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between said Matteson and one H. B. Scoville, of the one part, and said Markell of the other part, for the purchase and sale of a certain drug store and business of the latter, situate in Washington County, Pennsylvania. Said Matteson and Scoville were not co-partners, but merely appear as would-be joint purchasers of the business.

There was evidence tending to show a verbal agreement between said Matteson and said Scoville, of the one part, and Markell, the plaintiff in error, of the other, by the terms of which plaintiff in error was to sell to the said Matteson and Scoville his drug store and business, situate as aforesaid, for whatever sum might appear as the value thereof, in the inventory to be thereafter made. Of this sum, $2.000 was to be paid in cash and the balance within a period of six years, there being no set times for the deferred payments. There was also evidence to show that, after the taking of the inventory, which mounted to the sum of $8,300, the plaintiff in error induced the said Matteson, the defendant in error, to give him $500 on account. The testimony tended to show that this had been no part of the oral understanding, and that the defendant in error would not have complied with plaintiff in error's request, had it not been that the plaintiff in error threatened to discontinue negotiations, unless this cash payment was made. The $500 was paid over to plaintiff in error, without he knowledge or authority of the said Scoville. There seems to have been an understanding that these terms were to be set out in a written greement. The negotiations, however, failed to so result, and there much conflict of testimony, as to which party was responsible for the failure.

Defendant in error instituted this suit to recover damages, alleged amount to $4,520, including those for the non-return of the $500 and also for the loss occasioned by the alleged breach of the agreement by defendant to sell his drug store, with its contents, and his business or good will.

After a trial, a verdict and judgment were rendered for the $500, and interest on the same. To this judgment, the present writ of error has been sued out.

Objection is made that, as there was no proof of any market value of the goods inventoried, or of what the same would sell for, no basis was established by which any amount approaching the jurisdictional Tount of $2,000, could be alleged as damages. There was proof, wever, which tended to show that the business and good will was such a value as that plaintiff's share thereof, taken together with. the $500 advanced by him and for which he brought suit, would amount to the sum required.

Three of the assignments of error cover certain refusals of the Curt to charge requests by the defendant, and the remainder are to the refusal of the court to give peremptory instructions in favor of the tendant, for not sustaining defendant's motion for judgment, non stante veredicto, and for not arresting judgment on defendant's

tion.

The charge delivered by the learned trial judge was entirely fair to the defendant, and we see no reason why the conflicting evidence this case should not have been submitted to the jury. The judgment below is therefore affirmed.

TOWLE v. FIRST NAT. BANK OF BOSTON.

(Circuit Court of Appeals, Eighth Circuit. April 30, 1907.)

No. 2.481.

TRIAL FEDERAL COURTS-SPECIAL FINDINGS WHERE JURY IS WAIVED. Special findings by a trial judge in an action at law in a federal court, where a jury has been waived pursuant to the provisions of Rev. St. § 649 [U. S. Comp. St. 1901, p. 525]. have the same effect as special verdicts of a jury, and must embrace a finding on every material issue joined in the case, otherwise the result is a mistrial.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 935.]

In Error to the Circuit Court of the United States for the District of Minnesota.

John F. Fitzpatrick, for plaintiff in error.

Edward E. Blodgett (Henry B. Wenzell, on the brief), for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

ADAMS, Circuit Judge. This was an action at law upon a contract of guaranty executed by Uri L. Lamprey in his lifetime to the Massachusetts National Bank, an assignor of plaintiff, to recover $12.000 and interest. The amended complaint set out the contract, which was, in substance, that if the bank would loan H. G. & H. W. Stevens, as they might from time to time request, amounts not exceeding at one time $30,000, he, Lamprey, would pay any note, draft, or other obligation given by the borrowers therefor not paid by them at maturity; and averred that, relying on the guaranty, the bank loaned to the Stevenses from time to time different sums of money and took their notes therefor maturing at given dates, which were not paid The answer denied generally each and every allegation of the com plaint except as therein admitted, qualified, or denied. It then ad mitted the execution of the guaranty as alleged and pleaded as an af firmative defense as follows:

"That it was expressly agreed by and between the Massachusetts Nationa Bank and the defendant that said guaranty should only cover loans and ad vances to H. G. and H. W. Stevens as copartners or jointly, and not loans o advances to be made to either H. G. Stevens or H. W. Stevens individually o separately; and the defendant is informed and believes, and so charges, th facts to be that said Massachusetts National Bank did not make any loans o advances whatsoever to H. G. and H. W. Stevens as copartners or jointly, bu did make loans and advances to H. W. Stevens, and that the commercial obli gations set forth in the complaint, if they are valid obligations at all, are th obligations of H. W. Stevens only, and not obligations of H. G. Stevens, as co partner or otherwise."

The replication put the affirmative defense in issue. A jury wa waived, the case tried to the court, special findings of fact made, an judgment rendered for plaintiff for $12,080, and interest. Much ev dence was heard touching the relations of the parties and the circum stances under which the contract of guaranty was executed and th loans made; and the chief issue now argued before us is whether th guaranty contemplated loans made to H. G. and H. W. Stevens as co

partners only, or whether it also covered loans made to either of them as an individual provided only he borrowed it for a concern doing business in the name of H. G. & H. W. Stevens.

That issue was clearly and definitely joined in the pleadings, and was one apparently conceded not to be determined solely by the construction to be placed upon the language of the contract of guaranty, but in part by competent proof aliunde that instrument. The instrument nowhere expressly refers to the Stevenses as copartners, and yet their joint names are referred to as together desiring to make loans of the bank. There is manifestly an ambiguity here which admits of elucidation by proof, and the parties treated the issue as one of fact to be determined by proof and much evidence of the surrounding facts, acts, and conduct of the parties was taken. On all this evidence counsel for plaintiff contend that the instrument guarantied advances made to a concern called "H. G. & H. W. Stevens" as it then existed, regardless of its personnel, and that a reasonable construction gathered from the language of the instrument, in the light of surrounding circumstances and of the cotemporaneous construction placed upon it by the parties, makes this contention clear. Counsel for defendant contend, on the other hand, that all the proof shows that the instrument was intended to guaranty the payment of loans made to the Stevenses as copartners, and not otherwise. This issue dis tinctly made in the pleadings and tried by the evidence should have been found by the trial court one way or the other, but was not. It was the vital issue in the case, and one which is now pressed upon us by both parties as decisive of it. But it is said that the trial court in effect made a finding on that issue as a result of its other findings; that the finding that the several loans which formed the basis of the suit were made by the bank to said H. G. & H. W. Stevens "relying upon and in consideration of said agreement and guaranty" is on the authority of Fox v. Haarstick, 156 U. S. 674, 15 Sup. Ct. 457, 39 L. Ed 516, the equivalent of a finding against the defendant on the issue as to partnership tendered by him.

We think the findings as made cannot fairly be held to involve or imply a finding on the issue in question. Conceding that the loans were made "relying upon and in consideration of said agreement of guaranty," yet that concession does not determine what the parties meant by the ambiguous and indefinite reference to "H. G. & H. W. Stevens" found in the guaranty. In other words, the loans may have been made in reliance upon and in consideration of the guaranty, and yet may or may not have been made to H. G. and H. W. Stevens as copartners or on their joint liability.

Special findings by a trial judge in actions at law made pursuant to the provisions of Act March 3, 1865, c. 86, 13 Stat. 501, when a ury has been waived have the same effect as special verdicts of a jary. Section 649, Rev. St. 1878 [U. S. Comp. St. 1901, p. 525]; Norris v. Jackson, 9 Wall. (U. S.) 125, 19 L. Ed. 608; Miller v. Life as. Co., 12 Wall. (U. S.) 285, 301, 20 L. Ed. 398. The latter must embrace a finding on every material issue joined in the case.

Patterson

United States, 2 Wheat. (U. S.) 221, 4 L. Ed. 224; Barnes v. Williams, 11 Wheat. (U. S.) 416, 6 L. Ed. 508; Prentice v. Zane's Adm'r,

8 How. (U. S.) 470, 484, 12 L. Ed. 1160; Graham v. Bayne, 18 How. 60, 63, 15 L. Ed. 265; Ward v. Cochran, 150 U. S. 597, 608, 14 Sup. Ct. 230, 37 L. Ed. 1195.

When findings are not made on all the material issues, the result is a mistrial and the cause must be remanded for a new trial. Cases, supra, and Suydam v. Williamson, 20 How. (U. S.) 427, 441, 15 L. Ed. 978.

There was, in our opinion, a clear disregard of this well-settled rule in the trial of this case. No finding was made on a material and vital issue joined between the parties. Without that finding the judg ment as rendered cannot be sustained. The defendant assigned for error that the judgment as rendered was not justified by the facts as found and from what has been said that assignment must be held good.

The judgment is reversed, and the cause remanded to the Circuit Court, with directions to grant a new trial.

SHERIDAN v. ALLEN et al.

(Circuit Court of Appeals, Eighth Circuit. April 27, 1907.)
No. 2,459.

INTERNAL REVENUE-SALE OF PROPERTY UNDER DISTRAINT WARRANT-REPLEVIN
BY THIRD PARTY.

A sale of property by an internal revenue officer under a distraint war rant for the collection of a tax does not cut off the title of a third perso who does not owe the tax and against whose property the warrant is no directed, and the true owner may assert his title and right of possession by replevin against the purchaser after the officer has made the sale and transferred possession, and has, thus completed his official acts with re spect to the property. A sale of property by a collector under a distrain warrant is clearly distinguishable from a sale of property seized and con demned in forfeiture proceedings for violation of the customs or interna revenue laws, and passes only the interest of the tax debtor.

In Error to the Circuit Court of the United States for the Easter District of Missouri.

For opinion below, see 145 Fed. 963.

Henry W. Blodgett (Walter N. Davis, on the brief), for plainti in error.

E. P. Johnson, Asst. U. S. Atty., for defendants in error.
Before SANBORN, HOOK, and ADAMS, Circuit Judges.

HOOK, Circuit Judge. The Commissioner of Internal Revenu made an assessment against one C. J. Knott of $900 for taxes due a a manufacturer of oleomargarine and certified it to Allen, the co lector at St. Louis, Mo., for collection. The collector's demand fo payment was refused, and he thereupon issued a distraint warran and levied it upon a buggy, a wagon, and a horse as the property o Knott. The property was advertised by the collector and sold to thre purchasers. Immediately after the sale, Sheridan, a constable of S Louis, seized the property under a writ of replevin issued by a justic

of the peace in an action commenced by Madge Knott, the wife of the delinquent manufacturer. Thereupon the collector and the purchasers filed a joint petition in the Circuit Court of the United States for the Eastern District of Missouri for an order on the constable to surrender the property at once to the collector or the purchasers. The constable demurred to the petition, saying that it did not state facts sufficient to entitle the plaintiffs to relief. The trial court overruled the demurrer, the constable stood thereon and refused to plead further, and the order prayed for was made. Hence this writ of error by the constable. The question is whether the petition states a cause of action, and this involves the right of Madge Knott to maintain her replevin action, assuming her to have been the owner of the property. It is not averred in the petition of the collector and the purchasers that the constable took the property from the possession of the collector. The mere charge that he seized the property immediately after the sale will not bear that construction, and the suggestion to the contrary is negatived by the further averment that the Castable withholds the property "from the possession of the parties bove named to whom the same was sold by said collector." Nor as it averred that possession was being withheld from the collector. is charged that the replevin action is illegal and in violation of the laws of the United States, etc.; but no facts are set forth from which such legal conclusions might be drawn or showing that the collector was in any manner interfered with or obstructed during the performance of his official duties and before the full completion thereof. So the case should be considered as though the collector had compicted the sale, had delivered the property to the purchasers, and were now endeavoring to protect them from a claim of ownership by a third person who was not indebted to the government and whose property he had no right to seize. If the collector had no duty which remained unperformed, and no official interest which he was authorizol to protect by an action of this character, the constable's demurrer should have been sustained, because the purchasers who joined with him as coplaintiffs are not entitled to proceed in this way for the assertion or defense of purely private rights. It may at once be nceded that, as long as the collector remained in possession under the distraint warrant, he could not lawfully be disturbed in the perimmance of his duties by a replevin action brought by any person whomsoever. The property so held is expressly declared to be in the stody of the law and irrepleviable. Rev. St. § 934 [U. S. Comp. St. 1, p. 689]; Treat v. Staples, Holmes 1, Fed. Cas. No. 14,162. Nor could C. J. Knott, the debtor in the distraint warrant, afterwards recover the property by replevin from the purchasers upon the ground that he did not owe the tax or that there was some defect in the proedings of the collector. Nor could any person maintain a suit to join the collector from proceeding with the sale of the property for the collection of the tax. Rev. St. § 3224; Pullman v. Kinsinger, Abb. (U. S.) 94, Fed. Cas. No. 11,463. But the case before us presents none of these conditions. No one interfered with the possession of the collector or obstructed him in doing his duty, and the tax debtor is not here questioning his responsibility or the title that passed

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