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claim to commissions, it must allege a completed sale, or an enforceable agreement for sale. Hammond v. Crawford, 14 C. C. A. 109, 66 Fed. 425; Jacobs v. Shenon, 2 Idaho, 1002, 29 Pac. 44. Securing a preliminary or tentative agreement not shown to have resulted in a complete sale, and not binding on the proposed purchaser, is not sufficient. Hale v. Kumler, 29 C. C. A. 67, 85 Fed. 161. In such cases nothing should be left to conjecture or speculation. “There should have been as much certainty on the one side of the contract as upon the other.

* * The broker must complete the sale (that is, he must find a purchaser in a situation, and ready and willing, to complete the purchase on the terms agreed on) before he is entitled to his commissions." McGavock v. Woodlief, 20 How. 221, 227, 15 L. Ed. 884. The declaration states that the plaintiff, at the request of the defendant, “prepared a written memorandum describing the property." The action, however, is not for such service. The declaration, we think, is properly construed in that respect by the learned attorneys ior the defendant in error, in their printed argument, when they say this is an action “to recover $100,000 commissions alleged to have been earned by Milliken by selling," etc. We have so considered it. The services were performed under a special employment to sell, and no right to recover on the quantum meruit is asserted.

Tested by these principles and authorities, the declaration does not show a right of action against the plaintiff in error, and the demurrer to it should have been sustained.

The judgment of the circuit court is reversed, and the cause remanded, with instructions to set aside the verdict of the jury, sustain the demurrer to the declaration, and to grant a new trial, proceeding according to law and the views herein expressed. Reversed.

McCORMICK, Circuit Judge. I agree with my Brethren that the judgment of the circuit court in this case should be reversed, and the cause remanded to that court, with direction to award the defendant a new trial; but I am unable to agree with them in the ground on which they base the decision of the court. I do not construe the thirteenth count in the declaration as an action to recover compensation stipulated for in a written contract. Exhibit A, attached to that count, makes no mention of compensation. It simply authorizes and empowers the plaintiff to sell certain property of the defendant at a price named. Exhibit B shows only some of the services rendered by the plaintiff to the defendant; and Exhibit C helps to show further the services rendered by the plaintiff, and accepted and acted on to the extent therein shown by the defendant. And the count claims that, in pursuance of his employment, the plaintiff procured that the defendant and one W. D. Mann should and did on November 16, 1899, enter into a written contract by which the defendant agreed to convey the property mentioned in the written authority and memorandum set forth as Exhibits A and B, which contract of November 16, 1899, is the Exhibit C attached to the count; and the plaintiff avers that by reason of the premises he became entitled to demand and receive from the defendant, and the

to recover.

defendant became obliged to pay to the plaintiff, for his services aforesaid, a large sum of money, to wit, the sum of $100,000. How this can be construed as other than demanding the reasonable compensation for the services shown to have been rendered, I confess my inability to understand.

The twenty-fourth error assigned is, in my judgment, well taken. It is thus stated in the record :

"Twenty-Fourth Assignment of Error. After the jury had rendered their Ferdict, to wit, We, the jury, find for the plaintiff in the sum of thirty-one thousand nine hundred and fifty dollars, less six thousand nine hundred and tifty credit, with New York interest.' and after the jury had been polled, and each had said that it was his verdict, and after the said verdict had been read and ordered to be received, and after the other proceedings shown in the bill of exceptions, the court said to the jury: 'Gentlemen of the Jury: In this case you have found for the plaintiff, and you have found against the pleas of the defendant. You have found that the plaintiff has a right

The court charged you that the only testimony,-charged you heretofore, and now I repeat. that the only testimony before you bearing, as I recollect it, upon the question of amount, was the testimony of Mr. Milliken, to the effect that in New York City, where the transaction took place, the customary and usual percentage was from five to ten per cent. on the full face value of the one million six hundred thousand dollars, and that he had agreed to take that amount as his compensation,—the amount of five per cent. You will take the case, gentlemen.' The defendant then and there, before the jury retired, excepted to the said action of the court. This assignment is on the ground that after the jury had rendered their verdict, and said Verdict had been received by the court and ordered recorded, the court had no authority to again submit the matter to the said jury, or to charge them concerning their verdict.”

And on this ground I concur in the judgment of reversal. Taken in connection with the other proceedings shown by the bill of exceptions to have been had at the time, the instruction was equivalent to the general charge to find for the plaintiff on the merits, and to render their verdict for 5 per cent. commissions on $1,600,000, viz., for $80,000, less the admitted credit. The jury so understood it, and Teturned their verdict accordingly:

"We, the jury, find for the plaintiff in the sum of $80.000, with interest from the commencement of this suit, less the sum of $6,930, with interest from January 8, 1900."

