Слике страница

PER CURIAM. As, by the record, the appellee, Mrs. Snow, is seised of an estate for life in one undivided one-eighteenth part of the lands described in the decree appealed from, and to that extent is a tenant in common with the owners of the fee, we all agree that she is interested in and entitled to an accounting for all oil developed and produced on and from the said lands to the prejudice of her estate, and to that end a receiver was properly appointed pending the litigation necessary to finally determine the full rights of the appellee. On this appeal no other questions need be passed upon.

The decree of the circuit court is affirmed, with costs.

(113 Fed. 442.)


(Circuit Court of Appeals, Second Circuit. January 4, 1902.)

No. 76.


TARIFF ACTS-CONSTRUCTION-"PROFESSIONAL PRODUCTION OF A SCULPTOR.' In construing tariff statutes congress must be assumed to use words and phrases in the sense in which they have been applied by the treas ury department and executive and administrative officers under earlier statutes, and, so construed, the phrase "professional production of a sculptor," as used in Tariff Act 1897, par. 454, providing that "the term 'statuary' shall be understood to include only such statuary * as is the professional production of a statuary or sculptor,” must be considered as synonymous with "productions of a professional sculptor." 1

* *

Appeal from the Circuit Court of the United States for the Southern District of New York.

This cause comes here upon appeal from a decision of the circuit court reversing a decision of the board of general appraisers, which affirmed the assessment for duty of certain marble statuary.

See 108 Fed. 801.

Henry C. Plast, for appellant.

Howard T. Walden, for appellees.

Before WALLACE and LACOMBE, Circuit Judges, and TOWNSEND, District Judge.

PER CURIAM. The articles in question are marble and alabaster busts, single figures, groups, and bas reliefs, which are designed for use chiefly for memorial or cemetery and church purposes, and include such subjects as Faith, Hope, Memory, Sorrow, the Resurrection, etc. They were assessed for duty, under paragraph 115 of the tariff act of 1897, as "manufactures of marble," at 50 per centum ad valorem. The importers contended that they should be assessed under paragraph 454, which reads as follows:

"454. Paintings in oil or water colors, pastels, pen and ink drawings, and statuary, not specially provided for in this act, twenty per centum ad valorem; but the term 'statuary' as used in this act shall be understood to

1 Interpretation of commercial and trade terms in tariff laws, see note to Dennison Mfg. Co. v. U. S., 18 C. C. A. 545.

include only such statuary as is cut, carved or otherwise wrought by hand, from a solid block or mass of marble, stone or alabaster, or from metal, and as is the professional production of a statuary or sculptor only."


There was a great deal of evidence presented to the circuit court which was not before the board of general appraisers, and which materially differentiated the case from the one it passed upon. judge who heard the cause below discussed the questions presented in a careful opinion, in the reasoning and conclusions of which we fully concur. The appellant calls attention to the fact that in paraphrasing paragraph 454 that opinion states the concluding clause as requiring the statuary to be the "production of a professional sculptor," when the phrase used in the act is "the professional production of a sculptor." The change of phraseology is immaterial. It is a familiar rule of construction of tariff statutes that congress must be assumed to use words and phrases in the sense in which they have been applied by the treasury department and executive and administrative officers of the government under earlier statutes which contained the same words and phrases. Robertson v. Downing, 127 U. S. 612, 8 Sup. Ct. 1328, 32 L. Ed. 269. The phrase "professional production of a sculptor" is found in successive tariff acts for some years past. Under date of February 6, 1880 (Treasury Synopsis, 4416), the secretary of the treasury, in a letter to the secretary of state, says:

"The terms 'professional productions of a sculptor' and 'productions of a professional sculptor' are considered as having the same signification, and the articles must be a production of a professional sculptor or statuary in the true definition of that term, in order to be admissible at a duty of," etc.

(113 Fed. 443.)

And the instructions as to consular certificates evidently regard the one phrase as a synonym of the other. It must be assumed that congress used the phrase it chose with a like understanding of its meaning.

The decision of the circuit court is affirmed.

In re HENSCHEL et al. (two cases).

(Circuit Court of Appeals, Second Circuit. January 14, 1902.)

Nos. 74, 80.


Under Bankr. Act 1898, § 56a, requiring matters submitted to the creditors to be passed on "by a majority v te in number and amount of claims of all creditors whose claims have been allowed and are present," claims allowed are not to be counted in choosing a trustee, where the creditor is not present, and the power of attorney of his proxy is insufficient.


A notary's certificate of acknowledgment to power of attorney to proxy of bankrupt's creditor is sufficient though having no venue, as it complies with the form prescribed pursuant to Bankr. Act 1898, § 30, vesting the supreme court with power to prescribe rules and forms.

Petition to Review Order of the District Court of the United States for the Southern District of New York.

William M. K. Olcott, for petitioners.

E. J. Myers, for respondent.

Before WALLACE and LACOMBE, Circuit Judges, and TOWNSEND, District Judge.

WALLACE, Circuit Judge. This is a petition of review of an order of a court of bankruptcy confirming the appointment of a trustee. 109 Fed. 861. At a meeting of the creditors of the bankrupt to choose a trustee of his estate 10 creditors, whose claims aggregated $8,173, voted for Mr. Whitney, and 4 creditors, whose claims aggregated $2,048, voted for Mr. Hough. The court confirmed the choice of Mr. Hough as trustee, he having been appointed such by the referee in bankruptcy upon the theory that the creditors had made no choice. This ruling proceeded upon the consideration that there were 24 creditors present at the meeting, and consequently the votes cast for Mr. Whitney were not those of a majority. In this number of 24 were 10 who were not allowed to vote. Proxies for these votes had been executed to certain attorneys, and these attorneys offered to vote for Mr. Whitney, but the votes were excluded by the referee upon the ground that the proxies were not valid. The district court, in confirming the choice of Mr. Hough, besides deciding that a majority of the votes present had not been cast for Mr. Whitney, also decided that Mr. Hough was the choice of the creditors, because 8 of the votes cast for Mr. Whitney were cast by proxies who voted on defective powers of attorney. We are of the opinion that creditors whose claims have been allowed are not present at a meeting within the meaning of section 56a of the bankrupt act, when they are not permitted to participate in its proceedings. The language of the clause is as follows:

"Creditors shall pass upon matters submitted to them at their meetings by a majority vote in number and amount of claims of all creditors whose claims have been allowed and are present, except as herein otherwise provided."

The meaning of the clause is to vest the power of creditors in those who are present, and not allow the proceedings to be delayed by the absence of those creditors who do not take sufficient interest to participate; but it is not its meaning to treat those as present who are excluded from voting by the referee. The court below construed it as meaning that the proceedings are to be controlled by the majority in number and amount of the "claims" present at the meeting, and was of the opinion that the claims sought to be represented by the excluded proxies were present at the meeting. We do not understand how claims are present at a meeting when the creditors themselves are absent, and those who seek to represent the claims are not allowed to represent them. Such claims are present only in the sense that every claim that has been proved is present. The proof of claim has been filed with the register, and may be on his desk during the meeting, but it is not present for any vital purpose. The proxy who is excluded from participation in the meeting is for all practical purposes precluded from representing the claim, and is absent from the meeting in legal contempla

tion. We agree with the circuit court of appeals for the Sixth circuit that of the creditors giving proxies those only are to be counted whose powers of attorney were regarded as authorizing the attorney to appear and participate in the meeting. In re McGill, 45 C. C. A. 218, 106 Fed. 57.

The defects in the eight powers of attorney to the proxies voting for Mr. Whitney consisted in the absence of a venue to the notary's certificate of acknowledgment. The acknowledgment conformed literally to the form prescribed by the supreme court. Form No. 21 (18 Sup. Ct. xxviii.). In People v. Snyder, 41 N. Y. 397, a justice of the supreme court of the United States, in taking the acknowledgment to a deed, omitted the venue, and the question whether it was a valid acknowledgment was presented for decision. The court, in holding the acknowledgment to be sufficient, said:

This officer was entitled to take the acknowledgment, and it must be presumed that he did it within the limits of his jurisdiction, even though that is not stated to have been the case in the certificate which he made, for the legal presumption is in favor of the validity of the acts of public officers where nothing appears warranting a different conclusion."

In Carpenter v. Dexter, 8 Wall. 513, 19 L. Ed. 426, the venue to the certificate of a notary was simply, "State of New York," and it was objected that the certificate had no assignable locality, and was therefore fatally defective; but the court in considering the objection used this language:

"The commissioner of deeds in New York had authority to act only in his city, and it will be presumed, although the state is named, that the officer exercised his office within the territorial limits for which he was appointed."

The proposition that, when the official character of the person taking the acknowledgment appears in the certificate, his authority and jurisdiction are to be presumed, is generally recognized by the authorities. There are, however, respectable authorities to the effect that the certificate is defective when it contains no venue, and the place where it was taken cannot be ascertained by a reference to the instrument to which it is attached. Bankr. Act, § 30, vests with the supreme court the power to prescribe rules and forms to be observed in proceedings under it. As the certificates in question comply accurately with the form which has been prescribed pursuant to this statutory authority, it must be deemed sufficient.

We conclude that the district court erred in approving the action of the referee. The cause is remitted to the district court with instructions accordingly.

(113 Fed. 445.)

(Circuit Court of Appeals, Second Circuit. January 14, 1902.)

No. 71.


Where letters between plaintiff and defendant show a contract by which plaintiff was employed as superintendent of defendant's printing and mechanical departments for a certain term at a certain salary, with power to employ and discharge all help, parol evidence is not

admissible, in an action against defendant for the wrongful discharge of plaintiff, to show conversations and negotiations between the parties prior to the exchange of letters, for the purpose of showing that the contract actually made by the parties required plaintiff to bring with him into defendant's service a force of competent compositors and stereotypers, etc., as such oral agreement, relating to the same subject-matter, is not a collateral agreement which may be established by such evidence. 2 MASTER AND SERVANT-CONTRACT OF EMPLOYMENT-IMPLIED CONDITIONS.

The contract implies an undertaking on the part of plaintiff that he is competent to discharge his duties as superintendent of defendant's printing establishment, and that he will discharge such duties faithfully.


Where plaintiff introduces evidence of the conversations and negotia tions between the parties bef re the exchange of letters constituting the contract, evidence of such conversations and negotiations is admissible on behalf of the defendant.

In Error to the Circuit Court of the United States for the Southern District of New York.

Franklin Bartlett, for plaintiff in error.
Thos. F. Bayard, for defendant in error.

Before WALLACE and LACOMBE, Circuit Judges, and TOWNSEND, District Judge.

WALLACE, Circuit Judge. This is a writ of error by the defendant in the court below to review a judgment entered for the plaintiff upon the verdict of a jury.

The action was for breach of contract. The plaintiff alleged in his complaint that a written contract had been made with him by the defendant, evidenced by a letter written by him to the defendant, and the defendant's letter in reply, by which he was to be employed by the defendant for the term of two years, and that he was discharged by the defendant, without cause, shortly after he entered upon the performance of his duties. The letter written by the plaintiff was as follows:

"I understand that I am to be employed by your corporation for the term of at least two years at an annual salary of $5.200, payable in equal weekly payments of $100 each. I am to have entire control of all the printing and mechanical departments and appliances of your corporation, and am to employ and discharge, at my discreti n, all the employés of said departments. The office of superintendent of printing' is to be created, and by that designation I shall expect to be known. I submit this statement in full to you, in order that, if you see fit to take me on, there may be no misunderstanding as to the terms agreed upon, by either side."

The defendant's letter in reply was an unconditional assent to the contents of the plaintiff's letter.

The defendant's answer, among other defenses, besides alleging that the plaintiff was discharged for justifiable cause, alleged that the letters did not contain the whole agreement between the parties, and set up, in substance, that the plaintiff, on his part, undertook to bring with him into the employ of the defendant a force of 200 experienced and qualified compositors and stereotypers, and to su pervise and manage the composing and stereotyping departments of the defendant in a manner to relieve the defendant of all trouble

« ПретходнаНастави »