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10 F.(20) Watson, Godley, Sheppard & Willguss, company an issue of bonds to be thereafter of New York City (Archibald R. Watson, issued under a contemplated trust indenture Ralph O. Willguss, and John Lehman, all of of the Atlantic Navigation Corporation, a New York City, of counsel), for plaintiff in subsidiary of the fruit company. While cer

tain features of the intended trust agreement Blackman, Pratt & Koehler, of New York were specified in the preliminary contract, it City (Thomas H. Rothwell, of New York is clear that others were made matters of City, of counsel), for defendant in error. subsequent negotiations and agreements; in

Before ROGERS, HOUGH, and MAN- that respect, the preliminary contract proTON, Circuit Judges.

viding: “The trust indenture shall be in a

form to be agreed upon by the parties.” The PER CURIAM. Judgment (6 F.[22] matter was one of large moment, intricate 644) affirmed.

and involved, and necessitated protracted negotiations and the determination of im

portant provisions. Without entering into PEABODY, HOUGHTELING & co., Appel- details, it suffices to say that, without bad lant, v. Edwin R. COCHRAN, Jr., and Fred. faith on the part of any one, the parties eric B. Adams, Receivers of Atlantic Fruit failed to agree on the terms to be embodied in Co., Appellees.

the contemplated trust agreement in matters (Circuit Court of Appeals, Third Circuit.

of substance and the negotiations came to an February 24, 1926.)

end. The situation was not one of a final No. 3414.

meeting of contracting minds, but one of a

preliminary agreement, which contemplated Appeal from the District Court of the the later and final determination and specifiUnited States for the District of Delaware; cation of contract provisions to be embodied Hugh M. Morris, Judge.

in a trust agreement, which was to embody William G. Mahaffy, of Wilmington, Del. what the parties meant should be their final (William Travers Jerome and William and effective contract act. Rand, Jr., both of New York City, of coun- We agree with master and court that the sel), for appellant.

parties were not able to and never did reach Robert H. Richards, of Wilmington, Del., that point. Accordingly we affirm the deand Shearman & Sterling, of New York City cree below. (Philip A. Carroll, of New York City, of counsel), for appellees.

2 Before BUFFINGTON, WOOLLEY, George S. POMEROY, Sr., Plaintiff in Error, v. and DAVIS, Circuit Judges.

Edwin L. SCOTT, Defendant in Error. BUFFINGTON, Circuit Judge. In the

(Circuit Court of Appeals, Second Circuit.

February 15, 1926.) receivership of the Atlantic Fruit Company, the firm of Peabody, Houghteling & Co. pre

No. 189. sented a claim of some $73,840 for damages In Error to the District Court of the for breach of a contract, which it alleged it United States for the Southern District of had with the fruit company. The fact that New York. there was such existing and breached con

Merrill, Rogers, Gifford & Woody, of tract being denied by the receivers, the claim was referred to a master. He found against New York City (Charles L. Woody, of the claimant, and his finding was approved New York City, of counsel), for plaintiff

in error. by the court. Thereupon this appeal was

Leo Oppenheimer, of New York City taken.

Apart from the great weight to be given (Milton P. Kupfer and Samuel H. Kaufman, by an appellate court to a finding of a mas

both of New York City, of counsel), for de

fendant in error. ter, followed by a court, we have given this case our independent examination.

Before ROGERS, HOUGH, and MACK, pears that on July 8, 1919, the claimant firm' Circuit Judges. and the fruit company had agreed in writing that the claimant should sell for the ruit PER CURIAM. Judgment affirmed.

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light was not the proximate cause of the acIn the Matter of Louis SEIF, Bankrapt. cident because the same misstep would have Appellant.

been taken whether the place was sufficiently (Circuit Court of Appeals, Second Circuit.

lighted or otherwise. The court further February 16, 1926.)

found that the guard or covering over the No. 233.

steam pipes was an approved and usual one Appeal from the District Court of the on vessels of this type and such as was pracUnited States for the Eastern District of tical for use. decree of dismissal was enNew York.

tered accordingly, and the libelant has apReuben Dorfman, of New York City, for pealed. appellant.

