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that an examination of the entire record satisfies us that the only permissible inference was quite the contrary.
No coal was shipped under the second contract. Plaintiff testified that he "was able and willing to ship seventy-five tons a day of New River run of mine coal to the defendant from the 1st day of November, 1903, to the 31st day of March, 1904.” This sufficiently illustrates plaintiff's theory of the case, and it accords with his attitude throughout, that the furnishing of any New River coal of substantially the same quality and value as that from the Dixon collieries would be a compliance with the contract.
The judgment is affirmed.
UNITED STATES et al. v. CARPENTER.
A prisoner, sentenced at the same time to three successive terms of im. prisonment on different counts of an indictment, when for any reason the sentence for the second or middle term is void, is not for that reason entitled to be discharged at the expiration of the first term; but in such case the third term begins at once on the expiration of the first.
(Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, 88
3298-3301.] 2. FORGERY-SEPARATE OFFENSES-FORGERY OF DIF RENT INSTRUMENTS AT THE
SAME TIME. .
Although separate instruments were forged by a defendant on the same date and as a part of the same general transaction, the forgery of each constitutes a separate offense, punishable under a separate indictinent or count.
[Ed. Note.--For cases in point, see Cent. Dig. vol. 23, Forgery, § 1.) 3. HABEAS CORPUS-DISCHARGE OF CONVICT-DEFECTIVE SENTENCE.
Where a court has entered against a prisoner a sentence of imprisonment defective in form only, a federal court, in a habeas corpus proceeding, which is required by Rev. St. § 761 [U. S. Comp. St. 1901, p. 594), to “dispose of the party as law and justice require," should not discharge such prisoner without affording the court which imposed the sentence an opportunity to correct the same.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Habeas Corpus, $ 100.] Appeal from the District Court of the United States for the Northern Division of the Western District of Washington.
Potter Charles Sullivan, Walter Christian, and Charles T. Hutson, for appellants.
Andrew R. Black, for appellee.
GILBERT, Circuit Judge. Hugh Carpenter, who was in the custody of the appellant in the United States penitentiary on McNeill's Island, filed his petition in the court below for a writ of habeas corpus, alleging that he was unlawfully imprisoned. Upon the hearing the court allowed
the writ and adjudged that the petitioner be discharged. From that judgment the present appeal is taken.
The petitioner and two others were indicted in the District Court of the United States for the District of Oregon for violation of section 5463 of the Revised Statutes, as amended by Act June 18, 1888, c. 394, § 2, 25 Stat. 187 (U. S. Comp. St. p. 3689). The indictment contained four counts. The first count charged the alteration of a certain money order on November 28, 1903; the second count charged the utterance of that order; the third count charged the alteration of a certain other money order on November 28, 1903; and the fourth count charged its utterance. The petitioner pleaded guilty, and was thereupon sentenced upon the first three counts to be imprisoned “at hard labor for the term of two years for the offense charged in the first count of said indictment, and for a further term of two years thereafter for the offense charged in the second count of said indictment, and for the further term of two years thereafter for the offense charged in the third count of said indictment,” and that he be committed until his sentence be performed or until he be discharged according to law. It was held in the court below that the first and second counts charged but one crime, and that the imposition of a second sentence of two years' imprisonment on the second count was void; that, the time of imprisonment on the first count having expired and the time which by the sentence should intervene between the termination of the first term of imprisonment and the commencement of the second not having elapsed, the present imprisonment of the petitioner is not in execution of the sentence.
Section 5463, as amended, provides: - "Tbat any person who shall, with intent to defraud, falsely forge or counterfeit the signature of any postmaster, assistant postmaster, chief clerk, or clerk upon or to any money order or postal note, or blank therefor provided or issued by or under the direction of the Post-Office Department of the United States, or of any foreign country, and payable in the United States, or any material sig. nature or indorsement thereon, or any material signature to any receipt or certificate of identification thereon; any person who shall falsely alter, or cause or procure to be falsely altered in any material respect, or knowingly aid or assist in falsely so altering any such money order or postal note; any person who shall, with intent to defraud, pass, utter, or publish any such forged or altered money order or postal note knowing any material signature or indorsement thereon to be false, forged, or counterfeited, or any material alteration therein to have been falsely made,
shall, upon conviction, be punishable by fine of not more than five thousand dollars, or by imprisonment at hard labor for not less than one year and not more than five years.”
