MEMORANDUM DECISIONS per ton. agreement as to prices and these were conARCHIBALD MCNEIL & SONS CO., Inc. firmed by letters. Settlement was to be made Plaintiff in Error, v. UNITED STATES. on a threefold basis: Defendant in Error. (1) Coal owned by the plaintiff and shipUNITED STATES, Plaintiff in Error, V, ped prior to October 30, 1919, was to be ARCHIBALD MQNEIL & SONS COM- paid for at the price paid by the plaintiff unPANY, Inc., Defendant in Error, der a bona fide contract of sale plus 15 cents (Circuit Court of Appeals, Third Circuit March 16, 1926.) (2) Coal shipped between October 30 and November 12, 1919, inclusive, was to be Nos. 3318, 3319. paid for at the government maximum price, In Error to the District Court of the f. o. b. mines, in effect at the date of shipUnited States for the Eastern District of ment. Pennsylvania; Oliver B. Dickinson, Judge. (3) Coal shipped subsequent to Novem For opinion below, see 1 F.(20) 39. ber 12, 1919, was to be paid for at the gov. George Demming, of Philadelphia, Pa., ernment maximum price, f. o. b. mines, in for plaintiff in error. effect at the date of shipment, if there was George W. Coles, U. S. Atty., and Joseph no contract dated prior to October 30, 1919, L. Kun and Albert Ward, Sp. Asst. U. S. but, if there was a contract prior to that Attys., all of Philadelphia, Pa. date, the coal was to be paid for at the con . . Before BUFFINGTON, WOOLLEY, tract price of the coal to the plaintiff, f. o. b. mines and DAVIS, Circuit Judges. of the plaintiff, consigned to a customer un der a bona fide contract entered into prior to PER CURIAM. The Archibald McNeil October 30, 1919, it was to be paid for at the & Sons Company, Inc., hereinafter called the price at which it was sold to the customer plaintiff, was a dealer in coal, including ex- by plaintiff. port coal. Between October, 1919, and Feb- The total gross tonnage diverted and used ruary 29, 1920, the plaintiff shipped a great by the government was 197,726.68, on which many tons of coal to the Tidewater Coal Ex- was paid $698,822.10. Plaintiff refused to change for export. This coal while in trans- accept further payments tendered under the it was seized and used by the government, agreement, and contends that the coal was through one or more of its agents, for use in taken under section 10 of the Lever Act, and operating the railroads which were then un- that the Underwood agreement was merely der federal control. an accord without satisfaction, and so not The Fuel Administrator, by virtue of the binding on it. power vested in him by Congress, fixed in a The case was tried to the judge without a number of orders, issued from time to time, jury, who held that the agreement was bindthe price to be paid by the government for ing on the plaintiff and settlement should be coal diverted, or commandeered, and used by made in accordance therewith. We have it. There was considerable contention be- carefully considered the able argument of tween the plaintiff and the Fuel Administra- plaintiff's counsel, but find ourselves in actor as to the price that should be paid the cord with the conclusions of the learned Displaintiff and the amount due it. However, trict Judge, and affirm the judgment on his on March 14, 1920, they reached an oral opinion. Z370 67075 Towing Line, claimant-Appellee. 10 F.(2) I Jackson, Fuller, Nash & Brophy, of New BIDDLE PURCHASING COMPANY, Plain. York City (George W. Mathews, of Boston, tiff in Error, v. AMERICAN MILLS COM Mass., and Thomas S. Fuller, of New York City, of counsel), for defendant in error Stuart Chevalier, of Washington, D. C., Ewing Everett, of New York City, and Rob- Before ROGERS, HOUGH, and HAND, PER CURIAM. The above cases are of New York. Isham Henderson, of New York City affirmed, on the authority of Seaman v. Bow ers (C. C. A.) 297 F. 371. HAND, Circuit Judge, dissents. 3 Circuit Judges. BURNS BROS., Libelant-Appellee, v. Coal Boat A. G. PERHAM, Her Tackle, etc.; William PER CURIAM. Judgment affirmed, with J. Fetherston and Margaret E. Fetherston, as Ex’rs, etc., Claimants-Appellants, Steam Tug costs. WILLIAM TRACY, Her Engines, etc.; Tracy а 2 4.74 (Circuit Court of Appeals, Second Circuit. Frank K. BOWERS, Individually and as Col. February 15, 1926.) No. 198. Appeal from the District Court of the Alexander & Ash, of New York City William F. Purdy, of New York City, for Thomas Staples FULLER, Defendant in Er the A. G. Perham. ror. Macklin, Brown & Van Wyck, of New (Circuit Court of Appeals, Second Circuit. February 1, 1926.) York City, for the William Tracy. Before MANTON, HAND, and MACK, Circuit Judges. PER CURIAM. Decree affirmed. 