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No. 1100
UNITED STATES CIRCOIT COURT OF APPEALS
FOR THE NINTH CIRCUIT.
GEORGE DEMKO,
Plaintiff in Error,
vs. \ p I L
CARBON HILL COAL COMPANY (a Cor-
poration),
Defendant in Error,
TRANSCRIPT OF RECORD.
Upon Writ of Error to the United States Circuit
Court for the District of Washington,
Western Division.
1 HE FILMER BROTHERS bo. PRINT, 424 1AN80ME STREET, •. F.
^ ^^'yuu^yy
3^0 z
INDEX.
Page
Amended Coinplaiut , 3
Amended Complaint, Answer to 10
Answer to Amended Complaint '10
Assignment of Errors. . , 41
Bill of Exceptions 16
Caption ,. ., 3
Complaint, Amended 3
Complaint, Answer to Amended 10
Errors, Assignment of 41
Exceptions, Bill of 16
Judgment 15
Order Extending Time to Docket Cause , 2
Printing Record, Stipulation as to 1
Reply , 14
Stipulation as to Printing Record. . 1
Testimony on Behalf of Plaintiff:
Dr. E. M. Brown 17
Dr. E. M. Brown (cross-examination). .... 18
Dr. E. M. Brown (re-examination) 18
ii Index.
Page
Testimony on Belialf of Plaintiff — Continued:
Dr. E. M. BroNvn (recro^s-examination) 18
George Demko 19
George Demko (cross-examination) 20
George Demko ( re-examination) 23
Vincent Gallick 35
Vincent Gallick (cross-interrogatories) 3(5
William H. Thomas 24
William H. Thomas (cross-examination) 28
William H. Thomas (redirect examination).... 31
William H. Thomas (recross-examination). . .. 33
William H. Thomas (re-redirect examination).. 33
William H. Thomas (re-rccross-examination). . . 34
William H. Thomas (re-re-redirect examination) 34
D. H. White 37
D. H. White (cross-examination) 37
Time to Docket Cause, Order Extending 2
Verdict 15
In the United l^tates Circuit Court of Appeals for the Ninth
Circuit.
GEOI?OE DEMKO,
Plaintiff in Error,
vs.
CARBON HILL (X)AL COMPANY (a^
Corporation),
Defendant in Error./
Stipulation as to Printing Record.
It is hereby stipulated between the parties hereto
that the clerk of the United States Circuit Court of Ap-
peals shall print the following parts only of the record
which are deemed material to the hearing of the writ
of error in this cause; to wit; the amended complaint,
answer to the amended complaint, reply to amended
answer, verdict, judgment, assignment of errors, bill
of exceptions, and the order settling the same and this
stipulation, that in printing the above portions of the
record the designation of the Court, title of cause, veri-
cations and indorsements, except on the first page, may
be omitted.
' J. H. EASTEE.DAY and
GOVNOl? TEATS,
Attorneys for Plaintiff in Error.
JAMES M. ASHTON,
Attorney for Defendant in Error.
[Endorsed]: No. 1100. George Demko vs. Carbon
Hill Coal Co. Stipulation as to Printing Record. Filed
Jul. 25, 1904. F. D. Monckton, Clerk.'
Georfje DeinJco vs.
In the United States Circuit Court of Appeals, Ninth Circuit.
GEORGE DEMKO,
Plaintiff in Error,
vs.
OAEBON HILL COAL COMPANY,
Defendant in Error.
Order Extending Time to Docket Cause.
It appearing that the clerk of the lower court will
not be able to file his return to the writ of error in this
case within the time provided by law.
It is ordered that the time for filing such return be
and the same is hereby extended to the 25th day of
July, 1904.
Jun. 28, 1904.
JOHN J. DeHAVEN,
Judge.
[Endorsed]: No. 1100. United States Circuit Court
of Appeals, for the Ninth Circuit. George Demko,
Plaintiff in Error, vs. Carbon Hill Coal Company. De-
fendant in Error. Order Extending Time to Docket
Cause. Filed Jul. 21, 1904. F. D. Monckton, Clerk.
By Meredith Sawyer, Deputy Clerk.
Cwi'hon Hill Coal Company.
Ill the Circnil Court of the Vii'ited States for the District
of Was-hiiif/ton, We>itern Divls'ion.
February Term, 1904.
Caption.
Be it remembered that on the Bl'st day of Jiil.v, 1003,
Ihore was duly filed in said Circuit Court of the United
States for the Western Division an amended complaint
in the words and figures following, Fo wit:
III the United States C'lreuit Court, Distriet of Washington,
Western Division.
GEORGE DEMKO,
/ Plaintiff,
vs.
CAKiBON HILL COAL CO^fPANY,
Defendant.
Amended Complaint,
Now, comes the above-named plaintiff and complain-
ing of the defendant says:
I.
That the plaintiff is at this time a resident and citizen
ot Pierce Cminty, Washington.
That the defendant is at this tim'e, and was at all
the times hereinafter mentioned, a corporation or-
4 Oeorge DemJco t*s.
ganized under the laws of Oalifornia, owning and oper-
ating coal mines in Pierce County, Washington, known
as the Carbonado Mines, with a logging road and road
used in connection therewith for hauling timbers and
props from the forests and woods to its said mines.
II.
That at defendant's mines at Carbonado, Pierce
County, Washington, they had at, and a long time prior
to the accident herein comiplained of, in use from its
mines a narrow gauge railroad out from its mines into
the forest, over which defendant operated logging cars
propelled by a small locomotive engine.
That the logging cars are about ten feet in length
■by about four and a half feet in width and so arranged
as to admit only of the piling of timbers thereon.
That the little locomotive engine so used by said com-
panyis constructed and provided with seats at one end
of the same for the brakeman and the engineer.
That the same is operated by an engineer who is as-
sisted in the operation of the train by an employee
called a brakeman, but whose duty it is to be upon the
said engine when traveling to and from the mines and
woods, and to keep the said track sanded for the said
engine and obey the orders and directions of the en-
gineer thereof.
That there is no other place reasonably safe for the
brakeman to ride, except upon the said locomotive and
upon the seats made and provided therefor.
Carbon Hill Coal Company. 51
That the said engineer and said brakeman were at
the time of the accident herein complained of, the only
tmployees of the defendant in charge of its said loco-
motive and train of cars; the train of cars consisting
of two of the above-described logging cars, besides the
locomotive.
That the said logging road is constructed through
several small cuts with embankments several feet high
on either side of the track. That the said defendant in
the construction of the said road through the said cuts,
and especially so at the place of the accident hereinaf-
ter complained of carelessly and negligently con-
structed the said road through the said cuts so that the
embankment of the same came down to the rail, and
in time through the elements and through other agen-
cies to wit, stock and cattle going up and down the said
embankments caused the rocks, gravel and earth to fall
down the said embankments and filled up the cut to
the rails. That said defendant carelessly and negli-
gently allowed the said cuts to be filled up to said rails
and had no ditches to receive the falling earth and
rocks from the sides of the embankments.
That the stock consisting of cattle and horses, owned
by the residents and citizens of Wilkeson, and Carbon-
ado, Washington, to a large number roamed over the
said track and up and down the said embankments,
and in going up and down said embankments caused the
earth and rocks and debris to fall down the same, and
upon the said track of the said defendant company
which would and did cause many derailments of the
6 Qeorge Demko vs.
cars of the said defendant company upon its said log-
ging road. That the said defendant carelessly and
negligently failed to maintain a reasonably safe road-
bed for its said logging trains and especially so at the
point where the accident herein complained of oc-
curred. That at the place of the accident hereinafter
complained of was a cut where the embankments were
several feet high and at an angle of aibout thirty-fire de-
grees, and where the track and roadbed of the defend-
ant just on entering the said cut and in a portion of
the same was an exceedingly sharp curve, and owing
to the sharpness of the said curve and the embank-
ment and the brush growing upon the same, it was
impossible for the plaintiff or the engineer of the said
defendant's train to see any rocks or gravel or any
obstruction upon the said track before the train or cars
had reached the same; and it was impossoble for the
said trainmen to see the same in order to prevent a de-
railment.
III.
That on the ll7th day of October, 1901, the plaintiff
was employed by said defendant as a brakeman upon
its said logging train, and cars and while upon said
locomotive and riding to the woods, pushing the two
cars herein described as its train, plaintiff was sitting
upon the seats made and provided for him upon the
said locomotive engine, and while the said locomotive
engine was pushing the cars around a curve of its said
track, and while going at the usual and customary
fate of speed the car next to the said engine, by reason
Carhoii 17111 Coal Companij. 7
of the track being out of repair and the rails thereof
spreading, through the negligence and carelessness of
said defendant company; and due and owing to rocks
and gravel upon the track in the cut which were upon
the track through the negligence of the said defendant
company, through the construction and maintenance of
its said road as hereinbefore complained of which rocks
and the dangers thereof were unknown to the plaintiff,
the car next to the engine and the plaintiff, became de-
railed and the plaintiff was thrown against the said
car with great force, and the drawbar connecting the
said car with the said locomotive broke striking the
plaintiff upon his right foot and leg, penetrating the
flesh thereof about six inches above the ankle, break-
ing the small bones, lacerating his leg to a great extent
and smashing and crushing his foot and the bones of
his foot and breaking and dislocating the same, so that
the plaintiff is maimed and injured for the balance of
his lifetime.
IV.
That the accident herein complained of occurred
through the carelessness and negligence of the said de-
ft'udant company' in not maiutaiung a reasonably safe
track and roadbed for its trains to operate upon, in
this, that it neglected to place a sufficient number of
cross-ties to properly hold the rails and keeping them
from spreading and allowed the said cross-ties to be-
come rotten and broken, and the rails whicli were of the
ordinary "T" rails used upon tracks of that dimension
and size, to become spread so that the wheels of the
8 George Dcmko vs.
cars could not run upon the same, causing the said de-
railment; that the said rails were insufficiently spiked
and secured so as to prevent them from spreading.
In maintaining the said roadway and tracks in the
cut with embankments coming down to the rails and
without any ditches or other safeguards to protect the
tracks from' the fall of rocks and debris from the em-
bankment into said cut and onto the track.
That the drawbar connecting said cars with the said
locomotive was an old defective drawbar and partially
broken, all of whicli facts as herein stated the company
know, and by reasonable care imposed upon it by law,
should have known, and that the plaintiff did not know
of the condition of the said track at the place of the
accident and did not know of the condition of the said
drawbar at the place and time of the accident.
V.
That after receiving the injuries herein complained
of, plaintiff was taken to the hospital and has had many
operations performed on his leg and his foot.
That he has suffered great pain and mental anguish
by reason of the said injuries so sustained, and still
suffers pain, and will for the balance of his lifetime, suf-
fer pain and mental anguish from the injuries so re-
ceived.
That the injuries so received through the negligence
and carelessness of the said defendant, has made the
plaintiff a cripple for the balance of his lifetime, and
unable to work.
Carbon Hill Coal Company. 9
That plaintiff is a common laborer and earning and
able to earn at the time of the accident iiereiu com-
plained of, the sum of |2.25 a day. That he was at the
time of the accident an able-bodied man twenty-eight
years of age, and in perfect health. That plaintiff is
injured by reason of the accident herein complained of
in the sum of |18,000.
Wherefore plaintiff prays judgment against the de-
fendant company in the sum of |18,0O0, together with
his costs and disbursements herein.
GOVNOR TEATS, and
J. H. EASTERDAY,
State of Washington,^ Attorney for Plaintiff.
County of Pierce.
}
George Demko, being first duly sworn upon oath says:
that he is the plaintiff in the above-entitled action;
that he has read the above and foregoing complaint and
knows the contents thereof, and that the matters and
things therein set forth are true, as he verily believes.
GEORGE DEMKO.
Subscribed and sworn to before me this 27th day of
July, 1903.
[Seal] GOVNOR TEATS,
Notary Public in and for the State of Washing-ton, Re-
siding at Tacoma.
Ree'd copy of within this 28 day of July, 1003.
J. M. ASHTON, w. n. n.,
j Attorney for Deft.
Filed in the U. S. Circuit Court, Jul. 31, 1903. A.
Reeves Ayres, Olerk. Sam'l D. Bridges, Dep.
10 George Dcmlco 7;.s.
And afterwards, to wit, on the 17th day of December,
1003, there was duly filed in said court in said
cause, an answer to amended complaint, in the
words and figures following, to wit:
[Title of Court and Cause.]
Answer to Amended Complaint.
Comes now the defendant and answering the amended
complaint herein.
First.
Admits each and every allegation set forth and con-
tained in the first paragraph of said amended complaint
except the allegation that it owned and operated a road
used in connection with the logging road therein men-
tioned.
Second.
Answering the second paragTaph of said amended
complaint, defendant admits the allegations set forth
and contained in the first four paragraphs or subdivi-
sions, and the sixth paragraph or subdivision thereof,
but denies each and every other allegation contained
in said second paragraph of said amended complaint,
save and excepting the defendant admits that it was
safe for a brakeman to properly ride upon the seat in
the locomotive provided for him for that purpose, and
admits that said logging road is constructed through
several small cuts with embankments several feet high
en each side of the track, and admits that alleged ac-
cident occurred where there was a cut with em-
Carhon Hill Coal Conipniii/. 11
bankments on each side, and tliat at said cut there was
a curve, but denies tliat said curve was an extremely
sharp one. '
Third.
Answering the third paragraph of said complaint, de-
fendant denies each and every allegation set forth and
contained therein, save and excepting it admits plain-
tiff was employed by defendant as a brakeman on the
ITth day of October, 1901, and that the train was being
operated at the usual and customary rate of speed, and
that the car next to the locomotive became derailed,
and that the drawbar connecting said car with said
locomotive broke.
Fourth.
Answering the fourth paragraph of said amended
complaint, defendant denies each and evei-y allegation
therein set forth and contained.
Fifth.
Answering the fifth paragraph of said amended com-
plaint, defendant denies any knowledge or information
sufficient to form a belief as to the truth of the allega-
tions set forth and contained therein, save and except-
ing the defendant admits that plaintiff was earning
two dollars and twenty-five cents per day.
Sixth.
Defendant, further answering said amended com-
plaint, and as a first affirmative defense herein, alleges :
1st. That the plaintiff herein was a long while be-
fore and at the time of the alleged accident a man (►f
12 George Deniko vs.
mature age and understanding, and had been employed
in and about the coal mine of the defendant for many
months, and had been employed upon and engaged in
working and running said train and locomotive Avith said
appliances and equipment and over said track for at
least thirty days prior to said alleged accident.
2d. That the plaintiff well knew and fully under-
stood the workings and condition of said train in all
respects, and the equipment thereof, and well knew and
fully understood the condition of said locomotive and
the drawbar attached thereto, and well knew and fully
understood the condition of all cuts and embankments
and of the track and roadbed and all curves and the
physical features connected therewith, and well knew
and fully understood the dangers and perils of his em-
plo^qucnt as a brakeman upon said locomotive and train,
and assumed the risks thereof.
3d. That the said plaintiff is a man of full age and
understanding, and had been employed by the defend-
ant to work in and about the track, ties and roadbed
of the defendant's logging road for a long time prior
to the time when the alleged accident to the plaintiff
occurred; that the said plaintiff well knew and fully
understood the surroundings of, the method of con-
struction and the condition of the said track, and the
condition under which it was maintained from day to
day and from time to time, and well knew and fully un-
derstood the dangers and jjerils attendant upon its use,
and that the said plaintiff assumed all risks incident to
such conditions, dangers and perils.
Carbon Bill Goal Company. 13
And defendant, further ansAvering- said amended com-
plaint, and as a second affirmative defense, alleges:
1st. That the alleged injuries sustained by the plain-
tiff as complained of in his amended complaint were
caused solely by and through the carelessness and neg-
ligence of the plaintiff, and by and through the contrib-
utory negligence of the plaintiff; that there was pro-
vided on said locomotive and train a safe and suitable
place for the plaintiff to ride when said train was in
motion, and tliat plaintiff sustained said alleged in-
juries by and on account of his carelessness and neglect
in failing to properly ride in such safe place so provided
for him, and on account of his carelessness and neglect
in failing to obey orders as to the place and position
he should occu])y on said train on which he Avas Avork-
ing at the time it is alleged he sustained his said al-
1( ged injuries, and by and on account of the careless-
ness and negligence of the plaintiff in taking and oc-
cupying an obviously dangerous and unstife place and
position on said train, and that by reason of the afore-
said carelessness and negligence on the part of the
plaintiff he sustained said alleged injuries, and that
said alleged injury and damage could not have occurred,
and Avould not have happened, had the plaintiff' been
in no wise negligent or careless in riding upon said
train, and the plaintiff's own negligence and careless-
ness proximately and naturally contributed to his al-
leged injury.
14 George Deinko vs.
Wlierefore, defendant praj^s that it may go hence
v.ithout daj', and have and recover its costs and dis-
bursements herein.
J. M. ASHTO'N,
Attorney for Defendant, Office 411 Fidelity Building,
Tacoma, Washington.
[Duly verified.]
And afterwards, to wit, on the 17th day of February,
1904, there was duly filed in said court in said
cause, a reply in the words and figures following,
to wit:
[Title of Court and Cause.]
Reply.
Comes now the above-named plaintiff, and replying
to defendant's answer, alleges and says:
I.
Replying to defendant's further answer and first
affirmative defense, plaintiff denies each and every alle-
gation therein contained.
II.
Replying to defendant's further answer and second
affirmative defense, plaintiff denies each and every alle-
gation therein contained.
GOVNOR TEATS,
Attorney for Plaintiff.
[Duly verified.]
Carbon Hill Coal Company. 15
And afterwards, to wit, on the 5th day of March, 1904,
there was duly filed in said court in said cause, a
verdict of the jury in the words and figures follow-
ing, to wit: I
[Title of Court and Cause.]
Verdict.
We, the jury in the above-entitled cause, find for the
defendant, having been instructed by the Court so to do.
GEORGE THORNTON,
Foreman.
And afterwards, to wit, on the 5th day of March,
1904, there was duly filed in said court in said
cause, a judgment in the words and figures follow-
ing, to wit:
[Title of Court and Cause.]
' Judgment.
The issues in this action having been duly reached
for trial in the regular order upon the calendar of this
court on the 5th day of M'arch, A. D. 1004, at a term
thereof beginning the first Tuesday in February, 1904,
before the Honorable C. H. Hanford, Judge of the Dis-
trict Court, sitting as Judge of the Circuit Court, a jury
having been duly impaneled and sworn and all of the
plaintiff's proofs and allegations having been duly
taken and heard, the Court having thereupon directed
a verdict upon the merits of the defendant and against
the defendants, the jury Having returned said verdict,
16 George Demlo vs.
and the said verdict having been accepted by the C^urt,
the plaintiff having moved for a new trial, and the
said motion having been denied, it is
Ordered, that the defendant go hence without day
and have judgment against the plaintiff upon the said
verdict; and that the defendant, the Carbon Hill Ckjal
Company, have and recover of the plaintiff, George
Demko, the costs of this action, taxed at one hundred
and forty-two dollars and fifty cents ($142.50), and that
the defendant have execution therefor against the ijrop-
erty of the plaintiff. j
Done in open court at Tacoma, this 1st day of June,
A. D. 1904.
C. H. HANFORiD,
j I Judge.
And afterwards, to wit, on the 22d day of April, 1904,
there was duly filed in said court in said cause, bill
of exceptions in the words and figures as follows,
to wit:
[Title of Court and Cause.]
Bill of Exceptions.
This cause coming on regularly to be tried on this
the ^th day of March, A. D. 1904, at the hour of lU
o'clock A. M., before the Honorable C. H. Hanford, J., the
plaintiff appearing in person and by counsel, Govnor
Teats and J. H. Easterday, and the defendant being
represented by its counsel, J. M. Ashton, and a jury
being empaneled and sworn to try the issues herein,
the following were had and testimony taken, to wit:
Carbon Hill Coal Company. 17
Dr. E. M. BROWN, being sworn^ testified :
Direct Examination.
(By Mr. Teats.)
I live in Tacoma, and am a practicing physician. I
have examined plaintiff's injuries. Examined him first
last summer, six or eight months ago, and to-day. I
stripped his foot and compared it with the other foot
and also examined it with the X-ray light. There is
a wound on the outer side of the leg and a scar result-
ing from the wound. (Taking model and illustrating.)
There is a breaking down of the parts or tissues of the
right foot with a displacement or dislocation of the large
bones of the foot and a settling down of the arch, the
foot is settled down, making it flat on the bottom; at
this break in the foot these two bones are a little higher
than here; instead of arching up, this bone projects
up a little, so that when he steps the little one grinds
against the one up here, and this bone is down lower,
producing a condition we call flat foot. The condition
I have described and the result therefrom would neces-
sarily be permanent. It will always be a dislocated
foot. It would be diflflcult to say what effect it would
have upon his walking. He will always have a flat
foot, which is likely to always give him more or less
pain. In some cases it might improve with time, in
others not. If the suffering has continued for over two
years and there has been no improvement, I would say
that that indicates permanency. The conditions six
or eight months ago and to-day are about the same; I
18 George Demko vs.
(Testimony of Dt. E. M. Brown.)
cannot notice any change except that the swelling has
gone down, othenvise about the same..
Gl'oss-examination,
(By Mr ASHTON.) r t
If I should examine his foot and I should not have
any words with Mr. Demko I could not tell whether he
had any pain or not. He might have pain and again
he might not. I would have to gain that from him by
taking his word or by watching him for some time. A
man with a deformed foot may have great pain, but I
could not tell that frtmi an examination. I cannot say
whether I found injuries which would incapacitate him
from performing work as a common laborer or not. It
might, and again it might not.
Re-examination.
(By Mr. TEATS.) '
If a man has been injured for over two j^ears, and has
suffered pain during all that time, he would have it
every time he stepped on that foot. He would be dis-
abled fromi any work that required weight to be thrown
upon that foot.
Becross.
(By Mr ASHTON.)
I have not watched the plaintiff to ascertain whether
he has any pain, and I can only take his word. I think
the movements of the injured foot are only retarded
slightly by the deformity.
Carbon Hill Coal Company. 19
GEORGE DEMKO, the plaintiff, sworn and testified:
^ ' Direct Examination.
(Mr. TEATS.) '
I was 29 years old last December. I stay with my
brother part of the time. I commenced working for
the Carbon Hill Coal Company in 1901. First work I
did was barking poles, taking the bark off. Worked
out in the woods, then worked as a track-layer in the
mine. I had worked for the company six or seven
months wlien I got hurt. I did not work all the time
barking props; I loaded some. I helped on the engine
sometimes. I helped run the train about a week be-
fore when I was put on the train helping put props on
the train. I helped load and unload the trucks and
helped the engineer. I rode on the front end of the
engine (Plaintiff's Identification No. 1.) That is the
picture of the same engine I was working on. When
riding to the woods I would sit on the front end, unless
it was raining, and then I would sit on the back end.
(Identification No. 1 offered in evidnce.) (Identifica-
tion No. 2.) That is the same as the train I got hurt
en. It is the same end of the engine I was on. That
box was not on there when I got hurt. We were going
out to the woods with the engine and two trucks. The
trucks were pushed with a drawbar and the first car
from the engine jumped off the track on my side, and
my foot was hanging down, as I was sitting on the foot-
board, and when the car jumped the track the draw
broke in two pieces, striking my foot on the outside of my
20 George Demko m.
(Testimony of George Demko.) i
leg. They then took me out and took me to the hospital at
Carbonado. They put me to sleep at the hospital and
operated on my leg. I remained two weeks at Carbonado
and then was taken to the St. Joseph's Hospital in Ta-
coma. I had severe pains all the time. I was never
hurt before that. If I walk two or three hours now
my foot gives out. I have not been doing anything
since the accident; I cannot work because my foot pains
me so severely if I stand on it for two or three hours.
When I was working I earned $2.25 a day. I cannot
tell just how many days I have worked since the acci-
dent, but I have worked but very little. If I do work
a day, then I have to lay off, as my foot pains me so
severely all the time. I can't get a place to work for
the reason that 'I ami not able to do all kinds of work.
I worked at f'^airfax a few days last fall picking slate.
I have always been a common laljorer. I had worked
upon this train but very little before the day I got hurt.
J don't remember just how many trips I had made all
together. I did not work steady on the ngine, I only
worked now and then for a day or so at a time. Bill
Thomas was the foreman. Jim Donnelly was the engi-
neer and Dan Meridith were present at the time of the
accident, and Vincent Gallick was about fifty feet
away.
Cross-examination.
(By Mr. ASHTON.);
I am an Austrian; have lived in this country about
twelve years. I worked on the section when I first
Carbon Hill Goal Company. 21
(Testimony of George Demko.)
came to this country and earned f 1.50 per day. When
] came to Carbonado ]\rr. Lewis hired me as a track-
layer in the mine at $2.25 per day. I worked in the
mine one year and four months, then I went to work
outside putting timbers down into the mine, then went
to work out in the woods barking props and helping on
the engine. I had been worldng on the outside six or
seven months when I got hurt. I saw the place on the
track where I got hurt as often as I had gone over the
track on the engine. The train made about six trips
a day. I got hurt on October 17th, at about 1:30 P. M.;
that was on the fourth trip. That would be the eighth
time I had passed along there. I had been breaking
eight or ten days before this. I passed the place six
trips, that is twelve times a day. I could not see any-
thing upon the track. There w^as a sharp curve at the
place of the derailment, and we could not see anything
upon the track. There was a sharp curve and a cut at
the place of the accident. I could not see the track
from the engine when I was riding over it. I helped
do some repairing on the track some four or five months
before the time of the accident, but I cannot remember
al what place on the track we did the work. I never
walked out over the track, but had always ridden over
it on the engine. (Referring to Plaintiff's Exhibit No.
2.) The cab was in that condition when I got hurt; the
coal was on the bottom and the bark on top. The en-
gineer was sitting in the same position that he is sitting
22 George Demko vs.
(Testimony of George Demko.) i
in now. I sat over on the other side on the bottom, as
the box was not there then, and my feet were hanging
right down over the foot-board. I was facing down the
track then, or towards the cars. The trucks were
empty at the time. I could not see the sides of the
embankment, as there Avas a sharp curve in the track
at that place, and I could not see the track ahead on
account of the cars being right in front of me; I could
not see over the cars and along the track. (Defend-
ant's Exhibit "A.") This is the same engine and the
same cab. I was sitting over here where this man is
sitting now, with my feet hanging down. The reason
I did not put my feet inside was because the place in
between my seat and the engineer's seat was filled with
coal and bark. There was another man on the engine
besides myself and the engineer. I could not say why
he was allowed to ride. I never knew that the com-
pany had any rules or regulations in regard to the road.
I could not read English. I don't remember anything
about rules that were posted up. I did not object to
the man riding in the cab. He got on when we started
out and rode clear down with us until the accident hap-
pened. I never saw one of these trucks jump the track
before. I helped Jim Donnelly run the train. We did
not carry passengers, but we did carry some stuff out
to the woods just for our own use. When we were
backing down to the woods to get a load, if there was
anytliing on the track I would get off and remove it;
that was all I had to do when we were going down.
Carbon Hill Coal Compani/. 23
(Testimony of Georf>e Demko.)
When it was not raininp; I would rido on the front end
of the engine, but if it was raining- I would ride on the
back end. I don't know just how fast we were going
at the time of the accident, but I think we were going
pretty fast at that time, a little too fast. I did not
hear either Donnelly or Meridith tell me not to sit in
the position I was sitting in at the time. The track is
not a temporarj^ affair, with the exception of a portion
out towards the end. (Defendant's Identification "C")
I could not say whether that is the place where the
train jumped the track; it looks some like the place. I
could not say whether those are the stumps and trees
that were there (Identification "C" ruled out.) I could
not say just how close up to the track the trees and
brush were; the track run right out through the woods.
The slot in the rear of the engine was where the draw
bar was placed in. This slot was made for the purpose
of giving the bar room to play when going around a
curve. The engineer placed the fuel on the engine be-
fore we started down to the woods. I did not help put
it on. The engineer placed the fuel on the engine every
trip, up at the mine. I have worked a few days at
Fairfax, and about a half hour shoveling coal at Mel-
mont. I could not stand it to shovel any longer, as my
foot pained me so when I tried to do heavy work like
that.
Re-examination.
(Mr. TEATS.)
I came to the State of Washington about five years
ago, and shortly afterwards went to Carbonado, and
24 Gewgc Demko vs.
(Testimony of George Demko.)
went to work in the mines there. This logging road
was about a mile and a quarter in length. It was a per-
manent road with the exception of a little out towards
the end of the, woods, tiiat was shifted around. The
reason I did not work any longer at shoveling coal, at
Melmont, was because it was too hard work; I could
not stand it. At the time of the accident was the only
time I ever saw a derailment. I could not put my feet
up iuside, because the space there was filled with coal
and bark on top. There was a space between me and
the car; the drawbar was about four feet long. I did
not get off from the engine at the time of the accident;
they took me right to the hospital, I do not know what
made the car jump the track.
Deposition of WILLIAM H. THOMAS, taken on the
part of the defendant, read in evidence for plaintiff:
My full name is William H. Thomas. I reside in Cali-
fornia. I have worked for the Carbon Hill Coal Com-
pany, and began working for them in 1886. I worked
for the company about fifteen and one-half years. I
first started in as a teamster, and went from that to
foreman of the wood choppers. I was then foreman,
atid had charge of the work of building and maintain-
ing the tram road. I was acquainted with the plain-
tiff, Demko. I knew that he was injured on the road in
November, 1901. I was familiar with the road. I rode
up and doAvn it every day. It was my duty to see that
the road was kept in good shape. At the time Demko
Carbon Hill Coal Company. 25
(Deposition of William n. Thomas.)
was injured, I was general foreman over all t(\e outside
work; I had another man looking over the track for me
then; his name was Jacobson. Mr. Jacobson was under
me. I was familiar with the track, as I built the road,
and also repaired it, by putting on heavier rails. We
had changed the rails at the place where the accident
occurred; that was about eight or nine months before
the accident, and put in new ties, and straightened up
the track in general. The soil in that section is mostly
gravel, and there is a cut right through at the place of
the accident. The cut is about sixty feet long, and is
about five feet high on one side, and about seven feet
high on the other, and about ten feet across the top, and
five, six or seven feet across the bottom. Tbe slope of
the embankment is about thirty-five degrees. Oattle
and horses go right up and down there. Cattle and
horses from around Wilkeson and Carbonado. The
width of the track is about three feet between the rails,
the length of the ties about five feet. The ties were not
all the same length; some were a little longer, some a
little shorter. There was two trucks being pushed at
the time of the accident. The trucks were about ten
feet long, four feet wide. The drawbar was made of
Swedish iron, and it would generally bend when a
truck jumped the track, and we could bend it back, and
go on. On this particular occasion, the drawbar broke,
because the car got nearly crosswise of the track before
the engine was stopped. I was not there at the time
of the accident. I was coming along the county road
26 George Demko vs.
(Deposition of William H. Thomas.)
on horseback. When I came up to where the road
crosses the track, I asked a man by the name of Gallick
what the engine was going back to town for. He said
a man had been hurt, and shortly afterwards I went to
the place of the accident; I looked around there and
noticed that the car was crosswise, and there were a
couple of small stones on the track. The track was in
good shape, and I concluded that the stones had thrown
the car from the track. I had seen cars go off the track
before, on account of stones being on the track. When
stones or gravel fell on the track, or when the wheels be-
came worn, the cars would frequently jump the track, but
the wheels on these trucks, that were being pushed at the
time, were new ones. These trucks go off much easier
than heavy ones would, as the stock feeding along the
track are liable to roll rocks down on the track, but so far
as a straight track is concerned, I do not think they
would go off any quicker than they would on a railroad.
