American-made Russian time fuses. I had with me, in my possession, the time fuses as given to me by the Russian military authorities. I compared Mr. Ohmer's time fuses and those, and after a conference of probably two hours I decided that Mr. Ohmer was not of the floating characters that we were meeting so frequently, but that he was really a man who could make time fuses, and I told him I would bring him to Senator Curry, and he would have to negotiate the contract with Senator Curry or with the Canadian Car, who had decided to take it over, or had taken it over, at that time." This Mackie did, with the result that on March 22, 1915, defendant obtained for his Ohio Company the contract from the Canadian Car & Foundry Company for the manufacture of shrapnel fuses; and Mackie testified that complainant brought the defendant to him pursuant to his request. While Mackie was under cross-examination, counsel said: "What we want to know is whether you were representing the Canadian Car & Foundry Company at the time of your conversation with Mr. Ohmer?" To which the witness replied: "All of the time in America, excepting a pause of about two days, when it looked as if Senator Curry could not arrange finances, each and every person whom I approached or who approached me on boxes, shells, powder, etc., each and every man knew and was given to understand that I was for the Canadian Car; that I was not tooting any horn.” He was then asked: "What were your duties with the Canadian Car & Foundry Company at that time? What was the nature of the services that you were rendering?" This was answered as follows: "Weeding out the chaff from the thousands of men who were calling at the hotel and at the offices or elsewhere, making the selection of Mr. Ohmer in preference to ten other men who said they could make time fuses." Then followed questions and answers which are reproduced in order: "You were making the selection of Mr. Ohmer for the Canadian Car & Foundry Company?" "Yes." "In making this selection, as you stated, you had no power to make a contract with Mr. Ohmer?" "None whatever. I should say I was to make the selection of the good from the bad to present to Senator Curry." "When you interviewed Mr. Ohmer, pursuant to the introduction of Mr. Ryan, you did so in the interest of the Canadian Car & Foundry Company, for them, and not for yourself?" "For them." "Not for yourself?" "No, sir; not whatsoever." "At the time you could not have executed a contract with Mr. Ohmer for the manufacture of fuses, could you?" "No." In the same connection the testimony of the counsel of the Canadian Company, who was also chairman of the executive committee of that company, Mr. Cahan, throws light on the matter under consideration. The witness details a conversation which occurred between himself, Senator Curry, and Col. Mackie, in which the importance of finding a factory available for the manufacture of time fuses was discussed. He testified that: "Col. Mackie spoke up and reviewed the conversation he had had with a man named Thomas Ryan. He reported to Senator Curry and to me the purport of a conversation that had been dribbling down for two or three days that Ryan said he had a factory available, and a man available, who could make time fuses. Up to that time I had never heard of Will I. Ohmer. Senator Curry was hurrying away, and I went to my room and drew up a letter to Flint, which meant the exclusion of Flint and the prospective keeping in of Kirby and Bird, and he then turned to Mackie and me, and he said, 'Mackie, this time fuse situation is very difficult and delicate, and I want you to get after Ryan and find out who it is that can manufacture time fuses,' and he turned to me and he said, 'I want to see that everything possible is done to find out about these time fuses, to find out from Bird what Yale and Towne can do, and find out whether Flint controls them;' and as a result of it he left. Mackie came to my room, and I impressed upon him the necessity, and stated how important it was that he should get after this nran Ryan and get after him immediately. I told him that I was convinced that, if we turned Flint out, Flint would close up this Yale & Towne opening which had been discussed so much. The next morning I delivered the letter to Bird, and had a row with Flint, and informed Mackie, I think by telephone, that Flint was out, and how was he getting on in finding out about these time fusMy memory is that I came back to the Hotel Manhattan, being rather anxious about it, and Mackie said, 'I have found out from Ryan that the man who was available was Ohmer.' es. The defendant admits that complainant introduced him to Mackie, and that at that time he had no contract with the Canadian Company. Mackie testifies that he told the defendant that Curry, the president of the Canadian Company, had close relations with one Kirby of Dayton, Ohio, and that he suggested to defendant that he have Kirby substantiate any statements the defendant made about his ability to manufacture time fuses, and that on that day the defendant wired Kirby, who came on to New York, Curry being in New York. The defendant admits that on the day he talked with Mackie he wired for Kirby to come to New York; but he denies that Mackie advised him to wire Kirby, or that he