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10 F.(20) 263 the law, which places limitations upon the tion to which reference has been made. It power and authority of receivers. Appli- was therein, upon ample consideration, ree

. cation to the court itself, if not indulged, ognized that this rate inexorably confronted could have had no effect; but, if any relief the distributing companies from March 25, were to be expected, it must have proceeded 1920. In view of this, they agreed to apply from the court, and by application to the at once to their Public Service Commissions court, a procedure which had theretofore for relief. This action on their part was inbeen employed, and with which the distribut- dulged, and may well explain the action of ing companies were thoroughly familiar. the receiver in accepting payments on acThey knew that this rate had been fixed as a count, and in refraining from any prompt or finality, after exhaustive hearings in which drastic method of collection until such time they had participated. They knew, therefore, as the distributing companies, by the raising that, when the receiver furnished gas, he of their rates to consumers, should be asfurnished it necessarily at the rate fixed by sured of more enlarged ability to pay. It the court; that he had no authority to waive was not essential that those rates permitted any of the limitations upon his authority. It by the commissions should have been retrois true that he might have shut off the gas, if spective to cover the period to March 25, permitted by the court so to do. He did not 1920. The stipulation, upon forecasting the apply in this case for such permission, but, application to the commissions, recognizes in as has been shown, but two months before terms that the distributing companies would the hearing which resulted in the 35-cent rate, be required to pay the rate fixed from and the court had declined to grant such permis- after the 25th day of March, 1920. It does sion under similar conditions, and the receiv- not appear that a Public Service Commiser was not bound to make further application sion undertakes to prescribe what rates disin view of this circumstance.

tributing companies may pay for their supWe do not think such a drastic measure ply. It seeks to regulate the rates charged should have been required, in view of the by them to their consumers. nature of the service rendered; but if, as This conclusion does not involve any urged by the distributing companies, and change of attitude or theory by plaintiff in suggested by the trial court, such action could error upon the pleadings. The suits were in any view be expected from the receiver, it upon implied contract, and the theory is was equally incumbent upon the distributing that the gas was furnished and accepted uncompanies, with means equally available, and der conditions known to exist which raised with still greater force, because they were such an implication. The, situation presented accepting a commodity tendered at a price was tantamount to that of a legal obligation of which they were cognizant, and from a paramount to the will of the distributing receiver without power to depart therefrom. companies. With full knowledge they acUnder such circumstances the letter to the cepted gas from an officer of court, who was receiver, upon which reliance is placed, was charging a rate from which he had no power brutum fulmen, a mere vain and empty ges- to depart. Acceptance under such circumture. The court in charge of the receivership stances implies the promise to pay at that had power to determine the price at which rate. The pleading aptly covers a contract it would sell its product. The receiver ten- implied in law. There has been no departure. dered the gas at a fixed rate, which he had no It follows that the defendants should be held power to modify; this the distributing com- to pay the difference between the price of panies understood. In homely phrase, they the gas furnished at the 35-centrate could “take it or let it alone.” If they ac- and the lesser amount paid therefor, with incepted the gas and its beneficial use, they did terest thereon from the dates when the payso with the implied promise raised by law ments were due; also interest upon the sums to pay the only rate which they knew was of $22,111.88 and $4,396.84, allowed by the or could be charged. Therefore, while the trial court, but not incorporated in the judglaw, as declared in Municipal Waterworks ment; costs should be awarded in favor of Co. J. City of Ft., Smith, supra, is sound plaintiff. where applicable, and generally between pri- The cases are reversed and remanded for vate parties, it has no application here. further proceedings in accordance with the

This conclusion is fortified by the stipula- views herein expressed.



that these receipts were issued to the H. L. DISTILLING CO.

Griesedeck Distilling Company, and pur(Circuit Court of Appeals, Sixth Circuit. chased from that company by Nathan for January 7, 1926.)

the sum of $2,877.04 in cash, and the furNo. 4444.

ther agreement on the part of Nathan that

he would assume and pay the accrued stor1. Courts Omw 328 (6)—Jurisdiction of federal court determined by amount claimed in peti. The total sum of $3,510.92 sought to be re

age and tax charges, amounting to $600.50. tion.

