duly authorized representative located in the sales office of its said works at Youngstown, Ohio. "[Signed] N. L. Norris, "General Manager Banner Electric Works. "Accepted: [Signed] Andrus-Cushing Lighting Fixture Co., "F. L. Cushing, Tr., Agent." It was stipulated between the parties that in pursuance of said contract, and in accordance with its terms, the lamps in controversy were delivered by the appellant to the bankrupt, and that they were of the value of $600; that the bankrupt paid all expenses and storage, taxes, insurance, cartage, transportation, handling, and sale of all the lamps delivered to it in accordance with the contract; that the contract was not placed of record; that the lamps were not kept separate and apart from other stock of the bankrupt, except that they were kept together on shelves in one place, and in boxes marked "Banner Electric Company"; that, prior to the date of the contract, one Akroyd was a general agent of the appellant in Tacoma and that vicinity; that, after the execution of the contract, he became a stockholder and officer of the bankrupt, with the knowledge and consent of the appellant, but on condition that the bankrupt should have no interest in Akroyd's agency or the emoluments thereof, which condition was observed by all the parties; that Akroyd was secretary and treasurer and a stockholder in the bankrupt, and at the same time the agent and representative in Tacoma of the appellant; that this double relation was known to and acquiesced in by both the appellant and the bankrupt; that Akroyd knew that the salaries of the officers of the bankrupt were in arrears; and that that company was embarrassed and unable to meet its various obligations, but that the appellant, knowing these things through its agent Akroyd, took no steps to terminate the contract. The contract by its terms expired July 8, 1913. From that date to the date of the bankruptcy, no change was made in the manner of conducting the business of the bankrupt or the relation between the appellant and the bankrupt. Frank H. Kelley and Ralph Woods, both of Tacoma, Wash., Charles Neave and Edwards H. Childs, both of New York City, and John M. Gearin, of Portland, Or., for appellant. Walter M. Harvey and G. C. Nolte, both of Tacoma, Wash., for appellee. Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District Judge. GILBERT, Circuit Judge (after stating the facts as above). It is the contention of the appellee that where goods are delivered by a manufacturer to a seller, and the latter is allowed to place them with his stock of goods, and sell and dispose of them in the ordinary course of business, to manage and control them as other goods, and where he pays all the taxes, cartage, storehouse charges, and all other expenses in connection therewith, and agrees to pay for such goods so disposed of, and there is neither an agreement to return the goods nor an agreement to account for the proceeds of the sale of goods as such, there is no bailment. To sustain that contention, the case particularly relied upon is In re Penny & Anderson (D. C.) 176 Fed. 141. That was a case in which the claimants had delivered to the bankrupts, who were conducting a restaurant, a stock of wines and liquors under an agreement called a "memorandum of consignment," which contained an invoice of the liquors and the prices thereof, and provided that they should be considered as delivered on consignment, and should remain the property of the claimants until the full in debtedness of the bankrupts should be paid. There was no restriction on the sale of the liquors by the bankrupts, as to price or otherwise, and no provision respecting the disposition of the proceeds. It was held that the transaction was not a consignment but a sale; the court ruling that the transaction did not create the relation of principal and factor. That conclusion was based upon the fact that the invoice accompanying the goods contained the words "Sold to Messrs. Penny & Anderson, terms on consignment," and gave the price of each article of the consignment, and the fact that the debtors were permitted to sell and dispose of the goods as they saw fit, and at any price and terms, for consumption on the premises, as required in their business, and that the agreement was silent as to the disposition of the proceeds, and recognized only an indebtedness to be paid before the title vested in the consignees. Substantially different is the contract in the case at bar. To ascertain the intention of that contract, all of its terms should be considered in their relation one to another. The instrument is entitled "Appointment of Agent." It makes the Andrus Company "agent to sell," and the agent expressly accepts the appointment. It provides that the manufacturer shall maintain a stock of lamps in the custody of the agent; that the quantity of lamps and the length of time they shall remain in stock shall be determined by the manufacturer; that all the lamps shall be and remain the property of the manufacturer until sold; that the proceeds of all lamps sold shall be held for the benefit and for the account of the manufacturer; that the agent shall return to the manufacturer at any time, if directed, any and all lamps unsold. The agent is required to sell at prices and on terms fixed by the manufacturer, and on all bills and invoices for lamps sold he is required to state that he sells as agent. The agent guarantees to the manufacturer that all lamps sold by it will be paid for. These provisions, so far as they go, all clearly and unequivocally mark the contract as a contract strictly of agency. We will briefly consider the provisions therein that are said to indicate a contrary intention. Those provisions are the agent's assumption of liability for loss, and for the payment of certain expenses, and for insurance. Such provisions do not change a contract of agency into a contract of sale. Nor was the contract rendered a contract of sale by reason of the fact that it contained no provision that the agent should keep the money separate and apart from its other moneys, or that it should turn over the money received from the sale to the manufacturer, but instead was to pay for the lamps sold each month, less 29 per cent. for making the sales. Eilers Music House v. Fairbanks (Wash.) 141 Pac. 885. In Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99, 37 L. Ed. 1093, the court said: "A bailee may, however, enlarge his legal responsibilities by contract, express or fairly implied, and render himself liable for the loss or destruction of the goods committed to his care; the bailment or compensation to be received therefor being a sufficient consideration for such an undertaking." In Re Flanders, 134 Fed. 560, 67 C. C. A. 484, the court said: "The objections that ordinary invoices accompanied the shipments, that such shipments were made direct to Flanders, that the leather was sold by him in his own name, that he allowed credit upon sales, that he guaranteed sales, and that he insured in his own name, do not change the nature of the transaction." In Re Columbus Buggy Co., 143 Fed. 859, 74 C. C. A. 611, it was held that a contract between a furnisher of goods and the receiver, that the latter may sell, and at such prices as he chooses, that he will account and pay for the goods sold at agreed prices, that he will bear the expenses of insurance, freight, storage, and handling, and that he will hold the merchandise unsold subject to the order of the furnisher, discloses only an agreement of bailment for sale, and does not evidence a conditional sale. In John Deere Plow Co. v. McDavid, 137 Fed. 802, 70 C. C. A. 422, the court gave similar construction to a contract containing like provisions. Of similar import are In re Pierce, 157 Fed. 757, 85 C. C. A. 14, and Franklin v. Stoughton Wagon Co., 168 Fed. 857, 94 C. C. A. 269. We do not find that the appellee's contention is sustainable either upon reason or authority. To constitute a sale, there must have been in the contract a vendor and a vendee, and a provision for a transfer of property by the vendor to the vendee, and an obligation by the vendee to pay an agreed price therefor. Or the circumstances outside of the contract must have been such as to show that it was the intention of the parties to make of the contract a fraudulent concealment of an actual sale. There are no such circumstances here. The stipulated facts do not in any way impeach the bona fides of the contract itself. In Ludvigh v. Am. Woolen Co., 231 U. S. 522, 34 Sup. Ct. 161, 58 L. Ed. 345, the court held that a contract under which goods were delivered by one party to another to be sold by the latter, and the proceeds paid to the former, less an agreed discount, the unsold goods to be returned to the consignor, was really a contract of bailment only, and that the consignor can, in the absence of fraud, take them back in case of the consignee's bankruptcy, unless there were other circumstances controlling the situation, and establishing that the contract was a mere cover for a fraudulent or illegal purpose. The judgment is reversed, and the cause is remanded to the court be'ow, with instructions to enter a judgment for the appellant. (221 Fed. 602) GENERAL ELECTRIC CO. v. BROWER. in re ANDRUS-CUSHING LIGHTING FIXTURE CO. No. 2375. Petition to Revise in Matter of Law an Order of the District Court of the United States for the Southern Division of the Western District of Washington; Edward E. Cushman, Judge. In the matter of the Andrus-Cushing Lighting Fixture Company. Proceedings by the General Electric Company against C. A. Brower, trustee in bankruptcy. Petition for revision dismissed. Frank H. Kelley and Ralph Woods, both of Tacoma, Wash., Dolph, Mallory, Simon & Gearin, of Portland, Or., and Charles Neave, of New York City, for petitioner. G. C. Nolte, of Tacoma, Wash., for respondent. Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District Judge. PER CURIAM. In view of the opinion rendered and filed by this court on February 8, 1915, on the appeal taken in the above-entitled matter in case No. 2449 (221 Fed. 597†), in accordance with which opinion a decree of this court was duly filed and entered reversing the judgment of the court below and remanding the cause, with instructions to enter a judgment for the appellant, and this court being of the opinion that the judgment of the court below was properly reviewable by said appeal, and not by the petition for revision herein: It is ordered that the petition for revision in the above-entitled matter be and hereby is dismissed, with costs in favor of the respondent and against the petitioner. It is further ordered that a judgment of dismissal be filed and recorded in the minutes of this court accordingly. (221 Fed. 603) YATES v. WHYEL COKE CO. (Circuit Court of Appeals, Sixth Circuit. March 13, 1915.) No. 2545. 1. APPEAL AND ERROR 1039-HARMLESS ERROR-RULINGS ON PLEADINGS. A judgment will not be reversed because of the erroneous refusal to require plaintiff to separately state and number his causes of action, where the ruling has not operated prejudicially to the defendant, or deprived him of any substantial right. YEd. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 40754088; Dec. Dig. 1039.] 2. COURTS 359-UNITED STATES COURTS-JURISDICTION-AMOUNT IN CON TROVERSY. The requisite jurisdictional amount, in an action in the federal courts on causes of action no one of which separately would give the court jurisdiction, is controlled by the federal law, and not by state legislation. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 939-949; Dec. Dig. 359.] 3. COURTS 328-UNITED STATES COURTS-JURISDICTION-AMOUNT IN CONTROVERSY. The requisite jurisdictional amount in actions in the federal courts is determined by the aggregate sum for which judgment is sought, and not by the amount named in each cause of action. [Ed. Note. For other cases, see Courts, Cent. Dig. §§ 890-896; Dec. Dig. 328. Jurisdiction of federal courts as determined by the amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Tennet-Stribling Shoe Co. v. Roper, 36 C. C. A. 459; O. J. Lewis Mercantile Co. v. Klepner, 100 C. C. A. 288.] 4. PRINCIPAL AND AGENT 190-ACTION ON AGENT'S CONTRACTS-EVIDENCE OF AGENCY. In an action on a contract for the sale of coke between defendant and the P. Co., letters and conversations prior and subsequent to the execution of the contract were properly admitted to show that defendant knew For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes † 137 C. C. A. 321. and had long known that plaintiff was the real contracting party and that the P. Co. was its agent. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 718720; Dec. Dig. 190.] 5. DAMAGES 40-INTERFERENCE WITH ESTABLISHED BUSINESS. Where a regular and established business is wrongfully injured, interrupted, or destroyed, its owner, if he makes it appear that his business was of that character, and that it had been successfully conducted so long that his profits from it are reasonably ascertainable, may recover as damages the amount in which the business is rendered less valuable by the interruption. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 72-88; Dec. Dig. 40] 6. DAMAGES 176--INTERFERENCE WITH ESTABLISHED BUSINESS-EVIDENCE. As the value of such a business depends mainly on the ordinary profits derived from it, such value cannot be determined without showing what the usual profits are. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 461, 468, 471, 493; Dec. Dig. 176.] 7. APPEAL AND ERROR 1056-HARMLESS ERROR-EXCLUSION OF EVIDENCE. In a seller's action for damages from the buyer's refusal to accept coke, in which defendant sought to recover damages for the loss of customers due to an excess of sulphur in the coke furnished, though the court's ruling in excluding evidence to establish such claim was too comprehensive, it was not prejudicial error, where the evidence offered did not prove that there was an excessive amount of sulphur, and was insufficient to warrant a recovery under the rule applicable to the recovery of damages from the interruption or destruction of a regular and established busi ness. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 41874193, 4207; Dec. Dig. 1056.] 8. SALES 384-BREACH BY BUYER-NECESSITY OF TENDER. Where a buyer of coke, to be produced by the seller, refused to accept the coke, the actual production of the whole of the coke called for by the contract was excused, and the seller could recover the difference between the cost of production and the selling price of the coke which it could and would have produced, had the buyer not refused to receive it, but which it did not in fact produce. [Ed. Note. For other cases, see Sales, Cent. Dig. §§ 1098-1107; Dec. Dig. 384.] 9. COURTS LAWS. 352-UNITED STATES COURTS-PRACTICE-CONFORMITY TO STATE Gen. Code Ohio, § 11452, providing that after the jurors retire to deliberate they may request the officer in charge to conduct them to the court, which shall give information sought upon matters of law, and also in the presence of or after notice to the parties or their counsel may state its recollection of the testimony upon a disputed point, and the state rule of practice thereunder that it is error for the judge, during recess, in the absence of a party and his counsel and without notice to them, to give instructions to the jury, but that if the parties and their counsel are loudly called at the door it is not error to give additional instructions in their absence during a regular session of the court, are not rendered applicable to the federal courts by Rev. St. U. S. § 914 (Comp. St. 1913, § 1537), providing that the practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the Circuit and District Courts, shall conform as near as may For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |