In re SIMON & STERNBERG. (District Court, E. D. Georgia, S. D. February 11, 1907.) 1. BANKRUPTCY-FINDINGS OF REFEREE-REVIEW BY DISTRIct Court. A finding of a referee in bankruptcy made on conflicting evidence, when under review by the District Court, is entitled to the same consideration as that of a district judge in admiralty when before an appellate court. [Ed. Note.-Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.] 2. SAME-FRAUD-DISCHARGE. Where bankrupts have been in business but a very short time, have accumulated nearly $30,000 of unpaid for assets, and of these $8,000 worth remaining undisclosed have paid the general creditors nothing, not only ought the homestead exemption to be refused on account of apparent fraud, but the discharge ought to be carefully examined by the court when application therefor is made. 3. SAME-CRIMINAL PROSECUTION. In such a case the attorneys for the creditors will do nothing more than their duty, if they submit the facts to the district attorney for criminal prosecution. In Bankruptcy. On petition of bankrupt for review of referee's decision denying homestead exemption. Anton P. Wright, for appellant. O'Connor, O'Byrne & Hartridge, for creditors. SPEER, District Judge (orally). The bankruptcy law authorizes the appointment by the court of a tribunal especially qualified to dis pose of such conflicts of fact as those which are here presented on review. The referee is a court, and a court of very great importance in the administration of bankrupt assets, and the determination of conflicting rights arising thereunder. This court has attempted to be very careful in the appointment of men of acumen, experience, and character to these positions, and it would be, I think, quite unjustifiable, in view of the facts which are palpably apparent on this record-conflicting as they are-for the court to disturb the finding of the referee. The finding of the referee is entitled to the same consideration as that of a district judge upon conflicting evidence, as in an admiralty case, or in any other case where the judges pass upon the facts, if that finding is under review by an appellate tribunal. The Inca (C. C. A.) 148 Fed. 367 (opinion of Meek, District Judge sitting with Pardee and Shelby, Circuit Judges). This court is an appellate tribunal from the rulings of the referee, but when there is evidence to support those rulings-however ingenious the suggestions to the contrary-the court will not be insistent to scan those rulings so as to find some point on which there might be a difference as to their correctness. A fine argument can be based upon almost any accumulation of facts, both pro and con, but, when the court has intrusted this particular duty to the referee, and it has been apparently well performed, the ruling should not be disturbed. This seems to be peculiarly a case where the court should not interfere with the finding of the referee. It seems to be a full-handed failure. The bankrupts must have a good deal of the values remaining in their hands. Though in business but a short time, they have acquired a large sum-nearly $30,000-in values which were not paid for, and according to the finding of the referee about $8,000 of this is undisclosed. Not only ought the homestead, sought in this particular case by one of them, be refused, but their discharge ought to be carefully examined by the court when application there for is made, and I am very much inclined to think that counsel for the creditors will not have done their whole duty unless he has interviewed the district attorney on the whole situation. Full-handed failures will receive no comfortable consideration in this court. In re FEIGENBAUM. (District Court, S. D. New York, January 16, 1902.) BANKRUPTCY-PARTNERSHIP-EFFECT OF DENIAL OF DISCHARGE. The fact that a partnership has been adjudicated a bankrupt, and the partners have been denied a discharge in such proceedings, does not preclude one of the partners from filing an individual petition, although he schedules the same debts and the same assets. In Bankruptcy. On motion to dismiss proceedings. The copartnership firm of P. Feigenbaum & Son, composed of Philip Feigenbaum and Harry Feigenbaum, filed a petition in bankruptcy in May, 1899. In 1900, after certain proceedings had been had therein, their discharge was denied. Within a few months thereafter, Harry Feigenbaum filed his individual petition in bankruptcy, setting forth the same debts and the same assets. The creditors formally objected to his discharge, obtained an order to show cause why the proceedings should not be dismissed, urging the former proceedings as res adjudicata. Noble & Camp, for creditors. ADAMS, District Judge. My attention has not been called to any authority preventing the bankrupt from pursuing the present proceeding (see sections 4 and 59 of Act July 1, 1898, c. 541, 30 Stat. 547, 561 [U. S. Comp. St. 1901, pp. 3423, 3445]; In re Claff, 7 Am. Bankг. Rep. 128, 111 Fed. 506), nor do I see any reason for the substitution of the referee. The stay will be vacated and the proceedings may continue before the present referee. Testimony taken in the former proceeding may be used in this. The question whether the discharge will be granted may be presented hereafter. DEMAREST v. DUNTON LUMBER CO. (Circuit Court, S. D. New York. February 21, 1907.) 1. SALE-CONTRACT FOR FUTURE DELIVERIES-WAIVER OF DEFAULTS. Where a contract for the sale and delivery of lumber by a lumber company required it to ship from time to time as ordered by the purchaser, and the purchaser to pay for each invoice within 10 days after its shipment, but neither requirement was strictly complied with, and no obFor opinion of Circuit Court of Appeals, see 121 Fed. 69. jection was made to such noncompliance by either party, there was a waiver of such conditions as to past orders or shipments, and the seller, which had made shipments, while the purchaser was in default on payments, could not refuse to make further shipments because of such past defaults, although it had the right to insist on payment for the last shipment, which had not been waived, within 10 days, as a condition to further shipments, and was not chargeable with a breach of the contract in refusing to make further shipments until such payment was made or tendered. 2. SAME-ASsignment of CONTRACT-ACTION BY ASSIGNEE FOR BREACH. Where a contract for the sale and purchase of lumber to be shipped by the seller from time to time as ordered by the purchaser was assigned by the purchaser, but the seller at all times refused to recognize such assignment, and all parties thereafter treated it as a nullity, and the assignee as merely agent or representative of the purchaser, to whom all bills were rendered. the assignee cannot maintain an action against the seller to recover damages for breach of the contract. 3. SAME-CONSTRUCTION OF CONTRACT. A contract for the sale and delivery by a lumber company of its entire cut of lumber for a specified year, except what it shall require for its retail trade at its mill, and which further provides that it is agreed that the cut for the year shall not be less than 2,000,000 feet, cannot be construed to require the delivery of 2,000,000 feet. 4. SAME ASSIGNABILITY OF CONTRACT. A contract by a lumber company to sell its cut of lumber for a certain year, except what it should require for its retail trade, such lumber to be delivered, properly dried, f. o. b. cars at its mill from time to time, consigned as directed by the purchaser, each shipment to be paid for within 10 days, and which further provided that the lumber retained by the company for its retail trade should not be above the average in quality. and that the lumber should be sawed as the buyer might direct and be of specified lengths, except that some should be taken of different lengths, necessarily involved some considerations of personal trust and confidence, and was not assignable by the purchaser without the seller's consent. At Law. Motion to set aside verdict and for a new trial on the grounds that the verdict is contrary to and unsupported by the evidence: and that, if in any view plaintiff can maintain the action, the damages are excessive. McKelvey & Mattocks, for plaintiff. RAY, District Judge. This action was brought by the abovenamed plaintiff, Charles R. Demarest, assignee of one Alfred Vanhorn, to recover the damages which Vanhorn claimed he sustained by the failure of the defendant, the Dunton Lumber Company, to perform a written contract made by it with W. E. Kelley & Co. for the sale and delivery of lumber to Kelley & Co. (1) December 11, 1900, W. E. Kelley & Co., of Portland, Me., as party of the first part, entered into a written contract with the Dunton Lumber Company, of the same state, as party of the second part, whereby the first party agreed to buy of the second party, and the second party agreed to sell and deliver to the first party, its "entire cut of white pine lumber for the year 1901, except such lumber as the party of the second part shall have to use for his retail trade in the city of Rumford Falls," and the first party agreed to pay therefor "the sum of $12.50 per thousand for the entire cut of the year 1901," as follows: "Terms. Payment for the same shall be made by the party of the first part within ten days from date of invoice. The party of the first part having the right to discount the invoice one per cent. for cash payment." As to deliveries the contract provided as follows: "It is agreed that the lumber shall be ordered by the party of the first part and shipped when dry by the party of the second part consigned to the order of the party of the first part at such destination as they may name. All deliveries to be made by the party of the second part f. o. b. cars at Rumford Falls, Maine. Invoice for each shipment to be dated the day of such delivery." The contract contained the following provisions also: "The party of the second part agrees that the lumber used for his retail trade shall not be of the best contained in the logs from which the lumber shall be sawed, but will consist of lumber not better than the average grade.” "Conditions. Provided that said lumber shall be sawed by the party of the second part in such manner as the party of the first part may direct from time to time. The party of the second part agrees to saw the lumber as neår as he can on even inches, the widths of which shall be 4", 6", 8", 10", and 12′′. Lumber wider than 12 inches may be any width. The lumber must be sawed inch, inch and one-fourth and inch and one-half, two inch or thicker, as the party of the first part may direct from time to time, and must be fair and full to the sizes given when dry. The party of the second part also agrees to have his logs cut twelve, fourteen and sixteen feet respectively, with at least sixty per cent. sixteen foot. It being agreed by the party of the first part that he will accept lumber shorter than twelve foot and some longer than sixteen foot. The poorest grade shall be sound, merchantable lumber, free from rot, and must be square edged. The narrowest width of lumber to be considered shall not be less than four inches wide, and the shortest lumber to be considered will not be less than eight feet long." Also the following: "The party of the second part agrees to have at least 500,000 feet in pile by the last day of June, 1901, and not less than 1.000.000 feet in pile by the 31st day of July, 1901. The balance of which must be put in pile as fast as can be done by the party of the second part." Also the following, in connection with the last provision quoted: "The party of the second part agrees that the amount of the year's cut will not be less than 2,000.000 feet, and as much more as the party of the second part can furnish." (2) June 19, 1902, W. E. Kelley & Co., by an instrument in writing, assigned this contract, with others, to said Alfred Vanhorn, and agreed therein to loan him $2,000 to enable him to prosecute the business of shipping and selling the product of the contracts, and Vanhorn agreed "to hold sacred the proceeds of this business for the operating of same and the paying of these obligations," and further: "It is understood and agreed that Alfred Vanhorn will prosecute with the utmost diligence the completion of these contracts and wind up this business at the earliest possible moment, and that he will not enter into any other contracts or enterprises which might prevent him from doing so, until the completion of this contract in all its features." It was also provided in this assignment as follows: "This contract becomes operative since the first day of April, 1902." (3) Thereupon Kelley & Co. notified the Dunton Lumber Company of such assignment of such contract, but the Dunton Lumber Company expressly refused to assent to such assignment, or to recognize Vanhorn as the owner thereof, or to recognize him as a party or person entitled to demand or enforce its performance. Kelley & Co. thereupon wrote they would guaranty all payments for lumber delivered under the agreement, but the Dunton Lumber Company did not assent to the assignment even then, but gave notice it would only recognize and treat Vanhorn as agent and representative of Kelley & Co. Thereafter Vanhorn procured deliveries of lumber by selecting and having it loaded on the cars and invoiced to certain parties, but the Dunton Lumber Company persisted in its refusal to recognize the assignment, and persisted in treating Kelley & Co. as the principal, and in all cases made out the bills, etc., for the lumber to Kelley & Co., and sent them to that company, which retained them. Vanhorn, however, made payments on such bills or invoices, but the Dunton Lumber Company gave receipts to Kelley & Co. reciting that the money was received from Kelley & Co. "by the hand of A. Vanhorn." Shortly before July 28, 1902, Vanhorn, who was obtaining the lumber and doing the business for Kelley & Co., as that firm had informed the lumber company he would do, claimed to that company that the contract had been assigned to him, whereupon that company made inquiry by letter, and in reply Kelley & Co. said: "We thought you had been notified that this contract had been transferred to Mr. Vanhorn. We wish to take this opportunity of so notifying you, if you have not already been so informed." In reply the Dunton Lumber Company said: "Gentlemen: Your favor with check for $22.55 received. We note what you say about the transfer of the contract to Mr. Vanhorn. As we do not know anything about Mr. Vanhorn or his financial ability, we shall still continue to charge what boards are shipped to W. E. Kelley & Co., as they are the only party that we know in this contract. If you wish to cancel the contract so far as you are concerned, that is another matter. We shall not accept any transfer to parties that we do not know, as we do not think it would be good, business judgment to do so. We are perfectly willing that Mr. Vanhorn should ship the lumber out as your agent or representative, and will help him all we can to get the lumber off quickly, but we must still hold W. E. Kelley & Co. responsible for the pay for the lumber, according to contract made to them." In reply, W. E. Kelley & Co. said, August 9, 1902: "Gentlemen: We have your favor of the 7th inst. We are satisfied with your wishes in the matter of completing the contract made with us for the lumber which we had turned over to Mr. Vanhorn. We will guarantee the payment of the shipments which you make on this contract." But for the subsequent correspondence and transactions, this might be construed as an acceptance of and assent to the transfer to Vanhorn, with the guaranty of W. E. Kelley & Co. for all payments to come due under it. But the bills were made to Kelley & Co., the receipts for payments were given to it, as stated, and substantially all the correspondence was with that company, and September 9, |