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10 F.(20) 286 Daniel T. Hagan, of Providence, R. I. foregoing petition for return of property (Peter W. McKiernan, of Providence, R. 1., unlawfully seized, that he is familiar with the on the brief), for plaintiff in error.

contents of said petition for return of propHarold A. Andrews, of Providence, R. I., erty unlawfully seized, and that the matters (Norman S. Case, of Providence, R. I., on and things therein contained are true to the the brief), for the United States.

best of his knowledge, information, and beBefore BINGHAM, JOHNSON, and lief.

Abraham Horowitz.

“Subscribed and sworn to before me this ANDERSON, Circuit Judges.

3d day of June, A. D. 1925. BINGHAM, Circuit Judge. This is a “Peter W. McKiernan, Notary Public." writ of error from a judgment of conviction

This petition was heard by the court and in the federal District Court for Rhode

denied. Island on an indictment containing two

Among the errors assigned, the defendcounts. The counts are the same except as

ant relies upon the sixth, seventh, eighth, to the description of the intoxicating liquors. ninth, and twelfth. In these he complains In each, after setting out the court, district, that the court erred (1) “in refusing to grant and term in which the indictment was found,

a continuance to the defendant so that Ezra it is charged that the defendant did “hereto- Kent, former prohibition agent, might be fore, upon a day certain, to wit, the 26th day produced to testify in said case”; (2) “in of March, A. D. 1924, at said city of Provi- denying the defendant's motion, made when dence, in said district, and within the juris- the government rested, to strike out all evidiction of said court, unlawfully possess cer- dence concerning the search of said premises tain intoxicating liquor, to wit [describing and the seizures there made”; (3) "in rethe liquor and containers), each containing fusing to direct a verdict of ‘not guilty' at one-half of 1 per cent., or more, of alcohol by the close of all the evidence as to the first volume, otherwise than as authorized in the count"; (4) “in refusing to direct a verdict National Prohibition Act, that is to say, for of 'not guilty at the close of all the evidence beverage purposes, against the peace and

as to the second count"; and (5) "in denydignity of the United States and contrary to ing the defendant's motion in arrest of judgthe form of the statute of the same in such ment

as to the first count." case made and provided."

[1] The first assignment relied upon is withThe jury returned a verdict of guilty on

out merit. It was within the discretion of the each count, and the defendant was sentenced

court to deny the motion for continuance. to pay a fine of $250 on each.

At the time it was made, the government had When the case was called for trial on June completed its evidence and rested, and the 3, 1925, the defendant presented to the court matter with relation to which the defendant a petition for the suppression of evidence

proposed to call Mr. Kent, namely, the moand return of liquors said to have been un

tion for a return of the liquor and a suppreslawfully seized at his home, reading as fol- sion of the evidence procured by the search lows: “And now comes Abraham Horowitz of court before the case was opened to the jury.

and seizure, had been heard and denied by the the city and county of Providence and state The defendant therefore was not taken by of Rhode Island, the defendant in the above- surprise because of the introduction of the entitled case, and says:

evidence obtained through the seizure, and “(1) That on, to wit, the 26th day of there plainly was no abuse of discretion. March, A. D. 1924, he resided in and occu

Furthermore, the defendant made no offer of pied a house at 32 Bogman street in said city proof as to what Mr. Kent would testify to, of Providence. «(2) That on said 26th day of March, A; cate that he was in any wise prejudiced by

and because of this there is nothing to indiD. 1924, while he was absent from his said the denial of the motion. home certain officers of the government, [2] The second assignment relied upon-the namely Earl R. Whittaker, John W. Mor- denial of the defendant's motion "to strike rill, and other agents of the government, un

out all evidence concerning the search of said lawfully and without authority, entered his

premises and the seizures there made”-is home and seized certain personal property.

broader than the motion actually made. The “State of Rhode Island, Providence Sc.: motion was for “the exclusion of all testi

