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When the tug arrived, with the barge on her starboard side, it was seen that there was not room enough for them to pass side by side and the tug, dropping astern, pushed the barge ahead of her. When the anchor was reached, the upper and protruding stock struck the barge's cabin. If the barge had been kept perfectly straight in passing along the schooner's side, she would not have touched the anchor stock as the narrowing of the vessel towards the stem left only a width of 25 feet 8 inches on deck at the cathead and its projection, 6 feet 2 inches including the cathead, was not sufficient to cause the stock to protrude beyond the side of the vessel at her widest part.

The navigation of the barge was in charge of the tug and the projection of the anchor over the side should have been seen and guarded against. I have no doubt that the primary fault was that of the tug for proceeding ahead in such a careless manner. The tug, however, is not in the action and if the schooner was in fault the libellants are entitled to a decree against her as a joint tort-feasor.

There has been an attempt on the part of the libellants to show that leaving an anchor projecting even to the extent that this one protruded beyond the side of the vessel was negligence but I find no such preponderance of testimony to that effect as would warrant imposing thes damages upon the schooner. She was in a protected place and there would have been no danger to a vessel going further up the slip ordinary care had been exercised. It is not a case like The Overbrook 142 Fed. 950, 74 C. C. A. 120, where there was a dangerous exposure of an anchor through the vessel to which it belonged allowing it to han over the outside, without necessity, in a thoroughfare, so that it becam by its immersion in the water an obstruction to navigation. The dange was recognized by the master of the vessel and it was held a fault t have the anchor exposed to collision, as it was under the circumstances The anchor in the case under consideration was in plain view an though it would have been more prudent to have had it inboard, it doe not seem a case in which the vessel should be held. Libel dismissed.

MEMORANDUM DECISIONS.

AMERICAN FINE ART CO. v. SIMON. (Circuit Court of Appeals, Secon Circuit. April 30, 1907.) No. 215. In Error to the Circuit Court of th United States for the Western District of New York. Judgment was entere upon a verdict in favor of the defendant. The cause has been twice trie The first trial also resulted in a verdict for the defendant, but a new tri was ordered by this court because of error in the admission of testimon offered by the defendant upon an erroneous issue of fraud. The opinion o the first writ of error is reported in 140 Fed. 529, 72 C. C. A. 45. W. I Hotchkiss, Theodore Kronshage, Hotchkiss & Bush, and Kromshage, M Govern & Fritz, for plaintiff in error. Adelbert Moot, Charles Diebold, J

and Moot, Sprague, Brownell & Marcy, for defendant in error. Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

COXE, Circuit Judge. The facts are sufficiently stated in our former opinion and need not be repeated here. We endeavored to construe the contract in its entirety for the guidance of the court on the new trial which was ordered. That construction was reached after careful consideration, and we have no reason to believe that our interpretation is incorrect. In speaking of the obligation of the plaintiff under the contract Judge Townsend says: "Defendant, on his part, merely contracted to make a contract if he should thereafter see fit to do so. So far as he was concerned, there was no enforceable existing contract. The occurrence in future of an uncertain event after the signing of the written contract was a condition precedent to the giving of any order. The contract provided that, even if he approved a design, be was at liberty to decrease the amount specified in the contract, and that, if the parties failed to agree as to price, he was not bound to take any work of that design. There was, therefore, originally merely a unilateral contract, binding only upon the plaintiff, and there was no ambiguity or uncertainty as to its provisions." On the second trial the court excluded all evidence of fraud, which we thought was improperly admitted on the first trial, and submitted to the jury in a clear and impartial charge the question of fact arising on the contract, namely: Did the defendant so accept and approve the designs, etc., that such acceptance and approval constituted orders according to the terms and conditions of the contract? There was a sharp conflict of testimony upon this issue, but the jury answered the question in the negative. Their verdict was not against the weight of evidence, and must be accepted as establishing the fact that the approvals of the defendant were given to facilitate the copyrighting of the designs, and were not orders for work. The charge fairly presented the issue as follows: "If you believe from the evidence that the signatures of the defendant to the designs submitted to him were not, as claimed by him, to carry out the contract mentioned in the complaint, but were in fact merely to authorize copyrighting, then the plaintiff cannot recover in this action; for in that event It proceeded to lithograph the finished designs without any orders or directions to do so by defendant, and accordingly the loss or damage is that of the plaintiff. * * * As I stated in the beginning of my charge, the question presented to you is in a very narrow range. It is simply whether these approvals of Mr. Simon, that were given in the manner stated, were for the purpose of ordering the work, or whether, as the defendant claims, they were for the purpose of copyrighting, and that question, as I have already intimated, tuust be left to you." We have examined the other exceptions of which error is predicated, and are convinced that none of them is well taken. We think the trial was fairly conducted throughout, the record disclosing no error which would justify a third trial of the issue. The judgment is affirmed, with costs.

CLEMENT v. WILSON. (Circuit Court of Appeals, Second Circuit. May 19. 1907.) No. 281. In Error to the Circuit Court of the United States for The District of Vermont. Alexander Dunnett and Wm. B. C. Stickney, for plaintiff in error. Max L. Powell, for defendant in error. Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

PER CURIAM. Judgment affirmed. See 126 Fed. 808.

HANOVER NAT. BANK OF CITY OF NEW YORK v. SUDDATH. (Circuit Court of Appeals, Second Circuit. April 30, 1907.) No. 264. In Error to the Circuit Court of the United States for the Southern District of New York. A judgment for $3,802.29 was entered in the Circuit Court for the Southern District of New York, upon a verdict directed by the court in favor of de

fendant in error, who was plaintiff below. Percy S. Dudley, for plaintiff in error. Edward B. Whitney, for defendant in error. Before WALLACE. TOWNSEND, and COXE, Circuit Judges.

PER CURIAM. This action was before us upon a previous writ of error. Van Zandt v. Hanover Nat. Bank (C. C. A.) 149 Fed. 127. The present record. mutatis mutandis, is identical with that on the former review. The only differences relate to immaterial changes occasioned by the lapse of time. The facts are the same, and no reason has been advanced which induces us to change our view of the law. The judgment is affirmed.

HANOVER NAT. BANK OF CITY OF NEW YORK v. SUDDATH. (Circuit Court of Appeals, Second Circuit. April 30, 1907.) No. 265. Appeal from the Circuit Court of the United States for the Southern District of New York Percy S. Dudley, for appellant. Edward B. Whitney, for appellee. Before WALLACE, TOWNSEND, and COXE, Circuit Judges.

PER CURIAM. This is an equity action, brought by the Hanover Nationa Bank against William F. Suddath, as receiver of the American National Back of Abilene, Tex. The relief prayed for is: First, that an accounting be or dered to ascertain the amount due to the complainant, and that the amoun so found may be set off against any amount found to be due from the com plainant to the defendant; second, that the defendant be enjoined from the further prosecution of any action at law based upon the notes referred to a the bill. The facts sufficiently appear in the opinion of this court in Var Zandt v. Hanover Nat. Bank, 149 Fed. 127. It is manifest that if the Hanover Bank was unauthorized to use the notes sent to it by the Abilene Bank except for the specific purpose mentioned in the letter of instructions trans mitting them, this action cannot succeed. The mere fact that property o the Abilene Bank was temporarily in the hands of the Hanover Bank did no give the latter a right to apply that property in payment of the former's over draft. The Hanover Bank was under no legal obligation to pay the check of the Abilene Bank, when that bank had no balance on deposit with whic to meet the checks. The Hanover Bank, in paying these checks and thu creating an overdraft, undoubtedly acted from the most praiseworthy motives but the failure of the Abilene Bank on the succeeding day subjected its prop erty, wherever situated, to the payment of the claims of its creditors. I the Van Zandt Case this court said: "The notes in controversy were neve deposited by the Abilene Bank with defendant, nor did they come into it hands as collateral security within the commonly accepted meaning of thes terms. They were temporarily in the hands of the defendant under an optio to purchase them. We conclude that they did not come within the terms o the pledge, and that the defendant did not obtain a lien upon them. I the check drawn by the Abilene Bank upon the defendant, which caused th overdraft of its accounts, had been drawn with knowledge of the defendant refusal to discount the notes, a different question would be presented; bu it is fair to assume that this check was drawn in the expectation that befor Its presentation the notes would have been discounted and the proceeds cre ited to the Abilene Bank." The decree is affirmed.

THE STAMFORD. (Circuit Court of Appeals, Second Circuit. May 1 1907.) No. 284. Appeal from the District Court of the United States for th Southern District of New York. Harrington Putnam, Henry E. Mattiso and Wing, Putnam & Burlingham, for appellants. James J. Macklin and L Roy S. Gove, for appellee. Before LACOMBE, TOWNSEND, and COXE, Ci cuit Judges.

PER CURIAM. Decree (148 Fed. 509) affirmed, with interest and costs.

THE VIOLETTA. THE SCOWS 8, 20, AND 7. (Circuit Court of Appeals, Second Circuit. April 30, 1907.) No. 224. Appeal from the District Court of the United States for the Southern District of New York. A decree of the District Court held the tug and the barge Thomas L. Parker both in fault for a collision between the latter and a mud scow in tow of the tug. The opinion below is reported in 141 Fed. 690, and sets forth the facts quite fully. E. G. Benedict and Benedict & Benedict, for appellant. Frederick M. Brown and Butler, Notman & Mynderse, for appellees. Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

PER CURIAM. As the barge has not appealed, the only question before us is as to the fault of the tug. It is sufficient to say that we concur in the findings and conclusion of the District Judge. The suggestion that the barge, after she left the tow and until she finally swung to her anchor, was a steam vessel-i. e., "a vessel propelled by machinery"-and required to navigate accordingly, although she had no motive power, nor means to regulate her course and speed, except by anchoring, does not commend itself. We find the evidence of the master of the tug unsatisfactory, and not consistent with the blue print submitted as indicating his course. It seems entirely clear that for some time after he started, and after the barge had cast off from the tow, he failed to keep a careful lookout. There was no one else on board who was standing lookout. We are not convinced by appellant's argument that observation of the movements of the barge would have failed to advise the observer that she was a barge dropped by her tow on anchorage ground and about to anchor; and perceiving that, a careful navigator would not have persisted in swinging to the southward, but would have adhered to what he says was his original and usual intention "to get on the New York shore [or, rather, on the New York side of anchorage ground] before straightening down at all." The decree is affirmed, but without interest from date of appeal, and with costs of this court to the barge Parker.

WEST DISINFECTING CO. v. P. M. FRANK DISINFECTING CO. (Cirruit Court, S. D. New York. February 21, 1907.) Motion to Punish for Contempt. See 146 Fed. 388. W. H. Kenyon, for the motion. Louis C. Roegener, opposed.

LACOMBE, Circuit Judge. In view of the offer made in open court on behalf of defendant forthwith to substitute articles of the design marked "Defendant's Exhibit Flat-Bottom Casing" for those marked "Complainant's ExLibit New Frank Casing," the motion is denied, with leave to renew as to any of said "New Frank Casings" found in use after 20 days from the entry of this order.

END OF CASES IN VOL. 153.

frequently stopping or slowing down, keeping only steerage way, with the intention of passing to the eastward of the barges, but that, on approaching nearer, it became evident that the tug and tow were taking practically the entire deep water channel for a ship the size of the Westhall. She thereupon stopped at a distance of some three lengths of the ship from the barges and starboarded to get as far as possible out of the way, which maneuver caused her to ground on the eastern side of the channel, when the Jackson drifted down and struck her on the starboard bow, thereby causing the injury. Considerable evidence was taken by the parties, respectively, and the usual conflict in collision cases was increased by the large number of witnesses examined from the crews of the ship and of the tug and tow; and, while in many particulars the conflict was irreconcilable, still they differed largely about immaterial and unimportant matters. or upon points as to which persons viewing the same object would naturally differ, but the court was fortunate in having the benefit of the testimony of a number of disinterested witnesses who either saw, or were so recently at the scene of the collision, or so familiar with its surroundings, as to be able intelligently to speak of the facts.

The conclusions reached by the court upon a full review of the entire evidence, and after hearing arguments of counsel, are that the collision did not occur as contended for by the respondent; that is to say, by the obstruction of the entire channel, by the barges, the running aground of the steamship, and the collision therewith by the rear barge while aground. This theory is at utter variance with the evidence, or certainly any considerable part of it, and is demonstrated not to be true beyond peradventure by the physical facts and circumstances of the case. The blow of the collision shows that it could not have so occurred, as the injury to the barge could never have happened by the coming into collision of the starboard quarter of the barge with the starboard bow of the steamship, the latter lying still, as contended for by the respondent, and the barge drifting against it. Indeed, not only does the libelant's evidence show that it did not and could not have so happened, but one at least of the respondent's witnesses, Capt. William J. Bartlett, a man of experience and intelligence, and in no way interested or connected with the case, and himself master of an ocean tug with a large tow at the time near the scene of the accident, testified in effect that it could not have so happened; that the tide was then as it had been for some time, running flood; that the tug was moving the tow gradually out of the channel to the westward, and that the tide would have swept the barge up the river, and from the Westhall, instead of against it; and that it was impossible for it to have drifted with the wind and tide as they were down on and against the steamship. He also testified that some time before reaching the scene of the collision, and as far away as Boush's Bluff, he observed the rear barge then a little to the east of midchannel, and it was gradually moving to the westward of the channel; that after the collision, before the tug had gone to the aid of the injured barge (which the evidence shows to have been from five to eight minutes), and before the steamer had gone forward, he with a large tow, consisting of a barge 328 feet long, and drawing 23

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