In the recent case of Morse v. United States, 267 U. S. 80, 83, 45 S. Ct. 209, 210 (69 L. Ed. 522) Mr. Justice Sutherland, writing for the court and referring to removal proceedings, says:

"The inquiry in such proceedings is whether there is probable cause to believe the prisoner guilty and justify his removal for trial."

[6] And it has been very properly said that a federal judge, to whom an application for a warrant of removal is made under section 1014, "misconceives his duty, and fails to protect the liberty of the citizen," if he consents to the removal to another district solely on the strength of the indictment if it appears that the offense was not committed in the district in which the indictment was found. See Stewart v. United States, 119 F. 89, 93, 55 C. C. A. 641; In re Buell, Fed. Cas. No. 2102; In re Terrell (C. C.) 51 F. 213; United States v. Brawner (D. C.) 7 F. 86; In re Dana (D. C.) 68 F. 886.

In Ireland v. Henkle, 179 F. 993, Judge Lacombe, sitting in the Circuit Court for the Southern District of New York in 1910, sustained writs of habeas corpus and ordered petitioners discharged. They had been indicted in the district of Wyoming for conspiracy to defraud the United States. Proceedings were instituted in New York for their removal to Wyoming. A hearing was had before a United States commissioner. He held that there was probable cause to believe that the petitioners had committed the crime charged in the indictment and committed them for removal to the district of Wyoming. The matter then came before Judge Lacombe upon writs of habeas corpus and certiorari. He sustained the writs and ordered the petitioners discharged, saying:

"If there was any conspiracy in which these petitioners were engaged, that conspiracy was entered into in New York, and they should not be removed to Wyoming upon this record."

[7] It must, however, be admitted that an indictment found in a district to which removal is sought makes a prima facie case for removal. The proposition is indisputable. Bryant v. United States, 167 U. S. 104, 17 S. Ct. 744, 42 L. Ed. 94; Greene v. Henkel, 183 U. S. 249, 22 S. Ct. 218, 46 L. Ed. 177; Hyde v. Shine, 199 U. S. 62, 25 S. Ct. 760, 50 L. Ed. 90; Beavers v. Henkel, 194 U. S. 73, 24 S. Ct. 605, 48 L. Ed. 882; Price v. Henkel, 216 U. S. 488, 491, 30 S. Ct. 257, 54 L. Ed. 581; Haas v. Henkel, 216 U. S. 462,

481, 30 S. Ct. 249, 54 L. Ed. 569, 17 Ann. Cas. 1112; Gayon v. McCarthy, 252 U. S. 171, 173, 40 S. Ct. 244, 64 L. Ed. 513; Fitzgerald v. United States (C. C. A.) 6 F.(2d) 156; Magnus v. Keville (C. C. A.) 6 F.(2d) 157; Hawkins v. Borthwick (C. C. A.) 5 F.(2d) 564.

[8] In removal proceedings the District Court should be satisfied that upon the face of the indictment an offense against the United States is charged, but the defendant may be discharged if it appears that it is essentially and fundamentally defective. Littleton v. United States (C. C. A.) 6 F.(2d) 209, 211; Stewart v. United States, 119 F. 89, 55 C. C. A. 641. But if there is mere doubt as to the sufficiency of the indictment inquiry on habeas corpus is not open. Hogan v. O'Neill, 255 U. S. 52, 41 S. Ct. 222, 65 L. Ed. 497.

[9] In this case the sufficiency of the indictment has not been challenged in these proceedings, and we accept it as making out a prima facie case in favor of the removal of Brody to the Western district of Missouri. It must also be admitted that in a removal proceeding, in which there are disputed questions of fact or disputed matters of law, such controverted matters of law or fact must be left for the determination of the court where the indictment was found, and cannot be decided by the court in which the removal proceeding is heard. Henry v. Henkel, 235 U. S. 219, 229, 35 S. Ct. 54, 59 L. Ed. 203; Louie v. United States, 254 U. S. 548, 41 S. Ct. 188, 65 L. Ed. 399; Rodman v. Pothier, 264 U. S. 399, 403, 44 S. Ct. 360, 68 L. Ed. 759.

It is, however, an entirely different matter where in such a proceeding there are no disputed questions of fact or of law, and it clearly appears that the offense charged in the indictment was not committed in the dis

trict in which the indictment was found.

The undisputed testimony in this case shows that Brody, in New York, was called by Bernstein, in Kansas City, on the telephone, and asked to send him by express 10 ounces of morphine, and that Brody agreed to do it, and that the package was received by Bernstein in Kansas City, and before it was sent Bernstein had telegraphed him $200, which was the price he had agreed to pay.

The undisputed testimony shows that thereafter Bernstein came to New York City and met Brody in his office, and there bought from him 40 ounces of morphine and paid him $22 an ounce; that it was then and there agreed between the two that Brody was

to have the morphine put into a trunk and checked to Bernstein in Kansas City; that he did so, and when the trunk arrived in Kansas City the agents of the United States, in company with the United States attorney at Kansas City, were present when the trunk was opened; and that it contained the morphine ordered to be forwarded.

[10, 11] Both these transactions clearly constituted a sale of the narcotics made in the city of New York. The rule is unquestioned that the delivery of goods to a carrier designated by the purchaser for transportation from the place of the seller to that of the purchaser is sufficient to pass the title in the goods the goods being consigned in the name of the buyer in such a way as to confer on him the right to receive the goods from the carrier without reservation. When Brody shipped the 10 ounces by express from New York to Bernstein in Kansas City, and put the 40 ounces in a trunk and checked it to Kansas City, and the check was delivered to Bernstein and the money paid to Brody, the transaction was completed in New York City between the parties, and there remained nothing more to be done, and in each transaction the title then and there passed from Brody to Bernstein, and there was a complete change of possession. Grove v. Brien, 8 How. 429, 12 L. Ed. 1142; The Mary and Susan, 1 Wheat. 25, 4 L. Ed. 27; Tregelles v. Sewell, 7 Hurl. & N. 574; Browne v. Hare, 4 Hurl. & N. 822; Mitchell v. Baker, 208 Pa. 377, 57 A. 760; Scharff v. Meyer, 133 Mo. 428, 34 S. W. 858, 54 Am. St. Rep. 672; Smith v. Edwards, 29 Hun (N. Y.) 493.

In Hatch v. Oil Co., 100 U. S. 124, 135 (25 L. Ed. 554), the court said:

"Much discussion is certainly unnecessary to show that, where the terms of bargain and sale are in the usual form, an absolute delivery of the article sold vests the title in the purchaser, as the authorities upon the subject to that effect are numerous, unanimous, and decisive."

In the instant case the agreement of the parties was that Brody should make delivery in the one case to the express company and in the other case to the railroad company. This he was to do and did do in New York City, and when he did it he had done all that he was expected to do, and the transaction was completed as between the parties.

In the earlier cases it seems to have been assumed in contracts of sales that all agreements were intended to be cash sales, and that the property did not pass from the seller to the buyer until payment was made. In his work on Sales, Professor Williston

states that "the law is now well settled in accordance with the rule of the Sales Act, both where that act is in force and under the common law, that the property is presumed to pass when the contract is made, if the goods are identified, and nothing remains to be done other than delivery of the goods and payment of the price. A word of warning is necessary, however, in regard to cash sales, so called, where the property does not pass until payment of the price unless the condition is waived." 1 Williston on Sales (2d Ed.) § 264, p. 529.

The Sales Act in section 18 provides that:

"Where there is a contract to sell specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred."

And section 19, prescribing rules for ascertaining intention, declares: "Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer.

"Rule 1. Where there is an unconditional contract to sell specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made and it is immaterial whether the time of payment, or the time of delivery, or both, be postponed." And rule 4 is as follows:

"(1) Where there is a contract to sell unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be expressed or implied, and may be given either before or after the appropriation is made. (2) Where, in pursuance of a contract to sell, the seller delivers the goods to the buyer, or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to or holding for the buyer, he is presumed to have unconditionally appropriated the goods to the contract, except in the cases provided for in the next rule and in section 20."

The facts in this case do not bring it within the exceptions. The Sales Act was adopted in New York in 1911. Laws 1911, c. 571.

[12] In this case we have seen that the gov ernment did not rest upon the probative force of the indictment, but availed itself of its

right to offer testimony in support thereof. Its right to do so was not challenged and had it been the challenge could not have been sustained. Greene v. Henkel, 183 U. S. 249, 260, 22 S. Ct. 218, 46 L. Ed. 177. [13] Brody introduced no testimony and the record presents no conflict of evidence from which different conclusions or inferences might be drawn respecting his guilt or innocence. The sales having been completed in New York, they never were made in Kansas City, Missouri, and the whole indictment being based on the theory that the sales were made in Missouri, and that Brody was in possession of the morphine in that state, it is clearly apparent that Brody could not be indicted in the district of Missouri for the

acts he is shown to have committed in the state of New York as disclosed by the government's own witnesses.