This shows clearly the taking of the case entirely from the jury, and substituting for their verdict the finding of the court.

(113 Fed. 113.)

MCNAIR et al. v. MCINTYRE et al.
(Circuit Court of Appeals, Fourth Circuit. February 4, 1902.)

No. 417. 1. BANKRUPTCY_PARTNERSHIP-LIENS.

Validity of mortgage given by partnership is not affected by bankruptcy proceedings within four months thereafter against oue of the

partners alone. 2 SAME-Costs OF SALE.

The proceeds of property of a bankrupt subject to liens should first be charged with the costs of sale, and the liens be then paid out of the remainder, according to their priority.

3. Saue-PREFERENCE.

A creditor given a martgage for past indebtedness within four months of bankruptcy proceedings against the debtor may retain the preference, though brought into the proceedings in invitum; no claim being made against the general estate, and the mortgage being executed with no

intent to give a preference and no knowledge of the insolvency. Petition for Revision of Proceedings of the District Court of the United States for the Eastern District of North Carolina, at Wilmington, in Bankruptcy.

E. K. Brvan, for petitioners.
Iredell Meares, for respondents.

Before GOFF and SIMONTON, Circuit Judges, and JACKSON, District Judge.

SIMONTON, Circuit Judge. This case comes up upon a petition to superintend and revise in matter of law proceedings in the district court of the United States for the Eastern district of North Carolina, sitting in bankruptcy. 109 Fed. 857. The facts of the case are these: The firm of McNair & Pearsall were creditors of the firm of Sanderlin & McMillan. On 13th of September, 1900, Sanderlin & McMillan executed to McNair & Pearsall a chattel mortgage to secure a sum of $1,500, of which $1,282.10 was cash then lent, and the remainder an amount then due by Sanderlin & McMillan to the mortgagees on open account. The personalty mortgage was a sawmill plant at McKee's Cut, on the Carolina Central Railroad, in North Carolina. The mortgage was duly recorded. On the same 13th September, 1900, J. B. Sanderlin, one of the firm of Sanderlin & McMillan, executed a chattel mortgage to McNair & Pearsall, securing the sum of $2,500, of which sum $805.52 was cash then advanced to him, and the remainder was the amount of an open account at that date due by Sanderlin to the mortgagees. This also was duly recorded. The firm of Sanderlin & McMillan was dissolved in October, 1900. In January, 1901, within four months of the execution of these mortgages, Sanderlin was adjudged a bankrupt. Stephen McIntyre was made trustee of the estate. The trustee took possession of all the property in which Sanderlin had an interest, including the property covered by these two mortgages, and under proceedings instituted by him in the bankrupt court, to which he made McNair & Pearsall parties, sold the mortgaged property free of all liens. Up to the date of these proceedings McNair & Pearsall had not appeared in the bankruptcy court, and had not made any proof of claim.

The question made is as to the disposition of the proceeds of the sales of the mortgaged property. The property mortgaged by the firm of Sanderlin & McMillan brought $2,308.50. That mortgaged by Sanderlin alone brought $2,605.50. The referee proposed to pay out of the proceeds of the first-named mortgage two small liens in existence at its date held by other parties, and then to apply the remainder to the payment of the chattel mortgage given by Sanderlin & McMillan, which firm has not been adjudicated bankrupt. He also proposes to charge against each lien so paid the proportionate part of the expenses of sale as its amount bears to the total proceeds. The referee finds, and it is not disputed, that the Sanderlin mortgage was executed in good faith by him, not intended as a preference, and without knowledge on his part or on that of the mortgagees that he was insolvent. He recommends that so much of the mortgage debt as secures the $805.59 advanced in cash be paid, with its interest, out of the proceeds of sale; that the remainder of the proceeds go into the general estate, and that McNair & Pearsall prove the remainder of their claim against the bankrupt estate as general creditors. He makes the same suggestion with respect to the proportionate amount of costs as he made as to the proceeds of the first-named mortgage. Upon review of his report by the district court, the action of the referee in recognizing the validity of the mortgage of Sanderlin & McMillan was affirmed. In this we concur with the court below.

The ruling of the referee with regard to the proportionate division of the costs was reversed, the court ordering that the entire costs be first paid out of the fund, and that the liens be paid out of the remainder, according to their priority. This is the most simple way of settling the costs, and the ruling on this of the court is affirmed.

