Sivut kuvina

onstrates that defendant conspired with Pla, or anybody else, to prevent the plaintiff from gaining its full concession to both horse and electric power in the city of Havana.

Let the complaint be dismissed, with costs.


(District Court, W. D. New York. March 30, 1904.)


Where the watchman of a ship was charged with the duty of lighting the hold or furnishing lights to the stevedores to enable them to safely reach the hold in which they were working, and there is no evidence that the watchman, in the performance of such duty, was in the employ of an independent contractor, it will be presumed that the watchman continued in the employ of the ship, which was chargeable with his negligence in failing to light the hold for the benefit of a longshoreman employed by the head stevedore; such negligence being proximate cause of his injuries.

In Admiralty.

George H. Kennedy, for libelant.

Charles W. Strong, for respondent.

HAZEL, District Judge. The libelant seeks to recover damages for personal injuries received while employed as a stevedore upon the barge Santiago. The evidence establishes that the watchman of the ship was charged with the duty of lighting the hold, or at least with the duty of supplying candles or lights to the stevedores to enable them to safely reach the place in which they were to work. The respondent does not controvert this fact. His failure to furnish light is therefore negligence attributable to the ship, for which the libelant, a longshoreman in the employ of the head steve ore, is entitled to recover against the vessel. The Slingsby, 120 Fed. 748, 57 C. C. A. 52. The evilence upon the subject of the presence of the watchman is clear enough, and, in the absence of a showing that he was in the employ pro hac vice of an independent contractor, it may be presumed that the watchman continued in the employ of the ship. Accordingly no special contract existed between the vessel and the head stevedore governing the manner in which the cargo should be unloaded, or the liability and responsibility arising from failure to discharge a duty owing to the stevedores employed. In the circumstances of this case, it was the undoubted duty of the vessel to have the hatches lighted to protect the libelant, a longshoreman, in the place in which he was to work, or at least to supply him with candles or lights for his use in descending to the interior of the ship. The case is quite distinguishable from The Auchenarden (D. C.) 100 Fed. 895, and The Saratoga, 94 Fed. 221, 36 C. C. A. 208, cited by respondent. In the case first cited the contractor, to whom the ship was turned over for unloading, was fully informed as to the condition of a hatchway, and his duty to warn his individual stevedores of the danger of such hatchway. Under such circumstances, it was undoubtedly the duty of the master to protect his employés from any danger owing to a

defective hatchway. In The Saratoga, lanterns were provided by the ship, but the workmen did not avail themselves of their use. The burden of proof under the present facts is upon the ship to show that lights were furnished, so that the men could perform the work in the hold with safety to themselves, or to show that it had an independent contract with the head stevedore which relieved the vessel from such obligation. In the absence of such a contract, the libelant was performing a maritime service for the ship, and therefore the duty rested upon the owners of the vessel to provide a safe and suitable place for the libelant to work in. The Rheola (C. C.) 19 Fed. 926; The Anaces, 93 Fed. 240, 34 C. C. A. 558. The evidence hows that the employés and their foreman, Nagel, looked to the watchman of the ship to furnish the lights. It may be fairly implied from the evidence on this subject that the vessel owners did not transfer the duty which they owed to the libelant to provide him with a reasonably safe place to work by means of a contract or agreement with a third party. The record satisfactorily shows that the proximate cause of the accident to the libelant was the unlighted condition of the hold. Had lights, candles, or lanterns been supplied to the men before going below, or if, by usage or custom, the stevedores were obliged to supply themselves with candles or lights for their use in the hold of the vessel, a different question would be presented. No suggestion is found in the testimony, other than that the watchman of the vessel was the person relied on to furnish lights. The evidence does not satisfy me of libelant's concurring negligence. It follows that the injuries resulted entirely from the absence of a proper degree of care and diligence on the part of the libeled ship. Fortunately the injuries sustained, though painful, were not of a permanent character. Consideration of the evidence upon this point leads to the conclusion that $350 would fairly compensate libelant for the loss of time and medical expenses paid or incurred, as well as the pain which he was obliged to endure.

So ordered, with costs.



(Circuit Court, N. D. Georgia. May 19, 1904.)

No. 1,178.


Where written contracts were not only ambiguous in respect to what was stated therein, but also in respect to matters omitted, and were incomplete as to vital matters necessary to render them working contracts, it was proper to admit parol evidence to show how the contracts had been construed by the parties for a period of seven years during which they carried on business.

In Equity.

11. See Evidence, vol. 20, Cent. Dig. § 2129.

Fulton Colville, for Consolidated Dental Mfg. Co. Major Hughes and Dorsey, Brewster & Howell, for R. A. Holliday and others.

PARDEE, Circuit Judge. After a full examination of the evidence in the case and the arguments submitted, I have concluded that the exceptions to the master's report should be overruled. In my opinion, the master has properly construed the formal written contracts between the parties in regard to the matter of expenses of the business carried on by the defendants in the so-called "branch houses," and has properly ruled the contracts to be ambiguous as to who should control and be responsible for the said expense. The contracts, as written and signed, may have embodied all that the parties thereto had then formulated and agreed to, but the nature of the business contemplated, and the actual conduct of the parties immediately following, show that neither of the parties had an idea that the agreements and responsibilities of each were all to be found within the four corners of the written contracts; and it may be well said of the said written contracts that they are not only ambiguous in respect to what is stated, but because of matters not stated, and are silent and incomplete as to vital matters necessary to render them working contracts. That this was well understood by the parties appears from the fact that almost the first letter offered by the defendants shows that immediately after the contract some working arrangements were entered into in the president's office; and the evidence shows that, besides the question of expenses, the matters of territory to be covered by business of branch houses, the fixing of trade and list prices, the maximum of goods to be consigned by complainant, the purchase and sale of goods from outside houses, and the minor questions of deposit under second contract, interest, and insurance, were all left open for agreement as occasion might arise. In this view of the case, it seems clear that the rulings of the master admitting evidence to show how, during a period of seven years, the parties had understood, construed, and carried out the contracts, were correct, and should be approved.

Considering the evidence, it is clear to my mind that the understanding between the parties from the beginning was that the services to be furnished by the defendants were to include all the expenses of handling and selling the goods furnished by the complainant. That this was the understanding and construction of the defendants clearly appears from statements in letters and accounts emanating from them. And from the showing made the presumption is strong that it would still more clearly appear from the defendants' books kept prior to 1901, which appear to have mysteriously disappeared since this litigation was begun.

As to the accounting by the master, the complainant makes no objection. From the examination I have given it, I am satisfied. that it is more favorable to the defendants than they were strictly entitled to.

It is by no means clear to me that the defendants should not have been charged with some interest. If there had been opposition

131 F.-25

thereto by the complainant, I seriously doubt whether the defendants were entitled to be credited with full amount of book accounts turned over. There were over $15,000 of them in amount, and although, by the contract, the defendants substantially guarantied them, there is a large percentage noncollectible. And it is not to be overlooked that these accounts included not only the trade price of the goods sold, but the defendants' profits. As the master has stated the account, of course the amounts of cash drawn out by the defendants after March 1, 1903, and, as appears by the cashbook, mainly, if not entirely, derived from collection of the accounts charged in full to the complainant, should be charged to the defendants.

A decree may be entered in favor of the complainant overruling all exceptions to the master's report, and approving and confirming the same, dismissing the defendants' cross-bill, and for a money. judgment against the defendants for the sum of $2,360.88, with interest from 8th of May, 1903, at 7 per cent., and for all costs of suit. Complainant's original bill to be retained for settlement of receiver's accounts and compensation.

In re KANE.

(District Court, N. D. New York. May 9, 1904.)

No. 1,276.


A bankruptcy court has jurisdiction to determine in the first instance whether an asserted adverse claim to property claimed by the bankrupt's trustee is colorable or actual.


Where an adverse claim to property claimed by a bankrupt's trustee is colorable merely, or clearly a nullity, the referee has jurisdiction to require a surrender of the property to the trustee in bankruptcy, or to determine such adverse claim by summary proceedings; but, if it appears that the claim is asserted in good faith, and substantiated by verified pleadings or oral testimony, the issue can be determined only by a plenary suit.

In Bankruptcy.

T. S. Fagan (H. D. Bailey, of counsel), for trustee.
Henry J. Speck, for National State Bank of Troy.

HAZEL, District Judge. Certain questions have been certified to the court for decision by Referee King. Upon the petition of the trustee in bankruptcy, an order was issued by the referee directing the National State Bank of Troy to show cause why certain moneys of which the bankrupt is the owner, and which came into the possession of the bank after the bankruptcy proceedings were instituted, should not be paid over to the trustee. On behalf of the bank an answer, later a proposed answer, and finally a demurrer to the jurisdiction, were

¶ 2. See Bankruptcy, vol. 6, Cent. Dig. § 447.

filed. The attorney for the trustee moved the court to cancel from the files the demurrer on the ground that an answer joining issue had previously been filed, and therefore no special plea to the jurisdiction of the court should be entertained. It was stated by counsel for the bank at the preliminary hearing that, if the referee decided the jurisdictional point adversely to his contention, he desired to file an amended answer traversing the allegations set forth in the petition. The ruling upon these questions was reserved by the referee. Subsequently he decided that the bankruptcy court had authority and jurisdiction in a summary proceeding to compel the delivery to the trustee of money or other property belonging to the bankrupt, where it appears that such property is merely held as agent or bailee, and where it is withheld from the possession of the trustee. This holding is justified by the decisions. Louisville Trust Co. v. Cominger, 184 U. S. 25, 22 Sup. Ct. 293, 46 L. Ed. 413; Mueller v. Nugent, 184 U. S. 1, 22 Sup. Ct. 269, 46 L. Ed. 405; In re Knickerbocker (D. C.) 121 Fed. 1004: Jaquith v. Rowley, 188 U. S. 620, 23 Sup. Ct. 369, 47 L. Ed. 620. The referee is quite right when he says the bankruptcy court has jurisdiction to determine in the first instance whether an asserted adverse claim to property is colorable or actual. If it be clearly a nullity, the referee has jurisdiction, and may by summary process require the surrender of the property so withheld to the trustee in bankruptcy. On the other hand, should evidence of a claimant satisfy the referee that an adverse right to such possession and control is asserted in good faith, and there is reasonable cause for believing that the intention of the claimant is to protect an asserted right of ownership and control, then the petition. of the trustee should be dismissed. The remedy of the trustee for the recovery of the property may then be found in a plenary suit instituted in the proper tribunal. The determination of the respective rights of the parties demands judicial investigation by the referee to ascertain the facts. Both sides are heard, and evidence may be taken, though the conclusions of the court may be based upon the pleadings or affidavits presented to him. He must exercise a sound judicial discretion in the determination of questions of this character, to the end that no injustice be done to either party. If he is satisfied, either from personal knowledge of the facts or from testimony, that an order to show cause ought to be directed to a person charged with having in his possession property belonging to the bankrupt estate, the essential inquiry upon return of the order to show cause, if an adverse claim is made, is whether such claim is colorable or fictitious. In short, if it is a colorable claim, it should be set aside, and the claimant summarily directed to deliver the property to the trustee; but if, as already indicated, the claim is asserted in good faith, substantiated by verified pleadings or by oral testimony, then the objection to the jurisdiction. of the court is controlling. In such an event the property is no longer constructively in the possession of the bankrupt and subject to the order of the bankruptcy court.

The certificate of the referee apparently submits the following question for my decision: Was the decision proper, overruling the objection to the jurisdiction of the court, and allowing the National State Bank to interpose its proposed amended answer? This question is an

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