These trucks weigh about one thousand three hundred
pounds, and we put them on with a stick or peave, when
they jump the track. These rocks that I found on the track
at the time of the accident were about one and a half
or two inches thick, and about four or five inches long,
and about three or four inches wide. One of the rocks
was lying about three inches from the rail, on the inside
of the rail, and the other was over further towards the
middle of the track. I did not notice whether either of
tliem had any marks on. I just picked them up and
threw them out of the way. I came to the conclusion
Carhon Hill Coal Company. 27
(Deposition of William B. Thomas.)
that there was some stock running there, and they had
knocked them down on the track. There were cattle
and horses there. Demko had been working under me
for some time prior to the accident, first lowering tim-
bers into the mine, and then working outi in the woods.
There was a curve at the place of the accident which, if
extended into a complete circle, would have a radius of
about one hundred feet. The track was in good repair
at the place of the accident, for we had just fixed it up
some time prior to the accident. The rails were in good
shape; they wei'e not spread, and the spikes were not
drawn; the ties were about one foot to eighteen inches
apart, and there were thirty pound rails at the place
of the accident. The ties were sawed fir, and were bed-
ded in gravel. I rode up and down the track on horse-
back, and had seen the track at the place of the accid-
ent. I had to ;see that the track was kept in repair,
and that the men were getting the timibers, and if the
engineer notified me that the track needed repairing, I
would either go myself or send Jacobsen. There were
no derailments at this place afterwards. I last saw the
track yesterday evening, and it was in perfect condition.
I am familiar with the wood roads at Carbonado, but
not elsewhere. This road at Carbonado was the best of
its class I ever saw. There is a wood road between
Burnett and Buckley, but it is not like this one it is a
pole road wooded ties. Ours is the regular T-rail, 30
pound rail. The drawbar was welded again after the
accident, and used during my time, that is up to July
28 George DcmJco vs.
(Deposition of William H. Thomas.)
1902. Demko had had opportunity to know the condi-
tions of this track at the place of the accident by going)
up and down the track, making six trips a day, while he
was on as brakeman with the same engine, the same*
drawbar and the same trucks before the accident.) The
drawbar was long, for the reason that we had'i to have*
room between the cars when we had long timbers, and
so there would be room when going around a curve, and
room for a man to get in between the cars to unload
them. Demko had made three tripy before the accident
on the day of the accident. He had made perhaps fifty
trips altogether while a brakeman on the wood train,
with everything in the same condition that it was in on
the day of the accident. Mr. Demko came to the office
after the accident, and had a conversation with the
superintendent, Mr. Davies; he wanted money to go to
the old country; he wanted fSOO. Mr. Davies told him
he could not give him money, but he would give him
work at the bunkers at |2.25 per day, work that he
could sit down to do. There was another conversation at
the office sometime after that, but I did not pay any
attention to it. His physical condition at that time
was fine; I did not notice him using anything to walk
with or to assist him in walking.
C^oss-examination.
(By Mr. TEATS.)
I did not see Demko have a cane at that time. He
walked lame. I did not see his leg. Matt Jacobson
Cnrhon Hill Coal Company. 29
(Deposition of William IT. Thomas.)
was the road foreman under me. His duties were to
rei)air the track and build the track and build waj^on
roads, and see to the tracks under your orders, and to
see that they were reasonably safe for the ruuuin<i|; of
cars. The locomotive weighs seven tons. I do not
know its horse power. The road is for the purpose of
hauling logs and timber for the mines, and also to the
little sawmill near the mine. The train is manned by a
locomotive engineer and brakeman; not always two
men, only at intervals. When we were crowded for
limber, we w^ould put a brakeman on. We did not al-
ways have a brakeman on. The brakeman would load
and unload the cars. There was no switching unless
it became necessary at the lower end. The rails are
about three feet. Where the railroad goes through
the cut, the embankment commences about six or eight
inches from the rail. The tie extends about six inches
each side of the rail. The ties about five feet long.
It was eight inches they extended. The embankment
came down to the end of the ties. There are four or five
split ties at the place of the accident. The rest are
sawed. The road coming from Carbonado about one
liundred feet toward Carbonado from the point of the
accident has a curve Not near so sharii as at the point
of the accident: There is an ciDhankment on the left-
hand side as you go towards Wilkeson, about one hun-
dred feet from where the accident was, then the road
makes a sharp cun-e going to the right to\\ards Wilke-
son, and into the cut, and at that point, just where it
30 George Demko vs.
(Deposition of William H. Thomas.)
enters the cut is where the place of the accident was —
about the middle of the cut, and on this curve. This
curve, if continuous, would make a circle of about two
hundred feet above the accident. The train is not op-
erated very fast. About four miles or about three. A
little faster than my horse walks, that is, when they are
not loaded. Going toward AVilkeson it is downgrade at
this point, where the accident happened. Al)out two per
cent. Two feet to every hundred. Above that it is three
feet between there and Carbonado. The rocks that were
the cause of the accident were about the middle of the cut.
One of the rocks was about the center of the track, and
the other about three or four inches from the rail. Both
were on the inside of the rails. They would have to be
there in order to cause the derailment. In the fall,
cows and other animals of the people of Wilkeson and
Carbonado and Wilkeson roam about in the vicinity.
In the fall of the year more so than at any other time.
It is Wilkeson stock mostly. We have had more or less
trouble from the derailment of cars, because of rocks
being on the track. Cattle go up and down the embank-
ment, and children sometimes get mischievous, and they
come along and put sticks or rock on the track for the
])uvpose to tbrow the cars off. The cars being very
light, it would not take a very large rock to throw them
oft', and it was quite a common affair to have cars de-
railed by rocks on the track. It was very seldom that
the drawbar was bent. If any, it was bent very little,
but the one between the two cars was very often bent
Carbon Hill Coal Company. 31
(Deposition of William H. Thomas.)
when the forward car would become derailed. It is not
true that there are many ties along the track three feet
apart. Not to my knowledge. There is more of them
six or seven inches apart than three feet. There was
not several ties three to three and one-half feet apart
at the place of the accident, I
Redirect.
(By Mr. A8HTON.)
The trucks were being pushed, because it was easier
for loading, and the engineer and brakeman could see
the better by pushing them down than if they were
pulling themi down, both riding on the inside of the lo-
comotive. We had no switch at the lower end of the
track at Wilkeson, and the timber was piled alongside
of the track. The engineer had the determining
whether the trucks were to be pushed or pulled. His
name was James Donnelly. He was the regular en-
gineer that Demko run with as brakeman. It is cus-
tomary for the engineer and brakeman to watch as
close as possible for little rocks on the track. The brake-
man, of course, he sits in the cab, and is a little lower
down than the engineer, and probably he can't see any
distance down the track. The engineer could probably
see a little further down the track at this particular
curve, than the other could see. That is, he could see
out before getting round the curve. There could be no
precautions taken to keep the little rocks from coming
on to the track, except by fencing the track to keep the
32 George Demko vs.
(Deposition of William IS. Thomas.)
stock away from tliere. The stock roam all through the
timber there. They go along and across the track, and
they go up over the embankment, and they would roll
rocks down. It is not customary to protect with fences
these wood roads. They are built for temporary pur-
poses. This road has never been used for the trans-
portation of freight or passengers for hire. Mr. Gallick
did not go back on the engine with Demko to Carbonado
when the engineer took him back. Demko walked
lame when he was coming and talking to me after he
got out of the hospital. He limped on the right foot,
and walked very slow. The proper way for the engineer
and brakeman to sit in the caboose of the engine is for
them to face each other. I had the duty of instructing
these brakemen how they were to sit in the cab, when
they went to work. I usually instructed them to be
very careful, and went down to show them how to load
and sand; his duties on the return trip was to sand the
track if he had a wet rail. The rail was wet on the day
of the accident. It was not really rainy; it was misty.
We did not have to sand the track on the trip down to
the woods. I never instructed Demko as to just how he
was to sit or stand on the engine. But I did tell him to
be careful. I never instructed him how he should sit
on the back of the engine. I have stated to him that
inside the cab was the proper place for him to ride, and
he had his seat, and I never told him how to sit.
Carbon Hill Coal Company. 33
(Deposition of William HI Thomas.)
Kecross.
(Mr. TEATS.)
The space from the end of the boiler back to the edge
of the back end of the engine is about three feet. The
door of the boiler is opened in that space. The engin-
eer's seat is about eighteen inches to two feet in length,
and about twelve or fourteen inches wide on the right
hand side of the engine. The seat of the brakeman is
just the same, except that the engineer has a box to
sit on, and the brakeman has not. The engineer's seat
is higher than the brakeman's. There is no tender.
The fuel is coal and bark. The space between the en-
gineer and brakeman is used to place the fuel in. The
seat of both the engineer and brakeman is flush with
the back end of the engine. This space is hardly ever
full of fuel; we put in a little coal, and then throw the
bark up between the boiler and the cab, and that runs
up for the trip. The cab is about five feet from the
engine, and there is no danger in case of derailment.
Re-redirect.
(Mr. ASHTON.)
A man is not safe with his feet hanging over there,
as the drawbar is swinging, and he is liable to get his
foot caught, and a man is liable to get his leg broken
in case of a derailment. There is not room for the lower
part of a man's leg inside the cab, facing the engineer
when the fuel box is full. But we never carry it full.
We simply carry enough to run us from one end to the
34 George Deniko vs.
(Deposition of William H. Thomas.)
other, and it does not take very much to carry lis up.
At the lower end we throw in a little bark between the
boiler and the side of the cab. If it was full, we could
not open the door of the fire-boxes. The brakeman sits
with his legs on top of the fuel. There were two seats,
one on each side about three feet in length, and about
one foot in width, both being alike, the only difference
being that the engineer's seat is higher on account of
I he box of tools. There is a jockey box to carry the
engineer's tools, and the brakeman's seat is made to
carry sand underneath his seat.
Re-recross.
(By Mr. TEATS.)
It is not necessary to have the engineer's seat higher
so that he can sit in comfort with his feet in the space
between the engine and the bark, and face the engine.
It i8 not really necessary to have it much higher than
the brakeman's, only for the purpose of carrying tools,
and that is what it is put there for. The seat is higher
than the brakeman's.
' I Re-re-redirect. ^
The engineer's seat is the higher for the purpose of
accommodating his tools, and not for any other pur-
pose.
Carbon Hill Coal Company. 35
Deposition of VINCENT GALLICK, taken on the
part of the plaintiiT, was then read to the Jury :
My name is Vincent Gallick, 32 years of age. I re-
side at 236 West Noble St., Nanticoke, Pennsylvania.
I am a laborer. I resided in Pierce County, and was
residing at Carbonado, Washington, on October ITth,
1901. I lived two years and three months at Carbon-
ado, and worked as a laborer. I was familiar with the
logging road of the Carbon Hill Coal Company, that ex-
tended from the mine out towards Wilkesou, and used by
the defendant in hauling logs to the mine. I traveled
(tver it many times. The rails were of the little sort. I
traveled over the road on foot many times, at least
twenty-five times. The track on the 17th day of Oct-
ober, 1901, was in about the same condition as at other
times when I traveled over it, so far as I noticed. 1
am acquainted with George Demko. I was present at
Ihe accident in which George Demko was injured. The
accident occurred about half way between Carbonado
and the logging point, at a sharp curve in the road,
which I suppose is about one and one-fourth mile from
Carbonado, out towards Wilkeson, I saw the locomo-
tive stop, and one car was off the track, and I think the
other was off also. I saw that the drawbar between
the car and the locomotive were broken, I saw George
Demko in the cab of the engine, and his foot bleeding.
I noticed the track immediately after the accident; it
was on a sharp curve, and there were embankments on
each side. I don't know the cause of the accident. I
36 George Demko vs.
(Deposition of Vincent Galliek.) '
did not assist in taking care of Demko. I was near
the track, and jumped on the cow-catcher of the loco-
motive as it passed me; just as I jumped on, the accident
occurred, and the train stopped. I was going from
Carbonado towards the logging point. I could not say
what rate the train was going; I had to be very quick
to jump on it. At the time of the accident, George
Demko was in the cab of the locomotive. There were
three persons on the train at the time of the accident; I
have forgotten the names of two of them, and can only
remember the name of one, George Demko.
Oross-interrogatories.
Witness testified as follows:
I have worked on repair work as a laborer on a rail-
road. I never had a charge or supervision of any con-
struction work in constructing any mining or logging
road. I worked on the Fairfax roadbed for three or
four months during the year of 1899. The accident in
this case happened after the train had passed me in
going from Carbonado to Wilkeson. I stood on the
right side and stepped off from the track to the right;
I stood about three or four yards away from the track
when the cars were passing, but came closer when the
locomotive was passing. At the time of the accident,
I had jumped on the cow-catcher, and the accident oc-
curred as soon as I got on. I had a claim against the
Carbon Hill Coal Company, but no lawsuit with the
defendant herein. I
Carbon Hill Coal Company. 37
D. H. WHITE, called as a witness on the part of the
plaintiff, testified:
My name is D. H. White; residence, Tacoraa. I am
a civil engineer. I have had considerable experience
with the soil of Pierce County, in the work of making
cuts. I had some experience in building logging roads
and tramways. I would say that a cut sixty feet long
that is from five to seven feet deep and is five or six
feet wide at the bottom and ten or eleven feet across the
top, I would say that was a faulty construction. It
would depend on the soil as to how much slope there
should be for every foot in height, about one foot of
slope to each vertical foot, but where the soil is gravely
there should be at least one and one-half feet. It would
be faulty construction if maintained in any other way.
I Cross-examination.
I have never seen this place; I am not speaking from
my observation. I am referring to any logging-road,
any kind of logging road. That is my idea as to any log-
ging road permanent or temporary. I have built some
logging roads in this country.
The roads were built in different parts of Pierce
County. I did not do the construction work, but did do
the surveying for a number. I am a civil engineer by
profession.
Plaintiff rests.
Whereupon defendant moves the Court to instruct
the jury to find a verdict for the defendant on the fol-
lowing grounds, some one, or all of them.
3S George Demho vs.
1st. Because the complainant does not state facts
suflBcient to constitute a cause of action.
2(1. For the reason that the evidence in the case on
the part of the plaintiff fails to establish facts sufficient
to support a verdict for the plaintiff.
3d. For the reason that the testimony of the plain-
tiff shows that any injury resulting to the plaintiff
resulted from open, visible and notorious dangers which
under his contract of employment he assumed, and that
therefore his employer is not liable.
4th. For the reason that the plaintiff's evidence
shows the proximate cause of the accident to have been
the fact that the plaintiff was seated with his legs
directly between the truck and the cab, and hanging
down to the foot board, so that in case of a derailment,
which was common and known by the plaintiff that such
would be very likely to result, and for the further rea-
son that the evidence of plaintiff shows that there was
ample room for him 'to have seated himself in a different
position, where it would have been impossible for him
to have been struck by a truck jumping off the track;
and further because the evidence shows that only one or
two small stones had fallen upon the track and had
gottesn so close to the rail as to throw the car off, an in-
cident which might have happened anywhere where the
slope was one to one and one-half to one foot, as that
character of stuff will run down any other incline.
After argument of counsel, the Court sustained the
said motion, to which plaintiff excepted, and exception
was allowed by the Court; whereupon the Court in-
Carbon Hill Coal Company. 39
structed the jury to return a verdict in favor of the de-
fendant and against the plaintiff, and the jury there-
upon, in obedience to the instructions of the Court, re-
turned its verdict in favor of the defendant and against
the plaintiff, to which action of the Court the plaintiff
excepted, and the exception was allowed by the Court.
United States of America,
Ninth Circuit Court,
District of Washington,
Western Division.
This cause having been brought on regularly before
the Court, on this 25th day of May, 1904, upon notice for
settling and serving of the bill of exceptions herein,
and it appearing to the Court that the plaintiff herein
duly filed and served upon the defendant on the 22d day
of April, 1904, its proposed bill of exceptions, and the
time for filing and service of the said bill of exceptions
having heretofore been duly given, the plaintiff to and
until the day of — , 1904, and the defendant
having filed and served its proposed amendments.
And it appearing to the Court that the foregoing
bill of exceptions comprehends all of the plaintiff's pro
posed bill of exceptions, together with all of the amend-
ments thereto proposed by the defendant, it is therefore
ordered that the said bill of exceptions heretofore men-
tioned be and is hereby settled, certified and signed as
a true bill of exceptions in this cause, by the under-
signed Judge of this Court who presided at the trial of
this cause. Same is hereby certified to be correct in all
40 George Demko vs.
respects, and it is ordered to be made a part of the rec-
ord herein.
It is further certified that the said bill of exceptions
contains all of the evidence offered and all the evidence
introduced at the trial material herein of the above-
entitled action, together with the exceptions thereto
and the instructions to the jury by the Court, and the
matters and things and proceedings embodied in the an-
nexed bill of exceptions are matters and things and pro-
ceedings, and the whole thereof, occurring in said cause,
material herein, and that the same contains all the
material facts and matters and proceedings as a part of
the record in said cause.
And it is further certified that exhibits ,
were introduced in evidence and marked as such ex-
hibits, on the part of the plaintiff, and it is hereby made
a part of this bill of exceptions, and the same are ex-
hibits referred to in this bill of exceptions, and in my
judgment, it being proper that the said original exhibits
should be inspected in the Circuit Court of Appeals, I
order that the same may be transmitted by the clerk of
this court to the clerk of the Circuit Court of Appeals^,
and there to be kept until the final disposition of this
cause, and returned to the clerk of this Court.
C. H. HANFORD,
' ( Judge.
Carbon mil Coal Company. 41
And afterwards, to wit, on the 1st day of June, 1904,
there was duly filed in said court, in said cause,
an assignment of errors, in the words and figures
following, to wit:
LTitle of Court and Cause.]
Assignment of Errors.
Now comes the above-named plaintiff in error, George
Demko, and makes and files the following assignment
of errors in the above cause, wTiich the plain-
tiff and plaintiff in error will rely upon in the United
States Circuit Court of Appeals, for the Ninth Circuit,
for relief from the judgment rendered in said cause in
the court below.
I.
The Court erred in its order sustaining the motion
made on the part of the defendant to direct a verdict
for defendant at the close of the plaintiff's case.
To which order and the giving of the same the plain-
tiff duly excepted, and the exception was allowed by
the Court.
II.
The Court erred in directing the jury to render a ver-
dict in favor of the defendant at the close of the plain-
tiff's case.
To which order and the giving of the same the plain-
tiff duly excepted, and the exception was allowed by
the Court.
42 Oeorge Demko vs.
III.
The Court erred in overruling the motion for new trial
made on the part of the plaintiff, and in refusing plain-
tiff a new trial.
To which order overruling the plaintiff's motion for
new trial, the plaintiff duly excepted, and the exception
was allowed by the Court.
IV.
The Court erred in rendering a judgment against the
plaintiff in said cause and in favor of the defendant,
for the dismissal of said cause, and for costs and dis-
bursements in said action. For the reason that said
judgment is contrary to law and the facts and the evi-
dence in said cause, and that the plaintiff's cause should
have been submitted to the jury for their consideration
and verdict.
Wherefore, the plaintiff in error, George Demko, prays
that said judgment of the United States Circuit Court,
District of Washington, Western Division, be reversed,
*nd that the verdict rendered by the jury, under the
orders of ithe Court, be set aside, and that the plaintiff
in error be granted a new trial herein. i
GOVNOK TEATS, and
J. H. EASTERDAY,
Attorneys for Plaintiff in Error.
Received copy of the within Assignment of Errors,
June 1, 1»04.
J. M. ASHTON,
Atty. for Deft.
Carbon Hill Coal Company. 43
[Endorsed]: No. 1100. United States Circuit Court
of Appeals, for the Ninth Circuit. George Demko,
Plaintiff in Error, vs. Carbon Hill Coal Company (a
Corporation), Defendant in Error. Transcript of Rec-
ord. Upon Writ of Error to the United States Circuit
Court, for the District of Washington, Western Div-
ision.
Filed July 22, 1904. •
F. D. MONCKTON,
Clerk.
By Meredith Sawyer,
Deputy Clerk.
INo. IIOO
IIN THE
UNITED STATES
CIRCUIT COURT Of APPE^AI^S
FOR THE NINTH CIRCUIT
GEORGE DEMKO,
Plaintiff in Error / f^ J L E D
\ SEP -7 1904
CARBON HILL GOAL COMPA-
NY, a Corporation,
Defendant in Error,
Brief of Riaintiff In Error.
IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE
DISTRICT OF WASHINGTON, WESTERN DIVISION, TACOMA.
GOVNOR TEATS.
J. H. EASTERDAY,
Attorneys for Plaintiff in Error.
IIV THE
UNITED STATES
CIKCUIT COURT Of APPEAI^S
FOR THE NINTH CIRCUIT
GEORGE DEMKO,
Plaintiff in Error
vs.
CARBON HILL GOAL GOMPA-
NY. a Gorporation,
Defendant in Error.
Brief Of Plaintiff in Error.
IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE
DISTRICT OF WASHINGTON. WESTERN DIVISION, TACOMA.
GOVNOR TEATS,
J. H. EASTERDAY,
Attorneys for Plaintiff in Error.
STATlEMEiNT.
Tlie writ of error herein is sued out upon a directed
verdict in a personal injuiy case. Tlie defendant company
owns and operates extensive coal mines at Carbonado,
Washington. It has a loggfing road extending out from
the mine about one aud a quarter miles for the purpose of
hauling logs or timbers to the mine and also to the little
sawmill near the mine, which is used for sawing timbers
and lumber for the mines (Rec. 29). The train is a small
locomotive weighing about seven tons, pulling cars when
empty weighing about thirteen hundred pounds apiece.
The track is a regular graded track with cuts and embank-
ments and "T" rails weighing about thirty pounds. The
train is manned by an engineer and brakeman. The brake-
man when going to the woods sits opposite the engineer
upon a box. Tlie fuel is carried in a space between the
seat of the engineer and the seat of the brakeman. When
the space for fuel is filled there is no room for the bi akc-
man's feet and legs inside the cab and so he sits with his
feet hanging outside (Rec. 22). He could not put his feot
up inside because the space at the time of the accident was
filled with coal and bai k. The car is attached to tlic engine
by a draw bar aliout tour feet long (Kec. 24). Out from
the mine on the road is a cut about sixty feet long with
6
embankments about five feet to seven feet high, and from
five to seven feet across at the bottom and ten feet across
at the top. The slope of this embankment is about thirty-
five degrees. The soil through which this cut is made is
mostly gravel (Rec. 25). The cut was made so that the
embankments were permitted to come down to tlie end of
the ties, which are between six and eight inches from the
rails, and there is no ditch provided to receive the falling
gravel rocks as they are washed down or thrown down by
cattle going up the embankment (Kec. 29). Cattle and
horses roam about there and were at the time of the acci-
dent. The cattle and horses were from Wilkeson and Clar-
bonado (Rec. 25). There were cattle and horses near the
place of the accident at the time of the accident (Rec. 27).
George Demko was braking upon the engine and while
riding ont u] on the engine, in his nsual place and with his
feet hanging over the end of the box because of the space
being filled with coal (Rec. 22, 24), and when the train
leached this particular cut the car next to the engine be-
came derailed, the draw bar broke and caught Demko 's
foot on the outside, mutilating and injuring it permanently
(Hec. 17 to 2(; inclusive). There is a sharp curve at this
cut, so shai'p that small stones would easily derail the ti^ain,
and the engineer could not see the obstacles ahead of him
in time to stop his train.
There was in charge of the railroad a general foreman
7
or superintendent by the name of Tlioinas, who built and
maintained the road (Kee. 24), and who is the main wit-
ness in this case. His testimony, taken by defendant, in
this ease is the testimony of a vice principal, and upon his
testimony the plaintiff rested as to the cause of the acci-
dent; and also as to the neg^ligence charged in tlie com-
plaint, in regard to the negligence of the company in con-
structing a road with no ditch and in a gravel bank where
cattle roamed without any protection from rocks falling on
the track. His testimony is as a confession or an admis-
sion as to the material facts in this case.
At the time of the accident Mr. Thomas was riding by
on horseback. He learned that a man was injured and he
afterwards went to the place of the accident and testified
us follows:
"I looked around there and noticed that the car was
crosswise, and there were a couple of sma^ll stones on tlie
track. The track was in good shape and I concluded that
the stones had thrown the car from the track. I had seen
cars go off the tiack before on account on stones being O'U
the track. When stones or gravel fell on the track, or
when the wheels became worn, the cars would frequently
jumi> the track, but the wheels on these trucks that were
being pushed at that time were new ones. These trucks go
off much easier than heavier ones would, <is the stock feed-
'ing alaiifj the track a. e liable 'o roll roch'^ doirn dh the trm'k,
but, so far as a straight track is concerned, I do not think
8
they would go off any ([uicker than they would on a rail-
foad. * * * These lO'cks that I found on the track at
tlie time of the accident weie about one and a half or two
nclies thick, and al>out four or five inches long, and about
ihree or four inches wide. One of the rocks was lying about
fhree inches from the rail, on the inside of the rail, and the
Dther was over further towards the middle of the track. I
DID NOT NOTICE WHETHEIK EITHER OF THEM
HAD ANY MARKS ON. I JUST PICKED THEM UP
/VND THREW THEM OUT OF THE WAY. I CAME
TO T'H CONCLUSION T'HAT THERE WAS SOME
^;T'OCK RUNNING THERE, AND THAT THEY HAD
KNOCKED THEM DOWN ON THEi TRACK. THERE
WERE CATTLE AND HORSES THERE." (Rec. 26,
27.)
It was his duty to see Uiat the track was kept in repair
and reasonably safe (Rec. 27). He had a foreman under
him whose duty it was to repair the track and build the
track and see to the tiaek under his orders and see that it
was reasonably safe for running the cars (Rec. 29). The
accident occurred about tlie middle of the cut on the curve
(Rec. 30) on October 17th, 190L
"The rocks that ir&re the ccmse of the accident were
about the middle of the cut. One of the rocks wa<s about
the center of the track, and the other about three or four
inches from, the rail. Both ivere on the inside of the rails.
They noidd ha.ve to he there in order to cause the derail-
9
mmit. In the fall cons and animals of the people of Wil-
kesofi and Carbonado roam about the vicinity^ In the fall
(yf the year, more so thnni at any other time, we have had
more or less trouble from derailment of cars because of
rocks being on the track. Cattle g:o up and down the em-
Lankment and children sometimes get mischievous, and
they come along and ]>ut sticls-s or rocks on the track for
the purpose of throwing the cars otf."
Demko never saw a derailment before his accident
(Rec. 24).
Tlie constrarction of a cut tlirough a gravelly soil as
lierern deseribed is a faulty construction, and it wordd be
a faulty construction to maintain it in that way (Rec. 37).
It is tnie that the plaintiff charged in his complaint
a defective trac:l< and r-^otten ties, etc., but in his statement
to the jury stated that he did not depend upon, and co'uld
not jvrove, any of the facts as to that allegation, but de-
pended upon the other charge of negligence, wliich he sub-
mits was substantially proven.
ASVSTGNMENT OF p]HR.ORS.
Tbe Court erred:
1. In sustaining the motion to direct a verdict for
defendant.
2. In directing the jury to return a vei'dict in favor
of the defendant.
10
3. In overruling plaintiff's motion for a new trial.
4. In rendering judgment against the plaintiff dis-
missing his cause and for costs and disbursements in favor
of the defendant.
POINTS AND AUTHOllITIEvS.
I.
It is the dut}^ of a railroad company to so construct
its track through cuts as to have the same reasonably safe
for the operation of trains.
U. P. vs. O'Brim, 49 Fed. 538; affirmed in 16
Sup. Rep. 619.
Sand washed upon the track, there being no culvert
through which the wafer could run.
Ore. Short Line vs. Tracy, CS Fed. 931.
Brush allowed to grow beside the track and overhang-
ing the same, obstructing view of dangers ahead.
Clime vs. Rist'me, 94 Fed. 745.
Large rock falling from cut upon the track, derailing
engine.
"If rock overhang its track, or loose rock is embedded
in the slopes of cuts through which its track runs, in such
position that they may be displaced by the ordinary action
of elements, and precipitated upon its track, it should
either remove them or take other adequate precautions to
11
^ard against tlie clanger, and render its track reasonably
safe. ' '
Gleeson vs. Ry., 11 Sup. lie]). 859.
Landslide in a out, causing derailment of train, caused
by ordinary fresbet.
"Tlie railroad cut is as mucb a part of tbe railroad
structure as is the fill. They are botb necessary, and both
are intended for one result, which is the production of a
level track over which the trains may be propelled. The
rut is made by the compa'ny no less than the fill ; and the
banks are not the result of natural causes, but of the direct
intervention of the company's work. If it be the duly of
the company (as it un(]uestionably is) in the erection of
the fills and the necessaiy bridges to so construct them that
they shall be reasonably safe, and to maintain them in a
reasonably safe condition, no reason can be assigned why
the same duty should not exist in regard to the cuts. Just
as surely as the laws of gravity will cause a heavy train to
fall through a defective or i often bridge, to the destniction
of life, just so surely will those same laws cause landslides
and consequent dangerons obstructions to the tiack itself
from ill-constrncted railway cuts. To all intents and pur-
poses a railroad track which runs through a cut where the
banks are so near and so steep that the usual laws of grav-
ity will biing ui>on th.c track d-^bris created by the common
processes of nature is overhung by those banks, ordinary
skill would enable the engineeis to foresee the result, and
]2
ordinary' prudence should lead the company to guard
against it. To hold any other view would be to overbal-
ance the priceless lives of the traveling public by a mere
item of increased expense in the construction of railroads ;
and, after all, an item, in the great number of cases, of no
great moment."
Bemi vs. Ry., 12 S. E. 600.
Eook falling upon the track loosened by the weather
or jarring of trains, causing a derailment.
II.
The above rule apjilies to logging and coal roads as
well as to any other road.
Labatt Master and Servant, Sec. 67.
"Railway Tracks; generally.— The general rule is
Ihat any peison who maintains a railway as a. part of his
] lant is bound to exercise ordinary care, to the end that it
shall lie so constructed and maintained as to be I'easonably
safe as a place of work. For the purposes of this rule it is
immaterial whether the employer is, as is usually the case,
a company engaged in transportation as a common carrierj
or a company or an individual operating a railway as an
accessory to some other business— as, a coal company, or a
Imnber manufacturer who owns and conducts a railroad
running fronr liis mill to the timber. It is also clear that
the employer is equally liable whether he constructed the
track through his own agents or acquired it after its com-
])letion by another party."
13
Boionan is. TFMie, 42 Pac. 470 (C'al.).
Train derailed through \\^shaut of the logging road
of lumber cojnpany.
Dlim vs. Antrim. Lumber Co., 29 So. 874 (La.),
Brakeman injui'ed while coupling cars through the
inisraeeting of cars and a defect in the roadbed.