advised him to have Kirby substantiate his statements. We can see no reason why Mackie should have testified falsely, or what interest he could possibly have had to misrepresent what occurred. Mackie is not in any way identified with Ryan, and testified at the trial that he had not seen Ryan since the negotiations, but that he thought he would know him if he met him. "That is my total connection with him." It is very evident from testimony that Senator Curry reposed confidence in Kirby, who had been president of the National Association of Manufacturers and was well qualified to give him information, especially as respects the defendant and his plant, and that Kirby recommended the Ohio corporation and advised Curry to enter into negotiations with defendant. The complainant testified concerning a conversation with the defendant at the time the memorandum of February 20, 1915, was drawn as follows: "I said to Mr. Ohmer that this is the first contract that we have, and I am going to be liberal with you. I am going to make a suggestion that you have 60 per cent. and I should have 40 per cent. The percentage was not put in the original memorandum, and I think Mr. Ohmer said, 'I do not own all the stock of the Recording & Computing Machines Company, and if you should have 40 per cent. of this contract you would have more really than I would,' so he asked me to specify that as to his personal relation as to the stock." When the defendant was on the stand, he was asked by the court as to the words "from Col. Mackie," inserted in the written memorandum of February 20, 1915. "Do I understand by that interlineation that you accepted anything that came through Col. Mackie?" And he replied: "If it came from Col. Mackie." Then followed: "That contract was to be accepted from your dealings with Mr. Ryan?" "If anything came from Col. Mackie." "What?" "In the way of orders." "As I understand you-I did not catch the other day the full significance of those interlineations--after it was written out you then insisted upon that insertion, the interlineation there, and the purpose of that insertion was that for all orders that had come through Mackie the profits were not to be divided with Ryan?" "No; any order that Mackie could place the profits arising, any commissions from that order, would be divided. At that time, you see, I had a number of people like Canadian Car & Foundry Company and the Westinghouse and the National City Bank and the New York Air Brake Company all working on the same Russian order. Now here comes another. Mr. Ryan said Col. Mackie was the man who could give a real contract, and I made him state in there that it was to be Col. Mackie and no one else, because some one else might have come in here and been some of the same people I was figuring with -from Col. Mackie and no other." Senator Curry testified that he thought Kirby introduced Ohmer to him. In this respect his testimony did not agree with that given by Col. Mackie to which reference has already been made. [5, 6] The written memorandum which is the basis of this suit was hastily written out by the complainant, who is a layman, at the hotel in which he and the defendant were conferring. Upon the suggestion of the defendant, who is also a layman, the words "from Col. Mackie" were inserted. The meaning of the words interpolated is not so clear as to make it improper to admit evidence as to the circumstances out of which the memorandum arose. The rule applicable to such a situation and the authorities supporting it have been stated in an earlier part of this opinion. In the light which the circumstances afford it is evident to us that the language "from Col. Mackie" did not mean that the contract would have to be a contract with Col. Mackie, but one obtained through the instrumentality of Mackie. Neither did the words "by or through either of us" mean that the contract would have to be one in which the defendant individually should agree to manufacture the fuses. The defendant's own testimony makes it entirely clear that it was understood that, if the contract was obtained by his company, the condition of the written memorandum would be fulfilled, provided it came from Mackie. That testimony also makes it clear that the profits to be divided were not the profits made by defendant's 156 C.C.A.-30 company but that portion of those profits realized by the defendant as a stockholder in the company. So far we have no difficulty. [7] The question of real difficulty is to determine whether the contract which the defendant obtained for his company was obtained through Mackie. That is a question of fact which is not free from difficulty. And it is made difficult by conflicting testimony. If Ryan, Mackie, and Cahan tell the truth there is no difficulty in reaching the conclusion that the contract came through Mackie's suggestions, notwithstanding the fact that those suggestions might never have come to fruition, had it not been for Kirby's indorsement. But Mackie directed defendant's attention to the relations between Kirby and Curry, and, if his story is true, to the importance of bringing Kirby on from Ohio to assure Curry that defendant's company was equal to the undertaking. So far as the record discloses, Mackie and Cahan have. no financial or other interest in the outcome of this litigation. The District Judge, who saw and heard the witnesses, has held that upon the evidence the contract came through Col. Mackie, and this court would not be justified in substituting its judgment for his, unless clearly convinced that his conclusion was erroneous, and we have no such clear conviction. The court does not in this opinion pass upon any of the questions raised by the defendant as to the scope and form of the interlocutory decree, and this opinion is without prejudice to the right of the defendant to raise all such questions as he may be advised upon appeal from the final decree. Decree affirmed. (244 Fed. 38) UNITED STATES v. MISSOURI PAC. RY. CO. MISSOURI PAC. RY. CO. v. UNITED STATES. Nos. 4793, 4794. 1. MASTER AND SERVANT 13-HOURS OF SERVICE-COMPUTATION. Under Hours of Service Act March 4, 1907, c. 2939, § 2, 34 Stat. 1416 (Comp. St. 1916, § 8678), providing that no telegraph operator shall be on duty for longer than 9 hours in any 24-hour period at continuously operated offices, where an operator was on duty regularly from 7 a. m. to 3 p. m., the 24-hour period commenced at 7 a. m., and where on one occasion he was excused from 1:30 p. m. to 3 p. m., when he returned to duty and remained on duty until 5:10 p. m., the fact that he was on duty for more than 9 hours in the 24-hour period commencing at 3 p. m., was not a violation of the statute. 2. MASTER AND SERVANT 13-HOURS OF SERVICE-EMERGENCIES. Where a railroad dispatcher intended to have carloads of live stock picked up by a certain train, but through inadvertence and oversight failed to give the necessary orders, and to avoid holding the live stock until the next day, and causing loss and damage to the shipper and the company, ordered such cars picked up by a train which, owing to unexpected and unforeseen delays, did not leave the station where they were picked up until the operator had been on duty more than 13 hours, there was no emergency justifying the excess service under Hours of Service Act, § 2, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes permitting operators to remain on duty for more than the hours thereby prescribed in case of emergency, as the oversight or inadvertence of the dispatcher could not constitute an emergency. 3. MASTER AND SERVANT 13-HOURS OF SERVICE-EMERGENCIES. Where a railroad dispatcher was misinformed as to the time of arrival of a train load of silk to be delivered to his road by a connecting road, and, wishing to handle such train with expedition and promptness, kept an operator on duty for more than 9 hours to hold another train and receive orders in reference thereto, and thus permit the prompt moving of the silk train, there was no emergency justifying the operator's excess service. 4. MASTER AND SERVANT 13-HOURS OF SERVICE-EMERGENCIES. Where a railroad telegraph operator was kept on duty more than 9 hours because part of a freight train was derailed on account of a drawbar pulling out of one of the cars and falling on the track, thereby delaying a passenger train in reaching his station, and it was necessary to hold him on duty until such train arrived for the purpose of handling the mail and caring for passengers upon its arrival, the excess service was caused by an emergency and was justified. 5. MASTER AND SERVANT 13-HOURS OF SERVICE "EMERGENCY." That a train was delayed in leaving a station owing to broken packing rings in one of the cylinders of the engine, making it necessary to send for a relief engine, was not such an emergency as justified keeping the operator at such station on duty more than 9 hours, since while the word "emergency" as used in the law does not mean an extraordinary emergency as used in some statutes, it means more than ordinary mistakes and negligences which happen in the practical operation of railroads. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Emergency.] Stone, Circuit Judge, dissenting in part. In Error to the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge. Suit for statutory penalties by the United States against the Missouri Pacific Railway Company. Judgment sustaining demurrers to certain counts and overruling demurrers to other counts (235 Fed. 944), and each party brings error. Affirmed. John A. Gordon, Asst. U. S. Atty., of Denver, Colo., and Philip J. Doherty, Sp. Asst. U. S. Atty., of Washington, D. C. (Harry B. Tedrow, U. S. Atty., of Denver, Colo., on the brief), for the United States. J. W. Preston, of Pueblo, Colo. (Edw. J. White, of St. Louis, Mo., B. P. Waggener, of Atchison, Kan., and T. H. Devine and Todd C. Storer, both of Pueblo, Colo., on the brief), for Missouri Pac. Ry. Co. Before CARLAND and STONE, Circuit Judges, and RINER, District Judge. CARLAND, Circuit Judge. The United States brought this action against the Railway Company to recover penalties for violations of the Hours of Service Act (34 Stat. 1415). The complaint in 12 counts. charged that the Railway Company permitted certain operators at Arlington, Boone, Sheridan Lake, and Haswell, Colo., to be and remain on duty for longer hours than allowed by law in any 24-hour period. The Railway Company answered each count of the complaint except the fourth and ninth by pleading facts which it claimed consti For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |