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

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.

Darby & Darby, of New York City (Samuel E. Darby, Jr., and Walter A. Darby, both of New York City, of counsel), for appellees.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

PER CURIAM. Decree affirmed.

No. 2434.

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

North Carolina, seeking to have this court review and reverse the decision of the District 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 were remanded to the District Court for a retrial thereof. E. I. Du Pont de Nemours & Co. v. Louis Tomlinson et al., 296 F. 634. Reference may be had to that decision as containing a full and accurate account of the facts and circumstances of the cases, which need not be recited again here. In that de

cision 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.

3

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.

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

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.

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 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. pears that on July 8, 1919, the claimant firm and the fruit company had agreed in writing that the claimant should sell for the fruit

It ap

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

In the Matter of Louis SEIF, BankruptAppellant.

(Circuit Court of Appeals, Second Circuit. February 16, 1926.)

No. 233.

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

Reuben Dorfman, of New York City, for appellant.

Harry Sena, of New York City (Samuel Rose, of New York City, of counsel), for appellee.

light was not the proximate cause of the accident because the same misstep would have been taken whether the place was sufficiently lighted or otherwise. The court further found that the guard or covering over the steam pipes was an approved and usual one on vessels of this type and such as was practical for use. A decree of dismissal was entered accordingly, and the libelant has appealed.

The questions involved on the appeal are simple questions of fact, and the findings of the court below, based on testimony taken in open court, are so amply supported by the

Appeal from the District Court of the United States for the District of Oregon; Robert S. Bean, Judge.

Lord & Moulton, of Portland, Or., and Walter E. Hettman, of San Francisco, Cal., for appellant.

was no connection whatever between the absence of light and the injury complained of, because the same misstep would have been taken, whether the light was good or bad. The guard over the steam pipes serves two purposes: One to protect the pipes from injury by the cargo, and the other to protect those on deck from coming in contact with the pipes. Experience has shown that at least 50 per cent. of the space above the pipes must be left open; otherwise, high seas dashing against the hatch will raise and destroy the guard. After various experiments with other forms of guard, the kind here in use has been adopted and is in general use on vessels of this type. As said by the court below, the guard is ample for the purposes intended, and leaves the working place reason

RUDKIN, Circuit Judge. This was a libel by a longshoreman against the shipowner and a stevedoring company to recover damages for personal injuries. At the time of receiving the injuries complained of, the libelant was standing on a hatch covering, assisting other longshoremen in dragging a heavy tarpaulin over the hatch. While thus engaged, the tarpaulin slipped from his hand, he lost his balance and stepped back or down onto the guard or covering of some steam pipes extending along beside the hatch, and his foot passed between the guards or covering, causing injury to his leg.

Two grounds of negligence were charged in the libel: First, failure to furnish sufficient light; and, second, failure to furnish a safe place to work, because of the size of the opening in the guard or covering of the steam pipes. The court below found that the working place was sufficiently lighted, and that in any event the absence of sufficient

3

George Winship TAYLOR, as Trustee, etc., Plaintiff-Appellee, v. F. C. HICKS, as Alien Property Custodian, and Another, Defendants-Appellees, and Gerhard & Stey, G. M. H., Appellant.

(Circuit Court of Appeals, Second Circuit. February 18, 1926.)

No. 203.

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

Paul Schnitzler, of New York City, for appellant.

Dean Hill Stanley, of Washington, D. C., for appellees.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

PER CURIAM. Appeal dismissed in open court.