"No company lias any light to hifle with the lives of
its em])loyes, nor to put theiii in greater peril than is inci-
dent to the nature of their einplo>anent. It camiot, for the
sake of economy or other causes, fail to make even its tem-
porarj' structures suflficiently safe for the contingencies of
its sjiecial work."
Hamilton vs. Birh IKU Mioiiiig Co., 18 S. W. 977
(Mo.).
Mining company opeiated a little spur about a quar-
ter of a mile to the switch upon the main line of railway ;
accident to one of employes while running in front of car
by catching his foot in unblocked rail and the car ninning
over his leg. The court held : that the nile of law as to
reasonalily sale roadbeds applied, and the care required
must depend upon the danger to be reasonably apprehend-
ed fi'om the use of the appliance for the purpose for which
it is designated.
Albio). Ijumhcr Cofni.ai y vs. Dc Norba, 72 Fed.
7()9.
Derailment of logging train.
14
III.
Tlie defendant knew of all the dangers at the time and
plaoe of the accident and of its failure to perfoTm its duty
to maintain a reasonably safe ti^ack.
The testimony of Mr. Thomas is conclusive against
the defendant upon the following essential points :
1. Thomas helped to build the railroad (Re<*. 24).
2. He was general foreman of the road when it was
being constnicted and being rejmired and being used
(Rec. 25).
3. He knew, long before the accident, that there was
no ditch along the side of the track, that the banks went
immediately from the end of the ties or rails up to the
height cf about six feet, were composed of gravel and
nothing made oa- ]>iovided to keep the rocks from falling
u] on the track started from any cause (25, 26, 29, 30).
4. He knew that cattle roamed up' and along the track
and caused the rocks to fall down upon the track at dif-
ferent points (id.).
5. He knew that rocks had fallen ujion the track, and
that cattle going up and down the embankment caused
rocks to fall and derail trains (id.).
6. He knew that at the point of derailment there was
i\ sharp cun^e and in case rocks were on the track the en-
gineer could not see tlie same until upon them (id.).
15
IV.
Tlie i)oint upon wliich the judge passed when directing
a verdict was insufficiency of evidence showing negligence
0 nthe part of the company and the cause of deraihnent.
"It is a universal rule that the plaintiff is not bound to
prove more than enough to raise a fair presumption of
negligence on the part of the defendant and of the resulting
injury to himself. * * * jf the facts provetl make it
probable that the defendant violated his duly it is for the
jury to decide whether he did or not. * * * In the na-
ture of the case the plaintitf must labor under difficulties in
] moving the fact of negligence, as that fact is always a
1 dative one; it is susceptible of ])roof by evidence of cir-
cumstances boaiing moie or less directly ujion the fact of
negligence, a kind of evidence which might not be satisfac-
toiy in other classes of cases open to clearer proof. This is
on the general prinei}>le of tlie law of evidence, which holds
that to be sufficient or satisfactory evidence which satisfies
an unprejudiced mind. Proof that similar accidents do
not happen from similar things, when iMO])erly managed,
is conr.retent to raise a presumption of negligence where
an accident has hap]"encd."
Sher. & Kedfield's Xeg., 5th Ed., Sec. 58.
V.
In this case the principle of res ipse loqidter applies;
the affair speaks for itself. The accident, the injury and
16
the oireiimstaiices under whicli the accident occurred are
sufficient to raise a presumption of negligence, and it casts
tlie burden upon the defendant of establishing his freedom
from default. ■
McCkirnep vs. C. M. S 8. P. By., 49 N. W. 9'63
(Wis.).
Derailment of car by reason of snow, ice and dirt on
the flange of the rail. The conditions in this case were ex-
actly as they were in the case at bar. A ear was derailed
at a jjoint where the flanges of the rail were filled with ice
and dirt and snow. Under these circumstances tlie Court
held: That, while no one saw the car derailed by reason of
the snow, ice and dirt, but the fact that the car whe<?l left
the track at the point of the accumulation of the dirt was
sufficient for the imy to found a verdict u]>on the fact that
tlie track was not cleaied or the rail ]>roperly flanged, and
that tins m.ay have caused the car to- leave the rail. A ver-
dict was sustained in the lower court for the plaintiff, but
the lower court refused an instruction to the effect that the
defendant would not be liable for permitting piles of snow
to accumulate on the outside of the track close to the rail
where the accident happened, which was. asked by the de-
fendant, on account of evidence having been introduced to
the effect that the accumulation of snow outside of the rail
contributed to the accident; for this reason the judgment
was reversed.
Earten- vs. A. T. S S. F. Ry., 38 Pac. 778 (Kan.).
u
Defective rail .ioint causiug dei-aihiKnt of engine. No
one could swear poisitively that the defective rail joint
caused the derailment, but in all probabilit.v it was the
cause. The court held : That uuder such circumstances as
a fire starting iinniediatcly after a train passes from the
fact that the ordinary working of an engine under ])roper
conditions would not produce a. fiie, such facts are suffi-
cient to laise the presumption that the engine started the
fire. So in the case, the evidence showing a defective joint
and defective joints cause derailments is sufficient to go to
the jury on the (luestion as to tlie cause of tlie derailment.
AWu.r. Luraho.r Co. vs. De Norba, 72 Fed. 7(59.
Tills Honorable Couit lays down the smv.e rule in thes^
words in above case :
"It is true that, ortlinarily, in an action to recover for
personal injuries, the elements of which the negligence con-
sists must be ]>roven by the ])]aintiff, and the Imrden of
pioof rests upon him. But, if it is shown that the injuiy
complained of resulted from a.n. accident which in itself is
indicative of negligence, the plaintiff is relieved from the
1-.urdcn of fuither ]>roving the negligence of the defendant,
for the law presumes its existence. The derailment of a
train has been held to be of itself sufficient to raise the pre-
sum]!tion of negligence on the ]^art of the railroad com-
pany."
Jllr. (I vs. Sjjolair Falls Hi/ , ill Wash. 32-k
18
diarit powder exploding in caboose. Explnsion caused
by sijarJxS from defective spnrh arrester.
"It is next urged, in this connection, that there is no
evidence 'that a single spark from the locomotive came into
the caboose the da}' of the accident, and it canno't be in-
ferred that the explosion was caused by a si>ark from the
locomotive in the absence of testimony.' The evidence
showed that the locomotive used at the time of the accident
was a wood buraer, and emitted a large voilume of sparks
whenever it was o]>e rated— so much so that on former oc-
casions persons riding several car lengths behind it had
holes fcuraed in their clothes by sparks coining from it. On
the day in questio'U the evidence shows that sparks were
flying past the caboose, which had botii its side doors open,
and that theie was no other source from which tire could
have originated. The rGS]iondent was not required to
prove this fact beyond a reasonable doaiht, and evidence
wiiich would reasonably establish the presumption was
sufficient to authorize the submission of the question to the
juiy."
Ry. vs. Yoiiny, 90 Fed. 700.
Sparks escaping from bottcau of passing engine strik-
ing p'laintilf in the eye.
"Negligence, however, may be established by circum-
stantial evidence, and proof of the occurrence of an acci-
dent which ordinarily would not have happened if due care
19
liad been: exeroised may justify au i!'fei;'iu'e of uejj^Ii-
gfince. ' '
Ry.CorVs..M.cDa/lc., 24 Sup. Ue]). 24.
Brakeman killed from water spout on water tank hang-
ing low ovesr tile train. The coaitention in the ease was:
"There was no eye witness as to the exact manner of
the injury to McDade, and it is urged that the court below
should have taken the easa from the jury because of the.
lack of testimony u];on this ] joint. And the court stated
that, while the evidence was circumstantial, it was ample
to warrant tlie submission of the (inestion 1o the jury under
the instructions given.
Ry. vs. HoUairaij, 24 Sup. Rep. 102.
Oollision of an engine with a horse on trestle through
the negligence of the eomi;any in not providing brakes on
the engine.
"But the fact that the company had failed to supplv
such a machine because of the absence of brakes had been
fully proved by uncontradicted evidence, and, indeed, was
conceded by the com])any. The circumstances unexplained
were such as to make the omission to furnish a brake for
the engine piima f<tole negligence on the ])art of the com-
pany. ' '
VI.
"It is well settled that, where there is uncertainty as
to tlie existence of either negligence or contributory negli-
gence, the question is not one of law, but of fact, and to be
20
settled by the jury; ami this whether the uncertainty arises
from- a conflict in the testimony, or hecaaise, tJie facts being
undisputed, fair-minded men iviil honestly draw different
conclusions from, them."
Ry. vs. PoiPers, 149 U. S. 43 ; 13 Sup. Ct. 748.
Cited aiid followed by this Honorable Court in
By. vs. Adams, 116 Fed. 324.
VII.
There is no serious question in law as to contributory
negligence or assumption of risk under the facts in tills
case.
ARGUMEiNT.
The evidence of negligence in this case is positive and
uncontradicted.
The evidence of the cause of derailment is not so cir-
cumstantial as the court below thought. The plaintiiT was
sitting where he had a right to sit. The little engine was go-
ing out over the road, and when it came to the curve which
was so shai]) that they could not see twenty feet ahead of
them the tirst car succeeded in going over the debris, but
the serond cai was derailed, the draw har hending over
and striking tlie^ plaintiff's leg and horribly mutilating it
and injuring the plaintiff for life. He did not know what
caused the derailment, the other men were not interested
in that, but, like all people, and as they should be, were in-
21
terested in the injured person. Tlie foieman of the track
was liding by on horseback when he learned of the acci-
dent. Tlie injured man was being earned on the engine
back to tlie hospital for treatment. No one was at the place
of the accident. The only man interested in the cause of
the derailment was the foieman, and as lie reached the
I'laee of the accident he began to investigate to find out
what had happened. He saw a derailed car and on investi-
gation some stones on the track, and concluded that the
stones had thrown the car from the track, because there
was no other cause. He had seen cai s go off the track be-
fore on account of stones being on the trade; when stones
or gravel fell on the track cars would frequently jump the
track. T'he wheels of these cars were new. T'here was
nothing else to de:ail the car. T'he stones he found on the
track were about one and one-half (1 1-2) or two ('2) inches
thick and four (4) or five (5) inches long and tliree (•'^)_or
four (4) inches wide. One was located about three inches
from the rail on, the inside of the rail and the other towards
the middle of the track. He did not notice whether either
of them had any marks uiion it, but just jiicked them up
■cuu] threw thein (uit of the v.ay. He came to the conclusion
(this is the gciuial ioien-.an of the road talking now) that
there was some slosk running there and that they liad
knocked the roc' s qowir on the {rack; there were cattle and
horses there. How can ci.cumstantial evidence be a.ny
stronger in anv similar case? Demko did not know what
22
had derailed the cai*. He couhl not see when passing along
the rocks in front of him, and when injured was too much
conoemed, as a matter of course, with his injury to investi-
gate the cause, as said by many authors and by Sherman
&. Eedfield in the section cited.
If the plaintiif is comi)elled to be sO' definite in a case
of this kind as to place his evidence beyond a question of
doubt, there would be no verdicts rendered for the plain-
tiffs in our courts. Many a man has been hung upon cir-
cumstantial evidence less convincing than the evidence of
the plaintiff in this case.
We submit that under the law and the evidence the
lower court did an injustice to the plaintiff in directing a
verdict for the defendant, and the same should be over-
ruled and a new tiial granted.
Eespectfully submitted,
GOVNOE, TEATS and
J. H. EASTERDAY.
IVo. IIOO
IN THE
United States Circuit Court of Appeals
FOR XHE NINTH CIRCUIT
Geoege Demko,
Plamtiff in Error,
vs.
Caebon Hill Coal Company, a Corpora- \ ^itP 1.^ I9L
tion,
Defendant in Error.
FILE!
BRIEF OF DEFENDANT IN ERROR
In Error to the Circuit Court of the United States for the
District of Washington, Western Division, Tacoma
JAMES M. AS'HTON,
Attorney for Defmdamt m Error.
The Bell Press, Tacoma.
United States Circuit Court of Appeals
FOR THE NINTH CIRCUIT
George Demko,
Plaintiff in Error,
vs.
Carbon Hill Coal Company, a Cori")ora-
tion,
Defendamt in Error.
No. 1100
BRIEF OF DEFENDANT IN ERROR
In Error to the Circuit Court of the United States for the
District of Washington, Western Division, Tacoma
STATEMENT OF THE CASE.
The ijlaintiff is a single man, twenty-nine years of
age, and is by occupation a mine employe and common
laborer ( Record, p. 2()). He had worked for the defend-
ant in different capacities for about five years (liecord,
pp. 2^?, 19, 21).
The defendant is tlie owner of a coal mine, and in
the operation of the mine uses a small tramway to bring
vrooden j^rops, poles, etc., from the woods in which they
are cut to the mine in which they are used (Record, p. 29).
This tramway is a narrow gauge (Record, p. 25), a little
over a mile in length (Record, p. 24), and is equipped with
a single little "lokie" or miners' motor (Record, p. 20,
and Plaintiff's Identification No. 1) and timber trucks
about the size of an ordinary wagon (Record, p. 25).
The tramway runs from the mine to the woods over
a gravelly soil (Record, p. 25) used for pasturage by the
vicinage (Record, p. 30), but the property of the defend-
ant. It is operated at a speed but little faster than a horse
walks, about three miles an hour (Record, p. 30). It is
manned usually by an engineer (Record, p. 29), assisted
at times of unusual pressure of business by a "brakeman"
(Record, pp. 29 and 19), whose duties are in no way simi-
lar to those upon a railroad and consist largely in helping
to load and unload the props and poles (Record, pp. 19
and 29). While the tram is in motion the assistant sits
on the front end of the motor unless rain is falling, in
which ease he sits in the cab at the rear on a seat provided
for that purjwse (Record, pp. 19, 31, 34). It is the duty
of the assistant to sand the track when necessarj^ (Record,
p. 32), and to watch for obstructions on the track and, if
any are found, to get off the tram and remove them (Rec-
ord, p. 22). Seats are provided in the cab for the engineer
and his assistant and the floor space is used for fuel (Rec-
ord, p. 32). Fresh fuel is put on each trip (Record, p.
23), and, as the trip is only a little over a mile in length,
but little fuel is necessaiy and but little is used (Record,
p. 33). If the pile of fuel is over a few inches high the
door of the firebox under the boiler cannot be opened
(Record, p. 34).
The roadbed is of the best, and much better than is
usual in this class of tiams (Record, p. 27). Some tram-
ways used for similar purposes are constinicted of wood,
with stra]) iron for rails (Record, p. 27). This tram was
constructed of regular 30-lb. "T'' rail laid on cross-ties
of sawn timber, and was in first class condition at the
tune the i)laintiff was injured (Record, pp. 25, 27). At
one ]i]ace there is a cut about sixty feet in length and from
five to seven feet high through a bank of sand and gravel.
Cattle and horses roam in the vicinity and frequently
kick debris on the track, but it is not possible to guard
against this except by fencing the track, which is imprac-
ticable and not customaiy on tramways used for these
jjurjioses.
In the operation of the tramway it hai)pens fre-
(juently that one or more of the trucks leave the rails, but
these occurrences are not serious nor dangerous to em-
ployes who are in their proper positions while the tram is
in motion (Record, pp. 30, 33). In case the tnicks leave
the track, the engineer lifts them on again with a stick
or a i^eavy (Eecord, p. 26).
At the time of the accident tlie plaintiff had heen em-
ployed in, acting as assistant to the engineer in the oper-
ation of the tramway for at least a week (Eecord, pp. 19,
21). During that time he made six trips each day (Rec-
ord, pp. 21, 28), and had made not less than fifty trips
over the road with eveiything in the same condition as it
was on the day of the accident (Record, p. 28). He knew
how the fuel was put on and carried (Record, p. 23). He
knew that obstructions were apt to be found on the track
and that it was his duty to look out for and remove them
(Record, p. 22), He knew where his seat was in the cab
and on the front end of the engine (Record, p. 19). He
knew the condition and method of consti-uction of the
track and had been emi>loyed in repairing it (Record, p.
21), and was generally familiar with all the conditions and
surroundings and the place where the accident occurred
(Record, p. 23).
ARGUMENT.
In his action against the defendant the plaintiff relies
solely on the defective construction and condition of the
roadbed to show actionable negligence. Other allegations
of negligence are made in the complaint, but these the
plaintiff in error asserts were waived in the trial of tlie
case in the court below, which fact does not appear in the
record and of which we have no knowledge except the bare
assertion on page 9 of counsel's brief, an assertion which
does not agree with the facts as we recall them.
Ever}^ employe who is injured in the service of his
master may not maintain his action against and recover
damages from the master because of the injury. It is only
when the injury springs from the neglect of a duty owed
by the master to the servant that a case is made to which
the master must make his defense and, if unsuccessful, re-
spond in damages. In the case at bar the record shows
that the plaintiii" has failed on the threshold of his action.
The rule of care by which the duty is measured of this
efendant to this plaintiff is that the defendant shall use
ordinary care to provide reasonably safe and suitable ma-
chinery and appliances and a reasonably safe place for the
plaintiff to do his work. In determining what is reason-
ably safe the law looks to the nature and purpose of the
employment and of the work to be done.
In the case at bar poles and props are to be taken
from the wood in which they are cut to .the mine in which
they are to be used. For this purpose a tramway is con-
stnicted on the property of the defendant over lands which
are used for pasturage for a distance of a little over a mile,
in which at one place there is a cut through a rise of land
about as high as a man's head, the land itself being of a
sand and gravel formation. On this is a track of 30-lb.
"T" rails laid on cross-ties of sawn timber. The tram
itself consists of a small traction motor and a few trucks,
the whole equipment being but little heavier than and, in
practice, operated at about the speed of the ordinary two-
horse dray ; in fact, the tram is nothing more than an eco-
nomical and convenient appliance for doing the work of a
dray. To call it a railroad is bombastic, and to attempt to
dignify it with superintendents, engineers, brakemen, etc.,
is absurd.
The plaintiff in error seeks to charge the defendant
with negligence by showing that in the operation of this
tramway the defendant failed to provide adequate means
to prevent some small stones, about the size of a man's
fiist, from rolling down the sides of the embankment onto
the track, and says that the defendant should be held to the
exercise of the same degree of care as to this embankment
and these stones that a great railroad is bound to show,
whose train, weighing many hundreds of tons and travel-
ing almost as many miles in an hour as does the defend-
ant's tram in a week, creates havoc and destruction of life
and property if by any chance it is derailed.
It is a recognized rule that the degree of care is com-
mensurate with the results reasonably to be apprehended
from a want of care. If there is any parallel to be drawn
between the railroad and the defendant's tram, we submit
that the reasonable rule of care in the constniction and
maintenance of the roadbed is proportionate to the weight
and speed of the train and the tram and the consequences
which follow a derailment of each. When the train leaves
the track, lives are lost or jeopardized and property is in-
jured greatly or destroyed, and wrecking trains and appli-
ances of gigantic power are called into action. When the
tram leaves the track the engineer boosts it on again with
a lumbeinnan's peavy, and the only loss is a little time and
some muscular energy on the part of the engineer.
To sup]Tort his contention the plaintiff in error cites
to the court authorities which hold that owners and op-
erators of railroads are bound to use ordinar>^ care to con-
struct and maintain the roadbed so that it is reasonably
safe for the operation of trains. The defendant in error
submits that thei'e is nothing in these cases which, if
adopted as the measure of the defendant's duty, results in
a showing of defendant's negligence. Wliat is reasonably
safe is to be detennined by all the circumstances. Because
n railroad company has been held to the duty of providing
adequate means to prevent sand and gravel, six inches in
depth and fifteen feet in width, from washing down a
mountain side through a natural gully onto the track (Ry.
vs. O'Brieu, 49 Fed. 538), or to cut brush and overhang-
ing timber from a track which obscured the vision to such
an extent that a freight car could not be seen clearly at a
short distance (Rii. Co. vs. Tracy, 66 Fed. 931), or to pre-
vent the fall of a rock weighing two hundred tons which
10
vi'as embedded in the face of a railroad cut along a moun-
tain side (Clune vs. Ristine, Receiver, 94 Fed. 745), or the
fall of masses of rock, some of which were as large as a
millstone, and which had been loosened by blasting from
the side of an almost perpendicular mountain cliff along
which the railroad ran (Bean vs. R. R., 12 So. 600), is not
compelling authority to hold that the operators of this
tj'amway are bound to guard against tlie dangers caused
by one or two pebbles which have been kicked upon the
track by a heedless heifer. The time and close attention
of twelve jurymen are not required to determine that
such a degree of care is not reasonable.
The plaintiff in error cites to the court three cases
which are in point in that the railroads therein are operat-
ed by private persons for private purposes. It will be
noted, however, that in each ease the railroad is of sub-
stantial character, intended for heavy business and with
heavy equipment similar in all essentials to the equipment
of a common carrier and widely different in purpose and
character from the defendant's tramway. In Bowman vs.
White, 42 Pac. 470, the road was some eight miles in
length and of such substantial character as to require a
fully manned and equipped construction train. AVe sub-
mit further that the learned court overstated the law in
this case in holding the defendant to the highest degree of
human care and foresight in the maintenance of his road-
bed, or, to quote the opinion :
11
"The defendant was bound to keep his roadbed in
good repair after construction, and this was a duty he
owed to his employes as fully and completely as to his
passengers if he had been engaged as a common carrier
of such; and, if the injury to the employe upon the ti'ain
is caused by reason of a defective roadbed that employe is
entitled to recover for such injurj^; for if the defective
roadbed was the direct and proximate cause of the injuiy,
no question of the negligence of fellow servants is in-
volved."
In The Lumhrr Co. vs. De Nobra, 72 Fed. 739, the
train was a long one of thirteen cars heavily loaded with
logs, drawn by a single locomotive and running at a speed
of from ten to thirty miles an hour. Moreover the plain-
titT's intestate was not an employe but was upon the train
by the invitation and inducement of the defendant. While
the court does not define the degree of care due to the
plaintiff from the defendant, it treats the plaintiff qimsi
as a passenger and holds the defendant to the "proper
and. adequate care under the circumstances."
In Li/)w vs. the Lumber Co., 29 So. 874, the court
in its syllabus states the law to be:
"Although a logging railroad is not expected or re-
quired to be laid with the same care and security, nor to
be oi)erated with the same degree of prudence as is de-
manded in the construction and operation of railway
tracks in use by common carriers, nevertheless such road
should be so constructed and operated as to render it
reasonably safe for those whose emivloyment necessitates
12
their going upon such road and performing services in
connection with the same."
With this statement of the law we agree entirely and
heartily and ask that the acts of the defendant in the case
at bar be measured thereby. In this case the road was
some eight miles in length, with sidings and spur tracks
and equipped with some old and many new cars, heavily
loaded with logs and drawn by a regnalar locomotive re-
quiring the sei'vices of an engineer and a fireman as well
as a brakeman. The plaintiff had been in the emplo3^ of
the defendant for a few hours only and was crushed in
attempting to couple together an old and a new car the
bumpers of which were so dissimilar that the cars could
not be coupled on level ground, so that it was necessary to
put one car on a lower piece of track in order to couple
them safely.
These cases agree that a master is bound to use ordi-
nary care to reasonably provide for his sei-vant's safety,
and by this rule we are willing to have our conduct tested.
Realizing the weakness of his proof of the defendant's
negligence, the plaintiff in error invokes the aid of the res
ipsa loquitur doctrine and cites cases on the authority of
which he asks the court to hold that, having shO'Wn an in-
jury and a derailment and the opinion of one witness that
the derailment might have been caused by one or two small
stones found near the locus in quo, he has made a case on
13
which he is entitled to go to a juiy. But here he attempts
again to place upon the frail shoulders of this little tram-
way the enormous burden of a full grown railroad. A de-
railment is always a serious matter to a railroad, and
when one hapi>ens and results in injury the res ipsa loqui-
tur doctrine is applicable. But the record shows in tlie
case at bar that the derailment of the tramcars was a fre-
quent occurrence and not at all serious in its nature and
consequences. In fact, a derailment was nothing more
than a mishap and annoyance.
The testimony of the witness Thomas, which was
taken by deposition by the defendant in the first instance
and adopted and put in evidence by the plaintiff, is in the
case for all purposes. The plaintiff cannot take the bare
opinion of this witness that the accident might have been
caused by the small stones which he found near the track,
without adopting his opinion that to fence the track was
unnecessary and imi^racticable and his further o]>inion that
there was no way to guard against the encroachments of
cattle and horses excejit by fencing. What possible duty
could be upon the defendant as far as this allegation of its
negligence is concerned ? AVould the exercise of ordinaiy
care and pnidence call for a fence to jiroteet a tramway
track laid through a wild, mountainous country and on
and over patches of sand and gravel uninhabited and un-
used for agriculture or puiposes usually requiring
fencing? Must the defendant be held bound to anticipate
14
that an employe might he sitting with his feet and legs
hanging between the motor and a. truck, which was the
only place of danger in case of a derailment, and for that
reason bound to keep cattle off its mining land or go to
great and otherwise unnecessary expense to fence its
tracks! The plaintiff with as much reason could claim that
the defendant should have employed a force of cowboys
to herd these stray cattle and horses. The witness Tliomas
further testifies as a fact and not as a matter of opinion
that the track and its roadbed were in first class condition
and that the cut which plaintiff now says was negligently
consti-ucted was also suitable and proper for the uses for
which it was intended. Plaintiff having adopted is bound
by this testimony. We submit that no angle of an em-
bankment would have been sufficient to prevent the rolling
and falling of small stones, particularly if the impetus was
received from the hoofs of horses and cattle. The angle
might have an etfect upon the distance which the stones
would roll and the speed with which they moved, but could
have been of little or no effect in actually keeping them
off the track. Further, nowhere is there a particle of evi-
dence showing the wheels struck either stone, and their
smallness repels any presumption that they would cause
derailment unless some further evidence had developed.
Aside, therefore, from plaintiff's contributor^^ negligence,
it seems clear that the juiy must have been upon a sea
of conjecture as to cause of derailment liad the court sub-
15
rnitted the case to them. The track and trucks being good,
they would have been compelled to "guess" between the
stone theoiy and some other hypothesis equally devoid
of testimony to support it
The status of these tramways and of a railroad is not
identical. Even logging roads, which are put to many of
the uses of a railroad and are equipped for these purposes
with much of the paraphernalia of a railroad, are not to
be held to the same degree of care, because such care is
not reasonable. This rule is stated in the case of Lynn vs.
the Lumber Co., cited in the brief of the plaintiff in error
and hereinbefore referred to. A logging road is not a
railroad.
Williams vs. the Lumber Co., 113 Fed. 382.
Wade vs. the Lumber Co., 74 Fed. 517.
If the court should be of the opinion that the res ipsa
loquitur doctrine has some application to the case at bar,
we submit that the record makes a sufficient showing to re-
but any presumption of defendant's negligence. Tlie
l)laintiff 's case is that the defendant's cut was negligently
constructed in that the angle of the embankment was too
sharp and that the defendant did not ]>rotect its tracks
from the encroachments of wandering cattle, and that be-
cause of this neglect of duty one or two small stones got
upon the track and caused the derailment which was the
cause of the plaintiff's injury. But the defendant was
16
under no duty to protect its tracks from cattle and cannot
be held in damages for injury to an employe caused by the
encroachments of stock upon its tracks.
Cowan vs. the R. R., 35 Fed. 43.
Sweeny vs. the R. R., 57 Cal. 15.
And the defendant was under no duty to keep small
stones from its roadbed. In the case cited below a clinker
of unusual size, some six inches in diameter, was allowed
to fall by the side of a raih'oad track, and an employe i**
stepping from an engine fell on account of the clinker and
wais injured. It was held that he had no case, and in the
opinion the court says:
"It cannot be incumbent upon railroad companies or
anyone else, in such a world as this, to keep the whole face
of the eartli on which servants and employes are to execute
their functions clear of every object that might cause an
employe to slip up or be thrown down. Such a rule would
require farmers to keep their premises clear of corncobs, for
a cob when stepped on may roll under the foot and produce
a fall. So of small stones and sometimes sticks and other
rubbish. ' '
Lee vs. the R. R., 12 S. E. 306.
The enthusiasm of counsel often throws the legal vi-
sion out of focus and a "case" is seen where no cause of
action exists. We submit that the case at bar is a result of
such legal astigmatism. It may happen that the vision of
counsel for tlie defendant in error is distorted somewhat
17
in scrutinizing the alleged negligence of their client, but
we submit that we can see clearly abundant evidence in the
record of the plaintitf 's negligence and that his heedless
and careless acts contributed to and were the proximate
cause of his injuiy. At the time when the accident hap-
l.>eiied the motor was moving backward and was pushing
instead of pulling two empty trucks. The plaintiff had a
safe seat within the cab if he had chosen to occupy it. He
says that he did not do so because the fuel was in the way,
but a glance at the photographs which are a part of the
record in this case will show that his excuse is a mere
makeshift. And, further, Thomas' testimony, with which
the plaintiff's testimony is consistent, shows that, even if
there was not room for his feet and legs in the cab, he could
iiave done what a prudent man would have done, viz. : made
room by taking the bark and placing it between the side
of the boiler or tirebox and the side of the cab. If we are
unjust in calling it a makeshift, then it is actually false, as
the record shows that the door of the firebox could not
have been o])ened and closed had the bark been piled on
toj) of the coal to the extent that the plaintiff claims. Some
of these photographs were put in evidence by the plaintiff,
others by the defendant. All are admitted by the plaintiff
to be truthful re|)resentations of the conditions existing at
the time of the accident, and all of them show that the
plaintiff's excuse is a mere ]>retense.
Moreover, the plaintiff had another and even safer
18
seat on tlie front of the engine, which was in the extreme
rear of the tram as it pushed down the track, and where he
V70uld have been perfectly safe. Instead of occupying
either of these two available places, he chose to place him-
self between the motor and the truck, a position of self-
evident danger— in fact, the only dangerous position in
case of a derailment. It will be remembered that the
plaintiff does not claim to have been a fireman, and the
record shows he had no duties to perform which required
his presence in the cab or would have prevented him from
taking a safe place. The result of his heedlessness is a
"flat" foot which may prove a source of trouble to him
for life. In many cases less careless conduct has been
held sufficient to preclude a recoveiy.
Perhaps the leading case is R. R. Co. vs. Jones, 95
U. S. 439, in which negligence is defined as follows:
' ' Negligence may consist in either failing to do what,
under the circumstances, a reasonable and prudent man
would ordinarily have done, or in doing what he would not
have done."
The facts in this case are reported as follows : A was
one of a party of men employed by a railroad company in
constructing and repairing its roadway. Tiles'^ were usu-
ally conveyed by the company to and from the place where
their sei'vices were required, and a boxcar was assigned
to their use. Although on several occasions forbidden to
do so and warned of the danger, A, on returning from
work one evening, rode on the pilot or bumper of the loco-
motive, when the train in passing through a tunnel col-
lided with cars standing on the track and he was injured.
There was ample room for him in the boxcar. All in it
were unhurt. Held: (1) That as A would not have been
injured had he used ordinary care and caution he is not
entitled to recover against the company; (2) that the
knowledge, assent or direction of the agents of the com-
j'any as to what he did in the time in question is immateri-
al. The company, although bound to a high degree of
care, did not insure his safety.
( )n the trial of this case the defendant at tlie close of
the testimony asked for the following instruction:
"If the jury find from the evidence that the plaintiff
knew that tlie boxcar was the proper place for him, and if
he knew his position on the pilot of the engine was a dan-
gerous one, then they will render a verdict for the defend-
ant, whether they find that its agents allowed the plaintiff
to ride on the pilot or not."
This instmction was refused and defendant excepted.
^Ir. Justice Swayne delivered the opinion, and, i)as-
sing by other questions raised, decided the case entirely
on the contributory negligence of the plaintiff. For the
l>urposes of the case the learned justice assumed that the
defendant had been shown to be negligent and jiroceeded
to say:
"The plaintiff had been warned against riding on the
.20
pilot and forbidden to do so. It was next to tlie cow-
catcher and obviously a place of peril, especially in case of
collision. Tliere was room for him in the boxcar. He
should have taken his place there. He could have gone
into the boxcar in as little if not less time than it took to
climb to the pilot. The knowledge, assent or direction of
the company's agents as to what he did is immaterial. If
told to get on anywhere, that the train was late, and that
he must huriy, this was no justitication for taking such a
risk. As well might he have obeyed a suggestion to ride on
the cow-catcher or put himself on the track before the ad-
vancing wheels of the locomotive. * * * jje and an-
other who rode beside him were the only persons hurt
upon the train. All those in the boxcar, where he should
have been, were uninjured. He would have escaped also
had he been there. His injury was due to his own reck-
lessness and folly. He was himself the author of his mis-
fortune. This is shown with as near an approach to a
mathematical demonstration as anything short of mathe-
matics will pennit. * * * xhe plaintiff was not en-
titled to recover. It follows that the court ened in refus-
ing the instruction asked upon this subject. If the com-
pany had pras^ed the court to direct a jury to return a
verdict for the defendant it would have been the duty of
the court to give such instinietion and error to refuse it. ' '
Railroad Company vs. Jones, 95 U. S. 439.
We submit that Railroad Company vs. Jones is con-
trolling authority and decides the case at bar, even upon
the plaintiff's theoiy of the case. This case has been fol-
lowed many times in the Federal courts and has been cited
as a leading case in the State courts of last resort. The
Supreme Court of Alabama, in a well considered case in
21
which the Railroad Company ?".s. Jones is cited as a leading
case and controlling authority, says :
"It is uncontroverted in this case that he (the plain-
tiff) received the injuries of which he now complains while
sitting on the cross-beam in front of the engine— the beam
to which the pilot or cow-catcher is attached— with his
legs hanging over in front of the pilot * * * and that
the casualty was the result of the pilot's colliding with the
rail of a bisecting road ; that no other part of the train was
injured and that no other of the several persons on the
train was huri ; and that he would not have been hurt but
for his having taken this position on the pilot. There being
thus no doubt that plaintiff's presence on the pilot contrib-
uted jiroximately to the injuries he sustained, the main
(juestion in the case is whether his being there at the time
of the accident was negligence m se on his part, and to be
so declared by the courts as a matter of law. The authori-
ties aie believed to be unifonn to the support of this projv
osition. The investigations of the court and counsel have
failed to disclose a single adjudged case to the contrary,
while many courts are on record as holding, either by an-
alogy 01" direction, that to ride upon the pilot or cross-beam
in front of an engine while ]>roceeding along its way along
the line of its track without justifying necessity therefor
involves per se such negligence as will defeat an action for
injuries received while so riding and which would not have
been received but for the plaintiff's being there."
Warden vs. Louisville, Etc., Rd., 94 Ala. 277, S.
C, 14 L. R. A. 552.
In Erie R. R. vs. Kane, plaintiff's intestate, a locomo-
tive fireman, was standing on the front of its engine while
it was in motion, cleaning its number. In a collision the
22
fireman was killed. Held: Error to refuse to direct a ver-
dict for the defendant. The court cites and discusses RaU-
road Company vs. Jones, and concludes:
"The facts of this case therefore were such that the
defendant might properly have asked for a peremptory
instruction on the ground of decedent's breach of duty in
being out on the front of the engine instead of in the cab,
if not for his negligence in being there without reasonable
occasion for it, irresj^ective of the question as to whether
it was his duty to be in the cab."
Erie Railroad Co. vs. Kmie, 118 Fed. 223.
Kresanoicski vs. Northern Pacific R. R. was tried be-
fore the Circuit Court for the District of Minnesota in
1883. The plaintiff was employed in excavating and was
sent with others to the place of work on an engine pro-
vided by defendant for that purpose. The tender being
full of wood, plaintiff with one O'r two others sat on the
front of the engine with his feet over the pilot. The en-
gine came into collision with another engine and plaintiff
was injured. On a motion to instruct the jury to find for
the defendant on the ground of plaintiff's contributory
negligence the court, following the rale in Railroad Com-
paihij against Jones, Held: (1) That the plaintiff himself
so far contributed to his injury by his own negligence and
want of ordinary care and caution in placing himself in
such a dangerous position on the engine of defendant that
he could not recover; and (2) that the plaintiff being of
age and able to see and know the risks of the position, even
23
the fact that he had been invited and authorized by de-
fendant to ride upon the engine would not justify him in
his negligence in placing himself in a position of apparent
gTeat risk and danger.
Judge Shiras, late of the Supreme Court, delivered
the opinion and granted the motion on the grounds here-
inbefore set forth. In the course of the opinion he states
that, as the railroad company had used this engine for the
same puqjose for some time, the employes knew or must
have known its inherent dangers when used for this pur-
pose; they must therefore be presumed to have assumed
the risk.
Kresmiowski vs. N. P. R. R., 18 Fed. 229.
In Dmvson vs. The Railroad the plaintiff, a brakeman,
jumped upon the brake-beam of a flatcar and the handle
provided for that purpose proved to be insecurely fastened
and the plaintiff fell and was killed. He might, if he had
chosen, have swung onto the side step of a boxcar which
was next to the flatcar and which would have been com-
paratively safe. His conduct was held to constitute con-
tributory negligence on his part on the gi'ound that if one
exposes himself to great risk unnecessarily he is guilty of
negligence.
Dauson vs. R. R., 114 Fe<i. 873.
In Morris vs. the Railroad it is lieU that where there
is a comparatively safe and a more dangerous way known
24
to a servant by means of which he may discharge his duty
it is negligence for him to select the more dangerous meth-
od, and he thereby assumes the risk of injuiy which its
use entails.
Morris vs. R. R., 108 Fed. 747.
Cumiingliam vs. R. R., 17 Fed. 882.
In The Railroad vs. Schumacher the Supreme Court
applies the doctrine of R. R. vs. Jones and holds a plain-
tiff guilty of contributory negligence in a case where a
workman on a gravel train, who might if he had chosen
ridden in a caboose as a safer place, sat on a flatcar with
his legs hanging over and in a position to be easily jostled
off.
Railroad Co. vs. Schumacher, 152 U. S. 77.
We submit that tlie trial court is supported by author-
ity in its decision on the motion to direct a verdict in the
case at bar, and was not in error in so doing. Indeed, un-
der the authority of Railroad Co. vs. Jones it would have
been error to have denied the motion. The Circuit Court
of Appeals for the Eighth Circuit in a recent case has
stated the law upon a motion for a directed verdict as fol-
lows:
"There is, however, always a preliminary question
for the judge at the close of the evidence before a case can
be submitted to the jury, and that question is, not whether
there is any evidence, but whether or not there is any sub-
25
slantial evidence upon which a juiy can properly render
a verdict in favor of tlie party who produced it. The bur-
den of proof is upon the plaintiff to show that the acts of
negligence of which he complains were the proximate
cause of his injury, and if at the close of the testimony
there is no substantial evidence upon which a jury can
properly find that the negligence charged was the proxi-
mate cause of the hurt sustained, it is the duty of the court
to instruct the juiy to return a verdict for the defendant."
Cole vs. The Savin ffs Bank, 124 Fed. 113.
The defendant in error under the law and facts in this
case requests that the judgment of the court below be af-
finned.
Respectfully submitted,
JAMES; M. AS'HT'ON,
For the Defenda/nt in Error.
No. 1103
UNITED STATES CIRCOIT COORT OF APPEALS
FOR THE NINTH CIRCUIT.
M. E. ROGERS, ALBERT LARSEN
and J. McDonald, I r^i? ^^
Appellants,
vs.
THE DE SOTO PLACER MINING
COMPANY,
Appellee.
In the Matter of the Petition of M. E. ROGERS
et al. to Have the De Soto Placer Mining
Company Declared Bankrupt.
TRANSCRIPT OF RECORD.
upon Appeal from the United States District Court for the District
of Alaska, Second Division.
Kilmer Bros., Printers, 421 Sansome St., S. F.
INDEX.
Page
Amended Petition 13
Amended Petition in Bankruptcy, Order Granting
Leave to File 12
Amended Petition, Second . 38
Amendments to Bill of Exceptions 04
Appearance of Attorneys for Respondent 80
Assifjnment of Errors C7
Bill of Exceptions *. (JO
Bill of Exceptions, Amendments to 04
Bill of Exceptions, etc.. Order Extendi no^ Time for
Signing 59
Bill of Exceptions, Settlement of 00
Bond on Appeal 71
Certificate, Clerk's, to Transcript 75
Citation 77
Clerk's Certificate to Transcript 75
Hearing (Continued) 84
Hearing (Continued) 85
Hearing on Petition in Bankruptcy 35
Hearing, Order Continuing 11
Hearing, Order Continuing 18
Judgment 02
ii Index.
Page
Motion to Dismiss Proceedings 87
Order Allowing Appeal 70
Order Continuing Hearing 11
Order Continuing Hearing 13
Order Enlarging Time to Docket Cause on Appeal . . 74
Order Extending Time for Signing Bill of Excep-
tions, etc 59
Order Fixing Time to Enter Plea 10
Order Granting Leave to File Amended Petition in
Bankruptcy 12
Order to Appear 5
Petition 1
Petition, Amended 13
Petition, Amended, Second 88
Petition for Appeal and Order Allowing Same. ... 69
Petition in Bankruptcy, Hearing on 35
Petition in Bankruptcy, Order Granting Leave to
File Amended 12
Second Amended Petition 38
Settlement of Bill of Exceptions 66
Subpoena 7
In the United States District Court for the District of Alaska^
Second Division.
In the Matter of the Petition of M. E.
ROGERS, ALBERT LARSEN, and J.
McDonald, to Have the De Soto
Placer Mining Company Declared
Bankrupt.
Petition.
To the Honorable ALFRED S. MOORE, Judge of the
said Court:
The petition of M. R. Rogers, Albert Larsen, and J.
McDonald respectfully shows:
1.
The petitioners are citizens of the United States of
America, and residents of Seattle, Washington.
2.
That the De Soto Placer Mining Company is a cor-
poration organized and existing under and by virtue of
the laws of the State of West Virginia, and has for the
greater portion of six months next preceding the date
of the filing of this petition, had its principal place of
business at Council City in the District of Alaska, and
owes debts to the amount of one hundred thousand dol-
lars. That said De Soto Placer Mining Company has
during all said time and now is engaged principally in
2 M. E. Rogers et aJ. rs.
the business of mining within the Second Division, Dis-
trict of Alaska.
3.
That your petitioners are creditors of the said De
Soto Placer Mining- Company, having provable claims
amounting in the aggregate, in excess of securities held
by them, to the sum of five hundred dollars and up-
ward, and the creditors of said bankrupts exceed
twelve in number.
4.
That the nature and amount of your petitioners'
claims are as follows:
That said petitioners did, during the summer of 1908.
at Council City Mining District, Alaska, perform work
and labor for said De Soto Placer Mining Company in
said mining district aforesaid, and that said company
on or about the 14th day of October, 1908, at Council
City, Alaska, through Alexander Dfe Soto, its general
manager, gave said petitioners orders on said company,
payable at the office of said company, in Seattle, Wash-
ington, for various amounts of wages due them for their
employment and services aforesaid, but were paid no
moneys on said accounts except that a certain portion
of said petitioners were paid at Seattle, Washington,
ten dollars each and five per cent of the remaining
amount due on their respective orders; that said com-
pany is still indebted to said petitioners in the sum ex-
ceeding five hundred dollars for labor performed for
said company during the months of July, August, Sep-
The De Soto Placer Mining Company. 3
tember and October, last past, which claims are long
past due and payable.
5.
And your petitioners further represent that the said
De 'St>ta Placer Mining Company are insolvent, and that
within four next preceding the date of the filing of
this petition, the said De Soto Placer Mining Company
committed an act of bankruptcy by conveying and
transferring, while so insolvent, to the Bank of Cape
Nome, one of its creditors, all of its property, both per-
sonal and real, in the District of Alaska, in said mining
district aforesaid, for the purpose, and with the intent
of preferring said Bank of Cape Nome over other cred-
itors, and for the purpose of enabling said Bank of Cape
Nome to secure a greater portion of its claim against
said De Soto Company than other creditors of said com-
pany. That the exact nature and description of said
property so conveyed and transferred to said Bank of
Cape Nome, is at this time unknown to your petitioners,
but consists in part of machinery, dredgers and other
personal property exceeding in value |5,000.00.
Wherefore, your petitioners pray that service of this
petition with a special subpoena may be made upon the
said De Soto Placer Mining Company, as provided in the
acts of Congress relating to bankruptcy, and that it may
be adjudged by the Court to be bankrupts within the
purview of said acts.
IRA A. CAMPBELL,
JAS. W. BELL,
Attorneys for Petitioners.
4 \M. E. Rofjers et al. vs. \
United States of America, ^
L ss.
District of Alaska, J
James W. Bell, being first duly sworn, deposes and
says: That he is one of the attorneys for the within
named petitioners; that he has read the foregoing peti-
tion, knows the contents thereof, and believes the same
to be true; that he makes this verification for the reason
that said petitioners are now within the jurisdiction of
this Court and unable to make the verification.
JAS. W. BELL.
Subscribed and sworn to before me this 15th day of
Februaiy, 1904.
[Court Seal] GEO. V. BORCHSENIUS,
Clerk of U. S. Dist. Ct.
By G. J. Lomen,
Deputy.
[Endorsed] : 1092. United States District Court for
the District of Alaska, Second Division. In the Matter
(<f Petition of M. E. Rogers, et al., to Have De Soto Bank-
rupt. Petition. Filed in the Office of the Clerk of the U. S.
Dist, Court, Alaska, Second Division, at Nome, Alaska,
Feb. 15, 1904, 4:30 P. M. Geo. V. Borchsenius, Clerk.
By G. J. Lomen, Deputy Clerk. Jas. W. Bell, Attorney
for .
The De »S'o/o Placer Mining Company,
In the United States District Court for the District of Alaska,
Second Division.
In the Matter of the Petition of M. E. \
ROGERS, ALBERT LARSEN, and J. )
McDonald, to Have the De Soto ^
Placer Mining Company Declared) \
Bankrupts. /
Order to Appear.
Upon consideration of the petition of the above-
named petitioners that the De Soto Placer Mining Com-
pany be declared bankrupts,
It is ordered, that the said De Soto Placer Mining
Company do appear at this court as a Court of Bank-
ruptcy, to be holden at the city of Nome, in the District
of Alaska, on Monday, the 14th day of March, 1904, at
the hour of ten o'clock in the forenoon of said day, to
show cause, if any there be, why the prayer of said peti-
tion should not be granted.
And it is further ordered that a copy of said petition,
together with a writ of subpoena, be served upon the
said company, by delivering the same to^ its authorized
agent, or by leaving the same at its last usual place of
abode in said District, at least five days before the day
aforesaid.
Witness the Honorable ALFRED S. MOORE, Judge
of the said Court^ and the seal thereof, at the city of
0 M. E. Rogrrft et ah vs.
Nome, in the said District, the 17th day of February,
1904.
ALFRED S. MOORE,
U. S. District Judge.
Attest:
[Court Seal] GEO. V. BOROHSENIUS,
Olerk of Said Court.
By G. J. Lomen,
Deputy.
[Endorsed] : 1092. In the United States District
Court for the District of Alaska, Second Division. In
the Matter of the Petition of M. E. Rogers, et al., to
Have the De Soto Placer M. Co. Declared Bankrupt.
Order for Subpoena. Filed, in the Office of the Clerk
of the U. S. Dist. Court, Alaska, Second Division, at
Nome, Alaska, Feb. 17, 1904, 3 P. M. Geo. V. Borch-
senius. Clerk. By G. J. Lomen, Deputy Clerk. Civil
J. 8, p. 505. Jas. W. Bell, Attorney for Petitioner.
The De Soto Placer Mining Company. 7
In the United States District Court for the District of Alaska,
Second Division.
In the Matter of the Petition of M. E.
ROGERS, ALBERT LARSEN, and J.
Mcdonald, to Have the De Soto
Placer Mining Oompany Declared
Bankrupts.
Subpoena.
United States of America,
ss.
District of Alaska.
To the De Soto Placer Mining Company, in Said Dis-
trict, Greeting':
For certain causes offered before the District Court
of the United States of America, within and for the Dis-
trict of Alaska., Second Division, as a Court of Bank-
ruptcy, we command and strictly enjoin you, laying all
other matters strictly aside, and notwithstanding any
excuse, that you personally appear before our said
District Court, to be holdeu at the city of Non)e in said
District, on the 14th day of March, 1904, at the hour of
ten o'clock in the forenoon of said duv, to answer a peti-
tion filed by the above-named petitioners in our said
court, praying that you may be adjudged a bankrupt;
and to do further and receive that which our said Dis-
trict Court shall consider in this behalf. And this you
are in nowise to omit, under the pains and penalties of
what may befall thereon.
8 M. E. Rogers et al. vs.
Witness the Honorable ALFRED S. MOORE., Judge
of said Court, and the seal thereof, aflftxed this 17th day
of February, 1904.
[Court Seal] GEO. V. BOROHSENIUS,
Clerk United States District Court, District of Alaska,
Second Division.
By G. J. Lomen,
Deputy.
United States of America,
District of Alaska., ^
Second Division.
I hereby certify that I received the annexed subpoena
in baukruptcy on the 17th day of February, 1904; and
thereafter, on the 29th day of February, 1904, I served
the same at Council City, Alaska, upon the De Soto
Placer Mining Company by reading the original tliereof
and exhibiting the seal of the Court thereunto affixed to
Alexander De Soto, the general manager of said com-
pany, and by delivering to and leaving with him a certi-
fied copy of said subpoena, order for said subpoena, and
the petition tiled therein.
Returned this 29th day of February, 1904.
FRANK H. RICHARDS,
United States Marshal.
By S. O. Milligan,
Deputy.
The De Soto Placer Mininp Company. 9
MARSHAL'S OOSTS.
1 service $6.00
[Endorsed]: 101)2. In the United States District
Court for the District of Alaska, Second Division. In
the Matter of the Petition of M. E. Rogers, et al., to have
the De Soto Oo. Declared Bankrupt. Subpoena. Filed
in the Office of the Clerk of the U. S. Dist. Court, Alaska,
Second Division, at Nome, Alaska, Mar. 5, 1904. Geo.
V. Borchsenius, Clerk. By G. J. Lomen, Deputy Clerk.
Jas. W. Bell, Attorney for Petitioners.
In the United States District Court for the District of Alaska,
Second Division.
Term Minutes, Special, October, 1903, Term, begun
and held at the Town of Nome in said District and
Division, October 5th, 1903.
Court convene<l pursuant to adjournment.
Tuesday, March 1st, 1904, 10 o'clock A. M.
Present: Honorable ALFRED S. MOORE, Judge.
GEO. V. BORCHSENIUS, Clerk.
JOHN H. DUNN, Deputy Clerk.
GEO. B. GRIGSBY, Asst U. S. Atty.
FRANK H. RICHARDS, U. S. Marshal.
10 M. E. Rogers et al. vs.
Now upon the convening of Court the following pro-
ceedings were had:
In the Matter of the De SOTO PLAOEK >,
L No. 1092.
MINING CO., in Bankruptcy. J
Order Fixing Time to Enter Plea.
S. A. Keller appeared in open court and stated that
he appeared for the De Soto Placer Mining Company in
this action, and that he and Jas. Bell, attorney for
petitioners, had agreed that counsel for defendant in
bankruptcy should have until the first day of April,
1904, to enter a plea. Mr. Bell then stated that he
wished the record to show that the said S. A. Keller ap-
peared generally for the said De Soto Placer Mining
Co.
Civil J. 8, page 540.
In the United States District Court, for the District of
Alaska, Second Division.
Term Minutes, Special October, 1903, Term, begun and
held at Town of Nome in said District and Divi-
sion, October 5th, A. I^. 1903.
Friday, April 1st, 1904, 10 A. M.
Court convened pursuant to adjournment.
Present: Hon. ALlFKED S. MOORE, Judge.
GEO. V. BORCHSENIUS, Clerk.
JOHN H. DUNN, Deputy Clerk.
GEO. B. GRIGSBY, Ami. U. S. Atty.
FRANK H. RICHARDS, U. iS. Marshal.
The Dv fiolo Placer Minimj Company. 11
Now, upon the convening- of Cburt the following pro-
ceedings were had:
In re DE SOTO PLACER MINING".
! No. 1092.
COMPANY, in Bankruptcy.
}
Order Continuing Hearing.
Jas. W. Bell, attorney for petitiouers, and A. J. Daly,
attorney for defendant company, appeared in open
court and agreed that the hearing on the petition in
bankruptcy miglit be postponed until Monday, April
4th, 1904. Order entered continuing the hearing un-
til said date.
C. J. No. 9, p. 61.
In the United States District Court, for the District of
Alaska, Second Division.
Term Minutes, Special October, 1903, Term, begun and
held at the Town of Nome in said District and Di-
vision, October 5th, A. D. 1903.
Monday, April 4th, 1904, 10 A. M.
Court convened pursuant to adjournment.
Present: Hon. ALFRiED S. MOORE, Judge.
GEO. V. BORCHSENIUS, aerk.
JOHN H. DUNN, Deputy Clerk.
GEO. B. GRIGSBY, Asst. U. S. Atty.
FRANK H. RICHARDIS, U. S. Marshal.
12 M. E. Rogers et al. vs.
Now, upon the convening of Court the following pro-
ceedings were had:
In re DE SOTO' PLAOER MINING
). 1092.
COMPANY, in Banikruptcy.
I No.
Order Granting Leave to File Amended Petition in Bank-
ruptcy.
Jas. W. Bell appeared in open court and asked leave
to file an amended petition in bankruptcy in this case;
permission granted by the Court and hearing on the
petition continued until 10 o'clock A. M., to-morrow,
April 5th, 1904.
0. J. No. 9, p. 65.
In the United States District Court, for the District of
Alaskc, Second Division.
Term Minutes, Special October, 1908, Term, begun and
held at the Town of Nome in said District and Di-
vision, October 5th, A. D. 1903.
Wednesday, April 6th, 1904, 10 A. M.
lOourt convened pursuant to adjournment.
Present: Hon. ALFRED S. MOOEE, Judge.
GEO. V. BOROHSENIUS, Clerk.
JOHN H. DUNN, Deputy Clerk.
GEO. B. GRIGSBiY, Asst. U. S. Atty.
FEiANK H. RIOHAJaDS, U. S. Marshal.
The De Soto Placer Mining Company. 13
Now, upon the convening of Court the following pro-
ceedings were had:
In re DE SOTO PLACER TUNING-,
I No. 1092.
COMPANY, in Bankruptcy. J
Order Continuing Hearing.
Ira D. Orton stilted to the Court that he had been
asked to say to the Court, that Jais. W. Bell, attorney
for the petitioners, was not able to appear in court this
morning; whereupon counsel for the defendant com^
pany agree that the matter might be continued until
Thursday, at 10 o'clock A. M. Order made continuing
hearing until said time.
C. J. No. 9, p. 72.
Tn the United States District Court, for the District of
Alaska, Second Division.
In the ^ratter of the Petition of M. E.
ROGERS, ALBERT LARSEN, and
J. McDonald to have the De Soto
Placer Mining Company Declared V
Bankrupt. ;
Amended Petition.
To the Honorable ALFRED S. MOORE, Judge of the
said Court:
The petition of M. E. Rogers, Albert Larsen and J.
McDonald, respectfully shows:
14 M. E. Rogers et al. vs.
1.
That petitioners are citizens of the United States and
residents of Seattle, Washington.
2.
That the De Soto Placer Mining Company is and
was at all times herein mentioned, a coi-poration, or-
ganized and existing under and by virtue of the laws
of the State of West Virginia, and has now and has
for the greater portion of six months next precedihg
the date of the filing of the original petition had its
principal place of business at Council City in the Dis-
trict of Alaska, and owes debts to the amiount of one
hundred thousand dollars. That said De Soto Placer
Mining Company has during all said time and now is
engaged principally in the business of mining within
the Second Division, District of Alaska.
3.
That your petitioners are creditors of the said De
Soto Placer Mining Company, having provable claims
amounting in the aggregate in efxcess of securities held
by them to the sum of five hundred dollars and upwards,
and the creditors of said bankrupts exceed twelve in
number.
4.
That the nature and amount of your petitioner's
claims are as follows:
That said petitioners did, during the summer of 1&Q3,
at Council City Mining District, Alaska, perform work
and labor for said De iSioto Placer Mining Company
The De Soto Placer Mining Company. 15
in siaid mining district aforesaid and that said company
on or about the 14th day of October, 19€8, at Council
City, Alaska, through Alexander De Soto, its general
manager, give said petitioners orders on said company,
payable at the office of said company at Seattle, Wash-
ington, for various amounts of wages due them for
their employment and services aforesaid, but were paid
no moneys on said accounts except that a certain por-
tion of said petitioners were paid at Seattle. Washing-
ton, ten dollars each and five per cent of the remain-
ing amount due on their respective orders. That said
company is still indebted to said petitioners in the sum
exceeding five hundred dollars for labor performed for
said company during the months of July, August, Sep-
tember and October, last past, which claims are long
past due and payable, and are itemized as follows: To
M. E. Rogers, $490.00, to Albert Larsen, |3(H), and to
J. M. McDonald, |290, still unpaid and unsecured.
5.
And this position does further represent that the
said De Soto Placei* Mining Company is insolvent, and
has been insolvent at all times since on and prior 1*
October 10th, 19t)'3, and that within four months next
preceding the date of the filing of the original peti-
tion herein the said De Soto Placer Mining Company,
while so insolvent, committed the following acts of
bankruptcy, by conveying and transferring to some of
its creditors, both personal and real property in the
District of Alaska, in said mining disti'ict aforesaid,
16 M. E. Rogers et al. vs.
for the purpose aiid with the intent of preferring said
creditors over otlier creditors of said company, and for
the purpose of enabling said creditors to secure a
greater proportion of their claims against the said De
Soto Placer Mining Ciompany than other creditors of
said company, as follows:
That on the 17th day of October, 1903, the De Soto
Placer Mining Company aforesaid transferred and con-
veyed, by instrument in Avi'iting, to N. B. Solner, of
Nome, Alaska,
Placer mining claim known as No. 7 Below Discovery
on Ophir creek; also,
Placer mining claim known as the Wave, being a
fraction at the mouth of Ophir creek; also.
Placer mining claim, association claim, known as
Ophir Peninsula Mining Claim, lying between the
Neukluk river and Ophir creek, and containing 80 acres,
more or less of land; also,
Placer mining claim, known as No. 5^ Below Discov-
ery on Ophir creek; also,
Placer mining claim, known as No. 5 Below Discov-
ery on Ophir creek; also.
Placer mining claim, known as No. 4| Below Discov-
ery on Ophir creek; also,
Placer mining claim, known as No. 4 Below Discov-
ery on Ophir creek; also,
All of the above-described placer mining claims ly-
ing upon or adjacent to Ophir creek; also,
Placer mining claim, known as the Neukluk and Ophir
Old Channel Group, containing 160 acres; also,
The De Soto Placer Mimng Company. 17
An undivided one-half (|) interest in the Mendocino
placer mining group, situate on the left limit of the
Neuklnk river, adjoining the last-described placer min-
ing claim, and containing 160 acres, or thereabouts.
That on the 23d day of Octobei-, 1903, the De Soto
Placer Mining Company aforesaid transferred and con-
veyed, by instrument in writing, to N. B. Solner cff the
Bank of Cape Nome —
The stern-wheel steamer "Dusky Diamond," now ly-
ing at White Mountain, Alaska.
The stern-wheel steamer "Aurum," now lying and
hauled out on the ways at Golofnin Bay, Alaska.
One large 70-ton barge now lying hauled out on the
ways at Golofnin.
One small 30-ton barge now lying hauled out on the
way® at Golofnin Bay.
And all the machinery in the De Soto Company's
machine-shop at Oou^ncil Ctity, Alaska, consisting of
one boiler, one planer, one lathe, one drill press, one
emery wheel.
That on the 28d day of October, 1903, the T>e Soto
Placer Mining Company aforesaid, transferred and con-
veyed, by instrument in writing; to N. B. Solner of
the Bank of Cape Nome;
That certain lot or parcel of land' with buildings,
situafted thereon, known as the De Soto machine-shop,
the De SolEo warehouse and stables, messhouse and
bunkhouse; also, that certain lot or parcel of land, to-
gether with the buildings situated thereon, known and
described as the De Soto Wayside Hospital.
18 M. E. Roffers et al. vs.
That on the 11th day of November, 1908, the De Soto
Placer Mining Company aforesaid, transferred and con-
veyed, by instrument in writing, to A. V. Dedrick of
Council Oty, Alasika —
Lot one (1) in block two (2), according to the plati
and] survey of the Old Council City Townsite Organiza-
tioiu.
Lot two (2) in block two ^2), according to the plat
anfli survey of the Old Council City Townsite Organiza-
tion.
Lot three (3) in block two (2), according to the plat
and survey of the Old Council City Townsite Organiza-
tion.
Lot six (6) in block nine (9), according to the plati
and survey of the Old Council City Townsite Organiza-
tion.
Lot three (3) ini block four (4), according to the plat
and survey of the Old Council City Townsite Organiza-
tion.
Lot seven (7) in block nine (8), according to the plat
audi survey of the Old Council City Townsite Organiza^
tion.
Lot eight (8) in block nine (9), according to the plat
ani9 survey of the Old Council City Townsite Organiza-
tion.
Lot nine (9) in block nine (9), according to the plat
and; survey of the Old Council City Townsite Organiza-
tion.
Also the following tracts or parcels of land situate
in White Mountain, in said District of Alaska, to wit:
The Be Soto Placer Mining Company. 19
That certain lot or tract of land now occupied byi
that certain building, known as the De Soto Placer
Mining Company's office and messhouse, which said
building is 14 by 34 feet in size.
That certain tract or parcel of land now occupied by
that certain building , 14x20 feet in size, heretofore
known as the N. A. T. & T. Oo.'s Warehouse, and the
sod stable adjoining the same.
That on the 11th day of November, 1903, the De Soto
Placer Mining Company, aforesaid, transferred and
conveyed by instrument in writing, to A. V. Dedrick,
of Council City, Council Precinct, iSecond Division, Dis-
trict of Alaska —
One ten-ton river barge named "Rough."
One ten-ton river barge, named "Ready," both lying at
Wihite Mountain in said District.
One ten-ton barge and one twelve-ton barge, Iboth lying
at Council City in said District.