The record fails to disclose that there is probable cause to believe that Brody committed in the state of Missouri the crimes charged against him in the indictment. Therefore no reason exists which justifies his removal from the Southern district of New York, where the criminal acts were committed, to the district of Missouri, in which district the evidence relied upon by the government shows they were not committed. The order sustaining the writ of habeas corpus is affirmed.

3. Appeal and error 209(2)-Buyer cannot contend that judgment for seller should be reversed because of failure of proof of seller's expenditures on resale of goods, where he had failed to bring objection to attention of trial court.

Where buyer, sued by seller for damages failed to call to attention of trial court that for repudiating contract for purchase of onions, seller had not introduced proof of cost to harvest, load, and market onions, he cannot, on appeal from judgment for seller, contend that the case should be reversed, because of such lack of proof.

In Error to the District Court of the United States for the Western District of Texas; Duval West, Judge.

Suit by the Byrd Cattle Company against and defendant brings error. Affirmed. Hyman Gussman. Judgment for plaintiff,

R. D. Wright, of Laredo, Tex. (M. S. Cohen, of Los Angeles, Cal., and Hicks, Hicks, Dickson & Bobbitt, and Charles M. Dickson, all of San Antonio, Tex., on the brief), for plaintiff in error.

I. S. Kampmann and Henry P. Burney, both of San Antonio, Tex. (Kampmann & Burney and Albert Buss, all of San Antonio, Tex., on the brief), for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

BRYAN, Circuit Judge. This is a suit to recover damages for breach of a contract to purchase and pay for 37 carloads of onions. The contract provided for the sale by Byrd Cattle Company, plaintiff, to Hyman Gussman, defendant, of 43 carloads out of a crop of about 100 carloads of onions then growing in plaintiff's field, at $1.60 per crate f. o. b. shipping point, at the rate of 3 carloads per day, Sundays and rainy days excepted. Defendant accepted and paid for 6 carloads, and then notified plaintiff that he would not accept any more. Plaintiff had the onions in quantities sufficient to furnish the daily installments called for by the contract, and replied that it would sell the remainder for defendant's account. It did sell 24 carloads within the next 16 days, Sundays excepted. At the end of that period there was no market for onions, and plaintiff threw away 4 carloads that were crated and ready for shipment. The remaining 9 carloads were left in the field, some of them partly crated, because they could not be sold at any price, and plaintiff's evidence fails to disclose how much the cost of gathering and crating would have been. There is no contention that plaintiff did not get the full market value for the onions

which it sold. The trial court gave a charge to the jury that the measure of plaintiff's damages was the difference between the contract price of 37 carloads and the amount plaintiff received from the sales of 24 carloads for defendant's account, and there was a verdict and judgment for plaintiff, based on that charge.

[1, 2] The assignments of error defendant relies on to reverse the judgment are based upon two exceptions to the charge of the court upon the measure of damages. The first exception was upon the ground that the damages should be limited to the time of the breach, and should be measured by the difference between the purchase price and the market price of each installment of 3 carloads at the time it was required by the contract to be delivered. It is argued that plaintiff cannot measure its damages by resale, because the onions had not been segregated from the common mass and put in deliverable condition, so as to pass title, and that its only remedy was a suit for the difference between the contract price and the market value. We are of opinion that the rule contended for is unsound, and we so held in Alabama Grocery Co. v. Hammond (C. C. A.) 285 F. 723. In this case the goods were ready for delivery, and passage of title was prevented by defendant's repudiation of his contract. One of the rights which the vendor has under such circumstances is to resell the goods and measure his loss by the difference between the contract price and the price received on resale. Gilbert Grocery Co. v. Howell (C. C. A.) 289 F. 474. See, also, note 42 L. R. A. (N. S.) 670. Plaintiff was not bound to make resales in installments as large and as often as called for by the contract, but was within its rights if it acted in good faith, and did not delay sales for an unreasonable length of time. 24 R. C. L. 112. It is reasonable to suppose that defendant's sudden repudiation of the contract made it necessary for plaintiff to seek other purchasers and caused some delay. [3] The other exception to the court's charge was upon the ground that there was "no evidence offered in the case on the cost of harvesting, loading, and marketing." So far as appears, the court's attention was not called to the fact that plaintiff had failed to prove what it would have cost to gather the onions, put them in crates, and place them on board ears. The exception as stated applies to the 24 carloads which had been shipped, as well as to the 4 carloads which were made ready for shipment; but as to them it was not good, because plaintiff was bound by the con

tract to bear all expenses incident to delivery on board cars. If the attention of the court had been directed to the point now made, that there was no proof of what it would have cost to make the 9 carloads which were left in the field ready for delivery, doubtless further proof would have been required of plaintiff. Having failed to bring the objection now urged to the attention of the trial court, either by more specifically pointing it out or by a request of his own to charge, defendant cannot now well contend that the case should be reversed, and plaintiff be put to the trouble and expense of another trial, and further delayed in the collection of its just damages.

The judgment is affirmed.

Appeal from the District Court of the United States for the Southern District of Florida; Lake Jones, Judge.

Bill by William M. Toomer against Electa C. Falligant and others. From a decree dismissing the bill, plaintiff appeals. Reversed and remanded.

G. P. Garrett, of Kissimmee, Fla., for appellant.

J. C. Cooper and J. C. Cooper, Jr., both of Jacksonville, Fla., and J. L. Travis, of Savannah, Ga. (Travis & Travis, of Savannah, Ga., and Cooper, Knight, Adair, Cooper & Osborne and H. P. Osborne, all of

WALKER, Circuit Judge. This is an appeal from a decree dismissing an amended bill of complaint, filed by the appellant, for the specific enforcement of alleged contracts for the sale of described lands in the state of Florida. One of the grounds of the motion to dismiss was that it does not appear by said amended bill that the contract alleged there in, or any memorandum or note thereof, was ever reduced to writing or signed by defend ants (appellees here) or either of them or by any person thereunto authorized as required by the statute of the state of Florida. The memorandum opinion rendered by the District Judge shows that his action in dismissing the amended bill was the result of the conclusions that the face of the bill showed that the contracts sought to be enforced were in parol, and that, this being so, the defense of the statute of frauds was properly raised by the motion to dismiss. Randall v. How ard, 2 Black, 585, 17 L. Ed. 269.

The amended bill alleged:

"Your orator now further complaining, alleges that heretofore on, to wit, October 3, 1924, the defendants contracted and agreed to sell, and your orator contracted and agreed to purchase from the defendants, the properties hereinafter severally described, as being owned by each of them, at the prices and on the terms hereinafter stated, that is to say."

The just quoted allegation was followed by others setting out descriptions of the lands embraced in the alleged contract of each defendant and the prices and terms contained in each contract. In argument the following allegations of the amended bill were principally relied on to sustain the contention that on the face of the bill it appeared that the contracts sought to be enforced were parol contracts, not complying with requirements of the statute of frauds:

"Your orator further alleges that, prior to October 3, 1924, the defendants chose, designated, selected, and authorized one W. H. Robertson of Savannah, Ga., the son of the

properties for sale at the prices and on the terms hereinabove mentioned, with one W. A. Burney, Jr., a real estate agent and broker of the city of Savannah; that the negotiations with your orator, leading up to the making of the contracts of sale and purchase, hereinabove referred to, were begun with your orator and the said W. A. Burney, Jr., broker, were further continued with the said agent of the defendants, W. H. Robertson, and were consummated with the defendants acting in their own behalves and through the said W. H. Robertson as agent and the said W. A. Burney, Jr., as broker." [1,2] We do not think that the quoted allegations or any other allegations of the Florida statute of frauds (section 3872, Reamended bill show a noncompliance with the vised General Statutes of Florida 1920) in the making of the agreements upon which the suit was brought. The averments of the amended bill are consistent with those agreemente being in conformity with requirements of the statute of frauds. In a suit on a contract, required by the statute of frauds to be in writing, the plaintiff need not allege in his bill that such contract is in writing, and, where the averments of the bill import the existence of a valid contract, a defense based on such statute cannot be made by demurrer or motion to dismiss, unless it affirmatively appears by the averments of the bill that the agreement sued on is obnoxious to the statute of frauds. Maloy v. Boyett, 43 So. 243, 53 Fla. 956; Strouse v. Elting, 20 So. 123, 110 Ala. 132; Rogers v. Penobscot Mining Co., 154 F. 606, 83 C. C. A. 380.

We are of opinion that the averments of the amended bill were such that the court was not warranted in dismissing it on the ground on which the record shows it was dismissed, and that the decree appealed from was erroneous. That decree is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed.