or have made, and for interest thereon, and as a contract for the sale of such portion of said crop as the buyers may by such notice declare their intention to purchase pursuant to this contract." It is contended, in behalf of the demurrer, that by this provision the plaintiffs may, at their option, abandon their contract of purchase. I am of the opinion that the phrase, "and if at such time they shall upon such examination ascertain" that the growing hops are not in the condition required, does not confer upon the plaintiffs the authority to decide for themselves whether the hops are in the condition required by the terms of the contract. By the word "ascertain" the right is reserved to the plaintiffs merely to acquire information, not to decide as to the condition of the hops. The question as to whether the hops are of such quality as required by the contract is one, in case of dispute, that must be determined in the usual mode by which disputed questions are determined in controversies between parties. The demurrer is overruled. In re LEVI. . (District Court, W. D. New York. January 5, 1903.) 1. BANKRUPTCY-PREFERENCE-PROOF OF CLAIM-NOTE-BONA FIDE PURCHAS ER. A note, discounted by a bank without knowledge of the insolvency of the maker and in due course of business, by crediting the payee with the amount of the discount, which note in the hands of the payee and indorser would not be provable in bankruptcy against the maker's estate until certain preferences received were surrendered, is provable by the bank as a bona fide holder. On Review of Ruling of Referee. Wellington, Jones & Millard, for claimant. HAZEL, District Judge. This is a review of a decision of Van Voorhis, referee. The question under consideration is solely whether the State Bank of Chicago has a provable claim against the bankrupt estate. The claim arises by virtue of a promissory note given by the bankrupt to Sleph & Jaffe, a firm in Chicago, and discounted by the claimant bank in due course of business. Sleph & Jaffe had received. payments from the bankrupt which are admittedly preferences. The note in their hands, as conceded by both parties and the referee, would not be provable until such preferences were surrendered. The referee holds that the bank, by virtue of discounting this note and placing the proceeds to the credit of Sleph & Jaffe, does not become such a bona fide holder of the note as to permit its filing a claim against the estate which would be free from the taint of preference. received by Sleph & Jaffe. The admitted facts show that the bank discounted the note without knowledge of the insolvency of the bankrupt. The evidence, as far as material, was by stipulation of the parties submitted in the form of an affidavit. The referee, therefore, had no greater opportunity to judge of the credibility of the evidence than has this court. The evidence of the cashier of the bank discloses that the note was purchased by the bank in the ordinary course of business, and that the bank paid to Sleph & Jaffe the sum of $295.30 therefor. The manner of payment was in the form of a credit to Sleph & Jaffe in their banking account. The note not having been paid by Sleph & Jaffe on maturity, the bank is endeavoring to enforce the claim in its own behalf, and not as agent of Sleph & Jaffe. The referee holds that the presentment of the claim by the bank is but a subterfuge to enable the payee of the note, Sleph & Jaffe, the indorser to the bank, to secure a preference. This holding is based on the theory that, inasmuch as the bank did not actually pay over the money at the time credit was given to the payee, value was not given for it. This contention cannot be maintained. The facts in this case are analogous to those disclosed by In re Wyly (D. C.) 116 Fed. 38, 8 Am. Bankr. Rep. 604. In that case the court said of the bank filing a claim transferred to it by a grocery company under the same circumstances as in the case at bar: "It is true the bank has, since the insolvency of the bankrupts, practically agreed to first look to the bankruptcy court for the payment of the note, and to hold the grocery company only for that portion which is not paid out of the dividends arising from the bankruptcy estate. The trustee, failing to show that the note was the property of the grocery company, seeks to enforce against the claim of the bank equities which would have existed by virtue of the provisions of the bankruptcy court act in favor of the estate of the bankrupts against the grocery company, the original payee of the note." The court in that opinion well said: "The wisdom of vouchsafing to the indorsee of negotiable paper the high degree of security now almost uniformly observed by the courts is made manifest by tracing the different rulings on the subject, and their effect upon credit and commerce. While it is right to scrutinize carefully every circumstance in a transaction of this character for evidence of mala fides, a judge should not be led by considerations of expediency to leave the beaten tracks of law and precedent." It would seem that the doctrine of the case cited would be the safer rule to apply to a case like that under consideration. Transactions similar to that under review are of constant occurrence, and their stability should be sustained if consistent with the rules of law. The ruling of the referee is reversed, and the claim allowed. STRAUSS v. CONRIED. (Circuit Court, S. D. New York. December 16, 1902.) 