If this section were before us for construction, unaffected by precedent, we should be disposed to hold that it was intended to provide for the punishment of two distinct offenses, one of forging or altering a money order and one of uttering the same, and that the first two counts of the indictment which is before us charge distinct and separate crimes, punishable by separate sentences. But it has been generally held that the forging and uttering of a forged instrument are parts of one transaction, and that, where the different counts of an indictment charge different crimes which are parts of a single transaction, the sentence based on a general verdict or plea of guilty must impose only one penalty, and that a separate sentence for each count is erroneous, and void.
Parker v. People, 97 111. 32; In re Walsh, 37 Neb. 154, 55 N. W. 1075; Devere v. State, 5 Ohio Cir. Ct. 509; Ex parte Joyce, Fed. Cas. No. 7,556; Lovejoy v. State, 40 Tex. Cr. R. 89, 48 S. W. 520.
But we are of the opinion that the court below erred in discharging the petitioner. Conceding that the sentence upon the second count was void, the imprisonment under the third count should begin immediately upon the expiration of the sentence imposed upon the first. Kite v: Commonwealth, 11 Metc. (Mass.) 581, 585; Ex parte Jackson, 96 Mo. 116, 119, 8 S. W. 800. In the case last cited the court said:
"The only point, therefore, left for discussion, is this: Whether the prisoner, having been sentenced at the same term of court to three successive terms of imprisonment in the penitentiary, having reversed the judgment and sentence of imprisonment pronounced against him as to the second or middle term, and served out bis sentence as to the first term, is entitled to be discharged from serving out his third or last term. To this point the response must be in the negative, and for these reasons: The judgment upon which the prisoner's second terin of imprisonment was dependent having been reversed, the case stands here precisely as if he had served out his second term or had been pardoned as to the offense for which that sentence was imposed, and so his third term of sentence lawfully began upon the expiration of his first term.”
That the sentence on the third count was lawfully imposed there can be no doubt. That count charged the alteration of a money order with intention to defraud the United States. It is true that the time when the alteration is charged to have been made is the same date on which the money order described in the first count was alleged to have been altered; but it is none the less a separate and distinct forgery punishable under a separate indictment. “Although several drafts may be uttered as one indivisible act, the forgery of each is a separate offense.” 19 Cyc. 1411; Barton v. State, 23 Wis. 587.
There can be no doubt that the United States District Court for the District of Oregon intended to impose cumulative sentences upon the petitioner. We discover no fatal defect in the language of the sentence, rendering it uncertain when the term of imprisonment on the third count shall begin; but, if there were such a defect, we are of the opinion that it would have been the duty of the court below to have afforded the court which imposed the sentence an opportunity to correct the same before discharging the petitioner upon a writ of habeas corpus. Ex parte Peeke (D. C.) 144 Fed. 1016, and cases there cited.
The judgment is reversed.
H. G. HOLLOWAY & BRO. y. WHITE-DUNHAM SHOE CO.
No. 1,277. 1. APPEAL-EXCEPTIONS_RECORD.
Where a judgment was set aside at the same term, and plaintiff was permitted to amend its declaration by interlining averments of diversity of citizenship, after which the court ordered the plea and notice on file to stand to the declaration as amended, and then entered judgment anew, and the record on a writ of error failed to show any objection or exception taken to such proceedings by defendant, or that defendant asked leave to file a further plea, there was no available error.
2. NOVATION--EVIDENCE. i In an action to recover the price of shoes purchased by defendant
from plaintiff's assignor, evidence held sufficient to warrant a finding that
there was a novation. 3. PAYMENT-APPLICATION OF PAYMENTS.
Defendant purchased shoes from plaintiff's assignor under a contract which was assigned to plaintiff on January 1, 1903, after which defendant still continued to purchase shoes from plaintiff, and made payments after that date in excess of claims for shoes delivered subsequent thereto, but not for shoes delivered prior to the assignment. Held, that plaintiff, having established a novation, was justified in applying defendant's pay. ments in settlement of the old accounts; defendant having omitted to direct a specific application thereof.
(Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Payment, $8 104
107, 110.) 4. EVIDENCE--LEDGERS-BOOKS OF ORIGINAL ENTRY.
Where a ledger sought to be introduced in evidence was shown not to be a book of original entry, and the entries therein were not proved to be just and true, the book was inadmissible in evidence.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, 88 1438,
1443, 1453–1462.] 5. ASSUMPSIT—COMMON COUNTS-VALUE.
Where, in assumpsit for goods sold and delivered, the contracts were fully executed, excepting that defendant had not paid the price, the contracts, invoices, bills of lading, etc., showing the contract price, were admissible under the common counts, and established a prima facie case that the contract price was the reasonable value of the goods sued for.
[Ed. Note. For cases in point, see Cent. Dig. vol. 5, Assumpsit, Action
of, & 137.) & DAMAGES-BREACH OF CONTRACT—NOTICE OF SPECIAL CIRCUMSTANCES-SALES
-Loss OF PROFITS.
Where a manufacturer takes an order from a wholesaler in the ordinary course of business, without any notice, except that implied from receiving the order, that the wholesaler expects to use the goods as part of his stock in trade to offer to his customers, he is not liable for the profits which the wholesaler might have made in his business if the manufacturer had not failed in his obligation respecting the time of delivery and the quality of the goods.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Damages, 88 58-62.]
In Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.
J. L. Bennett, for plaintiff in error.
BAKER, Circuit Judge, delivered the opinion of the court.
In an action of assumpsit, on a declaration containing only the common counts, and on a plea of the general issue with notice of set-off and recoupment, the defendant in error, plaintiff below, obtained the judgment which is challenged by this writ of error.
1. The declaration as originally filed did not contain the necessary allegations respecting diversity of citizenship. The verdict was returned and judgment was entered on February 6, 1906. On February 12th, at the same term and when plaintiff in error was present, the
court vacated the judgment, permitted defendant in error to amend the declaration by interlining the proper averments of citizenship, ordered that the plea and notice on file stand to the declaration as amended, and entered judgment anew. Plaintiff in error contends that this action of the court deprived it of an opportunity to contest the question of jurisdiction. For aught the record shows, the judgment was vacated and the amendment was made with the consent of plaintiff in error. No objection was made nor exception taken to the action; nor did plaintiff in error ask leave to file any further plea.
2. Plaintiff in error, a jobber of shoes, in the fall of 1902 placed orders at certain prices with Frank E. White Company, a partnership engaged in manufacturing shoes. The contracts were assigned by Frank E. White Company to defendant in error. The shoes were manufactured and delivered by defendant in error, and this action was for the purchase price. Plaintiff in error, calling attention to testimony to the effect that it had no notice of and never consented to the assignment, insists that defendant in error could not maintain this action. But there was other evidence which the jury had the right to believe and act upon. A clerk in defendant in error's office testified that she mailed a notice properly stamped and addressed to plaintiff in error. That notice stated that on and after January 1, 1903, the firm of Frank E. White Company would be succeeded by the WhiteDunham Shoe Company, a corporation, that all accounts and contracts belonging to the firm were assigned to the corporation, and that the accounts would be collected and orders filled by the corporation. The record contains letters from plaintiff in error to defendant in error, commencing as early as January 8, 1903, relating both to the filling of contracts given by plaintiff in error to the White partnership and to the payment of accounts due the firm. From this evidence the jury were warranted in finding that there was a novation.
3. Plaintiff in error proved that it had made payments after January 1, 1903, in excess of the accounts for shoes delivered after that date. Defendant in error proved that it had applied part of the payments to the liquidation of the White partnership accounts which had been assigned to it, leaving the unpaid balance which was sued for. The contention here is substantially the same as the last. There being a novation, and, plaintiff in error having omitted to direct the application, defendant in error was justified in applying the payments upon the old accounts.
4. Plaintiff in error offered in evidence a page from its ledger to prove the balance due on the old accounts, claiming that the amount was less than defendant in error had appropriated. But the witness who identified the ledger showed that it was not a book of original entries and failed to prove that the entries therein were just and true. The offer was rightly rejected.
5. The value of the shoes was not proved by defendant in error. As the contracts were fully executed except payment by plaintiff in error, the contracts, invoices, bills of lading, etc., which showed the contract price, were properly received in evidence under the common counts, and made out a prima facie case that the contract price was the