v. Southern Pac. Co., 15 F. (2d) 280. 17 (U.S.D.C.N.Y.) Defense in state court after denial of petition for removal held not waiver of right.-Queensboro Nat. Bank of the City of New York v. Kelly, 15 F.(2d) 395. II. ORIGIN, NATURE, AND SUBJECT OF 154(1) (U.S.D.C.N.Y.) Court having taken possession of vessel in creditor's suit, compensation and expenses of receiver and counsel held payable from proceeds of sale as against claimants of maritime liens.-Feldman v. Ameri-19(5) (U.S.C.C.A.Va.) Suit arising under a can Palestine Line, 15 F. (2d) 94. RECEIVING STOLEN GOODS. See Automobiles, 351-355(12). RECORDS. CONTROVERSY. law to regulate commerce is removable to federal court, under Judicial Code, § 24, par. 8 (Comp. St. § 991), irrespective of amount involved.-Allen v. New York, P. & N. R. Co., 15 F. (2d) 532. 25 (1) (U.S.C.C.A.Va.) Suit cannot be removed to federal court because facts arise under federal laws, unless it appears from plaintiff's well-pleaded statement of his own case. See Appeal and Error, 643; Criminal Law, Allen v. New York, P. & N. R. Co., 15 F. (2d) 1105-1124. REFERENCE. I. NATURE, GROUNDS, AND ORDER OF REFERENCE. 3 (U.S.D.C.N.Y.) On motion to dismiss, reference may be ordered to determine existence of facts giving jurisdiction of person.Aeroil Burner Co. v. Littleford, 15 F. (2d) 256. REFORMATION OF INSTRUMENTS. I. RIGHT OF ACTION AND DEFENSES. 16 (U.S.C.C.A.Kan.) Equity will grant relief by way of reformation, whether mutual mistake in contract was one of law or of fact. -Skelton v. Federal Surety Co., 15 F.(2d) 756. 25 (U.S.C.C.A.Kan.) Negligence of surety company's agent in failing to include statutory bond in indemnity agreement held not to preclude reformation, in view of showing that indemnitor recognized liability. Skelton v. Federal Surety Co., 15 F. (2d) 756. Mere negligence, not amounting to violation of positive duty, does not prevent reformation, particularly where no prejudice results.-Id. II. PROCEEDINGS AND RELIEF. 45(1) (U.S.C.C.A.Kan.) Mutual mistake, as foundation for reformation of instrument, must be established by clear, convincing, and satisfactory proof.-Skelton v. Federal Surety Co., 15 F.(2d) 756. 45 (13) (U.S.C.C.A.Kan.) Evidence, being clear, convincing, and satisfactory relative to mutual mistake, in that indemnity bond omitted specific mention of statutory bond signed by surety, held sufficient to warrant reformation.-Skelton v. Federal Surety Co., 15 F. (2d) 756. RELEASE. I. REQUISITES AND VALIDITY. 12(3) (U.S.C.C.A.Utah) Inadequacy of amount of settlement for death is not of itself sufficient to set aside release.-Simmons V. Utah Copper Co., 15 F. (2d) 780. II. CONSTRUCTION AND OPERATION. 25 (U.S.C.C.A.Okl.) Release must be considered and construed in light of situation of parties when it was formulated.-Sunlight Carbon Co. v. St. Louis & S. F. R. Co., 15 F. (2d) 802. 532. Declaration on common counts in assumpsit for money due, with itemized accounts annexed thereto showing recovery is based on federal law, held removable to federal court under Judicial Code, § 24, par. 8 (Comp. St. § 991). in view of Code Va. 1919, § 6090, requiring declaration in assumpsit to contain itemized account.-Id. If, on plaintiff's original pleading, case is not removable, it becomes so whenever in its progress pleading is amended or supplemented, to show that suit is removable.-Id. III. CITIZENSHIP OR ALIENAGE OF (A) Diverse Citizenship or Alienage in General. 27 (U.S.D.C.N.Y.) Action by alien corporation against shipbuilding company_and United States Shipping Board Emergency Fleet Corporation held not "between citizens of different states," within Judicial Code, § 28, sentence 3 (Comp. St. § 1010).-Lucania Societa Italiana Di Navigazione v. U. S. Shipping Board Emergency Fleet Corporation, 15 F. (2d) 568. (B) Separable Controversies. 49 (2) (U.S.D.C.N.Y.) Causes of action in favor of broker against shipbuilding company and United States Shipping Board Emergency Fleet Corporation held improperly joined, as to right of removal.-Lucania Societa Italiana Di Navigazione v. U. S. Shipping Board Emergency Fleet Corporation, 15 F. (2d) 568. Alien corporation's action against shipbuilding company and Emergency Fleet Corporation held to present separable controversy as to Fleet Corporation.-İd. 49 (3) (U.S.C.C.A.W.Va.) Case of joint liability arising out of concurrent negligence of defendants does not present separable controversy, affecting right to removal.-Slate v. Hutcherson, 15 F.(2d) 551. Suit held one for injury resulting from joint moval to federal court for diversity of citizennegligence of defendants, affecting right of reship of one defendant.-Id. 52 (U.S.C.C.A.N.Y.) Suit by sixteen plaintiffs against one defendant, setting forth sixteen causes of action, and seeking different relief, held to present separable controversies (Civil Practice Act N. Y. § 209; Judicial Code, § 28 [U. S. Comp. St. § 1010]).-Young v. Southern Pac. Co., 15 F.(2d) 280. Under Judicial Code, § 28 (Comp. St. § 1010); For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER severable controversy removable to federal court may exist in action between one or more plaintiffs and single defendant.-Id. 58 (U.S.C.C.A.W.Va.) Effect of removal of separable controversy under Judicial Code, $§ 28 (Comp. St. § 1010), is to transfer entire cause. -Slate v. Hutcherson, 15 F. (2d) 551. 60 (U.S.D.C.N.Y.) If one of defendant insurance companies was citizen of different state than either plaintiff or her assignor, separable controversy existed as to such defendant, entitling it to removal of entire suit.-Lynch v. Springfield Fire & Marine Ins. Co., 15 F. (2d) 725. 61 (U.S.C.C.A.Mo.) Existence of a separable controversy depends on allegations of complaint, not on allegations of petition for removal.-Highway Const. Co. v. McClelland, 15 F. (2d) 187. VI. PROCEEDINGS TO PROCURE AND EF. 86(2) (U.S.D.C.N.Y.) Petition for removal of causes to federal court on ground of diversity of citizenship need not contain affirmative allegation that defendant is a nonresident of the state.-Queensboro Nat. Bank of the City of New York v. Kelly, 15 F. (2d) 395. 86(5) (U.S.C.C.A.Mo.) Existence of a separable controversy depends on allegations of complaint, not on allegations of petition for removal.-Highway Const. Co. v. McClelland, 15 F. (2d) 187. St. §§ 1010, 1120, 1121]).-Young v. Southern VIII. PROCEEDINGS IN CAUSE AFTER III (U.S.C.C.A.Ark.) United States District Court is invested with complete and plenary jurisdiction of parties and of subject-matter of case removed from state court.-Texas Pipe Line Co. v. Ware, 15 F. (2d) 171. 115 (U.S.D.C.N.C.) Allegation relative to cause of action, which was stated in bill of complaint in state court, but not urged after removal, should be stricken.-Poisson v. Williams, 15 F. (2d) 582. 118 (U.S.C.C.A.Ark.) Amendment to complaint after removal of cause for personal injuries to federal court, electing that case should be governed by Louisiana Workmen's Compensation Act, held not to defeat jurisdiction of federal court.-Texas Pipe Line Co. v. Ware, 15 F.(2d) 171. 118 (U.S.C.C.A.Mo.) Federal court held without jurisdiction of cause removed from state court on ground of separable controversy, where amended complaint eliminated such controversy, notwithstanding absence of motion to remand, in view of Judicial Code, § 37 (Comp. St. § 1019), imposing on court duty to remand. Highway Const. Co. v. McClelland, 15 F. (2d) 187. RETROSPECTIVE LAWS. 86(10) (U.S.C.C.A.S.C.) Statement in affi- See Constitutional Law, 190–197. davit of defendant on motion for removal to federal court, with which plaintiff takes no issue, must be accepted as accurate.-Feaster See Taxation. v. Southern Ry. Co., 15 F.(2d) 540. 89(1) (U.S.D.C.N.Y.) Under Judicial Code, on filing of sufficient petition and bond for removal to federal court, should accept same REVENUE. REVIEW. RISKS. $ 28, 29 (Comp. St. §§ 1010, 1011), state court, See Appeal and Error. and proceed no further.-Queensboro Nat. Bank See Master and Servant, -204-217. of the City of New York v. Kelly, 15 F.(2d) 395. Under Judicial Code, §§ 28, 29 (Comp. St. See Highways. 