1. FOREIGN JUDGMENTS-CONCLUSIVENESS-AUSTRIAN COURTS. A judgment of a court of Austria in a suit in which it had jurisdiction of the subject-matter and the parties will be accepted by the courts of the United States as conclusive between the parties of the matters adjudicated. In Equity. On motion for preliminary injunction. Benno Loewy, for the motion. Dittenhoefer, Gerber & James, opposed. LACOMBE, Circuit Judge. Whatever rights Johann Strauss had to these operas passed to his widow, the complainant. What those rights were is a question which was litigated in the Austrian courts between the parties to the suit at bar. The complainant here was complainant there. The defendant here was defendant there; voluntarily appearing, presenting his proof, arguing, and appealing even to the court of last resort. That the Austrian courts had jurisdiction of the subject-matter seems entirely clear. Certainly, on the record here, it must be held that they had jurisdiction of the person of defendant. In Austria it seems that full force and effect is given to foreign judgments of competent courts. having jurisdiction of the parties. The United States Supreme Court held in 1894 that: "In Austria the rule of reciprocity does not rest upon any treaty or legislative enactment, but has been long established by imperial decrees and Judicial decisions upon general principles of jurisprudence." Hilton v. Guyot, 159 U. S. 223, 16 Sup. Ct. 166, 40 L. Ed. 95. There is not sufficient in the papers here submitted to warrant this court in reaching a different conclusion from that expressed above. We start, therefore, with an adjudication between the parties which is to be accepted as settling for this court the points it decided. That judgment decided that the contract of 1891 between defendant and Johann Strauss gave to the former only the right of performance of the dramatic works therein mentioned, and which are the subject of this suit, and the right to permit third persons to perform the same for a percentage royalty or for a lump sum consideration, and only for the period from March 15, 1891, to March 15, 1899, and for the territory of the United States of North America, England, Canada, and Australia, and that said contract and said rights terminated on March 15, 1899, and the rights no longer exist. This adjudication between the same parties appears to dispose of every question raised on this motion. As to the action of Conried v. Witmark in the Supreme Court, the complainant here is not a party. Complainant may take injunction pendente lite, restraining defendant from performing these operas himself, or from undertaking to authorize others to perform them, or from collecting royalties, and from interfering in any way with the complainant in producing or licensing others to produce the same. This injunction, however, shall not operate to restrain the prosecution of the action of Conried v. Witmark, now pending in the Supreme Court of the state of New York. BULLOCK ELECTRIC MFG. CO. v. CROCKER WHEELER CO. (Circuit Court, D. New Jersey. November 21, 1902.) 1. DEPOSITIONS-COMPLAINANT-INTEREST OF WITNESS-DOCUMENTARY EVIDECNE -REFUSAL TO PRODUCE-STRIKING AND OPENING DEPOSITION. Where a witness whose deposition was taken was one of the complainants in the suit, and the only object for which a written contract was desired was to show the interest of the witness, his refusal to produce such contract was no ground for striking his deposition, or to open the same that he might be compelled to produce and be examined concerning it. Thomas Ewing, Jr., for the motion. Clifton V. Edwards, opposed. KIRKPATRICK, District Judge. This motion is twofold: (1) To strike from the files the deposition of a witness, who is one of the complainants in this cause, because he refused to produce on demand an agreement which he had made with his co-complainant in regard to the patent which is involved in this suit; or (2) to open his deposition, and require him to produce said agreement, and subject himself to further cross-examination. The only object sought to be obtained by the production of this paper called for which is noted in the record is that the same is "material, relevant, and competent to prove the interest of the witness"; but the witness is one of the complainants, and his interest is conceded. The paper is not necessary for that purpose. If for any other purpose the paper is required, its production can be obtained through a subpoena duces tecum, which the witness, though a party to this suit, is bound to obey. In such case the witness is under protection of the court, who will see to it that he be not compelled to disclose the contents of the paper until the court has had an opportunity to determine if it be necessary for him to do so. There is nothing in the moving papers tending to show that the paper called for contains anything relevant or material to the issue and the motion for its production is denied. HERMAN & GUINZEBERG v. UNITED STATES. (Circuit Court, S. D. New York. No. 2,991. 