4 Emory R. Buckner, U. S. Atty., of New CITIZENS' SAVINGS BANK & TRUST York City (Sherwood E. Hall, Asst. U. S. COMPANY OF HAMILTON, OHIO, et al., Atty., of New York City, A. W. Gregg, Solic- Appellants, V. ST. PAUL TRUST & SAV. itor of Internal Revenue, and Charles T. INGS BANK, etc., as Trustee, et al., ApHendler, Sp. Atty. Internal Revenue, both pellees. of Washington, D. C., of counsel), for plain- (Circuit Court of Appeals, Fifth Circuit. tiff in error. February 23, 1926.) Winifred Sullivan, of New York City, for No. 4589. defendant in error New York & Albany Lighterage Co. Appeal from the District Court of the Budd & Coffey, of New York City (Bern United States for the Southern District of Budd, Henry P. Keith, and Benjamin Mah- Florida; Lake Jones, Judge. ler, all of New York City, of counsel), for B. S. Oppenheimer, of Cincinnati, Ohio, defendant in error Seaman. and John C. Cooper, John C. Cooper, Jr., ¿c jistis 09, 20GAMEG, IN , nepreste q 70 L Ed. 1142, presblog error. and H. P. Osborne, all of Jacksonville, Fla. are content to rest our decision on the author- cent denied for appellees. 46 . A. Stanley COPELAND, Plaintiff in Error, v. Before WALKER, BRYAN, and FOS UNITED STATES, Defendant in Error. TER, Circuit Judges. (Circuit Court of Appeals, Second Circuit. February 19, 1926.) No. 219. FOSTER, Circuit Judge. This was a suit brought by appellee, the St. Paul Trust In Error to the District Court of the & Savings Bank, formerly the Van Sant United States for the Western District of Trust Company, as trustee, and Grant Van New York. Sant, as individual trustee, under an inden A. Stanley Copeland, for plaintiff in Richard H. Templeton, U. S. Atty., of Before ROGERS, HOUGH, and HAND, property. Circuit Judges. After the first bond issue the Legislature PER CURIAM. Judgment affirmed. of Florida adopted an act, section 37 of chapter 8008 of 1919, providing for the organization of stump and land clearing dis 2 tricts, and the land covered by the above in the Matter of Lyall DEAN, Bankrupt. mentioned .mortgage was incorporated into Appellant. such a district. Thereafter the said district (Circuit Court of Appeals, Second Circuit. issued bonds in the sum of $300,000. February 15, 1926.) Appellants, the Citizens' Savings Bank, No. 200.. of Hamilton, Ohio, the First National Bank, of Hamilton, Ohio, and the Citizens' Nation- Appeal from the District Court of the al Bank, of Lebanon, Ohio, are holders of United States for the Southern District of some of the bonds and were made parties de New York. fendant in the bill. Other defendants, in Parker & Aaron, of New York City cluding the tax collector of the county and (Charles Adkins Baker, of New York City, the supervisors of the district, have not ap- of counsel), for appellant. pealed. Rosenberg & Ball, of New York City The bill is voluminous. It attacks the (George S. Ludlow and Charles S. Ascher, constitutionality of the Florida law under both of New York City, of counsel), for apwhich the district was created, attacks the pellee Emerson Bigelow. good faith of the owners of the property, sets Before MANTON, HAND, and MACK, up the illegality of the procedure by which Circuit Judges. the district was organized and the taxes levied to liquidate the bonds, and challenges the PER CURIAM. Order affirmed. validity of the bonds held by appellants. It is unnecessary to more fully set out or analyze the bill, as the well-considered and .3 learned opinion of Hon. Henry D. Clayton, W. B. GRUBER, Appellant, v. SAVANNAH District Judge, rendered on the hearing of a RIVER LUMBER COMPANY, Appellee. motion to dismiss the bill for want of equi (Circuit Court of Appeals, Fourth Circuit. ty, fully discusses the facts alleged and the November 25, 1925.) law applicable to the case. See St. Paul No. 2460. Appeal from the District Court of the On the hearing on the merits the allega- United States for the Eastern District of tions of the bill were fully substantiated. We South Carolina, at Charleston. 10 F.(2d) TON, Circuit Judges. PER CURIAM. Decree affirmed in open court. 3 Error. (Circuit Court of Appeals, Second Circuit. Supply Company, Appellant, V. J. Frank February 3, 1926.) No. 197. (Circuit Court of Appeals, Third Circuit. In Error to the District Court of the United States for the Southern District of New York. William L. Wemple, of New York City, Emory R. Buckner, U. S. Atty., of New Wolf, Patterson, Block & Schorr, all of Phil- York City (David P. Siegel, of New York adelphia, Pa., for appellant. City, and Edward S. Silver, of Brooklyn, Kennard N. Ware, Charles H. Howson, N. Y., Asst. U. S. Atty., of counsel), for the United States. Howson & Howson, and Robert T. McCracken, all of Philadelphia, Pa., for appellee. Before MANTON, HAND, and MACK, Before BUFFINGTON, WOOLLEY, Circuit Judges. and DAVIS, Circuit Judges. PER CURIAM. Judgment affirmed in PER CURIAM. On presentation of af open court. fidavits and after hearing the parties, the todenie d. court below granted a preliminary injunc- 26tz 70 f Ed/1.38 tion, the effect of which is to preserve the 4 46 deep status in quo and prevent any further alleg- LEHIGH VALLEY RAILROAD COMPANY ed injury to the plaintiff's current business. Plaintiff in Error, v. Catherine O'ROURKE, Defendant in Error. After due consideration had, we find no LEHIGH VALLEY RAILROAD COMPANY, ground for convicting the court of error in Plaintiff in Error, v. Felix O'ROURKE, so doing, as it has, in its opinion, sufficiently Defendant in Error, vindicated its present action at this stage of the case. (Circuit Court of Appeals, Second Circuit. February 2, 1926.) The appeal is therefore dismissed, at the appellant's cost. Nos. 164, 165, In Error to the District Court of the 2 United States for the Western District of Kenefick, Cooke, Mitchell & Bass, of Buf- falo, N. Y. (Thomas R. Wheeler, of Buffalo, (Circuit Court of Appeals, Second Circuit. N. Y., of counsel), for plaintiff in error. February 17, 1926.) Hamilton Ward, of Buffalo, N. Y., for defendants in error. Moses Katcher, of New York City, for PER CURIAM. Judgments affirmed in appellant. open court. *Certiorari denied 46 S. Ct. 474, 70 L. Ed. --, ) 474 V. nextlenied 4273203696,714 Ed.89577 bep (4.93. cision this court concluded that the defend North Carolina, seeking to have this court Name and Style of Metropolitan Stone Works, trict Court entered in six cases in which the ants therein. The cases were heard together (Circuit Court of Appeals, Second Circuit. by consent in that court, the appellee being March 1, 1926.) plaintiff in all the suits, and the facts were substantially the same as against the several No. 214. defendants. Appeal from the District Court of the The cases were heretofore before this United States for the Southern District of court on a writ of error to the District Court New York. of the United States for the Eastern District Munn, Anderson & Munn, of New York of North Carolina, challenging the correctCity (T. Hart Anderson and Albert J. Clark, ness of the judgment of that court rendered both of New York City, of counsel), for ap- in favor of the plaintiffs in error against the pellant. defendant in error, which latter judgment Darby & Darby, of New York City (Sam- was reversed by this court on February 5, uel E. Darby, Jr., and Walter A. Darby, 1924, and a new trial awarded, and the cases both of New York City, of counsel), for were remanded to the District Court for a retrial thereof. E. I. Du Pont de Nemours appellees. & Co. v. Louis Tomlinson et al., 296 F. 634. Before ROGERS, HOUGH, and MAN Reference may be had to that decision as conTON, Circuit Judges. taining a full and accurate account of the PER CURIAM. Decree affirmed. facts and circumstances of the cases, which need be that Ct, 2 ant in error herein was entitled to recover of N. B. JOSEY GUANO COMPANY and N. B. the plaintiff in error the full amounts of the Josey Company, a Corporation, Farmers' claims respectively sued for. Cotton Oil Company, a Corporation, Eastern At the new trial, the District Court comCotton Oil Company, a Corporation, Caraleigh plied with and carried out the judgment of Phosphate & Fertilizer Works, a Corpora. tion, J. G. Barbour's Sons, a Corporation, this court in all respects, and in doing so and Clayton Cotton Oil Mill, Incorporated, a rendered the judgment complained of herein Corporation, plaintiffs in Error, v. E. I. DU in favor of the plaintiff, the defendant in erPONT DE NEMOURS & COMPANY, a Cor. poration, Defendant in Error. ror, against the plaintiffs in error herein. The facts in the two trials seem not to have (Circuit Court of Appeals, Fourth Circuit. been materially different, and we therefore January 27, 1926.) perceive no reason for changing the views exNo. 2434. pressed in our previous opinion, namely, that In Error to the District Court of the the plaintiff, defendant in error, was entitled to recover. E. I. Du Pont de Nemours & The judgment of the District Court, in instructing and rendering the judgment comJohn H. Manning, of Raleigh, N. C. (J. plained of against plaintiffs in error, should S. Manning, of Raleigh, N. C., W. A. Lucas, be accordingly affirmed, with costs. of Wilson, N. C., R. C. Dunn, of Enfield, N. Affirmed. C., and P. W. McMullan, of Elizabeth City, N. C., on the brief), for plaintiffs in error. V. S. Thomas, of Wilmington, Del., 3 Baird, White & Lanning, of Norfolk, Va., H. NEW YORK HERALD COMPANY, Plaintiff G. Connor, Jr., of Wilson, N. C., and Ed- in Error, v. William D. KRAFT, Defendant ward R. Baird, Jr., of Norfolk, Va., for de in Error. fendant in error. (Circuit Court of Appeals, Second Circuit. Before WADDILL, ROSE, and PAR March 1, 1926.) No. 238. |
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