88 1010, 1011), removal petition presents only ROADS. RULES OF COURT. a question of law for state court as to whether, 89 (2) (U.S.C.C.A.S.C.) Complaint in action against railroad and resident sergeant in its police force for death of guard during strike held, in connection with affidavits filed by defendants, to show that sergeant was made a party only to prevent removal.-Feaster v. Southern Ry. Co., 15 F. (2d) 540. 89(2) (U.S.D.C.N.Y.) Under Judicial Code, §§ 28, 29 (Comp. St. $$ 1010, 1011), state court has power to examine petition and bond for removal to determine their sufficiency, and, if insufficient, may disregard them and proceed. Queensboro Nat. Bank of the City of New York v. Kelly, 15 F. (2d) 395. Issues of fact, arising on petition for removal, are determined in federal court; state court being required to accept as true allegations of fact in petition.-Id. Under Judicial Code, §§ 28, 29 (Comp. St. §§ 1010, 1011), state court has no power to determine question of fact with reference to diversity of citizenship alleged in petition for removal.-Id. SALES. See Judicial Sales; Vendor and Purchaser. tion validity of contract for sale of prunes or 53(1) (U.S.C.C.A.III.) In buyer's action for seller's breach of coal contract, evidence that parties contracted held for jury.-Fidelity Fuel Co. v. Martin Howe Coal Co., 15 F. (2d) 470. II. CONSTRUCTION OF CONTRACT. 73 (U.S.C.C.A.Pa.) Requirements that "these cabinets" have particular finish held to mean all cabinets ordered, and not a large percentage only.-F. A. D. Andrea, Inc., v. Dodge, 15 F.(2d) 1003. 95 (U.S.D.C.N.Y.) Jurisdiction of federal court depends on compliance or noncompli-82(1) (U.S.C.C.A.III.) Seller's dissatisfacance with law of Congress, and is not affected by order of state court, either refusing or granting removal.-Queensboro Nat. Bank of the City of New York v. Kelly, 15 F. (2d) 395. VII. REMAND OR DISMISSAL OF CAUSE, 107(9) (U.S.C.C.A.N.Y.) Injunction order restraining prosecution of cases in state court after removal to federal court held appealable (Judicial Code, §§ 28, 128, 129 [Comp. tion with buyer's financial responsibility must OF (A) By Agreement of Parties. 89 (U.S.C.C.A.III.) Buyer's agreement not to rescind for breach of warranty held sufficient consideration for seller's promise to adjust. Lamborn v. Northern Jobbing Co., 15 F.(2d) 897. (C) Rescission by Buyer. 121 (U.S.C.C.A.Neb.) Buyer, asserting dominion over sugar not of quality bought with out notice of rejection to seller, held estopped to rescind contract,-Grainger Bros. Co. v. G. Amsinck & Co., 15 F. (2d) 329. 124 (U.S.C.C.A.Neb.) Buyer, rescinding contract for purchase of sugar because of quality, need not return goods.-Grainger Bros. Co. v. G. Amsinck & Co., 15 F.(2d) 329. 127 (U.S.C.C.A.Neb.) Buyer, rescinding contract for purchase of sugar because of quality, must give seller notice of rejection and election to rescind.-Grainger Bros. Co. v. G. Amsinck & Co., 15 F.(2d) 329. Where buyer asserted dominion over sugar not of quality bought, institution of suit to rescind and recover price was not notice in itself of rescission.-Id. 134 (U.S.C.C.A.Neb.) Buyer of sugar held not entitled to sell, as perishable, sugar not of quality bought, without notice to seller that he has elected to rescind contract and offer of reasonable time for removal.-Grainger Bros. Co. v. G. Amsinck & Co., 15 F.(2d) 329. IV. PERFORMANCE OF CONTRACT. (C) Delivery and Acceptance of Goods. VII. REMEDIES OF SELLER. submit (F) Actions for Damages. 388 (U.S.C.C.A.Pa.) Instruction ting question whether bulk of cabinets delivered corresponded to sample rather than whether number of defective cabinets delivered was so material as to justify cancellation held erroneous.-F. A. D. Andrea, Inc., v. Dodge, 15 F. (2d) 1003. VIII. REMEDIES OF BUYER. (U.S.C.C.A.Neb.) Buyer of sugar, who did not give seller required notice of election to rescind contract, held not entitled to sell goods to satisfy lien for freight, demurrage, and purchase money paid.--Grainger Bros. Co. v. G. Amsinck & Co., 15 F. (2d) 329. (C) Actions for Breach of Contract. 404 (U.S.C.C.A.III.) Buyer, discovering that sugar is not as represented, may rescind contract, or retain sugar and sue for damages.Lamborn v. Northern Jobbing Co., 15 F. (2d) 897. (D) Actions and Counterclaims for Breach of Warranty. 428 (App.D.C.) Purchaser after breach of but may recoup his damages when sued for purwarranty is not required to repudiate contract, chase price.-Joseph v. Heckman, 15 F. (2d) 732. 166(1) (U.S.C.C.A.Neb.) Buyer of "granulated sugar," being refined white sugar free from molasses, etc., dry and free running, held warranted in refusing to accept yellow 442(1) (U.S.C.C.A.III.) In action for breach "Java white" sugar containing molasses and foreign matter.-Grainger Bros. Co. v. G. Amsinck & Co., 15 F.(2d) 329. 166(5) (U.S.C.C.A.Pa.) "Bulk," as used in provision of Uniform Sales Act, denotes goods, as distinguished from sample (Uniform Sales Act Pa. § 14 [P. L. 543; Pa. St. § 19662]). -F. A. D. Andrea, Inc., v. Dodge, 15 F. (2d) 1003. "Goods," used in phrase “bulk of goods," held an appositional genitive, defining "bulk" (Uniform Sales Act Pa. § 14 [P. L. 543; Pa. St. § 19662]).—Id. "Bulk of goods" means same as "goods," as used in Uniform Sales Act (Uniform Sales Act Pa. § 14 [P. L. 543; Pa. St. § 19662]).—Id. Instruction treating "bulk," as used in Uniform Sales Act, as meaning sum less than all goods sold, held erroneous (Uniform Sales Act Pa. §§ 14, 16 [P. L. 543; Pa. St. §§ 19662, 19664]).-Id. 172 (U.S.C.C.A.Mass.) Buyer, after asking for substituted form of payment or relief from burden of contract, cannot be heard to say that delay of seller in considering proposition operates as breach of abandoment.-Brown v. J. C. Shaffer Grain Co., 15 F. (2d) 514. 181(11) (U.S.C.C.A.Mass.) Evidence showing seller's delay of shipments was due to buy ers' request for substituted form of payment on contracts held to show no abandonment or breach by seller.-Brown v. J. C. Shaffer Grain Co., 15 F.(2d) 514. 182(1) (U.S.C.C.A.III.) Seller's good faith in declaring itself dissatisfied with buyer's financial responsibility held for jury. Fidelity Fuel Co. v. Martin Howe Coal Co., 15 F.(2d) 470. 182(1) (U.S.C.C.A.Pa.) Whether number of defective cabinets delivered was so material as to defeat purpose of parties held for jury. F. A. D. Andrea, Inc., v. Dodge, 15 F. (2d) 1003. VI. WARRANTIES. 288(2) (App.D.C.) Alleged delay of buyer in repudiating contract after discovery of defect held immaterial where repudiation was not sought, but defense is by way of recoupment for damages for breach of warranty.-Joseph v. Heckman, 15 F.(2d) 732. of warranty in sale of commodity having no market value, parties have wide range of inquiry as to value.-Lamborn v. Northern Jobbing Co., 15 F. (2d) 897. 442 (4) (U.S.C.C.A.Ill.) Difference in values of sugar as represented and as delivered at place of delivery held measure of damages, in view of particular facts.-Lamborn v. Northern Jobbing Co., 15 F. (2d) 897. Libelant, though off duty, held member of crew of ferryboat, and not entitled to recover for salvage services.-Id. 21 (U.S.C.C.A.Ga.) Salvors of stranded vessel held not chargeable with fault in failing to at once bring wrecking anchor to scene of stranding, in view of their limited information and delay incident to such course.-Savannah Sugar Refining Corporation v. Atlantic Towing Co., 15 F. (2d) 648. II. AMOUNT AND APPORTIONMENT. 26 (U.S.C.C.A.Ga.) Actual values of property saved and of the instrumentalities used are proper to be considered in fixing amount of salvage award.-Savannah Sugar Refining Corporation v. Atlantic Towing Co., 15 F. (2d) 648. 29 (U.S.C.C.A.N.Y.) In awarding salvage apprehension of danger on part of those orig inally in charge of salved property should be considered in determining quantum of salvage. -The Cornell, 15 F. (2d) 375. 30 (U.S.C.C.A.Ga.) Salvage award of $15,000 and interest for services rendered stranded vessel valued at $100,000, carrying freight and cargo valued at over $300,000 by tugs valued at $250,000, held not excessive.-Savannah Sugar Refining Corporation v. Atlantic Towing Co., 15 F. (2d) 648. |