The questions involved on the appeal are Harry Sena, of New York City (Samuel simple questions of fact, and the findings of Rose, of New York City, of counsel), for ap

the court below, based on testimony taken in pellee.

open court, are so amply supported by the

testimony that further discussion would seem Before ROGERS, HOUGH, and MAN

uncalled for. The light at the place of work TON, Circuit Judges.

would seem sufficient for the purpose, but, in PER CURIAM. Order affirmed in open any event, as said by the court below, there court.

was no connection whatever between the ab

sence of light and the injury complained of, 2

because the same misstep would have been H. M. SMITH, Appellant, UNITED

taken, whether the light was good or bad. STATES and Portland Stevedoring Company, a Corporation, Appellees.

The guard over the steam pipes serves two

purposes: One to protect the pipes from (Circuit Court of Appeals, Ninth Circuit. February 23, 1926.)

injury by the cargo, and the other to protect No. 4747.

those on deck from coming in contact with

the pipes. Experience has shown that at Appeal from the District Court of the least 50 per cent. of the space above the pipes United States for the District of Oregon;

must be left open; otherwise, high seas dashRobert S. Bean, Judge.

ing against the hatch will raise and destroy Lord & Moulton, of Portland, Or., and the guard. After various experiments with Walter E. Hettman, of San Francisco, Cal., other forms of guard, the kind here in use for appellant.

has been adopted and is in general use on vesGeorge Neuner, U. S. Atty., and Erskine sels of this type. As said by the court beWood, both of Portland, Or., for the United low, the guard is ample for the purposes inStates.

tended, and leaves the working place reasonBefore 'GILBERT, HUNT, and RUD- ably safe, in view of all the circumstances. KIN, Circuit Judges.

The decree of the court below is there

fore affirmed. RUDKIN, Circuit Judge. This. was a libel by a longshoreman against the shipown

3 er and a stevedoring company to recover

George Winship TAYLOR, as Trustee, etc., damages for personal injuries. At the time Plaintiff-Appellee, v. F. C. HICKS, as Alien of receiving the injuries complained of, the Property Custodian, and Another, Defend. libelant was standing on a hatch covering, as

ants-Appellees, and Gerhard & Stey, G. M.

H., Appellant. sisting other longshoremen in dragging a

(Circuit Court of Appeals, Second Circuit. heavy tarpaulin over the hatch. While thus

February 18, 1926.) engaged, the tarpaulin slipped from his hand,

No. 203. he lost his balance and stepped back or down onto the guard or covering of some steam

Appeal from the District Court of the pipes extending along beside the hatch, and United States for the Southern District of his foot passed between the guards or cov

New York. ering, causing injury to his leg.

Paul Schnitzler, of New York City, for Two grounds of negligence were charged appellant. in the libel: First, failure to furnish suffi- Dean Hill Stanley, of Washington, D. C., cient light; and, second, failure to furnish a for appellees. safe place to work, because of the size of the

Before ROGERS, HOUGH, and MANopening in the guard or covering of the TON, Circuit Judges. steam pipes. The court below found that the working place was sufficiently lighted, and PER CURIAM. Appeal dismissed in that in any event the absence of sufficient open court.

47 Sep otiqu.

10 F.(20) 1

with a return made for the purpose of the 2 UNITED STATES, Plaintiff in Error, v. JOHN per cent. tax and with the income subject to B, SEMPLE & CO., by Its Directors, John

the 2 per cent. tax, and that the 'income tax' B. Semple et al., Defendant in Error.

mentioned in such section 29 means the 2 (Circuit Court of Appeals, Third Circuit.

per cent. tax.