1. CUSTOMS DUTIES-GRASS PIQUETS. February 17, 1903.) Grass piquets, consisting of stalks of oats or of wheat, cut in the milk, and grasses dyed to imitate their natural color, mixed with palm leaf and other artificial leaves, bound at the ends of the stems with wire, in all about 15 inches in length, to be used for millinery purposes, are not taxable for duty under Revenue Act July 24, 1897, par. 449, 30 Stat. 193 [U. S. Comp. St. 1901, p. 1678], as manufactures of grass, palm leaves, straw, weeds, etc., but are properly assessed at 50 per cent. ad valorem under paragraph 425, 30 Stat. 191 [U. S. Comp. St. 1901, p. 1675], as artificial or ornamental grains, leaves, and flowers, and stems or parts thereof, not specially provided for. Stephen G. Clarke, for appellant. WHEELER, District Judge. This importation is of grass piquets. consisting of stalks of oats or of wheat, cut in the milk, and grasses dyed to imitate their natural color, mixed with palm leaf and some artificial leaves, and bound with wire at the ends of the stems. They are about 15 inches long, and are used for millinery purposes. They were assessed at 50 per cent. ad valorem, under paragraph 425 of the Act of July 24, 1897, 30 Stat. 191 [U. S. Comp. St. 1901, p. 1675], applicable to numerous millinery articles and ornaments, "and artificial * * * * * * * * * or ornamental feathers, fruits, grains, leaves, flowers and stems or parts thereof of whatever material composed, not specially provided for." They are claimed to be within paragraph 449, 30 Stat. 193 [U. S. Comp. St. 1901, p. 1678], for manufactures of * * * grass palm leaf * straw, weeds or of which these substances or either of them is the component material of chief value, not specially provided for, but the terms 'grass' and 'straw' shall be understood to mean these substances in their natural form and structure, and not the separated fiber thereof." These bunches are not wrought of grass or palm leaf, which are the only things contained in them that are mentioned in paragraph 449, but are, rather, collections of these things with others, and seem to fall among artificial or ornamental grains and stems, of whatever material composed, as named in paragraph 425, 30 Stat. 191 [U. S. Comp. St. 1901, p. 1675]. The oats and wheat are specially mentioned as grains, and the grasses of that nature appear to be well enough covered by stems. Decision affirmed. SUCH V. BANK OF STATE OF NEW YORK. (Circuit Court, S. D. New York. February 27, 1903.) 1. ATTORNEY AND CLIENT-SUBSTITUTION OF ATTORNEY-FEES-DETERMINATION. Where an attorney contracted to prosecute a cause for 15 per cent. of the proceeds of any recovery, and an application was made by plaintiff before termination of the cause for substitution of attorneys, the fees to be paid as a condition to such substitution could not be fixed with reference to the future course of the litigation, but should be determined by the r reasonable value of the services to the date of substi tution. Motion for Order of Substitution of Attorney for Plaintiff. James Parker, opposed. LACOMBE, Circuit Judge. It was conceded by both sides on the argument that plaintiff and his attorney had entered into a contract by which the attorney was to prosecute the cause, and in the event of final recovery was to be paid 15 per cent. of the proceeds. By insisting that another attorney shall now be substituted, plaintiff is presumably breaking that contract, and in the proper way and at the proper time the attorney will presumably have an opportunity to recover damages for that breach. It would therefore be improper upon this application to fix compensation for services actually rendered to date, upon any considerations of the future course of the litigation. No doubt, upon assessment of damages for breach of contract, the tribunal which disposes of the question will deduct from the amount awarded to the attorney, should he be held entitled to recover, the sum already paid him as retainer, and now to be paid as a condition for order of substitution. It seems that, for all services to date, $500 is a fair allowance, of which $250 has been paid. Upon payment of the balance, order of substitution will be made. |