“Abraham Horowitz, first being duly mony or striking from the record any testisworn, on oath deposes and says that he is mony taken under the search warrant issued the person whose name is subscribed to the to search the house." There were two search warrants. One was to search the dwelling were done up in a white wrapping paper; house where the defendant lived. The liquors that in the bedroom off the kitchen, where the seized under this warrant are those com- men were playing cards, a trapdoor was displained of in the first count. There was covered under a trunk leading down into a also a garage on the premises located some brick vault in the cellar, the only access to 30 feet from the house, and it was in this the vault being through the trapdoor; that garage that the liquors complained of in the in the vault was found nearly 700 cases of second count were seized under the other liquor, the greater portion of which were filled warrant. It thus appears that this assign- and contained 12 bottles to a case; that there ment of error is limited to a consideration of were, however, a number of cases that had the competency of the evidence introduced been opened and bottles removed; that the that was procured under the warrant to liquors consisted of champagne, some Gold search the house.

Stripe and Old King Cole whisky and gin; It does not appear from the record upon that there was a window in the bedroom near what ground the defendant claimed that this the trapdoor; that directly beneath this winevidence was incompetent. If it was that the dow was a celler window leading to the vault; warrant was improperly issued or executed, that the cellar window was provided with an he was foreclosed from raising that question iron door which barred access to the vault; before the jury, as it had been previously that the window sill in the bedroom, which heard and passed upon by the court on the

was directly in front of the trapdoor in the defendant's petition for a suppression of the floor of the bedroom, was well worn down, evidence, as to which ruling no exception was

and showed signs that something had been taken and no assignment of error prosecuted. slid over it; that the premises were owned The competency of the evidence, so far at by the defendant's wife, and the defendant least as the question depended upon the legal- and his family had lived there some 8 or 9 ity of the warrant and seizure under it, was res judicata. Had the defendant desired to years; that, the defendant not being at home

on the day of the search, a copy of the search save the question, he should have excepted to warrant and receipt for the goods seized was the denial of his motion to suppress the evi- given to Polofsky, the wife of the defendant dence and assign it as error. Steele v. United declining to receive them; that on the folStates, No. 2, 267 U. S. 505, 507, 45 S. Ct. lowing day Polofsky gave them to the de417, 69 L. Ed. 761. [3] The third and fourth assignments relate that in the same yard, at a distance of about

fendant, who received them without protest; to the refusal of the court to direct verdicts of 30 feet from the window opening into the not guilty as to the first and second counts, bedroom by the trap door, was a garage havThe only evidence in the case is that presented

ing four or five separate compartments; by the government. It tended to prove that that, while searching the dwelling the offion the 26th day of March, 1924, certain pro

cers looked through a window or windows of hibition officers, armed with a search warrant, went to 32 Bogman street in Providence,

the garage and discovered cases of liquor in which was a dwelling house consisting of the two nearest compartments; that they three tenements, the tenement on the lower

thereupon procured the second warrant to floor being occupied by the defendant and

search the garage, which they entered and his family; that they entered the lower searched, seizing a quantity of liquors comtenement and proceeded to search it; that, prising champagne, gin, and alcohol, the at the time they entered, the defendant and brands being similar and put up in the same his wife were not present; that some men

way as the cases of liquor found in the house; were whitewashing the kitchen; that a Mr. that some of these liquors in the garage were Polofsky, a brother-in-law of the defendant, found upon a truck; that a copy of this was there; that off the kitchen was a bed- search warrant and a receipt for the liquors room where two men were found playing seized under it were likewise delivered to cards, and a bottle of whisky, partly con- Polofsky, and by him delivered to the desumed, was found upon a table or dresser; fendant, at the same time and under the same that in the cellar beneath the kitchen was circumstances as attended the delivery of the found some 19 or 20 cases of alcohol; that in previous warrant. There was also abundant a pantry off the kitchen were some 10 or 12 evidence that the liquors contained one-half packages of liquor, containing 6 bottles to of 1 per cent. or more of alcohol by volume, a package, in some of which was champagne and that they were fit for beverage purposes. and in others whisky, and also some packages We think that, on the foregoing evidence, with a single bottle; that these packages the jury might reasonably find that the liq

war

10 F.(20) 289 uors seized in the dwelling, where the de- 2. Evidence Om 48-Common knowledge that, in fendant and his wife lived, were possessed

war emergency, Navy Compensation Board

could not personally approve prices of maby him unlawfully and for commercial pur

terials purchased under thousands of governposes and not for the purpose of consump- ment contracts. tion by himself, his family and bona fide It is a matter of common knowledge that, in guests, irrespective of the time when he pro- emergency, Navy Compensation Board cured them; and, furthermore, that, without could not personally approve prices at which

materials should be purchased under thousands getting into the realm of conjecture, they of contracts made by the United States. could find that the liquors were of recent acquisition, and that their possession on that 3. United States Ow74/2, New, vol. 12A Key

No. Series-To sustain defense that award ground was unlawful.

by Compensation Board was obtained by [4] As to the second count, the defendant's fraudulent representations, it must be shown contention is that there was no evidence that

that representation was relied on. he owned or possessed the liquors in the In suit to recover for oil-burning equipgarage or from which it could be found that ment, furnished by subcontractor to contractor

constructing boats for United States navy on he possessed them. But we think the evi

a cost plus profit basis, where defendant condence, showing that the liquors in the garage tractor contended that subcontractors obtained were of the same brands as those in the house, approval of prices by Compensation Board by

fraudulent representation, held jury were propand were packed in cases like those in the

erly instructed that, to sustain such defense, house, and that the defendant received the it must be shown representation was relied on. search warrants and receipts without protesting that the liquors were not his, either at the 4. United States €.741/2, New, vol. 12A Key

No. Series—Whether subcontractor had made time he received them, or at any time there- fraudulent representation to secure approval after, taken in connection with other evi- of price, and whether it was relied on, ques. dence in the case, was sufficient to warrant

tions for jury. the conclusion that he possessed them, and

In action to recover for oil-burning equip

ment brought by subcontractor against conmade out a prima facie case of unlawful pos

tractor constructing boats for Navy Department session.

on cost plus profit basis, questions whether [5] After the jury had returned verdicts of subcontractor had made a fraudulent repreguilty, the defendant filed a motion in ar

sentation in securing approval of prices by rest of judgment as to the first count, and Navy Compensation Board, and whether such

representation was relied on, were properly subcontends that it is bad for indefiniteness; mitted to jury. that it does not state with sufficient clarity 5. United States 741/2, New, vol. 12A Key. the crime he was called upon to defend. Had

No. Series-Instruction that subcontractor's he seen fit, he could, under section 32, tit. 2, contract would be null and void, in view of of the Prohibition Act (Comp. St. Ann.

statutes, if price was unfair, unreasonable,

and exorbitant, and in excess of reasonable Supp. 1923, § 101381/2s) have called upon

profit, properly refused. the government to furnish him with a bill of

In action to recover for oil-burning equipparticulars. This he did not do, but went ment, brought by subcontractor against conto trial without objection. Under the cir- tractor constructing boats for navy on cost cumstances we think the defects in the alle plus profit basis, instruction that subcontractor's gations, if any, were cured by the verdict.

contract would be null and void, under Naval

Appropriation Act March 4, 1917, and Urgent Wilson v. United States (C. C. A.) 275 F. Deficiency Act Oct. 6, 1917, if subcontractor's 307.

price was unfair, unreasonable, exorbitant, and The judgment of the District Court is in excess of a reasonable profit, held properly affirmed.

refused, inasmuch as those statutes do not apply to subcontracts made by party contracting with the United States.

6. United States Own 74/2, New, vol. 12A KeyBETHLEHEM SHIPBUILDING CORPORA- No. Series-Instruction as to compensation TION, Limited, v. WEST & DODGE CO. Board's ascertainment of cost, as condition

precedent to subcontractor's right to recover (Circuit Court of Appeals, First Circuit.

against contractor, held properly refused. January 26, 1926.)

In action to recover for oil-burning equipNo. 1851.

ment, brought by subcontractor against con

tractor constructing boats for navy under cost 1. Trial em 139(1)-Directed verdict for de plus profit agreement, held that, while under

ant properly refused, if any evidence conditions of contract between contracto and would sustain verdict for plaintiff.

United States subcontracts were to be submitA directed verdict is properly refused de- ted for approval of proper board of Navy Defendant if any evidence would sustain a verdict partment, an instruction that ascertainment of for plaintiff.

cost by Navy Compensation Board or Cost 10 F.(20)-19

Inspection Board was a condition precedent to hereinafter called Bethlehem, having entered plaintiff's right to recover was properly refused, in view of evidence of waiver of this re

into a written contract with the United States quirement.

to construct for it torpedo boat destroyers 7. United States Cm741/2, New, vol. 12A Key.

on a cost plus profit basis, on December 11, No. Series-Estimate of cost made by subcon. 1917, gave to the West & Dodge Company, tractor's assistant superintendent admissible hereinafter called West & Dodge, purchasing to show whether representation by president orders for oil burners, oil burner air cones, in letter as to cost was fraudulent,

In action to recover for oil-burning equip- and oil burner holders for 40 boats, at a price ment, brought by subcontractor against con

of $3,300 for each boat, in accordance with tractor constructing boats for Navy Depart- the latter's proposal, subject to the approval ment on cost plus profit basis, where defendant of the Compensation Board created by the alleged that subcontractor had obtained approval of price by Compensation Board by

Navy Department. fraudulent representation, held that estimate West & Dodge delivered all of the equipof cost by subcontractor's assistant superin- ment called for, and has received pay for tendent was admissible in evidence to show that furnished for 35 boats. whether a representation as to cost, made by president in letter, was fraudulent.

In this action of contract it seeks to re

cover the amount due for the equipment fur8. Trial om 133(6)-Counsel's comment as to

government's failure to produce alleged audit nished for the remaining five boats at the of cost, if improper, not harmful, in view of rate of $3,223 per boat, which it claims was instruction to disregard it.

the amount approved by the Compensation In an action to recover for oil-burning Board, and which Bethlehem had notified it equipment, furnished by subcontractor to contractor constructing boats for Navy Depart. that it would pay. ment, where defendant alleged subcontractor The case has been here twice before the had procured approval of price award by false first time upon a demurrer to the defendant's representation, held comment of counsel as to government's failure to introduce audit relative answer, and the case was remanded to the to cost, if improper, was not harmful, in view District Court in order that the defendant of instruction to jury to disregard it.

might, if it saw fit, amend its answer so as 9. Trial w 132-Improper statements by to include as a defense that the approval of

plaintiff's counsel, as to defendant's hoping to the Compensation Board was obtained by a get jury to believe plaintiff had got something fraudulent representation. he was not entitled to, harmless, in view of

The answer was so amended, and the case prompt retraction. In action to recover for oil-burning equip

came on for trial before a jury in the District ment, furnished by plaintiff subcontractor, im- Court, where a verdict was directed for the proper statement by plaintiff's counsel, as to plaintiff, because, in the opinion of the predefendant's hoping to get jury to believe that plaintiff had got something it was not entitled siding judge, there was no evidence that the to, harmless, in view of prompt retraction. Compensation Board had knowledge of the In Error to the District Court of the been made. This court held, however, that

fraudulent representation alleged to have United States for the District of Massachu- there was evidence which would warrant a setts; James M. Morton, Judge.

jury in finding that the approval of the ComAction by the West & Dodge Company pensation Board was obtained by a frauduagainst the Bethlehem Shipbuilding Corpo- lent representation, and reversed the judgration, Limited. Judgment for plaintiff, and ment of the court below. A jury has now defendant brings error. Affirmed.

returned a verdict for the plaintiff, and the George R. Farnum, sst. U. S. Atty., of case has been brought here upon a writ of Boston, Mass., and Pickens Neagle, of Wash- error by the defendant. ington, D. C. (Harold P. Williams, U. S. When the case was first before this court, Atty., of Boston, Mass., on the brief), for it was held that, although the contract beplaintiff in error.

tween the United States government and Michael J. Mulkern, of Boston, Mass. the Bethlehem was one on a cost plus profit (Ralph H. Willard and Ham, Willard & basis, this provision did not apply to subTaylor, all of Boston, Mass., on the brief), contracts made by it, and therefore not to for defendant in error.

the contract with West & Dodge. Before BINGHAM, JOHNSON, and

The issue of whether there was a fraudANDERSON, Circuit Judges.

ulent representation made by West & Dodge,

which induced the Compensation Board to JOHNSON, Circuit Judge. The Bethle- give its approval to the contract price of hem Shipbuilding Corporation, Limited, $3,223 per boat, has now been passed upon

.

10 F.(20) 289 by a jury, and a verdict returned for the ernment's wishes were complied with, price plaintiff.

approval would not be forthcoming, and The errors assigned are: The denial of therefore it would be impossible to pass the the defendant's motion for a directed ver- invoices rendered for payment until such apdict; the refusal to give certain instruc- proval, and that it therefore would be much tions; the admission of evidence and state- to the advantage of West & Dodge to exments made by counsel for the plaintiff in pedite the submission of a cost statement in addressing the jury in his closing argument. every way possible. After the receipt of this (1) If there was any evidence which would letter, the president of West & Dodge had sustain a verdict for the plaintiff, the re- an interview with H. P. Readmon, assistant quest for a directed verdict was properly to the purchasing agent of Bethlehem, in refused.

which he testified that he told Mr. Readmon The evidence discloses that, while, under that it was impossible for him to give the the terms of the contract between Bethlehem costs, due to the tremendous volume of busiand the government, the price to be paid by it ness of his company and its limited bookkeepunder its contract with West & Dodge for the ing department; that Readmon said that equipment which the latter was to furnish there was another concern that was building was to be approved by the Compensation the same kind of a burner; that its accounts Board, and West & Dodge were requested had been audited and the Compensation by Bethlehem to submit a statement of the Board was satisfied that $3,223 was a good cost of the equipment which it had con- fair price, and had approved it; and that tracted to furnish, that it had neglected to do he then told Mr. Readmon that he would be so, because it had been unable to ascertain willing to take the contract for the whole the cost with any degree of accuracy.

business for $3,223 per boat. The president of West & Dodge testified

Bethlehem secured the approval of a tenthat his company was a small one, employ- tative price of $3,223 per boat in connection ing about 25 men, and that, because of this with material which had already been shipcontract, it was necessary to enlarge the ped and invoiced by West & Dodge, and so number of its employees to about 150, to informed the latter, but still called for a purchase additional tools and machinery and statement showing the cost of equipment of acquire another plant; that it was also en- at least one boat. In reply to this, West & gaged in the performance of other work at Dodge wrote Bethlehem, under date of April the time work was being pushed upon the 2, 1918, in part, as follows: equipment for these destroyers; that it was "In connection with furnishing the cost difficult to separate the cost which should be statements which has been the subject of allocated to the equipment for the burners; previous correspondence between us, we beg that the work was being pushed day and to advise that we have still been unable to night, Sundays included, and the furnishing get these in shape, owing to a change in our of any detailed statement of costs was im- bookkeeping department and pressure of possible. Upon repeated requests from Beth- business; but we would be willing, as we have lehem to furnish such a statement, West & already explained to Mr. Readmon, taking Dodge, under date of March 4, 1918, stated into consideration the number of boats we in a letter to Bethlehem :

are now working on, to suggest that we make "The cost of these oil burners, so far as a flat rate of $3,223 per boat on all of the we have been able to judge, is about 85 per orders above mentioned, provided the necescent. of the price we quoted you."

sary approval could be abtained at once, and In reply to this statement, West & Dodge we could have the assurance that our bills for received from Bethlehem, March 6, 1918, a this amount would be approved and remitted letter in which Bethlehem stated :

for promptly, so that we would not be delay"As you have been informed in previous ed in going ahead. Will you accordingly correspondence, before the prices appearing submit this proposition to the necessary auin these orders will be approved by the Com- thorities and advise us at once." pensation Board it will be necessary for you Upon the orders covered by the contract to furnish a detailed cost statement justifying in suit, Bethlehem obtained, on April 13, the prices quoted. If fabrication has not 1918, approval of the cost inspector acting proceeded sufficiently far to permit of such a under the direction of the Compensation statement, a detailed estimate of costs should Board, as follows: be submitted for the board's consideration”- “It being understood that the subcontracand stating in substance that, until the gov- tor is willing to accept a price of $3,223 per

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