The district court sustained the referee in his ruling that only $805.59 be paid to McNair & Pearsall out of the proceeds of the Sanderlin mortgage, and that for the remainder of their claim they come in only as general creditors. The surplus proceeds of sale are placed by him in the general fund. It having been found without question that neither the mortgagor nor the mortgagees were aware of the insolvency of Sanderlin, and that the mortgage was executed in good faith, with no intent to give a preference, we are of the opinion that the referee and the court erred in this conclusion. The law upon this subject is declared in Pirie v. Trust Co., 182 U. S. 446, 21 Sup. Ct. 906, 45 L. Ed. 1171. That case decides that, although a creditor may have received a preference within four months of the adjudication of bankruptcy, he may retain it if he did not have cause to believe that it was intended as a preference or with knowledge of the insolvency. If he retain it, however, he loses all claim against the estate of the bankrupt.

It would seem to be a corollary from this case that, if he insists upon his claim against the general estate, he will be held to have waived his lien. In the case at bar, McNair & Pearsall made no such claim. On the contrary, they disclaim all intention so to do. They clearly are entitled to hold their lien. It is true that they have come into this case. But this was only in obedience to the order of the court making them parties by proceedings in invitum. These proceedings were instituted for the express purpose of selling the mortgaged property free of lien, and, of course, of transferring the lien to the proceeds. McNair & Pearsall came in for this purpose, insisting on their lien. In this respect the ruling of the district court is reversed.

The case is remanded to that court, with instructions to carry out the points settled by this judgment.

(113 Fed. 115.)

MCGAHAN et al. P. ANDERSON et al.
(Circuit Court of Appeals, Fourth Circuit. February 5, 1902.)

No. 409.

1. APPEAL-BANKRUPTCY-QUESTIONS CONSIDERED.

The motion of a bankrupt to dismiss an appeal from a judgment al. lowing certain exemptions, for want of jurisdiction, may be denied without consideration on the merits, when the bankrupt fails to take a

cross appeal.1 2. BANKRUPTCY Courts— JURISDICTION-EXEMPTIONS.

The bankruptcy court giver jurisdiction by Bankr. Act 1898, $ 2. subd. 11, to determine all claims of bankrupts to their exemption, has exclusive jurisdiction to determine such claims, as any other rule might create a contlict of jurisdiction, and deprive the bankruptcy court of its

right to determine all questi ns arising under the act. 3. SAME-PLEADINGS--Issues.

Where a bankrupt files a schedule claiming his homestead and personal property exemptions as authorized by Bankr. Act 1898, § 7, subd. 8, and the assignee, in filing his account with the court, as required by section 17, gives the estimated value of each article, as required by general crder No. 17 (18 Sup. Ct. vi.), which also authorizes exceptions therefrom to be taken within 20 days, and a creditor files exceptions, and the referee certifies the question of exemptions to the court, such

question may be considered without being specially pleaded. 4. SAME-EXEMPTIONS-EVIDENCE-SUFFICIENCY.

A bankrupt admitted that he began the erection of a house claimed as a homestead after July 1st, but did not make a candid disclosure as to where he received the money for its construction. He admitted that a portion thereof came from the sale of goods which were not paid for. The house was built on a lot owned by his wife, which was conveyed to him so that he could claim a homestead. An involuntary petition in bankruptcy was filed against him on October 25th, and he was de clared a bankrupt within a month thereafter. Held not sufficient to show that the bankrupt was solvent, and able to pay his creditors, at the time of the construction of the house, so as to enable him to acquire

it as a homestead with money taken from his business. 5. SAME-EVIDENCE-BURDEN OF PROOF.

A bankrupt claiming a homestead exemption has the burden of showing by clear and conclusive proof that he was solvent, and able to pay

all claims against him, when he acquired the homestead. 6. SAME-PERSONAL PROPERTY EXEMPTION-L'NI'AID MERCHANDISE.

Under Const. S. C., which allows a debtor to hold personal property exempt from attachment to the amount of $500, but provides that no property shall be exempt from payment of obligations contracted for the purchase of such property, a bankrupt is not entitled to such exemption out of the proceeds of a sale by the trustee in bankruptcy of mer:

chandise which has not been paid for. Appeal from the District Court of the United States for the District of South Carolina, in Bankruptcy, at Charleston.

For former opinion, see 103 Fed. 854.
P. A. Willcox (Claudian B. Northrop, on the brief), for appellants.
W. F. Clayton, for appellees.

Before SIMONTON, Circuit Judge, and JACKSON and PURNELL, District Judges.

1 Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C.

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