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MEMORANDUM DECISIONS

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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.

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Z370 67075 Towing Line, claimant-Appellee.

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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
PANY, Defendant in Error.

City, of counsel), for defendant in error
(Circuit Court of Appeals, Second Circuit. Fuller.
February 19, 1926.)

Stuart Chevalier, of Washington, D. C.,
No. 159.

Ewing Everett, of New York City, and Rob-
In Error to the District Court of the ert N. Miller, of Washington, D. C., amici
United States for the Southern District of curiæ (in the Fuller case).
New York.

Before ROGERS, HOUGH, and HAND,
Writ of error to judgment entered in Circuit Judges.
the District Court for the Southern District

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

HAND, Circuit Judge, dissents.
David L. Podell, of New York City, for
defendant in error.
Before HOUGH, MANTON, and HAND,

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.)
lector of Internal Revenue for the Second
District of New York, Plaintiff in Error, v.

No. 198.
NEW YORK & ALBANY LIGHTERAGE
COMPANY, Defendant in Error. Frank K.

Appeal from the District Court of the
BOWERS, individually and as United States United States for the Eastern District of
Collector of Internal Revenue for the Second New York.
Collection District of New York, Plaintiff in
Error, v. Lloyd W. SEAMAN, Defendant in

Alexander & Ash, of New York City
Error. Frank K. BOWERS, United States (Mark Ash and Edward Ash, both of New
Collector of Internal Revenue for the Second York City, of counsel), for appellees.
District of New York, Plaintiff in Error, v.

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,
Nos. 179, 206, 215.

Circuit Judges.
In Error to the District Court of the

PER CURIAM. Decree affirmed.
United States for the Southern District of
New York.
For opinion below, see 4 F.(20) 604.

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.,

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and H. P. Osborne, all of Jacksonville, Fla. are content to rest our decision on the author-
(Harmon, Colston, Goldsmith & Hoadly, of ity of Judge Clayton's opinion above noted.
Cincinnati, Ohio, and Cooper, Knight, Adair, As no error appears in the record, the
Cooper & Osborne, of Jacksonville, Fla., on judgment appealed from is affirmed.
the brief), for appellants.
Giles J. Patterson, of Jacksonville, Fla.,

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
ture to secure an issue of bonds, aggregating
$175,000 and resting on certain real estate in

Richard H. Templeton, U. S. Atty., of
Clay county, Fla., owned by the Walkill Buffalo, N. Y.
Stock Farms Company, to set aside a subse-
quent issue of bonds involving the same

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.
Trust & Savings Bank v. American Clearing
Company (D. C.) 291 F. 212.

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)
Howell & Fishburne, of Walterboro, S. Before ROGERS, HOUGH, and MAN-
C., for appellant.

TON, Circuit Judges.
Hagood, Rivers & Young, of Charleston,
S. C., for appellee.

PER CURIAM. Decree affirmed in open

court.
PER CURIAM. Consent order, docket-
ing cause and dismissing appeal, filed.

3
Harry LANDRESS et al., Plaintiffs in Error,
V. UNITED STATES, Defendant in

Error.
Louis HURWITZ, Trading as United Postcard

(Circuit Court of Appeals, Second Circuit. Supply Company, Appellant, V. J. Frank

February 3, 1926.)
MEYER, Trading as the Exhibit Supply
Company, Appellee.

No. 197. (Circuit Court of Appeals, Third Circuit.

In Error to the District Court of the
February 23, 1926.)

United States for the Southern District of
No. 3371.

New York.
Appeal from the District Court of the Moses Polakoff, of New York City, for
United States for the Eastern District of plaintiff in error Lewis.
Pennsylvania; Thompson, Judge.

William L. Wemple, of New York City,
For opinion below, see 5 F.(20) 370. for plaintiffs in error Phillips and Berlow.
Thomas C. Egan, John M. Patterson, and

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
Louis KRASNOW, Plaintiff-Appellant, v. Palm. New York.
er CANFIELD and another, Defendants-

Kenefick, Cooke, Mitchell & Bass, of Buf-
Appellees.

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
No. 286.

defendants in error.
Appeal from the District Court of the Before MANTON, HAND, and MACK,
United States for the Southern District of Circuit Judges.
New York.

Moses Katcher, of New York City, for PER CURIAM. Judgments affirmed in appellant.

open court.

*Certiorari denied 46 S. Ct. 474, 70 L. Ed. --,

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4273203696,714 Ed.89577 bep (4.93. cision this court concluded that the defend

North Carolina, seeking to have this court
Agnes G. MILLER, Doing Business under the review and reverse the decision of the Dis-

Name and Style of Metropolitan Stone Works, trict Court entered in six cases in which the
Plaintiff-Appellant, FERACA STONE
WORKS, Inc., and James E. Feraca, John J. defendant in error was plaintiff in the low-
Feraca, Gaetano Valente, and Saverio Fer- er court, and the plaintiffs in error defend-
aca, Defendants-Appellees.

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.
United States for the Eastern District of

E. I. Du Pont de Nemours &
North Carolina, at Raleigh; D. Lawrence Co. v. Louis Tomlinson et al., supra.
Groner, Judge.

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.)
KER, Circuit Judges.

No. 238.
WADDILL, Circuit Judge. These are In Error to the District Court of the
writs of error to the District Court of the United States for the Southern District of
United States for the Eastern District of New York,

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