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denied. The purpose and effect of Hambler's testimony was to show that the transfer by Radford to Parrish was unauthorized, and that no consideration passed, or, if the conveyance was for a consideration, there manifestly was a conversion of the proceeds by Radford. It is quite apparent that the jury concluded that the transaction was in furtherance of the unlawful conspiracy.

It is contended by the government that the testimony of Hambler was merely cumulative, and, conceding it to have been untrue, it is nevertheless insufficient to grant a new trial. The mistaken testimony of Hambler, however, considered in its entirety, was of a different character, though it also tended to establish the wrongful intent of the defendant. By implication, at least, it conveyed to the mind of the jury that Radford had committed another offense. It tended to show that, as Hambler's agent and trustee, Radford had sold the property in question, and, though eight months had expired since the conveyance to Parrish, he had failed to account for the proceeds of such sale, or to notify the owner that the property had been transferred to Parrish. In the circumstances, it may well be that such testimony was considered by the jury as strongly supporting the proofs already in the case as to the defendant's fraudulent intent, and hence may have tended to remove a reasonable doubt, if such doubt existed in the mind of the jury, relative to other material facts claimed to have been proved by the government. The witness, who was 70 years of age and of patriarchal appearance, gave his testimony in a direct and positive manner, accompanied by such emphasis as unquestionably led to the belief that he had been greatly injured by the acts of the defendant. He repeatedly testified that Radford was the man to whom six years before he had given the deed in blank for the purpose of sale, and no notice had been given him of the disposition of the property. His credibility was not impeached, and, because of the absence of Story, was not in conflict. A careful consideration of his testimony, in connection with the emphasis accompanying its delivery, satisfies me that its effect was prejudicial to the defendant in the mind of the jury. Although much material evidence outside of the Hambler testimony to show the conspiracy, overt acts, and unlawful intent is disclosed by the record, there was also evidence in behalf of defendants from which the jury could have arrived at a different determination. It is quite probable that the trial might have terminated differently, had the jury not been influenced by the untruthful testimony to which reference has been made. The responsibility of granting a new trial in a criminal case is a grave one, and I have not arrived at the conclusions herein expressed without misgivings. In courts of the United States a motion for a new trial is addressed to the sound discretion of the court, and where it appears to the court in a criminal case that harmful results are probable, by reason of the mistaken testimony of a truthful witness, the ends of justice are doubtless best promoted by allowing a new trial. It is undoubtedly true that this application should have been made earlier. It was within defendant's power to move for a new trial on the same affidavits now before the court very soon after the trial. His neglect to do so, however, in view of the peculiar circumstances of the case, ought not to deprive him of the right to another trial, where it appears, as here, that

important material evidence was received upon the trial, which is now shown to have been untruthful, and which facts have prejudiced the defendant's rights.

Motion by defendant Radford for a new trial is granted.


(Circuit Court, S. D. New York. July 20, 1904.)


P. assigned to complainant his interest in a concession by a city for a horse car line, and agreed to make proper transfer by deed when the city should grant the right to use electricity as a motive power for the road. Defendant received the assignment to hold in escrow in accordance with such agreement. Held, that P. never having acquired the right to use electricity as a motive power, and having informed complainant that he could not secure such right, which was an essential condition to the contract of assignment, there was no breach of trust by defendant in thereafter proceeding in the matter for himself, he not having conspired with P. or any one else to prevent complainant from getting its full concession for horse and electric power.

In Equity.

C. G. Patterson, for complainant.
Adams & Adams, for defendant.

PLATT, District Judge. This is an action in equity, asking for an accounting. The gravamen of the charge is that the defendant agreed to act for the complainant as its agent and trustee for a special purpose, and took advantage of his position to deal in the subject-matter of the agency and trust to his own profit, and to the exclusion of his principal. The record has been examined with interest by reason of defendant's contention that the complainant company has for one reason and another been so treated by its controlling spirit, Mr. Alexander, that nothing remains of sufficient materiality to fill the role of a party in a court of equity. It sets forth a case of promotion and stock management which is somewhat unique, and a close analysis might serve to so dissect and dismember the original entity as to leave nothing of substance. existing. Furthermore, the story tends to cast a shadow of suspicion upon the immaculate purity of the corporation's doings. The court will not, however, attempt to grasp all the side lights and shades which the story suggests. It will be assumed, for the purpose in hand at this moment, that the complainant corporation exists; that its hands are clean; that its stock has not drifted into a control which fails to sanction the present suit; that it was not ultra vires for the corporation to acquire the concession of the Cuban railroad, and to build and manage the same after obtaining it; and we then approach its relations with the defendant, and the rights which it has as against him, to inquire whether or not, on the pleadings and proofs, a cause of action can be found. It is thought that a brief statement will indicate the natural answer. Prior to October 22, 1895, Francisco Pla, of Havana, Cuba, had become the owner of a preliminary concession to construct and

operate a line of horse car railway upon certain streets in the city of Havana. On the above day he assigned his interests in such concession by this assignment:

"SO Wall St., New York, Oct. 22, 1895.

"For value hereby received I hereby sell, assign and transfer unto the Havana City Railway Company of West Virginia U. S. A., all my right, title and interest into the concession for a horse car line heretofore granted by the City of Havana to Manuel De La Torre, upon the plans filed by Col. J. Ruiz and agree to follow this assignment by proper transfer by Deed to said Co. when said Havana authorities shall grant Electricity as a motive power for said road. Fr. Pl'y Picabia."

Defendant then at once signed the following receipt:

"80 Wall St., New York, Oct. 22, 1895.

"I have received from Mr. F. Pla, of Havana, Cuba, an assignment to you of the horse car concession granted by the City of Havana to Manuel De La Torre, which I am to hold in escrow in accordance with the terms of the agreement made yesterday between your company and Mr. Pla, which trust I hereby accept.


J. M. Ceballos."

Hugh Alexander, president of complainant, prepared both documents. Pla never acquired the right to use electricity as a motive power. The time never arrived, therefore, for following the assignment of the preliminary concession by a proper deed which would vest the concession positively in the plaintiff, and Mr. Alexander so concedes in plain set terins. On August 24, 1897, Mr. Pla wrote Alexander that he could not secure the change of motive power, which was an essential condition to the contract of October 22, 1895, and that he might, therefore, consider the agreement canceled. If that were the exact situation, this cause would be without purpose. After August 24, 1897, the papers held by defendant in escrow were of no value, unless they might have been helpful to the complainant in a suit against Pla for breach of his contract; but complainant did not wish them for that purpose, and has refrained from bringing any such action. No fiduciary relation any longer existed as between complainant and defendant, and no valid reason appears which would preclude the defendant from negotiating on his account for the concession. There was only one chance to hold defendant, and that was to allege and prove that he induced Pla to refrain from adding electric power to the concession, so that he could not be compelled to make the deed to the plaintiff, and then proceeded to deal with him in the same matter. That allegation was made, and probably saved the complaint from an earlier dismissal; but the proofs do not, so far as I can read them, support the allegation. And, too, after Pla notified Alexander that the agreement was canceled, the latter proceeded to deal in the concession as if it were actually in hand and available as an underlying security (although his Spanish lawyer advised him otherwise), and he took in quite a number of thousand dollars based upon such an insecure foundation. And, last of all, Alexander was willing to settle up the entire affair with Pla for $5,000 cash. The complainant company kept no books; but if it had kept books, and Alexander had settled with Pla for $5,000, and if that amount had found its way into those books, it is not unlikely that it would have been charged to expense. I cannot find a scintilla of proof which dem

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 stevedore, is entitled to recover against the vessel. The Slingsby, 120 Fed. 748, 57 C. C. A. 52. The evidence 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 shows 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 in. complete 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.

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