BIDDLE PURCHASING COMPANY, Plaintiff in Error, v. AMERICAN MILLS COMPANY, Defendant in Error.

(Circuit Court of Appeals, Second Circuit. February 19, 1926.)

No. 159.

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

Writ of error to judgment entered in the District Court for the Southern District of New York.

Isham Henderson, of New York City (Charles R. Coulter, of New York City, of counsel), for plaintiff in error.

David L. Podell, of New York City, for defendant in error.

Before HOUGH, MANTON, and HAND, Circuit Judges.

PER CURIAM. Judgment affirmed, with costs.

Jackson, Fuller, Nash & Brophy, of New York City (George W. Mathews, of Boston, Mass., and Thomas S. Fuller, of New York City, of counsel), for defendant in error Fuller.

Stuart Chevalier, of Washington, D. C., Ewing Everett, of New York City, and Robert N. Miller, of Washington, D. C., amici curia (in the Fuller case).

Before ROGERS, HOUGH, and HAND, Circuit Judges.

PER CURIAM. The above cases are
Bow-

affirmed, on the authority of Seaman v.
ers (C. C. A.) 297 F. 371.

HAND, Circuit Judge, dissents.

3

2

Frank K. BOWERS, Individually and as Collector of Internal Revenue for the Second District of New York, Plaintiff in Error, v. NEW YORK & ALBANY LIGHTERAGE COMPANY, Defendant in Error. Frank K. BOWERS, Individually and as United States Collector of Internal Revenue for the Second Collection District of New York, Plaintiff in Error, v. Lloyd W. SEAMAN, Defendant in Error. Frank K. BOWERS, United States Collector of Internal Revenue for the Second District of New York, Plaintiff in Error, v. Thomas Staples FULLER, Defendant in Er

ror.

(Circuit Court of Appeals, Second Circuit. February 1, 1926.)

Nos. 179, 206, 215.

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

For opinion below, see 4 F. (2d) 604.

Emory R. Buckner, U. S. Atty., of New York City (Sherwood E. Hall, Asst. U. S. Atty., of New York City, A. W. Gregg, Solicitor of Internal Revenue, and Charles T. Hendler, Sp. Atty. Internal Revenue, both of Washington, D. C., of counsel), for plaintiff in error.

Winifred Sullivan, of New York City, for defendant in error New York & Albany Lighterage Co.

Budd & Coffey, of New York City (Bern Budd, Henry P. Keith, and Benjamin Mahler, all of New York City, of counsel), for defendant in error Seaman.

(Circuit Court of Appeals, Second Circuit. February 15, 1926.)

and H. P. Osborne, all of Jacksonville, Fla. (Harmon, Colston, Goldsmith & Hoadly, of Cincinnati, Ohio, and Cooper, Knight, Adair, Cooper & Osborne, of Jacksonville, Fla., on the brief), for appellants.

Giles J. Patterson, of Jacksonville, Fla., for appellees.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge. This was a suit brought by appellee, the St. Paul Trust & Savings Bank, formerly the Van Sant Trust Company, as trustee, and Grant Van Sant, as individual trustee, under an indenture to secure an issue of bonds, aggregating $175,000 and resting on certain real estate in Clay county, Fla., owned by the Walkill Stock Farms Company, to set aside a subsequent issue of bonds involving the same property.

After the first bond issue the Legislature of Florida adopted an act, section 37 of chapter 8008 of 1919, providing for the organization of stump and land clearing districts, and the land covered by the abovementioned .mortgage was incorporated into such a district. Thereafter the said district issued bonds in the sum of $300,000.

.Appellants, the Citizens' Savings Bank, of Hamilton, Ohio, the First National Bank, of Hamilton, Ohio, and the Citizens' National Bank, of Lebanon, Ohio, are holders of some of the bonds and were made parties de fendant in the bill. Other defendants, including the tax collector of the county and the supervisors of the district, have not appealed.

The bill is voluminous. It attacks the constitutionality of the Florida law under which the district was created, attacks the good faith of the owners of the property, sets up the illegality of the procedure by which the district was organized and the taxes levied to liquidate the bonds, and challenges the validity of the bonds held by appellants.

It is unnecessary to more fully set out or analyze the bill, as the well-considered and learned opinion of Hon. Henry D. Clayton, District Judge, rendered on the hearing of a motion to dismiss the bill for want of equity, fully discusses the facts alleged and the law applicable to the case. See St. Paul Trust & Savings Bank v. American Clearing Company (D. C.) 291 F. 212.

On the hearing on the merits the allegations of the bill were fully substantiated. We

In the Matter of Lyall DEAN, Bankrupt. Appellant.

(Circuit Court of Appeals, Second Circuit. February 15, 1926.) No. 200..

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

Parker & Aaron, of New York City (Charles Adkins Baker, of New York City, of counsel), for appellant.

Rosenberg & Ball, of New York City (George S. Ludlow and Charles S. Ascher, both of New York City, of counsel), for appellee Emerson Bigelow.

Before MANTON, HAND, and MACK, Circuit Judges.

PER CURIAM. Order affirmed.

.3

W. B. GRUBER, Appellant, v. SAVANNAH
RIVER LUMBER COMPANY, Appellee.
(Circuit Court of Appeals, Fourth Circuit.
November 25, 1925.)

No. 2460.

Appeal from the District Court of the United States for the Eastern District of South Carolina, at Charleston.

Agnes G. MILLER, Doing Business under the Name and Style of Metropolitan Stone Works, Plaintiff-Appellant, V. FERACA STONE WORKS, Inc., and James E. Feraca, John J. Feraca, Gaetano Valente, and Saverio Feraca, Defendants-Appellees.

(Circuit Court of Appeals, Second Circuit. March 1, 1926.)

No. 214.

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

Munn, Anderson & Munn, of New York City (T. Hart Anderson and Albert J. Clark, both of New York City, of counsel), for appellant.

North Carolina, seeking to have this court review and reverse the decision of the Dis trict Court entered in six cases in which the defendant in error was plaintiff in the lower court, and the plaintiffs in error defendants therein. The cases were heard together by consent in that court, the appellee being plaintiff in all the suits, and the facts were substantially the same as against the several defendants.

The cases were heretofore before this court on a writ of error to the District Court of the United States for the Eastern District

of North Carolina, challenging the correctness of the judgment of that court rendered in favor of the plaintiffs in error against the defendant in error, which latter judgment was reversed by this court on February 5, 1924, and a new trial awarded, and the cases

In Error to the District Court of the United States for the Eastern District of

North Carolina, at Raleigh; D. Lawrence Groner, Judge.

John H. Manning, of Raleigh, N. C. (J. S. Manning, of Raleigh, N. C., W. A. Lucas, of Wilson, N. C., R. C. Dunn, of Enfield, N. C., and P. W. McMullan, of Elizabeth City, N. C., on the brief), for plaintiffs in error.

V. S. Thomas, of Wilmington, Del., Baird, White & Lanning, of Norfolk, Va., H. G. Connor, Jr., of Wilson, N. C., and Edward R. Baird, Jr., of Norfolk, Va., for defendant in error.

Before WADDILL, ROSE, and PARKER, Circuit Judges.

WADDILL, Circuit Judge. These are writs of error to the District Court of the United States for the Eastern District of

taining a full and accurate account of the facts and circumstances of the cases, which need not be recited again here. In that decision this court concluded that the defend

ant in error herein was entitled to recover of the plaintiff in error the full amounts of the claims respectively sued for.

At the new trial, the District Court complied with and carried out the judgment of this court in all respects, and in doing so rendered the judgment complained of herein in favor of the plaintiff, the defendant in error, against the plaintiffs in error herein. The facts in the two trials seem not to have been materially different, and we therefore perceive no reason for changing the views expressed in our previous opinion, namely, that the plaintiff, defendant in error, was entitled to recover. E. I. Du Pont de Nemours & Co. v. Louis Tomlinson et al., supra.

The judgment of the District Court, in instructing and rendering the judgment complained of against plaintiffs in error, should be accordingly affirmed, with costs.

Affirmed.

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NEW YORK HERALD COMPANY, Plaintiff in Error, v. William D. KRAFT, Defendant in Error.

(Circuit Court of Appeals, Second Circuit. March 1, 1926.)

No. 238.

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

error.

PEABODY, HOUGHTELING & CO., Appel lant, v. Edwin R. COCHRAN, Jr., and Frederic B. Adams, Receivers of Atlantic Fruit Co., Appellees.

(Circuit Court of Appeals, Third Circuit. February 24, 1926.)

No. 3414.

Appeal from the District Court of the United States for the District of Delaware; Hugh M. Morris, Judge.

William G. Mahaffy, of Wilmington, Del. (William Travers Jerome and William Rand, Jr., both of New York City, of counsel), for appellant.

Robert H. Richards, of Wilmington, Del., and Shearman & Sterling, of New York City (Philip A. Carroll, of New York City, of counsel), for appellees.

company an issue of bonds to be thereafter issued under a contemplated trust indenture of the Atlantic Navigation Corporation, a subsidiary of the fruit company. While certain features of the intended trust agreement were specified in the preliminary contract, it is clear that others were made matters of subsequent negotiations and agreements; in that respect, the preliminary contract providing: "The trust indenture shall be in a form to be agreed upon by the parties." The matter was one of large moment, intricate and involved, and necessitated protracted negotiations and the determination of important provisions. Without entering into details, it suffices to say that, without bad faith on the part of any one, the parties failed to agree on the terms to be embodied in the contemplated trust agreement in matters of substance and the negotiations came to an end. The situation was not one of a final meeting of contracting minds, but one of a preliminary agreement, which contemplated the later and final determination and specification of contract provisions to be embodied in a trust agreement, which was to embody what the parties meant should be their final and effective contract act.

We agree with master and court that the parties were not able to and never did reach that point. Accordingly we affirm the decree below.

2

BUFFINGTON, Circuit Judge. In the receivership of the Atlantic Fruit Company, the firm of Peabody, Houghteling & Co. presented a claim of some $73,840 for damages for breach of a contract, which it alleged it had with the fruit company. The fact that there was such existing and breached contract being denied by the receivers, the claim was referred to a master. He found against the claimant, and his finding was approved by the court. Thereupon this appeal was taken.

Apart from the great weight to be given by an appellate court to a finding of a master, followed by a court, we have given this case our independent examination. It appears that on July 8, 1919, the claimant firm and the fruit company had agreed in writing that the claimant should sell for the fruit

Edwin L SCOTT, Defendant in Error. (Circuit Court of Appeals, Second Circuit. February 15, 1926.)