After consideration February 27, 1926.)

of the statutes involved, we find ourselves unNo. 3399.

able to agree with the defendant. In Error to the District Court of the Section 29 must be considered in connection United States for the Western District of with and as a part of the whole Revenue Act Pennsylvania; Gibson, Judge.

of 1917, and not merely as an amendment of For opinion below, see 7 F.(20) 1023. section 1211 of the Revenue Act of 1916 See, also, 1 F.(20) 745.

applicable to the 2 per cent. tax above. The John D. Meyer, U. S. Atty., and W. J. excess profits tax was applicable only to inAiken, Asst. U. S. Atty., both of Pittsburgh, come arising subsequent to January 1, 1917, Pa., and A. W. Gregg, Sol. for Internal Rev- and so also was the 4 per cent. tax. Under enue, and J. R. Wheeler, Sp. Atty., Bureau such circumstances, plainly the excess profit of Internal Revenue, both of Washington, tax should be credited only against the 1917 D. C., for the United States.

part of the income of the fiscal year, not Charles A. Woods, of Pittsburgh, Pa., against income not subject to that tax.” and Perry A. Sletteland, of Madison, Wis., Narrowing, as the case does, to following for defendant in error.

one of these alternative computations, nothBefore BUFFINGTON, WOOLLEY,

ing further need be said, save that we are in

accord with the calculation adopted by the and DAVIS, Circuit Judges.

court below, and therefore affirm its judgBUFFINGTON, Circuit Judge. This ment. case involves the construction and application of sections 4 and 29 of the Revenue Act

2 of 1917. By the government's mode of cal

WESTERN UNION TELEGRAPH COMculation a tax of $7,745.90, or 4 per cent. on

PANY, Plaintiff in Error, v. Alma HUN. $193,647.38, was imposed and collected. On TER, a Widow, Defendant in Error. the other hand, the taxpayer contends a tax

(Circuit Court of Appeals. Fifth Circuit. of $4,430.18, or 4 per cent. on $110,754.43,

January 23, 1926.) should have been imposed. To recover this difference and alleged overcharge of $3,315.

No. 4516. 72, the taxpayer brought suit and recovered In Error to the District Court of the judgment in the court below. Thereupon the United States for the Southern District of government sued out this writ.

Florida; Lake Jones, Judge. The two methods of calculation, and For opinion below, see 2 F.(20) 266. therefore the quotations involved in the case,

A. G. Turner and John B. Sutton, both of are in the government's brief thus summariz- Tampa, Fla. (Francis R. Stark, of New York ed: "For the purpose of ascertaining the amount of income subject to the 4 per cent.

City, and Peter 0. Knight, C. Fred Thomp

son, A. G. Turner, and Kelly & Sutton, all tax imposed by section 4 of the Revenue Act of Tampa, Fla., on the brief), for plaintiff of 1917, must the excess profits tax of the

in error. defendant in error corporation be credited

S. S. Sandford, of Tampa, Fla., and Fred to the net income for its full fiscal year be- J. Hampton, of Gainesville, Fla., for defendfore such income is apportioned between the ant in error. parts of the calendar years included within said fiscal year, or is the plaintiff entitled to

Before WALKER, BRYAN, and FOSfirst apportion its net income, and then credit TER, Circuit Judges. its excess profits tax to the amount apportioned to the period of the calendar year PER CURIAM. The plaintiff in error 1917 included within its fiscal year?. complains of instructions given by the court

In its opinion the court said: “The con- to the jury on the question of the measure of troversy centers around section 29, supra. damages. Those instructions were not ex

But defendant (the government) cepted to. What is relied on for a reversal is urges that section 29 is an amendment to the not properly presented for review. Act of September 8, 1916, which deals only The judgment is affirmed.





It Supplements the Decennial Digests, the Key-Number Series and

Prior Reporter Volume Index-Digests




On 21 (U.S.D.C.Mass.) Recovery for death deACCORD AND SATISFACTION. pendent on statute.-Pickles v. F. Leyland & See Compromise and Settlement.

Co., 10 F.(2d) 371. m26(3) (U.S.D.C.Iowa) To show acceptance injury on high seas. -Id.

Massachusetts statute inapplicable, where of substituted security after learning of unau- No jurisdiction for death on land.-Id. thorized shipment of mortgaged cattle to com- On 25 (U.S.D.C.Mass.) Owner of yacht libelmission merchants for sale and account thus ed, having by possessory libel invoked court's working an accord and satisfaction.-Drovers' Cattle Loan & Investment Co. v. Rice, 10 F. tion jurisdiction.-Bush

aid, his successor, intervening, may not ques

The Conejo, 10 (2d) 510.

F.(20) 256.

II. REMEDIES IN PERSONAM AND IN Omw 6 (U.S.C.C.A.Tex.) Suit to recover for telephone service held within equity jurisdiction Jiable in personam under Suits in Admiralty

mm 27 (U.S.D.C.Mass.) United States is not because of complicated nature of accounts. Walker Grain Co. v. Southwestern Telegraph vessel.-Palmer & Parker Co. v. U. S., 10

Act, if there was no liability in rem against & Telephone Co., 10 F.(20) 272.

F.(20) 214.

On28 (U.S.C.C.A.Conn.) Owner, whose pos

session of movable property has been changed See Dismissal and Nonsuit.

by maritime tort, or breach of maritime con

tract, may vindicate title by proceeding in II. NATURE AND FORM,

rem.-The Blairmore I, 10 F.(28) 35. On 27 (1) (U.S.D.C.Ga.) In Georgia, doubt E34 (U.S.D.C.Mass.) Right of action given generally resolved in favor of tort as cause of by federal statute arises at moment of death. action.-Richards v. International Agricultural --Pickles v. F. Leyland & Co., 10 F.(20) 371. Corporation, 10 F.(20) 218.

III. PARTIES, PROCESS, CLAIMS, 27 (6) (U.S.D.C.Ga.) Count against for

STIPULATIONS OR OTHER SECURITY. mer employer, refusing to return account book to plaintiff, held one in tort.-Richards v. In- Om51 (U.S.D.C.Mass.) No survival of deceasternational Agricultural Corporation, 10 F. ed's right, but only of action begun.-Pickles v. (20) 218.

F. Leyland & Co., 10 F.(2d) 371.

m57 (U.S.C.C.A.Ohio) Bond obligating pay. III. JOINDER, SPLITTING, CONSOLIDA- ment of libels arising before certain date held TION, AND SEVERANCE.

to contemplate usual procedure.-Kahn v. Ni. 45(1) (U.S.D.C.Ga.) Cause of action held agara Laundry & Linen Supply Co., 10 F.(22) in tort, and therefore not improperly joined 15. with another for conversion.-Richards v. In- Independent remedies under bond held not to ternational Agricultural Corporation, 10 F. survive sale in equity suit.-Id. (20) 218.



ww60 (U.S.C.C.A.Conn.) Libel must state alOm70 (U.S.C.C.A.Tex.) Amendment of bill to legations of fact relied on in support of suit.declare on written contract held not abandon- The Blairmore I, 10 F.(20) 35. ment of original suit.-Walker Grain Co. v. Libel for possession of ship and cargo, withSouthwestern Telegraph & Telephone Co., 10 out allegation of maritime tort, or breach of F.(20) 272.

maritime contract, is defective.-Id. ADMINISTRATION.

IX. APPEAL. See Executors and Administrators.

Om 105 (U.S.C.C.A.N.Y.) Circuit Court of ApADMIRALTY.

peals is justified in ignoring defense not raised

in answer, nor argued below, nor assigned as See Collision; Salvage; Seamen; Shipping; error.---Pendleton Bros. v. Pearce, 10 F.(20) Towage.


Cm 109 (U.S.C.C.A.N.Y.). Circuit Court of ApCu? (U.S.D.C.Cal.) Questions of partnership peals is justified in ignoring defense not raised in ship held to present no marine issues cogniz- in answer, nor argued below, nor assigned as able by admiralty.-The Red Wing, 10 F.(20) error.-Pendleton Bros. v. Pearce, 10 F.(20) 389.

692. 10 F.(20)-65


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