Jurisdiction of a federal court is determined covered as damages in this action include the by amount claimed in petition, except where sum of $2,877.04 cash paid by the plaintiff it appears from petition that a part of claim is to the H. L. Griesedeck Distilling Company, fictitious and inserted solely to invoke jurisdic- $33.80 expenses of a trip by plaintiff from tion of court.

St. Louis, Mo., to Owensboro, Ky., prepara2. Courts @mw328(9)-claimed attorney's fee tory to instituting this suit, and $600 attor

considered in determining whether amount in-
volved sufficient to sustain original jurisdic. ney fee.
tion of federal court.

To this petition the defendant answered, Claim for attorney's fee, under Ky. St. § denying all allegations of fraud, and specif4775, in action for damages for alleged fraudu- ically denying that the matter in controversy lent issuance of warehouse receipts, in violation of section 4771, may be considered in de exceeds, exclusive of interest and cost, the termining whether amount involved is sufficient

sum or value of $3,000, and by an amended to sustain original jurisdiction of federal court; answer alleged that the plaintiff in no event such claim not being fictitious, or made in bad was entitled to recover expenses or attorney faith.

fees, and that these items could not be In Error to the District Court of the considered by the court as any part of the

To this amended United States for the Western District of amount in controversy. Kentucky; Charles I. Dawson, Judge.

answer the plaintiff filed a general demurrer,

which demurrer was overruled by the court, Action by Emil Nathan against the Rock and the action dismissed, for the reason that Springs Distilling Company. Judgment of

on the face of the petition this cause does not dismissal, and plaintiff brings error. Re

involve a dispute or controversy exceeding versed and remanded.

the sum or value of $3,000. The plaintiff in Thomas E. Sandidge, of Owensboro, Ky. error insists that the trial court erred to its (W. P. Sandidge, of Owensboro, Ky., and prejudice in overruling his demurrer to the Henry H. Furth, of St. Louis, Mo., on the amended answer, and in entering a decree brief), for plaintiff in error.

dismissing the petition and for costs in Louis I. Igleheart, of Owensboro, Ky., favor of the defendant. for defendant in error.

[1] The jurisdiction of a federal court is Before DONAHUE, MACK, and MOOR- determined by the amount claimed in the peMAN, Circuit Judges.

tition, and not by the amount that the plain

tiff may ultimately recover. The only exDONAHUE, Circuit Judge. Action was ception to this rule is where it appears from brought in the District Court by Emil Na- the petition that a part of the claim is fictithan, a citizen and resident of Missouri, tious, and inserted in the petition in bad against the Rock Springs Distilling Com- faith and for the sole purpose of invoking pany, a Kentucky corporation, having its the jurisdiction of the court. Such a claim chief office and place of business in Daviess will, of course, be disregarded in determincounty, in the Western district of the state of ing the amount in controversy. Kentucky, to recover damages in the sum of Plaintiff bases his right to recover dam$3,510.92 for the alleged false and fraudu- ages, including his expenses and attorney lent issuance of 10 warehouse receipts in fees, on section 4775 of Carroll's Kentucky violation of section 4771 of Carroll's Ken- Statutes 1922, above cited, which provide tucky Statutes 1922, Session Acts 1891–92- that any warehouseman or person who shall 93, c. 256, p. 1390.

willfully and knowingly violate any of the It is further alleged that each of these provisions of this article shall be guilty of warehouse receipts falsely represented and an offense for which he may be fined or imstated that the defendant had received and prisoned, and that "every person aggrieved stored in its warehouse 5 barrels of whiskey, by the violation of any of the provisions of or a total of 50 barrels containing in the this article shall have and maintain an acaggregate 2,483.36 proof gallons, 103 proof; tion against the person or corporation vi

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10 F.(2d) 269 olating any of the provisions of this article in that respect is not fictitious, and not made to recover all damages, immediate, conse- in bad faith, but, on the contrary, he is fairly quent, legal and extraordinary, which he or entitled to present that question for judicial they may have sustained by reason of such determination, and for that reason the violation as aforesaid, whether such person amount of that claim should be included in may have been convicted or not."

determining the amount in controversy. Plaintiff further relies upon the decision The judgment of the District Court, disof the Kentucky Court of Appeals in Yantis missing for want of jurisdiction, is reversed, v. Burditt, 2 Dana (32 Ky.) 254, construing and cause remanded for further proceedings a like statute, which he claims is not nearly in accordance with this opinion. so comprehensive, in its provision as to the damages that may be recovered, as the one now under consideration, and also upon the BALDWIN LAW PUB. CO. V. MOG. later case of Kentucky Land & Immigration

(Circuit Court of Appeals, Sixth Circuit. Co. v. Crabtree, 118 Ky. 395, 80 S. W. 1161,

January 5, 1926.) 4 Ann. Cas. 1131, which discusses at some length the decision in the Yantis Case, and

No. 4404. distinguishes between the statute under con- 1. Attorney and client w72–Evidence held to sideration in that case and the bond which show counsel authorized to make settlement was the basis of the action in the later case.

on terms named in agreement. The defendant insists that such a construc

Evidence held to show that plaintiff, in copy. tion would be wholly inconsistent with the to enter into agreement of settlement on terms

right infringement suit, authorized its counsel public policy of the state as declared by the and conditions named therein, pursuant to Court of Appeals, and cites a number of which suit was dismissed. cases in support of this contention. It is 2. Dismissal and nonsuit om 81(5)—Possible inalso claimed on behalf of the defendant that, validity of settlement agreement, pursuant to even if plaintiff is entitled to recover attor

which suit was dismissed, held not ground ney fees, they must be taxed as cost, and not

for vacating order of dismissal. included in the estimate of the amount in in copyright infringement suit, pursuant to

Invalidity, if any, of settlement agreement dispute or controversy.

which suit was dismissed, arising from plainIf the plaintiff is entitled to recover at- tiff's promise therein not to oppose any action torney fees, he must do so under the provi- of prosecuting attorney in reference to dismisssion of the statute authorizing a recovery for ing indictments then pending which grew out

of, and were based on alleged infringement, damages immediate, consequent, legal, and held not ground for vacating order dismissing extraordinary. If he is not entitled to re- bill; court being entitled to presume that concover attorney fees as part of his damages, tract of settlement was lawful. then he is clearly not entitled to recover such 3. Dismissal and nonsuit 81(5)-Decree fees as costs. It was held by the Supreme dismissing action not vacated because of subCourt in Brown v. Webster, 156 U. S. 328, 15 sequent dispute between litigant and counsel S. Ct. 377, 39 L. Ed. 440, that interest on the

or invalidity of settlement agreement. principal sum might be included for the pur- of parties, on representations that cause was

Decree dismissing action entered at request pose of jurisdiction in an action for damages settled, will not be vacated merely because a for breach of warranty of title, where under dispute has arisen between one of litigants the law of the state in which the action arose and his counsel as to fees, or because settlethe measure of damages was the price paid,

ment agreement contains terms in violation of

law. with interest. If, under this statute of Kentucky, attorney fees may be included in the Appeal from the District Court of the damages that plaintiff is entitled to recover, United States for the Eastern Division of then this item becomes an elemental part of the Southern District of Ohio; John E. Sathe total damages the plaintiff has suffered, ter, Judge. and must be included, the same as all other Copyright infringement suit by the Balditems of damages in determining the jurisdic- win Law Publishing Company against Karl tional amount. Springstead v. Crawfords- Mog, wherein the bill of complaint was disville State Bank, 231 U. S. 541, 542, 34 S. missed and temporary injunction dissolved, Ct. 195, 58 L. Ed. 354, and cases there cited. on representation of counsel for both parties * [2] Without intending in any way to ex

that settlement had been effected. From a press an opinion upon the plaintiff's right to decree overruling a motion and supplemenrecover attorney fees in this action, we are' tal motion to vacate and set aside the disnevertheless of the opinion that his claim missal, plaintiff appeals. Affirmed.

On March 6, 1923, an action was com- Forrest F. Smith, of Columbus, Ohio, in menced in the District Court by the Baldwin

pro. per. Law Publishing Company, an Ohio corpora

Before DONAHUE, MOORMAN, and tion, against Karl Mog, charging infringe

KNAPPEN, Circuit Judges. ment of a copyright, owned by the plaintiff, of a publication known as the "General Code

PER CURIAM. [1] While there is & of the State of Ohio," and generally known direct conflict in the testimony material to and referred to as "Throckmorton's Code,” the issues presented by these motions, neverand praying for an injunction and account- theless it appears by a clear preponderance ing

of the evidence that the plaintiff company On October 25, 1923, an order was en- authorized its counsel to enter into the agreetered by the court dismissing the bill of com

ment of settlement upon the terms and conplaint, dissolving the temporary injunction, ditions named therein, and that substantially and releasing a writ of seizure for certain the only complaint made by the plaintiff hooks described in the complaint, upon the through its president, Baldwin, after the derepresentation of counsel for the respective parties that the matters in dispute had been charged by its counsel, which fee plaintiff

cree was entered, was in reference to the fee settled to their accord and satisfaction. On

considered excessive. This conclusion natuNovember 16, 1923, the Baldwin Law Pub- rally follows from the testimony of the witlishing Company, through its president, W.

nesses Atkinson and Hogan, to the effect E. Baldwin, filed a motion to vacate and set that a few days after plaintiff had been notiaside the alleged settlement, and to vacate fied of the settlement, and advised that the the order and judgment of the court based fees of its counsel would be $1,500, Baldwin, thereon, for the reason that plaintiff had not

the president of the company, called at the consented to any such settlement, and that counsel representing the plaintiff was wholly absence of Mr. Smith, and, without making

office of Atkinson, Smith & Hogan, in the without authority to make the same. Upon the hearing of this motion, it appeared from any other objection to the settlement, said to the testimony of Forrest F. Smith that, as a

Mr. Hogan, in the presence of Mr. Atkincondition of the settlement, it was agreed

son: “Why, Mr. Hogan, do you think I and promised on the part of the plaintiff would have accepted this settlement had I that it would not oppose such action as the known your fees were to be that size ?prosecuting attorney of Hamilton county and This testimony is not denied by the plaintiff, the district attorney of the federal court and was evidently believed by the District

Court. might see fit to take in reference to dismissing indictments then pending in the Hamil. [2, 3] It is further contended on the part of ton county common pleas court and the fed- the appellant that this agreement was wholeral court of the Southern district of Ohio, ly void, in that it contained a provision for Western division, which indictments grew compounding, abandoning, or agreement to out of and were based upon the alleged in- abandon, a criminal prosecution already comfringement of plaintiff's copyright. There- menced. However that may be, it cannot upon a supplemental motion was filed by affect the disposition of these motions. Litiplaintiff, in which it is alleged that plaintiff gants may not trifle with courts. When the had no knowledge, prior to the time this tes- court is informed that the matter in controtimony was given, that the settlement con- versy has been settled and adjusted by the tained any such provision or agreement, and parties themselves, and the terms and conurged this as an additional ground for vacat- ditions are not disclosed, the court has a ing and setting aside the judgment.

right to presume that such contract of settleThe District Court, upon consideration of ment is lawful. all the evidence, overruled the motion and A decree dismissing the action, made and supplemental motion to vacate, and set aside entered at the request, and with the consent, the former judgment and decree, and dis- of the parties, and upon the representations missed the same at plaintiff's cost. The that the cause is settled and adjusted, will plaintiff appeals.

not be vacated merely because a dispute has

later arisen between one of the litigants and Smith W. Bennett, of Columbus, Ohio, his counsel as to fees; nor will the decree be for appellant.

vacated because the contract of settlement Stuart R. Bolin, of Columbus, Ohio, for contains terms and provisions in violation of appellee.

law. In such event, the court will leave the


10 F.(20) 271 parties where they have placed themselves by DONAHUE, Circuit Judge. The plaintheir own illegal contract.

tiff in error was jointly indicted with Charles For the reasons stated, and without ex. Phillips, Holmes Morton, and William Sagapressing or intending to express any opinion more for conspiracy to violate the National as to the legality or illegality of this con- Prohibition Act (Comp. St. Ann. Supp. tract of settlement, the decree of the District 1923, § 1013814 et seq.). Morton and SagaCourt is affirmed.

more entered pleas of guilty. Marin stood mute, and the court directed a plea of not guilty to be entered for him. It does not appear from the record that Phillips was ar

rested or tried upon this indictment. The MARIN v. UNITED STATES.

trial of Marin resulted in a verdict of guil(Circuit Court of Appeals, Sixth Circuit. ty, upon which verdict the court imposed January 6, 1926.)

sentence. No. 4451.

There are a number of assignments of

error, but counsel for plaintiff in error sum1. Criminal law Om742(1)--Credibility of wit. nesses is question for jury.

marizes these as follows: First, that the trial Credibility of witnesses is question for jury. court erred in overruling the defendant's mo

tion for directed verdict at the close of all 2. Witnesses em 277 (4)-Cross-examination of defendant with reference to prior indictment, the evidence; second, error in the admission concerning which he testified on direct ex- and rejection of evidence; third, error in the amination, held proper.

charge; fourth, error in the conduct of the Cross-examination of defendant with refer- trial. ence to prior indictment, concerning which he [1] There was positive, direct, and substantestified on direct examination, held proper.

tial evidence offered by the government tend3. Criminal law 441-Refusal to require ing to prove a conspiracy between Marin government to produce affidavit and search and his codefendants to procure, sell, and warrant on file in office of issuing justice held not error.

transport intoxicating liquors, in violation of Refusal to require government to produce the provisions of the National Prohibition affidavit and search warrant, on file in office Act. The question of the credibility of the of issuing justice and equally available to de- witnesses offered by the government to prove fendant, held not error.

this fact was a question for the jury under 4. Criminal law Oma 1036(2), 1054(!)-Court's proper instructions from the court. The cross-examination of defendant, to which no

motion to direct a verdict was properly overobjection or exception was taken, held not prejudicial error.

ruled. Court's cross-examination of defendant, to [2] It is further claimed that the court erred which no objection or exception was taken, held in cross-examining, and in permitting the not prejudicial error.

defendant to be cross-examined, in reference 5. Criminal law Om 1056(1)-Alleged error in to a former indictment against him for a

instructions not considered, without excep. like offense. The defendant having testified tion, unless miscarriage of justice appears.

upon direct examination that he had formerAlleged error in instructions will not be ly been indicted for a like offense and that considered, in absence of exception thereto, the indictment was dismissed, it was entirely unless miscarriage of justice appears.

proper to permit him to be cross-examined In Error to the District Court of the upon the same subject-matter, if for no other United States for the Northern Division of reason than to determine whether he had the Eastern District of Michigan; Arthur J. disclosed upon direct examination all the Tuttle, Judge.

facts and circumstances in reference to the Morris Marin was convicted of conspira- former indictment, and whether that indict

It also cy to violate the National Prohibition Act, ment had in fact been dismissed. and he brings error. Affirmed.

follows that, the jury having been advised by

the testimony of the defendant upon direct H. A. Behrendt, of Detroit, Mich. (Mil- examination that he had been formerly inton A. Behrendt, of Detroit, Mich., on


dicted, his cross-examination in reference brief), for plaintiff in error.

thereto could not be prejudicial. Delos G. Smith, U. S. Atty., and James [3] It is also claimed that error intervened J. Spillane, Asst. U. S. Atty., both of De.

to the prejudice of the plaintiff in error in troit, Mich.

not requiring the government to produce the Before DONAHUE, MACK, and affidavit and search warrant issued by a jusMOORMAN, Circuit Judges.

tice of Flint, Mich. This request came dur

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