One 12x15, one-story portable house on Goldbottom,
creek.
One 12ixl5, one-story portable house.
One 22x24, four-room portable house. f
One 12x20, two-room portable house.
One 30x70, portable warehouse, all on the east side ofi
the Neukluk river, below Council City in said dis-,
trict.
One 12x30, three-room portable house, situated near the*
Council City warehouse in Council City.
One Diebold special safe.
One roller top desk.
20 M. E. Rogers ct al. vs.
One iron strong-box.
One letterpress.
Three Lowman and Hanford cabinet files.
Two iron bedsteads and beds complete.
Two Remington shotguns.
One Ithica shotgun.
Three Winchester rifles.
One Dietzen surveyor's transit and tripod.
One Keuffel and Esser surveyor's level and tripod.
One surveyor's target. i
One range pole.
One set draughtsman's instruments.
Three hardwood office chairs.
One cane-bottom chair.
One tight air heater.
Three volumes U. S. Statutes of the U. S., 1901.
Two volumes Lindley oni Mines.
One Mineral Law Digest,
Laws of Business^ — Parsons.
C'owdry's Forms.
Carter's Alaska Oode.
Three Seth Thomas clocks.
Two nickel B. &. H. Lamps.
Two tables.
And all other office fixtures and supplies now in the
office of the De Soto Placer Mining Company in.
Council Oity, Alaska.
Also the following at Ohinik in said District of Alaska:,
Four cases of Christmas goods, toys and games.
Three thousand feet 2x4x18 lumber.
The De Solo Placer Mining Company. 21
3000 feet 2x6x22 feet lumber.
2000 feet lumber, 2x8x20.
3000 feet lumber, 1x12.
1000 feet lumber, 1x6.
2000 feet lumber, 4x4x16.
2000 feet lumber, 2x12x20. '
4500 feet rustic.
2500 feet flooring.
32000 shingles.
All 'of which lumber and shingles is south of the Cave-
naugh warehouse at Ohinik, Alaska.
Also:
Tow large tarpaulins covering said lumber.
10 stes blocks.
1000 feet tackle.
50 tons Green river coal in the Wild Goose Company's
warehouse,
50 tons Green river coal in Cavenaugh's warehouse.
6 stell jackscrews.
10 cases Armour's bacon.
10 cases Armour's ham.
8 cases Armour's lard. '
5 half-barrels Armour's mess beef.
150 cases groceries, foods, wares and merchandise.
100 joints stove pipe.
40 gunnies flour and meal.
22 4-light storm window-sash.
42-light storm window-sash.
18 half barrels sugar.
5 cases butter.
22 M. E. Rogers et al. vs.
10 barrels butter.
10 cases eggs.
80 crates potatoes.
10 crates onions.
Zt crates cabbage.
5 crates beets.
5 sacks turnips.
All the above are stored in the Kimbal Company ware-
house a Othinik.
Also, all the following at White Mountain in said
district:
4 square house jacks.
300 joints stovepipe.
10 cases candles.
40 cases coal oil.
80 rolls building paper.
24 nickel B. & H. lamps.
1 doz station lamps.
1 doz. side lamps.
1 doz. blizzard lanterns.
4i doz. lantern globes.
12 doz. No. 2 lamp chimneys.
1 gross lamp and lantemi wicks.
2 cases glassware.
1000 feet assorted lumber.
2 10x12 tents, with frames and floor complete.
1 16x20 tent, with frame and floor complete.
2 cast-iron coal heaters. >
3 Yukon stoves.
1 air-tight heater.
The De Soto Placer Mining Company. 23
500 lbs. oata.
1 lot of block and tackle.
One-half do«. chairs.
1 letter-press.
1 iron strong-box, and office supplies.
1 lot cooking utensils and dishes.
10 cases assorted canned goods.
3 gross cut saws.
One-half doz. pole axes.
1 doz. picks, and one doz. shovels.
All of which are situated in White' Mountain in said
district.
Also, the following in Council City, Alaska:
12 cases coal oil.
500 feet lumber, 2x4x20 (outside of warehouse).
500 feet lumber, 2x6x28 (outside of warehouse).
48 pieces of square iron, assorted sizes.
50 pieces of round iron, assorted sizes.
20 pieces of sheet iron.
5 cases codfish.
15 doz. pole axes and handles.
0 doz. double bit axes and handles.
10 doz. picks and handles.
66 adzes and handles.
9 mauls and handles.
8 broad axes and handles.
1 barrel pitch.
1 case assorted pipe fittings.
2 boxes assorted steam shovel fittings,
1 box hammers.
24 M. E. Rogers ct ah vs.
1 box hand axes.
1 box cross-cut saws.
1 keg horseshoes.
1 box door knobs, locks and hinges.
13 kegs nails.
.1 box assorted oil-cans, pipe points, packing, etc.
^ doz. crowbars.
2 doz. drills.
10 doz. shovels.
1 doz. sluice forks.
An assortment of household and kitchen utensils.
1 large Ohio, double oven kitchen range with complete
set of furnishings.
6 barrels pipe fittings.
3000 feet galvanized pipe.
15 pieces assorted steel.
25 half barrels mess beef.
6 half barrels pork.
7 kegs pickles.
2 barrels machine oil.
1 box dredge supplies.
1 plow.
^ doz. scrapers.
10 cases office supplies.
25 rolls building paper.
100 bundles shingles.
2 cases olives.
5 sacks split peas.
5 cases peas.
15 boxes pilot bread.
The De Soto Placer Mining Company. 25
10 boxes prunes.
1 box evaporated peaches.
1 case pepper sauce.
6 cases evaporated spuds.
22 sacks rice.
4 cases rhubarb.
3 air-tight heaters,
3 half-round Yukon stoves.
(5 small square stoves.
1 large square stove.
50 joints stovepipe.
2 pack saddles.
28 cases sausage.
8 cases squash.
12 cases salmon.
1 box salt.
3 cases spinach.
1 barrel sauerkraut.
1 barrel salmon bellies.
4 tarpaulins.
6 10x12 tents with poles.
4 14x16 tents with poles.
1 sack tapioca.
2 casesi tea.
4 cases tomatoes.
1 case vermicelli.
1 barrel vinegar.
50 windows.
70 gunnies flour.
19 bundles hose.
26 M. E. Rogers et al. vs.
1 box harness.
4 gunnies hominy.
3 cases lemon sugar.
2 cases lime juice.
2 cases lard.
1 case lamps, burners, etc.
1 case lonternisi
1 ease station lamps.
28 cases mutton.
4 cases maccaroni.
2 cases mustard.
1 barrel mackerel.
14 kits mackerel.
7 pails mince meat.
1 case nectarines.
150 sacks oats.
1 gunny rolled oats.
1 miscellaneous lot containing comp'lete assay outfit
supplies.
17 cases corned beef.
23 cases roast beef.
1 case chipped beef.
6 cases beets.
1 box leather boots.
144 sacks beans.
lOOO feet ceilinig.
40 cots.
3 gunnies com meal.
5 cases crackers.
200 lbs. coffee.
The De Soto Placer Mining Company. 27
20 cases clams.
18 cases cabbage.
2 full sets of carpenter's tools.
3 cases crystalized eggs.
2 cases extracts.
1 case apple butter.
5 cases evaporated apples.
2 cases evaporated apricots.
2 cases asparagus.
And all other goods, wares, merchandise, supplies and
appliances of every kind and character now in the
Council City warehouse.
Also:
1 16x20 tent with frame and floor, east of the Wild
Goose warehouse in Council City, and
100 sacks of oats, six cases of hardware and machine-
shop supplies, 1 Yukon and 1 air-tight stove, now
ini said tent.
300 bales hay outside and east of the Council City
warehouse.
Also:
1 portable steam sawmill, with two sets of saws and
fittings, including engine and boiler complete.
2 6-inch centrifugal pumps and 2 upright engines.
1 complete set of boiler-maker's supplies.
1 complete set of calking tools.
1 complete blacksmith outfit, anvil, forge and tools.
Also machinists' tools, blacksmiths' tools and boiler-
makers' tools.
28 M. E. Rogers et at vs.
Also the following in the maichine-shop in Council €5ity,
Alaska:
2 12-foot shafts.
2 collars.
G pulleys.
350 feet of belting.
1 large assayer'si scales.
1 64-ounce gold scale.
Also in the Ooumcil City warehouse: '
1 assorted lot of cooking utensils of the value of |1,000.
1 cast iron shipmate stove, with pans, etc., complete
now at Chinik.
Also all the drugs, patent medicines, toilet articles,
goods, wares, merchandise, furniture, fixtures, sup-
plies and appliances in the- Wayside Dispensary,
situated on the southeast corner of the Wayside
Hospital lot in Council City, Alaska.
Also:
150 chickens, chicken coop and 15x15 foot stable on
said lot.
1 dun colored Jersey cow.
1 black horse, named "Nig," about 8 yeairs old andt
weighing about 1200 lbs.
1 bay horse named "Dave," about 7 years old and weig^i-
ing about 1100 lbs.
1 bay horse named '^Fted," about 7 years old and weigh-
ing 1,000 lbs.
1 sorrel horse about 9 years old, weighing about 1300
lbs.
The De Soto Placer Mining Company. 29
1 sorrel horse about 9 years old, weighing about 1300
lbs.
1 bluish roan horse, about 10 years old, weighing about
1300 lbs.
1 bay horse about 10 years old weighing about 1400 lbs.
1 dark bay horse, about 12 years old, weighing about
1300 lbs.
4 sets double harness.
5 riding saddles.
5 riding bridles.
2 No. 4 bob-sleds.
1 2-horse wagon, 4-inch tire.
3000 cords wood. i
Also 2 stoves, 2 tables, and all dishes, supplies and ap-
pliances in the De Soto messhouse in Council. Oty,
Alaska.
Also the following hospital supplies:
36 common chairs.
6 rocking chairs.
1 Morris chair.
1 small Ohio range.
22 iron beds, with springs and mattresses.
50 pairs bed blankets.
50 comforters. -
100 sheets.
100 pillow cases.'
50 feather pillows.
75 bedspreads.
15 side tables.
3 kitchen tables.'
30 M. E. Rogers et al. vs.
1 dining-room table.
15 air-tight heaters.
J doz. lamps. '
1 bathtub. "
1 operating table. '
Surgical instruments to the value of |l,0'0O.
Assorted chinaware for hospital use, dishes, spoons,
knives, forks, table and kitchen ware and all other
furniture, supplies and appliances now in the Way-
side Hospital in Council City, Alaska.
That, on the 5th day of February, 1904, the De Soto
Placer Mining Company aforesaid, transferred and con-
veyed, by instrument in writing, to F. B. Cavenaugh, of
Council City, Alaska:'
1 large river scow, 60 feet long, with a 7-foot 2-inch
beam, being the largest of the three scows owned
by the said party of the first part, and heretofore
used as a wood scow.
1 small portable steam sawmill, with boiler and engine.
6.
That the N. B. Siolner mentioned herein is and was at
all times mentioned herein the manager of the Bank
of Cape Nome, a corporation engaged in the business
of banking at Nome, Alaska, and the transfers and con-
veyances hereinbefore set forth as having been made
on the 17th day of October, 1903, to N. B. Solner, and
the transfers and conveyances hereinbefore set forth
as having been made on the 2»3d day of October, 1903,
to N. B. Solner of the Bank of Cape Nome, were each
The De Soto Placer Mining Company. 31
and all made to the said N. B. Solner in trust for the
use and benefit of the said Bank of Oape Nome, and as
security to the Bank of Cape Nome for large amounts
of money theretofore loaned and advanced by the Bank'
of Oape Nome to said De Soto Placer Mining Company,
and were made for the express purpose and with the'
intent of preferring said Bank of Cape Nome over the
other creditors of said company, and for the purpose of
enabling the said Bank of Oape Nome to secure a
greater proportion of its claims against said De Soto
Placer Mining Company than the other creditors of said
company.'
That all the transfers and conveyances, hereinbefore
set forth as having been made to A. V. Dedrick of Coun-
cil City were made to said A. V, Dedrick, who was then
and there the manager, agent, and superintendent of
said De Soto Placer Mining Company, and was then and
there a creditor of said company, as security for money
due to said Dedrick from said company and for the pur-
pose and with the intent of preferring said A. V. Ded-
rick over the other creditors of said De Soto Placer
Mining Compan^y, and for the pupose of enabling said
Dedrick to secure a g3*eater proportion of his claims
against said De Soto Placer INIining Company than the
other creditors of said company, and said transfers and
conveyances to said Dedrick were also then ajid there
made with the intent and for the purpose of hindering
delaying and defrauding all the other ci'editors of said
De Soto Placer Mining Company.
32 M. E. Rogers et al. vs.
That the transfer and conveyance hereinbefore set
forth as having been made on the 5th day of Febru-
ary, 19'04, to F. B. Cavenaugh, wasi made to said Cave-
naugh, who was then and there a creditor of said com-
pany with like purpose and intent.
And petitioners further allege that the property, real
and personal, hereinbefore described as having been
transferred to said N. B. Solner, A. V. Dedrick and F.
li. Cavenaugh comprises all the property of said Do
Soto Placer Mining Company within the District of
Alaska^ and exceeds in value the sum of five thousand
dollars.
Wherefore, said petitioners pray that the said De
Soto Placer Mining Company be adjudged to be a bank-
rupt, and that such proceedings be taken as are pro-
vided by the laws of Cbnigress in such cases.
' JAS. W. BELL,
IRA M. CAMPBELL,
Attorneys for Petitioners.
IRA D. orton;
Of Counsel.'
United States of America, '\
> ss.
District of Alaska.' J
James W. Bell, being first duly sworn, deposes and
says: That he is an attorney at law, duly admitted tO'
practice, and is actively engaged in the practice of law
before the United States District Court for the District
of Alaska, Second Division; that he has full authoritj
to appear for the above-namied petitioners in the above-
The De Soto Placer Mining Company. 33
entitled matter; that he has read the foregoing
amended petitions, knows the contents thereof, and be-
lieves the same to be true; that affiant's knowledge of
the matters and things set forth in said petition are de-
rived from statements under oath received from peti-
tioners from iSeattle, Washington, during the present
winter, and from certified copies of the records of re-
spondent's properties in the District of Alaska. Affi-
ant makes this verification for the reason that said peti-
tioners are not now within the jurisdicton of this Court,
and are unable to make this verification.
I JAS. W. BELL.
Subscribed and sworn to before me this 4th day of
April, 1904. !
[Notarial Seal] VIOLA C. ORTON,
Notary Public in and for the District of Alaska.
[Endorsed]: No. 1092. In the United States District
Court for the District of Alaska, iSecond Division. In
re De Soto Placer Mining Company in Bankruptcy.
Amended Petition. Filed in the office of the Clerk of
the U. S. Dist. Court, Alaskk, Second Division, at Nome,
Alaska, Apr. 7, 1904. Geo. V. Borchsenius, Clerk. By
Jno. H. Dunn, Deputy Clerk. Ira D. Ortom, Attorney
for J
34 M. E. Rogers ft al. vs.
In the United States District Court for the District of Alaska,
Second Division.
Term Minutes, Special October, 1903, Term, begun and
held at the Town of Nome, im said District and Divi-
sion, October 5th, A. D. 1908.
Thursday, April 7th, 1904, 10 A. M.
Court convened pursuant to adjournment.
Present: Hon. ALFRiED S. MOORE, Judge.
GEO. V. BOBOHSENIUiS, Clerk.
JOHN T. REED, Deputy Clerk.
GEO. B. GRIGSBY, Asst. U. S. Atty.
FRANK H. RICHARDS, U. S. Marshal.
Notw, upon the convening of court, the following pro-
ceedings were hadi
In re DE SOTO PLACER MINING"^
y No. 1092.
COMPANY, in Bankruptcy, J
Hearing (Continued). '
The hearing on the petiton filed in this case was con-
tinued until 2 o'clock P. M.
(C. J. 9, p. 74)'
The De Soto Placer Mining Company. 35
2 P. M.
In re DE SOTO PLACER MINING" ^
I No. 10d2.
COMPANY, in Bankruptcy, J
Hearing (Continued). '
Ira D. Orton appeared for Jas. W. Bell as attorney
for the petitioners, and a«ked leave to file an amended
petition; leave to file an amended petition was granted
by the Court, said petition being served in open court
upon A. J. Bruner and A. J. Daly, counsel for defend-
ants, after which the petition was filed and the hearing
continued until 10 o'clock A. M. to-morrow.
Friday, April 8th, 1904, 10 A. M.
In re DE SOTO PLACER MINING^
No. 1092,
COMPANY, in Banikruptcy,
Hearing on Petition in Banl(ruptcy-
A. J. Bruner and A. J. Daly at this time appeared in
open court and filed a praecipe for the appearance of
C. S. Johnson, A. J. Bruner and A. J. Daly, as attorneys
for defendant company, said Johnson, Bruner and Daly
entered as attorneys for said De Soto Placer Mining
Company. ,'
Counsel for defendants then filed a motion to dismiss
the proceedings in this case and to strike the petition,
for the reason that said i>etition is not verified accord-
ing to law. This motion to dismiss wasi then argued by
36 M. E. Rogers et al. vs.
A. J. Daly and A. J. Bruner, for the defendant company,
and by Ira D. Orton for the petitioners; whereupon the
Court stated that, in its opinion, the verifieation was
not sufficient, and Mr. Orton asked for time to amend
the same; whereupon the Court gave counsel until to-
morrow morning- at 9:30 to amend said veriflction, with
leave to change the allegation as to the amount of the
indebtedness of the defendant company. The matter
was then continued until 9:30 A. M. Saturday, to which
time an adjournment was taken.
(0. J. 9, p. 78.)
In the United States District Court for the District of Alaska,.
Second Division.
In the Matter of the Petition of M. E. ,
ROGERS, ALBERT LARSEN, and J. j
McDonald, to Have the De Soto I
Placer Mining Company Declared' j
Bankrupts.' '
Appearance of Attorneys for Respondent.
To the Oerk of the Above-entitled Court—Sir:
You will please enter the names of Charles S. John-
son, Alfred J. Daly and A. J. Bruner as attorneys and
counselors for respondent, De Soto Placer Mining Com-
pany, in the above proceedings' in place and in stead of
S. A. Kellar, formerly entered.
THE DE SOTO PLACER MINING CO.,
By ALEX DE SOTO,
Vice-President.
The De Soto Placer Mining Company. 37
[Endors«Ki]: No. 1092. In the United States District
Court far the District of Alaska, Second DivisioD. In
re Bankruptcy Petition Agt. De Soto Placer Mining Co.
Appearance. Filed in the office of the Clerk of the U.
S. Dist. Court, Alaska, Second Division, at Nome,
Alaska, Apr. 8, 1904. Geo. V. Borehsenius, Clerk. By
Jno. H. Dunn, Deputy Clerk. C. S. Johnson, A. J.
Bruner, A. J. Daly, Attorneys for Kespondent.
In the United States District Court for the District of Alaska,
' Second Division.
In the Matter of the Petition of M. E.
BOCtEBS, albert LARSEN, and J.
McDonald, to Have the De Soto
Placer Mining Company Declared'
Bankrupts.
Motion to Dismiss Proceedings-
Comes now the respondent, the De Soto Placer Min-
ing Company, and without submitting itself to the juris-
diction of the Court, but, on the contrary, maintaining
that this court is without jurisdiction and without any
waiver of its rights in the premises and its objections
to the jurisdiction of the Court, moves the Court that
these proceedings, attempted to be brought by the
above-named petitioners, be dismissed, and that their
petition filed herein be stricken for the reason that the
same is not verified according to law.
38 M. E. Rogers et al. vs.
This motion will be based upon the records and files
of this action.'
O. iS. JOHNSON,
A. J. BRUNER^
A. J. DALY,
Attorneys for Respondent.
[Endoi-sed]: No. 1092. In the United States District
Court for the District of Alaska, Second Division. In
re Petition in Bankruptcy of M. E. Rogers et al. against
De Soto Placer Mining Co. Motion. Filed in the office
of the Clerk of the U. S. Dist. Court, Alaska, Second Di-
vision at Nome, Alaska, Apr. 8, 1904. Geo. V. Borch-
senius. Clerk. By Jno. H. Dunn, Deputy Clerk. C. S.
Johnson, A. J. Bruner, A. J. Daly, Attorneys for Re-
spondent.
In the United States District Court for the District of Alaska,
Second Division.
In the Matter of the Petition of M. E.
ROGERS, ALBERT LARSEN, and J. :
McDonald, to Have the De Sotc^
Placer Mining Company Declared j
Bankrupts.
Second Amended Petition.
To the Hon. ALFRED S. MOOKE^ Judge of the said
Court :
The second amended petition of M. E. Rogers, Albert
Larsen, J. McDonald, respectfully shows:
The De Soto Placer Mining Company. 39
That petitioners are citizens of the United States and
residents of Seattle, Washington.
2.
That the De Soto Placer Mining Company is and was
at all times herein mentioned a corjioration organized
and existing under and by virtue of the laws of the
State of West Virginia, and has now, and has for the
greater portion of six months next preceding the date
of the filing of the original petition had its principal
place of business at Council City, in the District of
Alaska, and owes debts to the amount of over thirty
thousand. That said De Soto Placer Mining Com-
pany has, during all said time, and now is, engaged
principally in the business of mining within the Second
Division, District of Alaska.
3.
That your petitoners are creditors of the said De Soto
Placer Mining Company, ha\4ng provable claims
amounting in the aggregate, in excess of securities held
by them, to the sum of five hundred dollars and up-
wards, and the creditors of said bankrupts exceed
twelve in number.
4.
That the nature and amount of your petitioner's
claims are as follows:
That said petitioners did, during the summer of 1903,
at Council City Mining District, Alaska, perform work
and labor for said De Soto Placer Mining Company, in
40 M. E. Roger fi et ah vs.
said mining district aforesaid, and that said company,
on or about the 14th day of October, 1903, at Council
City, Alaska, through Alexander De Soto, itsi general
manager, give said petitioner orders on said company,
payable at the office of said company at Seattle, Wash-
ington, for various amounts of wages due them for their
employment and services aforesaid, but were paid no
moneys on said accounts except that a certain portion
of said petitioners were paid at Seattle, Washington,
ten dollars each and five per cent of the remaining
amount due oni their respective orders. That said com-
pany is still indebted to said petitioners in the sum
exceeding five hundred dollars for labor performed for
said company during the months of July, August, Sep-
tember and October, last past, which claims are long
past due and payable, and are itemized as follows: To
M. E. Rogers, |490.00, to Albert Larsen, |300.00, and to
J. M. McDonald $299, still unpaid and unsecured.
5.
And this petition does further represent that the said
De Soto Placer Mining Company is insolvent, and has
been insolvent at all times since, on and prior to Octo-
ber 10th, 190=3, and that within four months next preced-
ing the date of the filing of the original petition herein
the said De Soto Placer Mining Company, while so in-
solvent, committed the following acts of bankruptcy,
by conveying and transferring to some of its creditors
both personal and real property in the District of
Alaska, in said Mining District aforesaid, for the pur-
The De Soto Placer Mining Company. 41
pose and with the intent of preferring said creditors
over other creditors of said company, and for the pur-
pose of enabling said creditors to secure a greater pro-
portion of their claims against the said De Soto Placer
Mining Oompany than other creditors of said company,
as follows:
That on the 17th day of October, 1»08, the De Soto
Placer Mining Company aforesaid transferred and con-
veyed, by instrument in writing, to N. B. Solner, of
Nome, Alaska:'
Placer mining claim known as No. 7 Below Discovery,
on Ophir Greek; also,'
Placer mining claim known as the "Wave," being
a fraction at the mouth of Ophir Oreek; also:
Placer mining claim, association claim known as
Ophir Peninsula Mining Claim, lying between the Neuk-
luk River and Ophir Creek and containing 80 acres,
more or less of land; also,
Placer mining claim known as No. 5| Below Discov-
ery, on Ophir Creek; also.
Placer mining claim known as No. 5 Below Discovery,
on O'phir Creek; also,
Placer mining claim known as No. 4Vo Below Discov-
ery, on Ophir Creek ; also,
Placer raining claim known as No. 4 Below Discov^y,
on Ophir Creek; also.
Ail of the above-described pla<?er mining claims lying
upon or adjacent to Ophir Creek; also.
Placer mining claim known as the Neukluk and Opliir
Old Channel Group, coutainimg 160 acres; also,
42 M. E. Rogers et al. vs.
An undivided one-half (Vs) interest in the Mendocino
placer mining gT*oup, situate on the left limit of the
Neukluk River, adjoining the last-de'seribed placer min-
ing claim and containing 160 acres or thereaJbouts.
That, on the 23d day of October, 1903, the De Soto
Placer Mining Company aforesaid transfeiTed and con-
veyed, by instrument in writing, to N. B. Solner, of the
Ban!k of Cape Nome?
The stern-wheel steamer "Dusty Diamond," now lying
at White Mountain, Alaska.
The stern-wheel steamer "Aurum," now lying and
hauled out on the ways at Golofnin Bay, Alaska.
One large 70-ton barge, now lying and hauled out on
the ways at Golofnin.
One small 30-ton barge, now lying hauled out on the
ways at Golofnin Bay.
And all the machinery in the De Soto Company's ma-
chine-shop at Council City, Alaska, consisting of one
boiler, one planer, one lathe, one drill press, one emery
wheel.
That, on the 23d day of October, 1903, the De Soto
Placer Mining Company aforesaid transferred and con-
veyed, by instrument in writing, to N. B. Solner, of the
Bank of Cape Nome:
That certain lot or parcel of land, with buildings, sit-
uated thereon, known as the De Soto machine-shop, the
De Soto warehouse and stables, messhouse and bunk-
house; also that certain lot or parcel of land, together
with the buildings situated thereon known and de-
scribed as the De Soto Wayside Hospital.
The De Soto Placer Mining Company. 43
That, on the 11th day of November, 1903, the De Soto
Placer Mining Company aforesaid transferred and con-
veyed, by instrument in writing, to A. V. Dedrick of
Council City, Alaska:'
Lot one (1) in block two (2), according to the plat and
survey of the old Council City Townsite Organization.
Lot two (2) in block two (2), according to the plat and
survey of the old Council City Townsite Organization.
Lot three (3) in block two (2), according to the plat and
survey of the old Council City Townsite Organization.
Lot six (6) in block nine (9), according to the plat and
survey of the old Council City Townsite Organization.
Lot three (3) in block (4), according to the plat and
survey of the old Council City Townsite Organization.
Lot seven (T) in block nine (9), according to the plat
and survey of the old Council City Townsite Organiza-
tion.
Lot eight (8) in block nine (9), aiccording to the plal
and survey of the old Council City Townsite Organiza-
tion.
Lot nine (9) in block nine (9), according to the plat and
survey of the old Council City Townsite Organization.
Also the following tracts or parcels of land, situate
in White Mountain, in said District of Alaska, to wit:
That certain lot or tract of land now occupied by that
certain building known as the De Soto Placer Mining
Company's office and messhouse, which said building is
14x34 feet in size.
That certain tract or parcel of land now occupied by
that certain building, 14x20 feet in size, heretofore
44 M. E. Rogers et al. vs.
known as the N. A. T. & T. Oo.'s warehouse, and the sod
stable adjoining the same.
That, on the 11th day of November, 1903, thfe De Soto
Placer Mining Company, aforesaid, transferred and con-
veyed, by instrument in writing, to A. V. Dedrick, of
Council City, Council Precinict, Second Division, District
of Alaska:
One ten-ton river barge namedi "Kough."
One ten-ton river barge named "Beady," both lying at
White Mountain in said District.
One ten-ton barge and one twelve-ton barge, both lying
a* Council City in siaid District.
One 12x15, one-story portable house on Goldbottom
Creek.
One 12x15, one-story portable house.
One 22x24, four-room portable house.
One 12x20, two-room portaible house.
One 30x70, portable warehouse, all on the east side of
the Neukluk River, below Council City, in said Dis-
trict.
One 2x30, three-room portable house, situated near the
Council City Warehouse in Council City.
One Diebold special safe.
One roller top desk.
One iron strong-box. '
One letter-press.
Three Lowman and Hanford caibinet files.
Two iron bedsteads and beds complete.
Two Remington sh^tgunis.
One Ithica shotgun. <
The De Soto Placer Mining Company. 45
Three Winchester rifles.
One Dietzeu surveyor's transit and tripod.
One Keuffel and Esser surveyor's level and tripod.
One surveyor's target.
One range pole. *
One set draughtsman's imstruments.
Three hardwood oflBce chairs.
One cane bottom chair.
One air-tight heater.
Three volumes U. S. Statutes of the U. S. 1901.
Two volume® Lindley oni Mines.
One Mineral Law Digest.
Laws of Business — Parsons.
Oowdry's Forms.
■Carter's Alaska CJod'e.
Three Seth Thomas clacks.
Two nickel B & H lamp®.
Two table*.
And all other office fixtures and supplies now in the
office of the De Soto Placer Mining Company in
Council City, Alaska.
Also the following at the Chinook in said District of
Alaska:
Four cases of Christmas goods, toys and games.
Three thousand feet 2x4x18 lumber,
3000 feet 2x6x22 feet lumber,
2000 feet lumber 2x8x20.
30OO feet lumber 1x12,
1000 feet lumber 1x6.
2O00 feet lumber 4x4x16.
46 M. E. Rogers et al. vs.
2000 feet lumber 2x12x20.
4500 feet rustic.
2500 feet flooring.
32000 shingles.
All of which lumber and shingles is south of the Oav-
enaugh Warehouse at Chinook, Alaska.
Also:
Two laa-ge tarpaulins covering siaid lumber.
10 stes blocks.
lOOO feet tackle.
50 tons Green River coal in the Wild Ooosie Company's
Warehouse.
50 tons Green River coal in Cavenaugh's warehouse.
6 steel jack screws.
10 cases Armour's bacon.
10 eases Armour's ham.
8 cases Armour's lard.
5 half-barrels Armour's mess beef.
150 cases groceries, foods, wares and merchandise.
100 joints stovepipe.
40 gunnies flour and meal.
22 4-light storm window-sash.
4 2-light storm window-sash.
18 half barrels sugar.
5 cases butter.
10 barrels butter. i
10 cases eggs. '
80 crates potatoes.
10 crates onions.
The De Soto Placer Mining Company. 47
5 crates cabbage.
5 crates beets.
5 sacks turnips.
All the above are stored in the Kimball Company ware-
house at Chinook.
Also the following at White Mountain in said district:
i square house jacks.
300 joints stove pipe.
10 cases candles.
40 cases coal oil.
80 rolls building paper.
24 nickel B & H lamps.
1 doz. station lamps.
1 doz. side lamps.
1 doz blizzard lanterns.
4^ doz. lantern globes.
12 do^. No. 2 lamp chimneys.
1 gross lamp and lantern wicks.
2 cases glassware.
1000 feet assorted lumber.
2 10x12 tents, with frames and floor complete.
1 16x20 tent, with frame and floor complete.
2 cast-iron coal heaters.
3 Yukon stoves.
1 air-tight heater.
500 lbs. oats.
1 lot of block and tackle.
One-half doz. chairs.
1 letter-press.
1 iron strong-box and office supplies.
48 M. E. Rogers et al. vs.
1 lot cooking utensils and dishes.
10 cases assorted canned goods.
3 cross-cut saws.
One-half doz. pole axes.
1 doz. picks; 1 doz. shovels.
All of which are situated in White Mountain in said
District.
Also the following in Council City, Alaska:
12 cases coal oil.
50 feet lumber 2x4x20 (outside of warehouse).
500 feet lumber, 2x6x28 ( outside of warehouse).
48 pieces of square iron, assorted sizes.
50 pieces of round iroa, assorted sizes.
20 pieces of sheet iron.
5 cases cod fish.
15 doz. pole axes and handles.
6 doz. double bit axes and handles.
10 doz. picks and handles.
66 adzes and handles.
9 mauls and handles.
8 broad axes and handles.
1 barrel pitch.
1 case assorted pipe fittings.
2 boxes assorted steam shovel fittings.
1 box hammers.
1 box hand axes.
1 box cross-cut saws.
1 keg horseshoes.
1 box door knobs, locks and hinges.
13 kegs nails.
The De Soto Placer Mining Company. 49
1 box assorted oil cans, pipe, points, packing, etc.
i doz. crowbars.
2 doz. drills.
10 doz. shovels.
1 doz. sluice forks.
An assortment of household and kitchen utensils.
! large Ohio, double oven, kitchen range, with complete
set of furnishings.
6 barrels pipe fittings.
3000 feet galvanized pipe.
35 pieces assorted steel.
25 half-barrels mess beef.
6 half-barrels pork.
7 kegs pickles.
2 barrels machine oil.
1 box dredge supplies.
1 plow.
i doz. scrapers.
10 cases office supplies.
2'5 rolls building paper.
100 bundles shingles.
2 cases olives.
5 sacks split peas.
5 cases peas.
15 boxes pilot bread.
10 boxes prunes.
1 box evaporated peaches.
1 case pepper sauce.
6 cases evaporated spuds.
22 sacks rice.
50 M. E. Roffers et al. vs.
4 cases rhubarb.
3 air-tight heaters.
:i half-round Yukon stoves.
6 small square stoves.
1 large square stove.
50 joints stove pipe.
2 pack saddles.
28 cases sausage.
8 cases squash.
12 cases salmon.
1 box salt.
3 cases spinach.
1 barrel sauerkraut.
1 barrel salmon bellies.
4 tarpaulins.
6 10x12 tents with poles.
4 14x16 tents with poles.
1 sack tapioca.
2 cases tea.
4 cases tomatoes.
1 case vermicelli.
1 barrel vinegar.
50 windows.
70 gunnies flour.
19 bundles hose.
1 box harness.
4 gunnies hominy.
3 cases lemon sugar.
2 caises lime juice.
2 cases lard.
The De Soto Placer Mining Company. 51
1 case lamps, burners, etc.
1 case lanterns.
1 case station lamps.
28 cases mutton.
4 cases macaroni.
2 cases mustard.
1 barrel mackerel.
14 kits mackerel.
7 pails mince meat.
1 case' nectarines. ;
150 sacks oats.
1 gunny rolled oats.
1 miscellaneous lot containing' complete assay outfit
supplies.
17 cases corned beef.
23 cases roast beef.
1 case chipped beef.
6 cases beets.
1 box leather boots.
144 sacks beans.
lOOO feet ceiling.
40 cots. I ' .
3 gunnies com meal.
5 cases crackers.
200 lbs. coffee.
20 cases clams.
18 cases cabbage.
2 full sets carpenter tools. ,
3 cases crystalized eggs.
2 cases extracts.
52 M. E. Rogers et al. vs.
1 case apple butter.
5 cases evaporated apples.
2 cases evaporated apricots.
2 cases asparagus.
And all other goods, wares, merchandise, supplies and
appliances of every kind and character now in the
Council Oity Warehouse.
Also:
1 16x20 tent, with frame and floor, east of the Wild
Goose warehouse in Council City; and
100 sacks of oats, 6 cases hardware and machine-shop
supplies; 1 Yukon and one air-tight stove, now iti
said tent.
300 bales hay outside and east of the Council City ware-
house.
Also:
1 portable steam sawmill, with 2 sets of saws and fit-
tings, including engine and boiler complete.
2 6-inch, centrifugal pumps , and 2 upright engines.
1 complete set of boiler-makers' supplies.
1 complete set of calking tools.
1 complete blacksmith outfit, anvil, forge and tools.
Also machinists' tools, blacksmiths' tools, and boiler-
makers' tools.
Also the following in the machine-shop in Council Oity,
Alaska:
2 12 foot shafts.
2 collars. i
6 pulleys. i
300 feet belting. '
The De Soto Placer Mining Company. 53
1 large assayer's scales.
1 64-oz. gold scale.
Also in the Council Oity warehouse:
1 assorted lot of cooking utensils of the value of flOOO.
1 cast-iron shipmate stove, with pans, etc., complete,
now at Chinook.
Also all the drugs, patent medicines, toilet articles,
goods, wares, merchandise, furniture, fixtures, sup-
plies, and appliances in the Wayside Dispensary,
situated on the southeast corner of the Wayside
Hospital lot in Council City, Alaska.
Also:
150 chickens, chicken coop and 15x15 foot stable on said
lot.
I dun-colored Jersey cow.
1 black horse named "Nig," about 8 years old, and
weighing about 1200 pounds.
1 bay horse named "Dave," about 7 years old, and
weighing about 1100 lbs.
1 bay horse named "Fred," about 7 years old, and weigh-
ing 1000 lbs.
1 sorrel horse, about 9 years old, weigEing about 1300
lbs.
1 sorrel horse, about 9 years old, weighing about 1300
lbs.
1 bluish poan horse, about 10 years old, weighing about
130O lbs.
1 bay horse about 10 years old, weighing about 1400 lbs.
1 dark bay horse, about 12 years aid, weighing about
1300 lbs.
54' M. E. Rogers et al. vs.
4 sets double harness.
5 riding saddles.
5 riding bridles.
2 No. 4 bob-sleds.
1 2-horse M^Sigon, 4-inch tire.
3000 cords of wood.
Also 2 stoves, 2 tables, and all dishes, supplies, and ap-
pliances in the De Soto messhouse in Council City,
Alaska.
Also the following hospital supplies:
36 common chairs.
0 rocking chairs.
1 Morris chair.
1 small Ohio range,
22 iron beds with springs and mattresses.
50 pairs bed blankets.
50 comforters.
100 sheets.
100 pillow cases.
50 feather pillows.
75 bedspreads.
15 side taibles.
3 kitchen tables.
1 dining-room table.
15 air-tight heaters.
1 doz. lamps.
1 bathtub.
1 operating table.
Surgical instruments to the value of if 1,000.
The Be Soto Placer Mining Company. 55
Assorted china ware for hospital use, dishes, spoons,'
knives, forks, table and kitchen ware, and all other
furniture, supplies, and appliances, now in the Way-
side Hospital, in Council Oity, Alaska.
That on the 5th day of February, 1904, the De Soto
Placer Mining Company aforesaid, transferred and con-
veyed, by instrument in writing, to F. B. Cavanaugh, of
Council City, Alaska;
1 large river scow 50 feet long, with a 7 foot 2 inch
beam, being the largest of the three scows owned
by the said party of the first part, and heretofore
used as a wood scow.
1 small, portable steam sawmill, with boiler and engine.
6.
That the N. B. Solner mentioned herein is and was at
all times mentioned herein the manager of the Bank of
Cape Nome, a corporation engaged in the business of
banking at Nome, Alaska, and the transfers and con-
veyances hereinbefore set forth as having been made
on the 17th day of October, 1903, to N. B. Solner, and the
transfers and conveyances hereinbefore set forth as
having been made on the 23d day of October, 1903, to N.
B. Solner, of the Bank of Cape Nome, were each and all
made to the said N. B. Solner, in trust for the use and
benefit of the Bank of Cape Nome, and as security
to the Bank of Cape Nome, for large amounts of money
theretofore loaned and advanced by the Bank of Cape
Nome, to said De Soto Placer Mining Company, and
were made for the express purpose and with the intent
56 M. E. Rogers et al. vs.
of preferring said Banik of Cape Nome over the other
creditors of said company, and for the purpose of en-
abling the said Bank of Cape Nome to secure a greater
proportion of its claims against said De Soto Placer
Mining Company than the other creditors of said com-
pany.
That all the transfers and conveyances hereinbefore
set forth as having been made to A. V. Dedrick of Coun-
cil City, were made to said A. V. Dedrick, who was then
and there the manager, agent and superintendent of
said De Soto Placer Mining Company, and was then and
there a creditor of said company, as security for money
due to said Dedrick from said company and for the pur-
pose and with the intent of preferring said A. V. Ded-
rick over the other creditors of said De Soto Placer Min-
ing Company, and for the purpose of enabling said Ded-
rick to secure a greater proportion of his claims agains*
the said De Soto Placer Mining Company than the other
creditors of said company, and said transfer and convey-
ances to said Dedrick were also then and there made
with the intent and for the purpose of hindering, delay-
ing and defrauding all the other creditors of said De
Soto Placer Minimg Company.
That the transfer and conveyances hereinbefore set
forth as having been made on the 5th day of February,
1904, to F. B. Cananaugh, was made to said Oavanaugh
who was then and there a creditor of said Company
with like purpose and intent.
And petitioners further allege that the property, real
and personal, hereinbefore described as having been
The De Soto Placer Mining Company. 57
transferred to said N. B. Solner, A. V. Dedriek and F.
B. Cavanaugh, comprises all the property of said De
Soto Placer Mining Oompanj' within the District of
Alaska, and exceeds in value the sum of five thousand
dollars.
Wherefore, said petitioners pray that the said De
Soto Placei' Mining Company be adjudged to be bank-
rupt, and that such proceedings be taken as are pro-
vided by the laws of Congress in such cases.
M. E. ROOERiS,
ALBERT LARSEN, and
J. McDonald,
By JAS. W. BELL,
Attorneys for Petitioners.
United States of America, "^
las.
District of Alaska. J
James W. Bell, being first duly sworn, on his oath
deposes and says: That he is the attorney for the peti-
tioners named in the foregoing amended petition, and
that the statements therein contained are true; that
the reason why this verification is made by affiant in-
stead of by said petitioners) in person is because said
petitioners are all without the District of Alaska, and
for that reason unable to verify said petition; that affi-
ant is an attorney of this Court, and has been duly
authorized to institute and conduct the proceedings
nerein.
JAS. W. BELL.
58 M. E. Rogers et al. vs.
Suibscribed and sworn to before me this 9th day of
April, 1904.
JOHN H. DUNN,
Deputy Qerk, U. S. District (3ourt, District of Alaska,
2d Div., Residing at Nome.
[Endorsed]: No. 1092. United States District Court
for the District of Alaska, Second Division. In re De
Soto Placer Mining Company. Second Amended Peti-
tion. Filed in the Office of the Olerk of the U. S. Dist.
Court, Alaska, Second Division, at Nome, Alaska, Apr.
9, 1904. Geo. V. Borchsenius, Clerk. By Jno. H. Dunn,
Deputy Clerk. Ira D. Orton, Attorney for ,
Tn the United States District Court for the District of
Alaska, Second Division.,
Term Minutes, Special October, 1903, Term, begun and
held at the Town of Nome, in said District and
Division, October 5th, A. D. 1908.
Saturday, April 9th, 1904, 9 :30 A. M.
Court convened pursuant to adjournment.
Present: Hon. ALFRED S. MOORE, Judge.
GEO. V. BORCHSENIUS, Clerk.
JOHN H. DUNN, Deputy Clerk.
GEO. B. GRIGSBY, Asst U. S. Atty.
FRANK H. RICHARDS, U. S. Marshal.
The De Soto Placer Mining Company. 59
Now, upon the convening of Court the following pro-
ceedings were had :
In re DE SOTO PLACER MINING
, No. 1092.
COMPANY, in Bankruptcy.
Order Extending Time for Signing Bill of Exceptions, etc
Jas. W. Bell and Ira D. Orton appeared for the peti-
tioners; A. J. Bruner and A, J. Daly for the defendant
company.
Counsel for petitioners filed a second amended petition
and served the same upon counsel for defendant in open
court.
Counsel for defendant objected to the verification of
this second amended petition also, which objection was
argued by counsel, and the verification to the same held
by the Court to be insufficient, and the petition dismissed.
Whereupon, counsel for petitioners prepared a bill of
exceptions whicb was filed, the time f6r signing tbe same
by the Court extended until next Monday at 2 o'clock
P. M., to permit counsel for defendant company to ex-
amine the said bill.
C. J. No. 9, p. 79.
60 M. E. Rogers et at. vs.
In the United States District Court for the District of
Alaska, Second Division:
In the Matter of the Petition of M. E.\
ROGERS, ALBERT LARSEN and J. I
McDonald, to Have the De Soto I
Placer Mining Company Declared I
Bankrupt. j
Bill of Exceptions.
Be it remembered that, on the 8th day of AJ)ril, 1904,
the respondent in the above-entitled proceeding appeared
in op?n court, by its attorneys Messrs. A. J. Daly and
A. J. Bruner, and duly served and filed herein the fol-
lowing motion]:
"/« the United States District Court for the District of
lAlaska, Second Division.,
In the Matter of the Petition of M. E.
ROGERS, ALBERT LARSEN and J.
McDonald, to Have the De Soto
Placer Mining Company Declared
Bankrupt.
Motion.
Comes now the respondent, the De Soto Placer Mining
Company, and without submitting itself to the jurisdic-
tion of the Court, but, on the contrary, maintaining
that this Court is without jurisdiction and without any
waiver of its rights in the premises and its objections to
the jurisdiction of the Court, moves the Court that these
The De Soto Placer Mining Company. 61
proceedings, attempted to be brought by the above-named
petitioners, be dismissed, and that their petition filed
herein be stricken, for the reason that the same is not
verified according to law.
This motion will be based upon the records and files
of this action.
C. S. JOHNSON,
A. J. BRUNER,
A. J. DALY,
Attorneys for Respondent."
Be it further remembered that said motion was pre-
sented to the Court and argued bv counsel, and the Court
made an order allowing petitioners herein to present on
the following morning a second amended petition and to
amend the verification.
Be it further remembered that on the next ensuing
day, being the 9th day of April, 1904, the said petitioners
duly served on respondent's counsel and filed herein said
second amended petition; and thereupon in open court
the said respondent, the De Soto Placer Mining Com-
pany, by its attorneys Messrs. A. J. Daly and A. J.
Bruner, moved the Court orally to dismiss these proceed
ings, and that the petition of petitioners be stricken upon
the ground that the second amended petition is not veri-
fied according to law, which motion was, after argument,
granted by the Court; and said procecnlings were there-
upon by the Court dismissed; to which ruling of the Court
petitioners above named then and there duly excepted,
and now present this their bill of exceptions to the same,
and ask that the same be settled and allowed.
62 M. E. Rogers et al. vs.
The foregoing bill of exceptions to the Court on the
9th day of April, 1904, at the same term of said court
in which the order dismissing said proceedings was made,
and being found correct is hereby settled and allowed
and ordered to be made a part of the record herein.
Done this 11th day of April, A. D. 1904, at the City of
Nome, Alaska. ALFRED S. MOORE,
Judge of the United States District Court, Second Divi-
sion of the District of Alaska. )
[Endorsed] : No. 1092. In the United States District
Court for the District of Alaska, Second Division. In
the Matter of the Petition of M. E. Rogers, Albert Larsen
and J. McDonald to have the De Soto Placer Mining
Company declared bankrupt. Bill of Exceptions. Filed
in the Office of the Clerk of the U. S. Dist. Court, Alaska,
Second Division, at Nome, Alaska, Apr. 9, 1904. Geo.
V. Borchsenius, Clerk. By Jno. H. Dunn, Deputy Clerk,
i _^
In the United ^States District Court for the District of
[Alaska, Second Division.',
In the Matter of the Petition of M. E. \
ROGERS, ALBERT LARSEN and J. /
McDonald, to Have the De Soto.^
Placer Mining Company Declared I
Bankrupt ^ J
Judgment.
The motion of respondent to dismiss the above-entitled
proceedings and the petition filed herein, for the reason
The De Soto Placer Mining Company. 63
that said petition is not verified in accordance with law,
coming on to be heard this ninth day of April in open
court, Ira D. Orton, Esq., and James W. Bell, Esq., ap-
pearing as attorneys for petitioners, and A. J. Bruner,
Esq., and A. J. Daly, Esq., appearing as attorneys for
respondent, and the matter having been argued by coun-
sel for the respective parties, and the Court being fully
advised in the premises, and the Court having found that
said petition was not verified in accordance with law —
It is hereby ordered, adjudged and decreed that said
petition be, and the same is hereby, dismissed, and sa'd
above-entitled proceedings be, and the same are hereby,
dismissed, and that respondent have and recover its costs
and disbursements taxed at of and from petitioners.
April 11, 1904.
ALFRED S. MOORE,
Judge U. S. District Couvi.
[Endorsed] : No. 1092. In the United Statesi District
Court for the District of Alaska, Second Division. In
re Petition of M. E. Rogers et al. Judgment. Filed in
the Office of the Clerk of the U. S. Dist. Court, Alaskn,
Second Division, at Nome, Alaska, Apr. 11, 1904. Geo.
V. Borchsenius, Clerk. By Jno. H. Dunn, Deputy Clerk.
Chas. S. Johnson, A. J. Bruner and A. J. Daly, Attorneys
for Respondent. Civil J 9, p. 100.
64 M. E. Rogers et al. vs.
In the United States District Court for the District of
Alaska, Second Division.,
In the Matter of the Petition of M. E.
ROGERS, ALBERT LARSEN and"
J. Mcdonald to Have the De Sottf.
Placer Mining Company Declared;
Bankrupt. ' f
Amendments to Biill of Exceptions.
Comes now the above-named respondent, by its attor-
neys, Messrs. Charles S. Johnson, A. J. Bruner and A. J.
Daly, and moves the Court that petitioners^ bill of ex-
ceptions heretofore filed and to be presented to the Court
for settlement and allowance, be amended in the follow-
ing manner, to wit :
I.
At the end of page 1, after the word "verification,"
insert the following :
"and the Court orally directed and ordered that if the
verification to the said amended complaint were made by
James W. Bell, attorney for said petitioners, the same
person who had verified the original petition and the first
amended petition, that the said James W. Bell should
set forth more fully in said verification than in the verifi-
cations! to the former petitions, and at large, what per-
sonal knowledge he had of the matters and things con-
tained in said petition, and more fully and at large what
knowledge or information he had of the matters and alle-
gations contained in said petition not within his own
The De Soto Placer Mining Company. 65
personal knowledge and from what the same were de-
rived."
II.
By inserting in the 9th line on the 2d page of said
bill of exceptions, after the word "law," which is the
second word upon the said line, the following, to wit:
"Or according to the orders and terms heretofore made
by the Court upon which said petitioners were allowed
to amend their first amended petition."
0. S. JOHNSON,
A. J. BRUNER,
A. J. DALY,
Attorneys for Respondent.
[Endorsed] : No. 1092. In the United States District
Court for the District of Alaska, Second Division. In
re Petition of M. E. Rogers et al. Amendments to Bill
of Exceptions. Filed in the Office of the Clerk of the
V. S. Dist. Court, Alaska, Second Division, at Nome,
Alaska, Apr. 11, 1904. Geo. V. Borchsenius, Clerk. By
Jno. H. Dunn, Deputy Clerk. Chas. S. Johnson, A. J.
Bruner and A. J. Daly, Attorneys for Respondent.
In the United States District Court for the District of Alaska,
Second Division.
Term Minutes, Special October, 1903, Term, begun and
held at the Town of Nome, in said District and
Division, October 5th, A. D. 1908'.
66 M. E. Rogers et al. vs.
Monday, April 11th, 1904, 2 P. M.
Court convened pursuant to adjournment.
Present: Hon. ALFRED S. MOORE, Judge.
GEO. V. BORCHSENIUS, Clerk.
JOHN H. DUNN, Deputy Clerk.
GEO. B. GRIGSBY, Asst. U. S. Atty.
FRANK H. RICHARDS, U. S. Marshal.
Now, upon the convening of court the following pro-
ceedings were had :
>"No. 1092.
In re DE SOTO PLACER MINING'-^
COMPANY, in Bankruptcy.
Settlement of Biill of Exceptions.
Jas. W. Bell appeared for the petitioners and pre-
sented to the Court for its signature a bill of exceptions
heretofore filed.
A, J. Daly appeared for the defendant company and
asked that certain amendments be made to said bill of
exceptions, which amendments were refused by the Court,
and the bill of exceptions as presented by the petitioners
and as filed with the clerk, was signed by the Court.
Counsel for defendant company then filed with the clerk
his proposed amendments to said bill of exceptions.
Counsel for defendant company then presented to the
Court a judgment of dismissal of the petition in bank-
ruptcy, which judgment was signed and filed.
The De Soto Placer Mining Company. 67
In the United States District Court for the District of
Alaska, Second Division.
In the Matter of the Petition of M. E,'
ROGERS, ALBERT LARSEN and J.
McDonald, to Have the De Sotq
Placer Mining Company Declared'
Bankrupt.
Assignment of Errors.
Come now the petitioners in the above-entitled mat-
ter and assign the following errors as having been com-
mitted upon the hearing and in the proceedings in the
above-entitled matter, for which said errors the said peti-
tioners intend to and do rely upon appeal.
1.
The Court erred in holding that the second amended
petition of petitioners was not verified according to law.
2.
The Court erred in striking the second amended peti-
tion of petitioners upon the ground that said second
amended petition was not verified according to law.
3.
The Court erred in dismisssing the petition of the peti-
tioners.
4.
The Court erred in dismissing the proceedings in the
above-entitled matter.
68 M. E. Rogers et al. vs.
The Court erred in ordering and entering judgment (f
dismissal of the petition in the above-entitled matter.
6.
The Court erred in ordering and entering judgment of
dismissal of the above-entitled proceedings.
Wherefore, petitioners pray that said judgment be re-
versed, and that judgment be ordered in favor of said
petitioners and appellant as prayed for in said matter.
JAS. W. BELL,
IRA D. ORTON,
IRA M. CAMPBELL,
Attorneys for Petitioners and Appellants.
[Endorsed] : No. 1092. In the United States District
Court for the District of Alaska, Second Division. In
the Matter of the Petition of M. E. Rogers, Albert Larsen
and J. McDonald to have the De Soto Placer Mining
Company Declared Bankrupt. Assignment of Errors.
Filed in the Ofiflce of the Clerk of the U. S. Dist. Court,
Alaska, Second Division, at Nome, Alaska, Apr. 16, 1904.
Geo. V. Borchsenius, Clerk. By Jno. H. Dunn, Deputy
Clerk.
The De Soto Placer Mining Company. 69
fn the United States District Court for the District of
Alaska, Second Division.
In the Matter of the Petition of M. E.
ROGERS, ALBERT LARSEN and J.
Mcdonald, to Have the De Soto
Placer Mining Company Declared
Bankrupt.
Petition for Appeal and Order Allowing Same.
To the Honorable ALFRED S. MOORE, Judge of the
District Court for the District of Alaska, Second
Division :
Come now M. E. Rogers, Albert Larsen and J. ^Ic-
Donald, petitioners in the above-entitled proceeding, and
conceiving themselves aggrievefl by the judgment made
and entered in the above-entitled court in the above-en-
titled cause under date of April 11, 1904, wherein and
whereby it was ordered, adjudged and decreed "that
said petition be and the same is hereby dismissed, and
said above-entitled proceedings be and the same are
hereby dismissed, and that respondents have and re-
cover its costs and disbursements taxed at of
and from petitioners," do hereby appeal to the United
States Circuit Court of Appeals for the Ninth Circuit
from the said judgment made and entered as aforesaid,
and from the whole and every part thereof, and they
pray that said appeal be allowed, and that a transcript
of the records and proceedings and papers upon which
the said judgment was made, duly authenticated, may
70 M. E. Rogers et al. vs.
be sent to the United States Circuit Court of Appeals
for the Ninth Circuit.
Dated April 14th, 1904.
IRA A. CAMPBELL,
IRA D. ORTON and
JAiS. W. BELL^
Attorneys for Petitioners.
Order.
The foregoing appeal is hereby granted, and it is or-
dered that the appeal mentioned therein be, and the
same is hereby allowed, petitioners and appellants to
give a bond for costs in the sum of two hundred and
fifty (1250.00) dollars.
Done in open court at Nome, in the District of Alaska,
this 16th day of April, 1904.
A.LFRED S. MOORE,
Judge of the United Statesi District Court for the Dis^
trict of Alaska, Second Division.
[Endorsed]: No. 1092. In the United States District
Court for the District of Alaska, Second Division. In
the Matter of the Petition of M. E. Rogers, Albert Lar-
sen and J. McDonald to Have the De Soto Placer Min-
ing Company Declared Bankrupt. Petition for Appeal
and Order Allowing Same. Filed in the OflBce of the
Clerk of the U. S. Dist. Court, Alaska, Second Division,
at Nome, Alaska, Apr. 16, 1904. Geo. V. Borchsenius,
Clerk. By Jno. H. Dunn, Deputy Clerk. Ira D. Orton,
Jas. W. Bell, Attorney for Petitioners. Civil J. 9, p. 113;
The De Soto Placer Mining Company. ti
In the United States District Court for the District of Alas-
ka, Second Division. ■
In the Matter of the Petition of M. E.\
ROGERS, ALBERT LARSEN and J. /
McDonald to Have the De Soto,)
Placer Mining Company Declared|\
Bankrupt. [ J
Bond on Appeal.
Know all men by these presents : That we, M. E. Rog-
ws, Albert Larsen and J. McDonald, as principals, and
Dave Goodfriend and J. F. A. Strong, as sureties, are
held and firmly bound unto the De Soto Placer Mining
Company, a corporation, in the full and just sum of two
hundred and fifty (250) dollars to be paid to the said De
Soto Placer Mining Company, or its assigns, to which
payment, well and truly to be made, we bind oursselves,
our heirs, executors, and administrators, jointly and
severally, firmly by these presents. '
Sealed with our seals and dated this 16th day of
April, 1904.
Whereas, lately at a session of the District Court for
the District of Alaska, Second Division, holden in the
town of Nome, said District, in a proceeding pending in
said' court between said M. E, Rogers, Albert Larsen and
tl. McDonald, petitioners, and the De Soto Placer Min-
ing Company a corporation, respondent, a judgment was
rendered against the said M. E. Rogers, Albert Larson
and J. McDonald, petitioners, and the said M. E. Rog-
72 M. E. Rogers et ol. vs.
ers, Albert Larsen, and J. McDonald having obtained
from said District Court an order allowing an appeal to
the United States Circuit Court of Appeals for the Ninth
Circuit to reverse the judgment in the aforesaid proceed-
ing, and a citation directed to the said De Soto Placer
Mining Company is about to be issued, citing and ad-
monishing it to be and appear at a United States Circuit
Court of Appeals for the Ninth Circuit, to be holden at
San Francisco, California.
Now, the condition of the above obligation is such
that if the said M. E. Rogers, Albert I^arsen and J. Mc-
Donald shall prosecute their said appeal to effect, and
answer all costs that may be awarded against them if
they fail to make their plea good, then the above obliga-
tion is to be void; otherwise to remain in full force and
virtue.
M. E. ROGERS. [Seal]
ALBERT LARSEN. [Seal]
J. McDonald. [Seai]
By JAS. W. BELL,
\ Their Attorney,
Principals.
DAVE GOODPRIEND. [Seal]
J. F. A. STRONG. [Seal]
Sureties.
The De Soto Placer Mining Company. 73
United States of America,
..ss.
District of Alaska.
Dave Goodfriend and J. F. A. Strong, being first duly
sworn, each for himself and not one for the other, de-
poses and says: That he is a resident within the District
of Alaska; that he is not a counselor or attorney at law,
marshal, deputy marshal, commissioner, clerk of any
court, or other officer of any court. That he is worth
the sum of two hundred and fifty dollars over and above
all debts and liabilities, and exclusive of property ex-
empt from execution.
DAVE GOODFRIEND.
J. F. A. STRONG.
Subscribed and sworn to before me this 16th day of
April, 1904.
[Seal] JAS. W. BELL,
Notary Public in and for the District of Alaska, at
Nome.
The foregoing bond approved this 16th day of April,
1904.
ALFRED S. MOORE,
Judge Disitrict Court, District of Alaska^ Second Divi-
sion.
[Endorsed] : No. 1092. In the United States District
Court for the District of Alaska, Second Division. In
the Matter of the Petition of M. E. Rogers, Albert Lar-
sen, and J. McDonald to have the De Soto Placer Min-
ing Company Declared Bankrupt. Bond on Appeal.
74 M. E. Rogers et al. vs.
Filed in the Office of the Clerk of the U. S. Dist. Court,
Alaska, Second Division, at Nome, Alaska, Apr. 16, 1904,
Geo. V. Borchsenius, Clerk. By Jno. H. Dunn, Deputy
Clerk. Ira D. Orton, Jas. W. Bell, Attorney for Peti-
tioners. Civil J. No. 9, p. 423.
In the United States District Court for the District of Alas-
ka, Second Division.
In the Matter of the Application of M,
E. ROGERS, et al. to Have the De^j
Soto Placer Mining Company De^j
clared Bankrupta
Order Enl rging Time to Docket Cause on Appeal.
Good cause appearing it is hereby ordered by the un-
dersigned judge who signed the citation upon the writ
of error issued herein, that the time for the petitioners
in error to file the transcript of the record and to docket
the above-entitled cause on error with the clerk of the
Circuit Court of Appeals for the Ninth Circuit be^ amd
the same is hereby enlarged to and including the l'6th
day of August, 1904.
Dated at Nome, Alaska, the 14th day of May, 1904.
ALFRED S. MOORE,
Judge of th« District Court for the District of Alaska,
Second Division.
[Endorsed] : No. 1092. In the United States District
Court for the District of Alaska, Second Division. In:
the Matter of the Petition of M. B. Rogers et al. to hajre
The De Soto Placer Mining Company. 75
the De Soto Placer Mining Oo. Declared Bankrupt.
Order Enlarging Time to Docket Cause on Appeal.
Filed in the Office of the Clerk of the U. S. Dist. Court,
Alaska, Second Division, at Nome, Alaska, May 14, 1904.
Geo. V. Borchsenius, Clerk. By Jno. H. Dunn, Deputy
Clerk. Recorded Order Record No. 2, p. 29. Jas. W.
Bell, Attorney for Petitioners.
In the District Court in and for the District of Alaska, Sec-
ond Division.
In the Matter of the Petition of M. E.\
ROGERS, ALBERT LARSEN, and J J
McDonald to Have the De SotoV Ko. 1092.
Placer Mining Company Declared' V
Bankrupt. /
Clerk's Certificate to Transcript.
I, Geo. V. Borchsenius, Clerk of the District Court in
and for the District of Ala.ska, Second Division, do here-
by certify that the foregoing typewritten pages, from 1
to 54, both pages inclusive, is a true and exact tran-
script of the petition; order for subpoena; subpoena;
court minutes, March 1st, 1904; court minutes, April 1st,
1904 ; court minutes, April 4, 1904 ; court minutes, April
6, 1904; amended petition; court minutes, April 7, 1904;
appearance of attorneys for respondent; motion to dis-
miss proceedings; second amended petition; court min-
76 M. E. Rogers et at. vs.
utes, April 9, 1904; bill of exceptions; judgment; amend-
ments to bill of exceptions; court minutes, April 11,
1904; refusing to allow amendments to bill of excep-
tions; assignment of errors; petition for appeal and or-
der allowing same; bond on appeal; order enlarging time
to docket cause on appeal, in the matter of the petition
of M. E. Rollers, Albert I^rsen, and J. McDonald to have
the De Soto Placer Mining Company declared bankrupt,
number 1092 civil; and of the whole thereof as appears
from the records and files in my office at Nome, Alaska;
and further certify that the original citation in said
cause is attached to said transcript.
Costs of transcript $17.50, paid by Jas. W. Bell, at-
torney for petitioners.
In witness whereof, I have hereunto set my hand and
affixed the seal of said court this 24th day of June, A.
D. 1904.
[Seal] GEO. V. BORCHSENIUS,
Clerk.
By Jno. H. Dunn,
Deputy Clerk.
The De 8oto Placer Mining Company. 77
In the United States District Court for the District of Alas-
ka, Second Division.
In the Matter of the Petition of M. E,
ROGERS, ALBERT LARSEN and J.
McDonald to Have the De Soto
Placer Mining Claim Declared Bank-
rupt.
Citation.
United States of America — ss.
The President of the United States to the De Soto Placer
Mining Company, Greeting :
You are herehy cited and admonished to be and ap-
pear at a United States Circuit Court of Appeals for the
Ninth Circuit, to be holden at the city of San Francisco,
State of California, on the 16th day of May, 1904, pur-
suant to an appeal filed in the clerk's office of the Dis-
trict Court of the United States for the District of
Alaska, Second Division, wherein M. E. Rogers, Albert
Larsen and J. McDonald are appellants and you are ap-
pellee, to show cause, if any there be, why the judgment
in said appeal mentioned should not be corrected and
speedy justice should not be done to the parties in that
behalf.
Witness the Honoraible ALFRED S. MOORE, Judge of
the United States District Court for the District of
Alaska, Second Division, this 16th day of April, 1904.
ALFRED S. MOORE,
Judge of the United States District Court, District of
Alaska, Second Division. '
78/ M. E. Rogers et al. vs.
Personal service of the foregoing citation is hereby
admitted this 16th day of April, 1904.
A. J. DALY,
Attorney for Respondent.
[Endorsed] : No. 1092. In the United States District
Court, for the District of Alas^ka, Second Division. In
the Matter of the Petition of M. E. Rogers, Albert Lar-
sen and J. McDonald to Have the De Soto Placer Min-
ing Company Declared Bankrupt. Citation. Filed in
the office of the clerk of the U. S. Dist. Court, Alaska,
Second Division, at Nome, Alaska. Apr. 16, 1904. Geo.
\. Borchsenius, Clerk. By Jno. H. Dunn, Deputy Clerk.
Ira D. Orton, Jas. W. Bell, Attorneys for Petitioners.
[Endorsed] : No. 1108. United States Circuit Court
of Appeals for the Ninth Circuit. M. E. Rogers, Albert
Larsen, and J. McDonald, Appellants, vs. The De' Soto
Placer Mining Company, Appellee. In the Matter of
the Petition of M. E. Rogers et al. to Have the De Soto
Placer Mining Company Declared Bankrupt. Tran-
script of Record. Upon Appeal from the United States
District Court for the District of Alaska, Second Divi-
sion.
Filed August 2, 1904.
F. D. MONCKTON,
1 i Clerk.
No. 1 103
IN THE
United States Circuit Court of Appeals
FOR THE NINTH CIRCUIT
M. E. ROGERS, ct al.,
Appellants,
vs.
THE DE SOTO PLACER MIIMIMG COMPANY,
Appellee.
Ix THE Matter of the Petition of M. E. Rogers,
ALJ3ERT LaRSEX AND J. McDONALD, TO HAVE THE
De Soto Placer Mining Company Declared
Bankrupt.
BRIEF
FOR
APPELLANTS.
KIL
IRA
A. CAMPBELL,
OCT -8
IRA
D. ORTON,
jas.
W. BELL,
W. H
1. METSOiN,
Attorneys for Appella
mts.
THOMAS H. BREEZE.
Of (
I^ounsel.
IN THE
United States Circuit Court of Appeals
FVR THE NINTH CIRCUIT.
M.E. ROGERS, etal, x
Appellants,
vs.
THE DE SOTO PLACER MINING (
Appellee.
COMPANY, I
In the Matter of the Petition of M. E. Rogers,
Albert Larsen and J. McDonald, to Have the
De Soto Placer Mining Company Declared
Bankrupt.
BRIEF FOR APPELLANTS.
STATEMENT OF THE CASE.
April 7th, 1904, these appellants filed in the District
Court, for the District of Alaska, Second Division,
their amended petition to have the appellee declared a
bankrupt (Tr., pp. 13-32).
The petition was verified by James W. Bell, one of
the attorneys for the petitioners. The affidavit of veri-
fication vv^as as follows (Tr., p. 32) :
" United States of America,
" District of Alaska. — ss.
" James W. Bell, being first duly sworn, deposes and
" says: that he is an attorney at law, duly admitted to
" practice, and is actively engaged in the practice of
" law before the United States District Court for the
" District of Alaska, Second Division; that he has full
" authority to appear for the above-named petitioners
" in the above entitled matter; that he has read the fore-
" going amended petition, knows the contents thereof,
" and believes the same to be true ; that affiant's knowl-
*' edge of the matters and things set forth in said peti-
" tion are derived from statements under oath received
" from petitioners from Seattle, Washington, during
" the present winter, and from certified copies of the
" records of respondent's properties in the District of
" Alaska. Affiant makes this verification for the reason
" that said petitioners are not now within the jurisdic-
" tion of this Court, and are unable to make this veri-
" fication.
"JAS. W. BELL,
" Subscribed and sworn to before me this 4th day of
" April, 1904,
" (Notarial Seal) VIOLA C. ORTON,
" Notary Public in and for the District of Alaska."
Thereupon the respondent moved "to dismiss the pro-
" ceedings in this case and to strike the petition, for the
" reason that said petition is not verified according to
" law, * * * whereupon the Court stated that, in
" its opinion, the verification was not sufficient" (Tr.,
pp. 35 and 36).
April 9th, 1904, a second amended petition was filed
(Tr. pp. 38-57). This petition was also verified by at-
torney. The affidavit is as follows: (Tr. p. 57).
*' United States of America,
*' District of Alaska. — ss.
" James W. Bell, being first duly sworn, on his oath
'* deposes and says : That he is the attorney for the pe-
** titioners named in the foregoing amended petition,
"and that the statements therein contained are true;
" that the reason why this verification is made by af-
" fiant instead of by said petitioners in person, is because
" said petitioners are all without the District of Alaska,
" and for that reason unable to verify said petition ; that
" affiant is an attorney of this Court, and has been duly
" authorized to institute and conduct the proceedings
" herein.
"JAS. W. BELL.
"Subscribed and sworn to before me this 9th day of
" April, 1904,
"JOHN H. DUNN,
" Deputy Clerk, U. S. District Court, District of
" Alaska, 2d Div., residing at Nome."
Again the respondent moved the Court "to dismiss
" these proceedings, and that the petition of petitioners
" be stricken, upon the ground that the second amended
" petition is not verified according to law." The mo-
tion was granted by the Court and the proceedings were
dismissed (Tr. p. 6i), and judgment of dismissal en-
tered (Tr. p. 62) . From that judgment the petitioners
appeal (Tr. p. 69).
ASSIGNMENT OF ERRORS.
I.
The Court erred in holding that the second amended
petition was not verified according to law.
II.
The Court erred in dismissing the the petition.
III.
The Court erred in dismissing the proceedings.
IV.
The Court erred in ordering and entering judgment
of dismissal of the petition.
V.
The Court erred in ordering and entering judgment
of dismissal of the proceedings.
BRIEF OF ARGUMENT.
The Affidavit of Verification Was Sufficient.
The sole requirement of the Bankruptcy Act relative
to verification of pleadings is found in section i8, sub-
division C: "All pleadings setting up matters of fact
'* shall be verified under oath."
That the verification may be made by the attorney
under the circumstances set forth in this affidavit has
been frequently decided.
In the Southern District of California, Judge Wel-
born in re Herzikopf (ii8 Fed., ici) says: "The veri-
" fication to the creditors' petition is, on its face, suflfi-
" cient. The bankrupt act does not require a petition in
" involuntary bankruptcy to be verified by the creditor
" personally, although, where the creditor is present,
" and the facts are within his knowledge, he doubtless
" ought to make the verification. Section I of said act,
"however, contains this definition: 'Creditor shall in-
clude any one who owns a demand or claim provable
in bankruptcy, and may include his duly authorized
agent, attorney or proxy.' General Order No. 4
seems to give to the attorney of a bankrupt or
" creditor power to do any act in the bankruptcy matter
" which the bankrupt or creditor might do personally,
" and requires no other evidence of his authority than
" the fact of his admission to practice in the Circuit or
" District Court. * * * It should be made to appear
(( <
" by the affidavit or otherwise, that the petitioning cre-
" ditor is a non-resident of the district; and this fact by
" the way, does appear from the affidavit in the case at
" bar. Moreover, said affidavit being positive in its
" terms, and not upon information and belief, it must
" be assumed that the facts are within the knowledge of
" the affiant."
In re Vastbinder (126 Fed., 417) it is said: "There
"can be no doubt as to the right of an attorney in fact
" to make the necessary oath when the facts are within
" his own knowledge ; and this will be assumed when
" the oath is in positive terms."
In re Hunt (118 Fed., 282) it is said: "As it is not
" declared that the petition shall be verified by the cred-
" itor in person, the verification will be sufficient if
" made by the agent or attorney representing the credi-
" tor, it being made to appear that the affiant has knowl-
" edge of the facts verified."
All the requisite elements are present in the affidavit
(i) affiant is an attorney of the Court, and there is the
further allegation of authorization; (2) the petitioners
are without the District of Alaska; and (3) the state-
ment that the allegations of the petition are true is posi-
tively made.
Indeed we might go farther and contend that the af-
fidavit to the prior petition was sufficient. There it is
deposed that affiant knows the contents of the petition
and believes the same to be true; that his knowledge is
derived from petitioners' statements under oath and
from certified copies of the records of the District of
Alaska. This verification is substantially identical v^^ith
those held to be sufficient in re Cheguasset Lumber Co.
(ii2 Fed., 56).
In the premises it is respectfully submitted that the
judgment of the Court below be reversed.
IRA A. CAMPBELL,
IRA D. ORTON,
JAS. W. BELL,
W. H. METSON,
Attorneys for Appellants.
THOMAS H. BREEZE,
Of Counsel.
UNITED STATES CIRCOIT COORT OF APPEALS
FOR THE NINTH CIRCUIT.
ANSEL M. EASTON,
.
Plaintiff in Error,
1
VS.
(fh-EC
GEORGE WOSTENHOLM & SON,
SEP. 19 '3^
LIMITED,
j
Defendant in Error.
'
TRANSCRIPT OF RECORD.
Upon Writ of Error to the United States Circuit
Court for tlie Northern District
of California.
IMt FILMED BROTHERS CO. PRINT, 424 lANVOMC tTREET, «. F.
INDEX
Page
Amended Oomplaint 2
Amended Ccwnplaint, Amendment to Answer to. . . 57
Alnended Oomplaint, Amendments to 69
Amended Oomplaint, Demurrer to 20
Amended Oomplaint, Order Overruling, Demurrer
to 30
Amendment to Answer to Amended Oomplaint. ... 57
Amendments to Amended Oomplaint 69
Answer 31
Answer to Amended Oomplaint, Amendment to. . 57
Assignment of Errors 355
Bill of Exceptionsi, Defendant's 75
Bond, Stipulation Waiving 399
Certificate, Olerk's, to Record on Writ of Error. . . . 402
Certificate for Appeal to the Supreme Court of the
United States 345
Citation ., 405
Clerk's Certificate to Record on Writ of Error 402
Complaint, Amended 2
Oomplaint, Amended, Demurrer to 20
ii Index.
Page
Defendants' Bill of Exceptions 75
Demurrer to Amended Complaint 20
Demurrer to Amended Complaint, Order Overrul-
ing 30
Depositions on Behalf of Plaintiff:
Harry Oxley 135
Harry Oxley (cross-examination) 135
J. C. Wing 78
J. C. Wing (cross-examination) 113
Thomas AVing 120
Thomas Wing (cross-examination) 123
Exhibit No. 1 (Letter Dated Sheffield, 28 January,
1897, Addressed to William Schwartz, Signed
by Thomas Wing) 81
Exhibit No. 2 (Copy of Miscellaneous Freight and
Other Shipping Charges Sent to Schwartz,
Lowe & Company) 86
Exhibit No. 3 (Bills of Lading of George Wosten-
holm & Son, Ltd., for Messrs. Schwartz, Lowe
&Co.) 88
Exhibit No. 4 (Itemized Statement of Account Fur-
nished Schwartz, Lowe & Co., by George Woa-
tenholm & Son, Limited) 108
Exhibit No. 11 (Tabulated Statement) 129
Judgment • • ^^
Motion for a New Trial, Order Denying 344
Index. iii
Page
New Trial, ^lotion for, Order Denying 344
"Sew Trial, Notice of Intention to Move for 343
Notice of Intention to Move for New Trial 343
Order Allowing Writ of Error 398
Order Denying Motion for New Trial 344
Order Extending Time to Docket Cause 1
Order Overruling Demurrer to Amended Complaint 30
Petition for Writ of Error 354
Stipulation and Order Extending Time to Docket
Cause 1
Stipulation as to Record 400
Stipulation Waiving Bond 399
Testimony on Behalf of Plaintiff:
Charles F. Gompertz (in rebuttal) 249
Charles F. Gompertz (cross-examination) 250
William Schwartz 233
William Schwartz (cross-examination) 240
William Schwartz (redirect examination) 243
William Schwartz (recross-examination) 244
Tesrtimony on Behalf of Defendants:
Eva E. Digges 244
Eva E. Digges (cross-examination) 245
Samuel Knight 289
Samuel Knigl^t (cross-examination) 289
vi Index.
Page
Testimony on Behalf of Defendants — Oontinned.
George C Sargent 285
Siamuel Seh^varrtz , 264
Samuel Schwartz (cross-examination) 264
Samuel Schwartz (redirect examination) 266
Samuel Schwartz (recross-examination) 266
Verdict 71
Writ of Error 403
Writ of Etror, Clerk's Certificate to, Record on. . 402
Writ of Error, Order Allowinig 398
Writ of Error, Petition for 354
/// the Unifrd States Cirrnit Court of Appeals, in and for
the Ninth Circuit, Northern District of California.
AN.SEL ^r. E ASTON,
Plaintiff iu Error,
vs.
GEORGE WOSTENHOLM & *SON,l
Ltd.,
Defendant in Eerror
Stipulation and Order Extending Time to Docket Cause.
It is iiereby stipulated tliat the above-entitled court
may make an order granting plaintiff in error to and in-
cluding August 15tb, 1904, in which to file the record in
the oflico of the clerk of the above Circuit Court of Ap-
peals.
Dated July 2, 1904.
PAGE, McCUTOHE'N & KNIGHT,
Attys. for Geo. Wostenholni & Son, Ltd.
(lEO. 0. SAKIGENT and
^lOKKIWON & COl'E,
Attorneys for Ansel M. Easton.
Pursuant to the above stipulation, it is ordered that
tlie plaintiff in eiTor have to and including August 15,
1004, in which to file the record on writ of error in the
above-entitled action, with the clerk of this conrt.
Dated July 18th, 1904.
W'M. W. MOREOW,
Judge,
2 Atwel M. Easton vs.
[Endorsed]: No. 12,875. In the Circuit Court of Ap-
peals, Ninth Circuit, Northern District of California.
Ansel ^L Baston, Plaintiff in Error, vs. (Jeo. Wosten-
holm' & Son, Ltd., Defendant in Error. Stipulation and
Order Extending Time to Docket Cause. Filed Jul. 18,
1904. F. D. Monckton, Clerk. Geo. C. Sargent and Mor-
rison & Oope, Attorneys for Ansel M. Easton, 230 Mont-
gomery St., San Francisco, Cal.
//; ilir V lilted Stairs Circuit Court, for tlic Ninth Circuit
and Northern District of California.
GEORGE WOSTENHOLM & SON, \
Ll.MiTED (a rorp(iralioii), '
Plaintiff,
vs.
ANSEiL 31. EASTON, WILLIAM
SOHWARITZ and SAMUEL
SCriWARTZ. ^-^.'ir/ldualy, and Form-
erly Doing Business with Luis Leon
LoAve, as Copartners Under the Firm
Name and Style of Schwartz, LoAve
& Company, j
Defendants. /
Amended Complaint;
Comes now the plaintiff in the above-entitled caus«
and by leave of Court first had and obtained, files this
its amended complaint herein and complaining of the
defendants above named, and of each of them, for cause
of action alleges:
George WosUuliolm d- Son, Limited. 3
I.
That i)lainiiif is now and at all timos heroin men-
tioned has ben a corporation duly created, organized
and existinj;' under and by virtue of the laws of the
I'nited States Kingdom of (Jreat Britain and Ireland,
and is a citizen and resident of said Kingdom, having
its ofiice and principal place of business at the city of
Sheffield, England; and the defendants are citizens, and
each of them is. a citizen of the United States and of
Ihe State of California, residing in the city and county
of San Francisco, in said State and Northern District
of California. That from a time prior to the SOth day
of January, ISJ^T, and until and inclusive of the 21st
(lay of December, 1898, defendants, together with one
l.uis Leon Lowe, were eugagod as copartners in the bnsi-
loss among other things, of buying and selling general
iiMMfhaiidise at San Jose de Costa Rica and elsewhere,
and under the firm name of Schwartz, Lowe and Com-
pany. That the said Luis Leon Lowe does not now re-
side, and has not at any time herein mentioneri, re-
sided in and is not and has not been an inhabitant of
il)e State of California, and has not been and is not a
fitizcn I hereof, and cannot be found in said state, nor
in flu' norlhern district of California, but resides and
at all said times has resided at San Jose in the said
TJcpiiblic of Costa Rica.
IL
That within two years before the commencement of
this action and on the 2l8t day of December, 1898, at
said city and county of San Francisco, within said state
4 Ansel M. Easton vs.
and district, defendants above-named, together Avith
said Luis Leon Lowe, and each of them, became and
uoAv are and is indebted to plaintiff herein in the sum
of £3747, 3 shillings, 7 pence, Einglish money, equivalent
10 the sum of eighteen thousand one hundred seventy-
thi-ee and 82-100 (18,173.82) dollars, United States gold
I'oin, upon and for a balance of account for certain
goods, wares and merchandise, sold and delivered by
plaintiff to and received by defendants, and said Luis
Leon Lowe and each thereof, at the special instance
and request of said defendants and said Luis Leon,
Lowe, and each of them, and for commissions earned
by plaintiff, and to which it became entitled as buy-
ing agent in the purchase of certain other goods, wares
and merchandise for and on behalf of said defendants
and said Luis Leon Lowe and each thereof, and which
said commissions, defendants and said Luis Leon Lowe
and each of them, promised and agreed to pay, and for
moneys laid out and expended by plaintiff at the spe-
cial instance and request, and for the use and benefit
of defendants and said Luis Leon Lowe and of each
thereof, in the payment for said goods, wares and mer-
chandise so purchased, and in the payment of freight,
insurance and other charges and expenses in connec-
tion with the transportation and shipment of said
goods, wares and merchandise from various places in
England to San Jose de Costa Eica in Central Amer-
ica, and otherwise, the reasonable price and value of
which said goods, wares and merchandise, so sold to
firnrf/r Wostenholni tC- ^on, Limited. 5
(lofeudaiits aud said Luis Leou Lowe, and each of tbem
;Mid so purchased for defendants and said Luis Leon
Lowe, and eacli of them, and the reasonable amount
of whicli said commissions and advances as aforesaid'
jioorooated on the said 21st day of December, 1898, the
sum aforesaid, including interest thereon as hereinaf-
ter stated.
That the reasonable price and value of said goods,
wares and merchandise so sold and delivered by plain-
tiff to defendants and said Luis Leon Lowe and each
of them, and the reasonable price and value of said.
.I'.oods, wares and merchandise so purchased by plaintiff
for defendants and said Luis Leon Lowe and each ofi
lliein, and the amount of commissions earned by plain-
tilT in sncli purchases (being the reasonable value of
Hie services of plaintiff as buying agent rendered to
(lofondants and said Luis Leon Lowe, and each of them
ill making such purchases), and the amount of said
moneys so laid out and expended by plaintiff on be-
I alf of defendants, and said Luis Leon Lowe, and of*
each of them in the payment of freight, insurance and
otiier charges and expenses in connection with the
transportation of all said goods, w^ares aud merchandise
as aforesaid (being the reasonable value of such freight
;iii(l insurance, and a reasonable expenditure for such
nther charges), less such payments as have been made,
and including interest as hereinafter stated, all
amounted, on the said 21st day of December, 1898, to
the said sum of £3747, 3 shillings, 7 pence, English
fi 'Ansel M. Easton vs.
money, equivalent to the said sum of eighteen thousand
one hundred and seventy-three and 82-100 (18,173.82)
dollars, United States gold coin.
III.
That it WHS expressly understood and agreed by and
between the defendants and said Luis Leon Lihve on the
one hand, and plaintiff on the other, that plaintiff
should be allowed by and receive from defendants and
said Luis Leon Lowe, and each thereof, interest at the
rate of five per cent per annum upon all amounts so
due and owing to it as aforesaid.
IV.
Tiiat although frequently requested, defendants have
not nor has said Luis Leon Lowe, nor has any one of
ihem, nor has any one paid said sum of £3747, 3 shillings,
7 pence, or its equivalent in United States gold coin,
nor any part thereof, and the whole thereof is now due,
unpaid and payable with interest thereon at the rate
aforesaid, from and after said 21st day of December,
18©'8.
Second Count.
And for a further cause of action, plaintiff alleges:
I.
That plaintiff is now and at all times herein men-
tioned lias been a cor])oration <]nly created, organized
and existing under and by virtue of the laws of the
United Kingdom of Great Britain and Ireland, and is
a citizen and resident of said kingdom, having its office
(Seovge Wosienhohn dc Son, Limited. 7
;mi(1 principal place of business at the city of Sheffield,
l]u<j;lan(l; and the defendants are citizens, and each of
ilnMu is a citizen of tlie United States and of the State
of California, residinj; in the city and county of San
Francisco, in said State, and Northern District of Oali-
fornia. That from a time prior to the 2i0th day of
ranuary, ISOT, and until and inclusive of the 21st day
of December, 1S98, defendants, together with one Luis
Leon Lowe, were engaged as copartners in the business,
nmong other things, of buying and selling general mer-
clinndise at San Jose de Costa Rica and elsewhere, and
under the Arm name of Schwartz, Lowe and Company.
That tlie said Luis Leon Lowe does not now reside and
I'as not at any time herein mentioned resided in, and is
not, and haf? not been, an inhabitant of the State of
<^'alifornia, and has not been, and is not a citizen there-
iif, and cannot be found in said state nor in tiie northern
district of California, but resides and at all said times
lias resided at San Jose in the said Republic of Costa
Rica.
II.
That on the ■first day of October, 18{>8, at said city and
ronnty of San Francisco, an account was duly stated
between i)laintiff hereto on the one hand, and the de-
fendants, together with said Luis Leon Lowe on the
other, as of tlie 30th day of June, IS&S, and upon such
statement and settlement of account a balance of £1442,
- sliillinos, I) pence, English money, equivalent to six
liionsnnd uiui' hundred ninetv-four and 37-100 (r>i>94..37)
8 Ansel M. Easton vs.
dollars, United States gold coin, was found due to plain-
tiff by defendants, and said Luis Leon Lowe, and each of
them, on said 30th day of June, 1898.
III.
That on the 21st day of December, 18198, there wa.<i
due and owing by defendants and said Luis Leon Lowe
and each thereof, to plaintiff, as interest upon said sum
last mentioned, the further sum of £34, 7 shillings and 5
iience, English mone}', equivalent to one hundred sixty-
six and 70-100 (1G6.70) dollars United States gold coin.
IV.
That after the date last mentioned, defendants and
said Luis Leon Lowe, and each thereof, purchased from
plaintiff, and the latter sold and delivered to defendants
and said Luis Leon Lowe, and each thereof, certain
goods, wares and merchandise, and bought for defend-
ants, and said Luis Leon Lr)we, and each thereof, as
buyer's agent, certain other goods, Avares, and mer-
chandise upon an agreed commission of five per cent of
the purchase price thereof and paid, laid out and ex-
pended certain moneys for said goods, wares, and mer-
chandise so purchased and for freight, insurance and
Other charges and expenses in connection with the
transportation and shipment of said goods, wares and
merchandise so sold to said defendants, and said Luis
Leon Lowe and each of them and so purchased for de-
fendants and said Luis Leon Lciwe and each of them
from Sheffield, and other places and ports in England,
drariif Wiisliiilidhii d- Son, Liinih^d. 9
to Siiii Jus(^ i^^' Costa Kica iUMi (tflier iilaccs in ('(Milial
AiiMM-ica. aiul ot Iicrwisc, all for tlw use and IxMu^tit,
and at the siH'cial instance and ri'<|n('st of defendniits
and said l.uls T^eon Liiwo and oaoh thereof, at various*
tini(>s within two yoars beforo tho comnienfonient of
ihis ad ion. 'Phat ilio reasonable ])iic<^ and value of
said ootids, wares and nuM'tliaudise, and (d' the amounts
so (^\'])eiided. ilednrlin^' i>a\inents on account and all
otliei' ci'edits of defendants or of said Luis Leon L(>we
oi' any thereof, amounted and amount to the sura of
£2201, a sliilliujis. S ])euce. Enji'lish money, equivalent to
ten thousand nine hundred sixty-six and 43-100 (10,0(10.-
i:Tl, Tuited States <io1d coin, with interest i hereon from
said respective dates at the rate of five per cent i^er
annum, araountiuji- less said credits on said 21st day id"
December, 1S9S, to the sum ttf £0, 0 shilliujis, 0 )»eiuM\
l']n«;lish money, e(iui\alent to forty-live aud 00-100
(40.00) dollars, Ignited Stales iiold coin.
V.
Tliat uo part of said sum of £?>747, ?> sliillinirs, 7 ])ence,
i-^ufjlisli money, or its equivalent in T'nited States {johl
coin, has been paid by defendants, or said Luis Leon
Low<\ or any of them, or by any one, nor has any inter-
est been paid thereon to tho date hereof, although pay-
nuMit thereof lias been freqniMitly i-eq nested of defend-
ants and said Luis Leon Lowe, but said amount is now
wholly due, unpaid and payable as aforesaid, with in-
terest u|)on said sum of £3747, 3 shillinjis, 7 pence, at
aid rate from said 21st day of December, 1898.
10 >Anse1 M. Easton vs.
Third Count.
For a further cause of action, plaintiff alleges:
I.'
That plainfiff is now and at all times herein men-
tioned li;is been a corporation duly created, orji^anized
;;i!(l existii!u- uimum- an<l by A-ii-tue of the laws of tlie
T'nited Kingdom of Great Britain and Ireland, and is ai
citizen and resident of said Kingdom, having its office
and principal place of business at the city of Sheffield,
England; and the defendants are citizens, and each of
I hem is a citizen of the United States, and of the State
of California, residing in the city and county of San
I-'rancisco, in said State and Northern District of Cali-
fornia. That from a time prior to the 20th day of Jan-
uary, 1897, and until and inclusive of the 21st day of
December, 1808, defendants, together with one Luis
F-eoii Lowe, were engaged as copartners in the business,
among other things, of buying and selling general mer-
chandise at San Jose de Costa Rica and elsewhere, and
under the firm' name of Schwartz, Lowe and Company,.
'Iliat the said Luis Leon Lowe does not now reside, and'
has not at any time herein mentioned resided in, and is
not, and has not been, an inhabitant of the State of
California, and has not been, and is not, a citizen there-
of, and cannot be found in said State nor the Northern
l^istrict of California, but resides and at all times has!
resided at San Jose in the said Republic of Oosta Rica.
Citonic W'oxtciihohii t(- >So», Limited. 11
II.
That on the first day of October, 1808, rlefendants and
s.iid IwUis Leon Lowe and each of t.lieni, by a certain
wi'itlcn amTeenient duly iniide miuI entered into at said
( i(y and connly of San l-'nuicico wilh plaintilT, for a
\iilii:ihh' cons'idcratioii, ]>i'uiiiis(»d and aureed 1u pay
plaiiitilf fortlnvith the sum of £1442, 2 siiiliin^s, <) )>eme,
lOu^^iish money, equivalent to six thousand nine hundred
ninety-four and 37-100 ((t99'4.37) (hdhus Tnilcd States
liohl coin, with interest frcMU the ;>l>tli day of June. 180S,
at the rate of five ](er cent [xm- annum.
IIL
That on the 21st d:iy of December, lSt)S, llierc was
due and owinjj,- by defendants ;in<l said Luis Leon Lowe
and each thereof, to plaint ilf, as interest upon said sum
last mi-ntioned, the furthei- sum of £34, 7 sliiHin_i;s and .">
|>('uce, JOnulisli money, ecpiivalcnt to one hnndicii sixty-
six ami 70-101) (100.70) dollars, Lnited States o(»ld coin.
IV.
That after the 30th <lay of .Tum\ 1808, def(Mulants and
said Luis Leon Lowe ami each tliei-eof, jturdiascd from
l)laintifl" and the latter sold and delivered to defendnnts
and said Luis Leon Lowe and each thereof, rerta.ih
.uoods, wares and merchandise and bought for defend-
ants and said Luis J.,eon Lowe and each thereof, as
buyci's aji»Mit, certain othci- goods, wares and mcrclian-
dise ui)on an agrewl commission of five per cent of the
purchase price thereof, and exjK'nded therefor certain
12 Ansel M. Easton vs.
moneys, beiug the reasonable value tJiereof, aiid ])ai(l.
laid out expended certain moneys for freight, iiisnrajicc
and other charges and expenses in connection with the
transportation and shipment of said goods, wares and
merchandse so sold to defendants and said Lnis Leon
Lowe and each of them and so purchased for defendants
and said T,nis Leon Lowe and each of them from Shef-
field and other ]>laces and ports in England to San
Jose de Costa Kica. and other places in Central America,
and otherwise, being ihe reasonable amount of such
charges, all for the use and benefit and at the special
instance and request of defwidants and said Luis Leon
f.owe and each thereof; tlie total value of said goods,
wares and niorcliandise, being (he reasonable value
thereof, and the total amount so expended, deducting
payments on account and all other credits of defendants
or said Luis Leon Lowo or any thereof, being £2201, .'5
shillings, S pence, English money, ('(|uivalent lo ten thou-
sand nine hundred sixty-six and 43-100 (10,t>(JG.43) dol-
lars United States gold coin, with interest thereon from
said respective dates at the rate of five per icent per
annum, amounting less said credits, on said 21st day of
December, 1S9S, to £0, «) shillings, 9 pence, English
money, equivalent to forty-five and 99-100 (45.99) dollars
I'nited States gold coin.
V.
Tliat no part of said sum of £3747, 3 shillings, 7 pence,
Lnglish money, or its equivalent in Cnited States gold
coin, lias been paid by defendants or said Luis Leon
Lowe or any of them or by anyone, nor has any interest
George Wostenholm tC- Son, Limited. 13
boon paid (luM-oon to the date hereof, althonj^h paynienl
hereof has frequently been requested of defendants and
of said Luis Leon Lowe, but said amount is n<»w wliollv
due, unpaid and payahh' as afoi-esaid, witli interest up<ni
said snni of £->747. ^ shilliii.us. 7 pence at said rate fi-oni
said LMst day of Deeeniber, -i>i\)S.
Fourth Count. '
And foi' a ftirther rausc of action plainliff allejies;
! I-
That ])Iaintifl' is now and at all tinie« herein inrn
tioned has been a corporation duly created, organised
and existiiii; under and by virtue of the bnvs of the
I'nited Kinj>doni of (ireat Britain and Ireland, and is a
citizen and resident of said l\in.i;doni, ha.vini>- its ollice
and princi])al i)lace of business at the city of Siieflieid,
England; and the defendants are citiziens ;;nd <'acli of
llieni is a citizcMi of the United States and of the State
California residing in tlie city and county of San
i'^rancisco, in said state and Northern J>istrict of Cali-
fortiia. That from a lime piior to the 20th day of dan-
uary, 1807, and until an<l inclusive of the 2'lst day of
I)e(;eniher, 181)8, defeiidanls. together wilii one Luis
Leon L(")\ve, were engaged as cojiarlners in the busint^ss,
among other things, of buying and selling geuf^ral mi-r-
chainlise at San dose de Cost a Kica and elsewliere and
under the tirni name of Scdiwartz T..<hve and (N>nipany.
That the said Tails Leon T.owe does not now reside and
has not at any time herein mentiitned resided in and is
not and has not beeu an inhabitant of the Slate of Call-
14 Ajisel M. Easton vs.
fornin, and has not Wen and is not a. cilizcn llieipof, and
raunot be found in said state noi- in f]ie "Nortliern Dis-
trict of California, bnt resided and at all s;>id times lias
j-esided at vSau Jose iii the said Rcpnblii- of (*osla Ki(:i.
11.
That on the 2«th dav cd Ai)ril, 1899, at said city and
connly of iSan Franciseo, an account was duly stated
Ix'tween llie plaintifl" hereto on the one hand aud the
• lefendants toj^ether witii said Luis Leon Lowe on the
other, as of the 21st day of December, 1S9S, and upon
which statement and settlement of account a balance of
£8717, 3 shillings, 7 pence, English money, equivalent l«>
eighteen thousand one hundred seventy-three and S-
!()0 (18,173.82) dollars ITnited States gold coin, \sas
found due to plaintiff by defendants and sai<l Luis Ia-om
Lowe and each oi' them, on said 21st day of DecembiM',
1 898.
TIL
Th;xt it was exi)ressly understood and agreed l)y and
betxA'een the said pnrti<^s ami all of them that ])laintiff
should be allowed by and receive from defendants and
said Luis Leon Lowe and each thereof, interest at the
rate of five per cent per annum upon all amounts so due
and owing to it as aforesaid.
TV.
That although frequently requested, defendants have
not nor hasi said Luis Leon Lowe nor has anyone, nor
has any one of them paid said sum of £37847, 3 shillings,
7 pence, or its equivalent in Un ited States gold coin, nor
(Inivfir Wnslniholin <C- ^nu, T/miifpfl. Vo
■.\uy ])ar( llu'roof, nor nny intcj-os( ilicii-nii, :n><l ti\o
wliole thereof is now due, unpaid and payable with iii-
■icst (hereon at the rate aforesaid, fron\ aiul a Tier sai<i
::isi day of December, 1898.
Fifth Count. '
And for a further cause of action, phiintiff alh'<;es:
I.
T!iat plainliff is now and at ail times lierein men-
lioned has been a corjjoi-ation duly created, orjijanized
;:ii(l existing un<le)- and by virtue (d" the laws of the
I'nited Kingdom of (Jreat Britain and Ireland, and is a
< ilizen and resi(i<Mit of said kinji'dom, havitii;- its ortice
• Mid principal ])lace of business at the city of ShetMeld,
ICnjilaud; and the d(?fen(bints are citizens, and each of
i hem is a. citizen of the TTnited States and of the State
'if ( 'iilifoniia residing- in tluM-i (y and connty of San I'ran-
cisco, in said State and \(»r(hern District of California.
Tf.
That from a time prior to the 2t)th day of January,
J81>7, and until and inclusive of the 21st day of Decein-
Iser, 1898, defendants togetlier with one Lnis Leon U'nve
W'l'e en.u'aged as copaiM iiei's in tlie business anion^- oilier
Ihiugs id" buying- and selling merchandise at San -lose
de Costa Ivica and elsewhere and under the Hrm name
and style of Schwartz, Ivihve and Company. That on (u-
about the 20th day of January, 1897, and while tlie said
dtd'cndanis ;ind said Lnis Leon Lowe were sndi co-
pai'tners at Shetii(dd, England, jilainliff for a valnable
considerati(^>n contracted and agreed with vsaid copart-
16 Ansel M. Easton vs.
ncrs, the said copartnej-s should bo ontilled to and re-
foivo a credit of eight montlis ni>oii all yoods, wares and
)nerchandi.se purchased by them fiom ])laintiir, and upon
all eonimissions earned by plaintiff as buying aiiont for
said copartners and upon all moneys advanced by
lilaiutift' to or for the use, benefit and behoof of and
at the instance and re(piest of said copartners, in the
purchase of goods wares and merchandise for said co-
partners, and by way (tf freight, insui-ance and other
charges on the shipment of all such goods, Avares and
mcrcliandise, and also that said plaiutill' should have
and receive a commission of five (5) per cent upon the
[•urchase price of all goods, wares and merchandise so
]Mnchased by plaintiff for and on behalf of said co])art-
ners, and should have and receive interest on all the
aforesaid aniounts' at the rate of five per cent per annum
from the date of invoice until payment.
'■ III.
1'liat thei-eaftei- and within two years and eiglil
months before the commencement of tliis action and
wliilc defendants and said Luis Leon L<"»we were such co-
]iartners and until said 21st day of December, 1808,
said copartners bought of plaintiff and tlie latter sold
and delivered to the former, certain goods, Avares and
mei-chandise and also purchased for and on Ixdialf of
the former certain other goods, Avares and merchandise,
and earned as buying agent certain commissions at the
said agreed rate of five per cent upon the purchase
price of said last-mentioned goods, wares and merchan
Gcoifff WosfciiJiohii d Son, Limited. 17
(lise, aud al^s() laid out aud expended certaiu sujns of
monej in payment for said goods, wares aud merchan-
dise so purchased and in payment of freight, insurance
and other charges and expenses in connection with the
iransportation and shipment of said goods, wares and
merchandise from England to Central America, and
otherAvise, at the special instance and request of said
copartners, the reasonable value and price of which
said goods, wares and merchandise so sold by plaintiff
as aforesaid, and of said goods, wares and merchandise
so purchased for said copartners as aforesaid, and the
agreed amount of said commissions so earned as afore-
said, and the actual and reasonable amount of said
charges and expenses so incurred, paid out and expended
as aforesaid, amounted with interest thereon at the
said agi'eed rate of five per cent per annum on said 21st
day of December, 1898, to the total sum of £3747, a
shillings, 7 pence, English money, equivalent to eighteen
tliousand one hundred seventy-three and 82-100 (18,
173.82) dollars. United States gold coin.
IV.
That on or about the 10th day of August, 1899, at
said San Jose de Costa Rica, plaintiff executed with
other creditors an agreement in writing for the compo-
lion and liquidation of the debts of said Luis Leon
l>()we, as a bankrupt who Avas then and after the said
21st day of December, 1898, engage<l in business alone
at the place last-named, under said firm name and
style of Schwartz, Lowe & Co., which said agreement
18 \Ansel M. Easton vs.
also provided for the distribution among his creditors
of his estate, if any, in a certain manner, plaintiff
thereby releasing and discharging said Lowe from all
claims and demands then held or asserted by it against
him; but said agreement was so executed by plaintiff
with the following express provision, to wit: "without
waiving or in any manner affecting our (plaintiff's
claims against the other (said) members of the recent
firm of Schwartz, Lowe & Company, which it is not in-
tended this agreement shall operate to discharge.''
That at all the times herein stated, the laws of said
Republic of Oosta Rica, like those of said State of Oali-
fornia in this respect, provided and now provide, among
other things, that a release of one of two or more joint
debtors does not extinguish the obligations of any of
the others.
' V.
That although frequently requested, defendants have
not, nor has any one of them, nor has said Luis Leon
Lowe nor his said estate nor any liquidator or trustee
thereof, paid said sum of £3747, 3 shillings, 7 pence,
English money, or its equivalent in United States gold
coin, nor any part thereof, nor interest thereon, and the
whole thereof is now due, unpaid and payable with in-
terest thereon at the rate aforesaid, from aind after said
2Hst day of December, 1898.
VI.
That the said Luis Leon Lowe does not now reside
and has not at any time herein mentioned resided in and
George Wostenholm d- Son, Liinited. 1.9
is not now and has not been an inhabitant of
nor a citizen of tlie State of California and cannot be
found in said state nor in the Northern District of Cali-
fornia but resides and at all said times has resided at
San Jose in the said Kepnblic of C^sta Rica.
Wherefore plaintiff prays for judgment against de-
fendants, and each thereof, for the said sum of £3747, 3
shillings, 7 pence, English money, or its equivalent,
eighteen thousand one hundred seventy-three and 82-
l(K) ( 18,173.82) dollars United States gold coin, together
with interest thereon at the said rate of five per cent
per annum from said 21st day of December, 1898, to-
gether with its costs in this behalf sustained.
PAGE, McCUTCHEN, HARDING & KNIGHT,
Attornevs for Plaintiff.
State of California,
('ity and County of San Francisco,
..}'
Samuel Knight, being first duly sworn, deposes and
says: '
That he is one of the attorneys for the plaintiff above'
named; that he has read the foregoing amended com-
plaint, and knows the contents thereof, and that the
same is true of his own knowledge, except as to the
matters which are therein stated upon information or
belief, and as to those matters that he believes it to bC
t rue. '
That the reason why this verification is not made by
plaintiff herein or by one of its officers is that plaintiff
is absent from said State and District, where affiant re-
20 \Ansel M. Easton vs.
sides, aud is incorporated under the laws of and is a
resident of England, in the Kingdom of Great Britain
and Ireland.
SAMUEL KMGHT.
Subcribed and sworn to before me, this Sth day of
December, 1900.
[Seal] EKANK L, OWEN,
Notary Public in and for the Oity and County of San
Ftancisco, State of Oalifornia.
[Endorsed]: Siervice of a copy of the within amended
complaint is hereby admitted this 17th day of Decem-
ber, 1900.
GEO. C. SARGENT,
Attorney for Defendants.
Filed December 17, 1900. Southard Hoffman, Olerk.
By W, B. Bfeaizley, Deputy Clerk.
In the Circuit Court of the United States for the Ninth Cir-
cuit, Northern District of California.
GEOEGE WOSTENHO'LM & SON,'
LIMITED (a Corporation),
Plaintiff,
vs.
ANSEL M. EIASTON, et al..
Defendants.
Demurrer to Amended Complaint.
Now come Ansel M. Easton, William Schwartz, and
Samuel Siehwartz, defendants in the above-entitled ac-
George Wostcniiolm d Son, Limited. 21
tion, and, demurring to plaintiff's amended complaint,
for grounds of demurrer, specify:
I.
That said first cause of action set forth in said com-
plaint is uncertain in this: That it cannot be ascer-
tained therefrom whether plaintiff is proceeding against
defendants upon their liability as partners for the
transactions of the firm of Schwartz, Lowe & Oo., or
upon a liability for transactions of the individuals Ansel
M. Easton, Samuel Schwartz and William Schwartz as a
partnership, or as individuals, in conjunction with L,
Leon Lowe (hereinafter called "Lowe");
That it cannot be ascertained from said first cause
of action whether the liability sought to be enforced
therein is joint, or several, or joint and several.
n.
That said first cause of action is ambiguous for the
reasons set forth in the last preceding paragraph here-
of.
III.
That there is a defect of parties defendant in said
first cause of action in this:That it is alleged therein
that defendants were partners under the name of Sch-
wartz, Lowe & Co., of which partnership it appears said
Lowe was a member; further, that all of the transac-
tions set forth in said cause of action were had with
one or another of said partners acting for said firm;
that said LoAve is not joined as a party defendant here-
in.
22 Ansel M. Easton vs.
IV.
That said first cause of action set fortli in said com-
])laint is uncertain in tliis: That it cannot be ascer-
tained therefrom whether plaintiff seeks to recover the
reasonable value, or an aspreed value, of said goods, or
commissions, or advances.
V.
That the first cause of action set forth in said com-
l)laint is uncertain, in this: That it cannot be ascer-
tained therefrom what amount plaintiff claims for goods
sold and delivered; what amount it claims for com-
missions earned; or what amount it claims for advances
made to defendants.
VI.
That said first cause of action is ambiguous, for the
reasons stated in paragraph IV hereof.
VII.
That said first cause of action is ambiguous, for the
reasons stated in paragraph V thereof.
VIII.
That said first cause of action is uncertain, in this:
That it cannot be ascertained therefrom from what
date the interest therein referred to was to run.
IX.
That said first cause of action is ambiguous, for the
reasons stated in the preceding paragraph hereof.
X.
That said second cause of action set forth in said
complaint is uncertain, in this: That it cannot be ascer-
George Wostenholm <C- Son, TAmited. 23
tiiinecl therefrom whether plaintiff is proceeding
ijpiainst defendants upon their liability as partners for
tlie transactions of the flnn of Schwartz, Lowe & Co.,
or upon a liability for transactions of the individuals,
Ansel M. Easton, Samuel Schwartz and William Sch-
wartz, as a partnership, or as individuals in conjunction
with L. Leon Lowe (hereinafter called "Lowe").
That it cannot be ascertained from said second cause
of action whether the liability sought to be enforced
therein is joint, or several, or joint and several.
XI.
That, said second cause of action is ambiguous for
the reasons set forth in the last preceding paragraph
hereof.
xn.
That there is a defect of parties defendant in said
second cause of action, in this: That it is alleged therein
that defendants were partners under the name of
Schwartz, Lowe & Co., of which partnership it appears
said Lowe was a member; further, that all of the trans-
actions set forth in said second cause of action were
had with one or another of said partners acting for said
firm. Tliat said Lowe is not joined as a party defendant
herein.
XIII.
That the said second cause of action set forth in said
complaint is uncertain, in this: That it cannot be ascer-
tained tlierefrom from what date, op at what rate, in-
terest was to run upon said amount alleged to be due
24 Ansel M. East on vs.
upon account stated; nor can it be ascertained from
what dates or at what rate interest is claimed upon the
goods sold and delivered, commissions earned, and ad-
vances alleged^ to' have been made after the date of
said account stated.
XIV.
That the said second cause of action set forth in said
complaint is uncertain in this: That it cannot be ascer-
tained therefrom what amount plaintiff claims for goods
sold and delivered; what amount it claims for commis-
sions earned; or what amount it claims for advances
made to defendants.
XV.
That said second cause of action is ambiguous for
the reasons stated in paragi'aph XIII hereof.
XVI.
That said second cause of action is ambiguous for
the reasons stated in paragraph XTV hereof.
XVII.
That said second cause of action is uncertain, in this:
That it cannot be ascertained therefrom whether plain-
tiff is proceeding herein to recover the reasonable, or
the agreed, value of the goods, or commissions, or ad-
\ ances, referred to in said cause of action as having
been sold, earned, and advanced subsequent to the date
of said account stated.
XVIII.
That said second cause of action is ambiguous, for
(be reasons set forth in the preceding paragraph hereof.
(irnrf/c WoKtruliohii ((• N'o;(, f/nnilcd. 2'5
XIX.
Tliat said third cause *>f action scl Coitli in said cdin-
plaint is iincortain, in this: Tliat it caun(tt bo ascer-
tained therefrom whether plaintiff is proceedinp; ap;ainst
defendants upon their liability as partners for the tran-
actions of the firm of Schwartz, Lowe & Co., or upon a
liability for transa<?tions of the individuals, Ansel M.
Easton, Samuel Schwartz and William Schwartz as a
partnership; or as individuals in conjunction with L.
Leon Lowe (hereinafter called "Lowe").
That it cannot be ascertained from said third cause
of action whether the liability sousjlit to be enforced
therein is joint, or several, or join! and sevcrnl.
XXI.
That said third cause of action is ambif>uous feu- the
reasons set forth in the last pi-ecedin^ pai-a<ira]»li here-
of.
XXIL
That there is a defect of ])arti<^s defendant in said
third cause of action in this: That it is alleged thercMU
that defendants were partners under the name of Sch-
wartz, Lowe & Co., of which partnership it appears said
Lowe was a member; further, that all of the transac-
tions set forth in said third cause of action w(n'e had
with one or another of said partnei's actinc; for said
firm; that said Lowe is not joined as a party defendant
herein:
XXIIL
That the third cause of action set forth in said com-
plaint is uncertain, in this: That it cannot be ascer-
26 Ansel M. Easton vs.
tained therefrom what amount plaintiff claims for
goods sold and delivered; what amount it claims for
commissions earned; or what amount it claims for ad-
vances made to defendants.
XXIV.
That said third cause of action is ambiguous, for the
reasons stated in paragraph XXIII hereof.
XXV.
That said third cause of action is uncertain, in this:
That it cannot be ascertained therefrom whether plain-
tiff is proceeding herein to recover the reasonable, or the
agreed, value of the goods sold and delivered, the com-
missions earned, or the advances made.
XXVI.
That said third cause of action is ambiguous, for the
reasons stated in the last preceding paragraph hereof.
XXVII.
That said fourth cause of action set forth in said com-
plaint is uncertain, in this: That it cannot be ascer-
tained therefrom whether plaintiff is proceeding against
defendants upon their liability as partners for the
transactions of the firm of iSchwartz, Lowe & Co., or
npon a liability for transactions of the individuals, An-
sel M. Easton, Samuel Schwartz and William Schwartz,
as a partnership, or as individuals in conjunction with
L. Leon Lowe (hereinafter called "Lowe").
That it cannot be ascertained from said fourth cause
of action whether the liability sought to be enforced
therein is joint, or several, or joint and several.
(icnrgc \Vm1rtili()h)i <t »Sfo», JAmifcd. 27
XXVIII.
That said fourth cause of actiou is amblgTious foi- the
if-asons set forth in the last preceding paragraph here-
of.
XXTX.
'I'hat there is a defect of parties defendant in said
fourth cause of action, in tliis: That it is alleged therein
lliat defendants were partners under the name of Sch-
Avart/., Lowe & Oo., of which partnership it appears
said Lowe was a member; further, that all of the trans-
actions set forth in said fourth cause of action were had
with one or another of said partners acting for said
lirm. That said Lowe is not joined as a party defendant
herein.
XXX.
Tliat the fourth cause of action set forth in said com-
plaint is uncertain, in this: That it cannot be ascer-
tained therefrom from what date interest was to run
upon the sum alleged to have been found due upon an
account stated; further it cannot be ascertained there-
from whether the agTeement alleged as to Interest was
oral or in writing.
XXXI.
That said fourtli cause of action is ambiguous, for tiie
reasons stated in the preceding paragraph hereof.
XXXII.
That said fifth cause of action is uncertain, in this:
Thaf it cannot be ascertained tlierefrom whether plain-
tiff is jtroceeding herein to recover the reasonable value,
28 Ansel M. Easton vs.
or the agreed price, of said goods, commissions, and
advauces.
XXXIIL
That said fifth cause of action set forth in said com-
plaint is uncertain, in this: That it cannot be ascer-
tained therefrom whether plaintiff is proceeding against
defendants upon their liability as partners for the trans-
actions of the firm of Schwartz. Lowe & Cb., or upon a
liability for transactions of the individuals Ansel M..
Easton, Samuel Schwartz and William Schwartz, as a;
partnership, or as individuals in conjunction with L.
Leon Lowe (hereinafter called "Lowe").
That it cannot be ascertained from said fifth cause
of action whetlier the liability sought to be enforced:
1 herein is joint, or several, or joint and several.
XXXIV.
That said fifth cause of action is ambiguous for the
reasons set forth in the last paragraph hereof.
XXXV.
That there is a defect of parties defendant in said
fifth cause of action, in this: That it is alleged therein
that defendants were partners under the name of Sch-
wartz, Lowe & Co., of which partnership it appears said
Lowe was a mjemiber; further, that all of the transac-
tions set forth in the said fifth cause of action were had
with one or another of said partners acting for said firm.
That said Lowe is not joined as a party defendant here-
in.
George Wostenhohn d Hon, Limited. 20
XXXVI
That (he fifth cause of action set forth in said com-
plaint is uncertain, in this: That it cannot be ascer-
tained therefrom what amount plaintiff claims for goods
sold and delivered; what amount it claims for commis-
sions earned; or what amount it claims for advances
made to defendants.
XXXVII.
That said fifth cause of action is ambiguons, for the
reasons set forth in paragraph XXXIl hereof.
XXXVIII.
That said fifth cause of action is ambiguous, for the
reasons set forth in paragraph XXXVI hereof.
XXXIX.
That saicT fifth cause of action is uncertain, in this;
That it cannot be ascertained therefrom what the laws
of Costa Eica are; that the words of said laws are not
given.
Dated January 5th, 1900.
GEO. C. SARGENT,
Attorney for Defendants.
[Endorsed]: Receipt of copy of within admitted this
.lau. 5, 1901.
PAGE, :M.cOUTOHE1X, HAROING & KNIGHT.
Filed Jan. 7, 1901. Southard Hoffman, Clerk. By
W. B. Beaizley, Deputy Olerk.
lAiisrl M. East on vs.
At a, stated term, to wit, the Marrh term A. D. 1901, of
the Circuit Court of the United States of America,
of the Ninth Judicial Circuit, in and for tlie North-
ern District of California, held at the courtroom in
the city and county of San Francisco, on ^I'onday,
the 4th day of March, in the year of our Lord yne
thousand nine hundred and one. Present: The
Honorable WILLIAM W. MORKOAV, Circuit Judge.
GEO. WOSTENHO'LM & SON, LTD.
vs. ) No. 12,875.
A. M. EASTON et al.
Order Overruling Demurrer to Amended Complaint.
Defendants' demurrer to the amended complaint
herein came on this day to be heard; was arj;ued and
submitted to the Court, and it was thereupon order(Hl
that said demurrer be and hereby' is ovei-ruled, with
leave to defendants to answer within ten days, and
notice of said overruliui;- of demurrer was waived in
open Court.
George WosLcnIiolm d Sou, Limited. 31
In the United States Circuit Court for the Xiiith Circuit,
Northern District of California.
(JEOKOE WOSTENHOLM & SON,
LIMITED (a Corporation),
Plaintiff,
vs.
ANSEL M. EASTON et aL,
Defendants.
I Answer.
Now come the defendants, Ansel M. Easton, Williant
Schwartz and Samnel Schwartz, and answer the
amended complaint of plaintiff as follows:
I.
These defendants allege that they have no informa-
tion or belief upon the subject sufficient to enable them
to answer the allegations of said amended comphiint,
and therefore and upon the ground, deny that said Luis
Leon L<iwe (hereinafter called Lowe) does not now re-
side or has not at any time mentioned in said complaint,
or is not, or has not been an inhabitant of the State
of California, Upon the same ground they deny that
said Lowe has not been or is not a citizen of said state,
"1- that he cannot be found in said state, or in said
or in said Northern District of California.
32 Ansel M. Easton vs.
Upon the .same grouuds these defendants deny that
said Lowe resides or at all said times or any times has
resided at San Jose in the Republic of Costa llica.
These defendants deny that they were copartners
with said Lowe, or with each other, or with anyone else,
under the name of Schwai-tz, Lowe & Co., or under any
odior name, subsequent to -Tune 20th, 1S98, or that they,
as such copartners, or at all, carried on any business at
San Jose de Costa Rica, or elsewhere, or under any firm
name. f
ADDITIONAL ANSWER TO FIRST CAUSE OF
I ACTION.
XL •
These defendants den^' that within two years before
the commencement of this action or on December 21'st,
1898, or at any other time, or at any place, or at all, the
deleiulants above named, or any, or either, or all of
them, either together with or without said Lowe, or
othenvise, or at all, bei-ame or now are or is indebted
to plaintiff in any sum of money whatsoever upon or for
a balance of account for g'ocKls and wares and merchan-
dise, <tr for goods or wares or merchandise, or any of
them, sold or delivered hy plaintifC to or received by de-
fendants, or any or either or all of them, either with or
without said Lowe.
These defendants deny that any of the matters alleged
in paragrapli II of the first cause of actiooi were at the
special or any instance or request of said defendants,
(Jeonjc yVustcnlKjhn tt- Son, Limitrd. oJi
or any or either of them, either with or without said
Lowe.
These defendants deny that these defendants, or an}'
or either or all of them, either with or without said
Lowe, became indebted as alleged in said paragraph
last named, or in any manner, to plaintiff for commis-
sions earned, or that it became entitled to the same as
agent of any kind in the purchase of any goods or wares
or merchandise, or both of them, for or on behalf of
said defendants, or any or either or all of them, either
with or without said Lowe.
These defendants deny that said commissions these
defendants, or any or either or all of them, either wlili
or without said Lowe, promised or agreed to pay.
These defendants denj^ that they, or any or eitlier or all
of tJieni, either with or without said Lowe, became in-
debted as alleged in said paragi-aph last named or at
all to plaintiff for moneys laid out or expend('<l by
idaiutiff at the personal or any instance or request, or
for the use or benefit, or both of them, of defendants, or
any or either or all of them, either with or without said
Lowe, or in the payment for said goods or wares or mer-
chandise so alleged to have been purchased, or in the
payment of freight or insurance or other charges or ex-
penses or any or all of them, in connection witli the
transiK)rtation or shipment of said goods or wares or
n)erchandise, or any of them ,from any place or
places whatsoever to any place or places v»hat-
soever, or any or all of them, or otherwise, or at
all. These defendants deny that the reasonable price
34 Ansel M. Easton vs.
or value of said goods or wares or mercliandise, or all
of them, so alleged to have been sold to defendants and
said Lowe, and each thereof, or so alleged to have been
purchased for defendants and said Lowe, and each of
them, or the reasonable amount of which said alleged
commissions or advances as aforesaid, or any or all of
them aggregated on December 21st, 1898, or at anj'
other time, or at all, the sum alleged in said paragraph
last named, or any other sum, either with or without
interest as therein stated, or in any manner, or at all.
These defendants deny that the reasonable price or
value of said goods or wares or merchandise or all of
them, so alleged to have been sold and delivered by
plaintiff to defendants and said Lowe, or the reasonable
price or value of said goods or wares or merchandise,
or all of them, so alleged to have been purchased by
plaintiff for defendants and said Lowe, or the amount of .i
commissions alleged to have been earned by plaintiff in
such purchases, or the amount of said moneys so al-
leged to have been laid out and expended by plaintiff
on behalf of these defendants and said Lowe in pay-
ment of freight or insurance or other charges or ex-
penses in connectioTi with the alleged transportation of
said good's or wares or merchandise as aforesaid, or any ^
or all of them, amounted on December 21st, 1808, to any
sum of money whatsoever, or to any other sum at any
time.
III.
These defendants allege that prior to June 20th, 1898,
there existed between them and the said Lowe a part-
George Wosieiiliolni d- aSo//, Limited. 35
norsliip knowu as Schwartr., Lowe & (.^o. ; that the busi-
ness thereof was conducted at San Jose de Costa Kica
by said Lowe; that upon the day last aforesaid said co-
partnership was dissolved and all of the assets thereof,
together with the books of account and the liquidation
thereof, and all papers pertaining thereto, were sold to,
turned over to said Lowe in San Jose de Oosta Rica, and
that the sanie have remained in the possession of said
Lowe ever since said time. That since said time these
defendants have had no knowledge whatsoever of the
afTairs or Hquidatlon of said partnership, nor any in-
terest therein. That upon said dissolution all of the
<lebts, if any, then due and unpaid from said partnership
to plaintiff were assumed by said Lowe.
These defendants therefore allege that they have no
information or belief upon the subject sufficient to en-
able them to answer paragraph IV of the first cause
of action stated in said amended complaint, and there-
fore, and upon that grourwl, deny that the plaintiff has
frequently or at all requested said Lowe to pay any
sum of money whatsoever, and further deny that said
Lowe has not; also that no one else has paid said sum
demanded in said first cause of action; also that tlie
wholc^ or any part thereof is now due or unpaid or ])ay-
able with or without interest at any rate wlial soever,
from or after any date whatsoever, or either or both oT
them.
Upon the same grounds as heretofore state<l in this
paragraph these defendants allege that they have no
information or belief upon the subject of the variov.s
36 \Ansel M. Eaaton vs.
acts of said LoAve, and therefore, and placinj^ their
denial upon that ground they deny that Avithin two
years before the commencement of this action, on or
December 2ilst, 1898, or at any otlier time, or at any
place, or at all, said Lowe, either personally or as a
member of said partnership, became or now is indebted
to plaintiff in any sum of money whatsoeA'er upon a
balance of account for goods and wares and merchan-
dise, or goods or w^ares or merchandise, or any of them,
sold or delivered by plaintiff to or received by said
Lowe personally or as such partner.
Upon the same grounds these defendants deny tliat
any of the matters alleged in paragraph II of the first
cause of action were at the special instance or any in-
stance or request of said Lowe, either personally or as
such partner.
Upon the same grounds these defendants deny tluit
said Lowe, either personally or as such partner, becaino
indebted as alleged in said paragraph II, or in any
manner to plaintiff for commissions earned, or that hf
personally or as such partner, became indebted to it as
agent of any kind in the purchase of any goods or wares
or merchandise, or both of them, for or on behalf of
himself or said partnership.
Upon the same grounds these defendants deny that
said commissions said Lowe, either personally or as
such partner, promised or agreed to pay.
Upon the same grounds these defendants denj- that
said Lowe individually or as such partner, became in-
debted as alleged in said paragraph II, or at all to plain-
George Wostenholni <£• Son, Limited. 37
till' for montns laid out or expended by plaintiff at any
instance or request, or for the use or benefit of said
Lowe, either personally or as such partner, or in pay-
ment for said goods, wares and merchandise, or any of
tliem, so alleged to have been purchased, or in the pay-
ment of freight, or insurance, or other charges or ex-
penses, or any or all of them, in connection with the
transportation or shipment of said goods, wares and
merchandise, or any of them, from any place or places
Avhatsoever, to any place or places whatsoever, or any
or all of them, or otherwise, or at all.
ADDITIONAL. ANSWER TO SECOND CAUSE OF
ACTION.
IV.
These defendanis deny that on October 1st, 1898, at
tlie city and county of San Francisco, or at any other
time or place, or at all, an account was duly or at all
stated between plaintiff and the defendants, or any or
either or all of them, with or without said Lowe as of
June 30th, 1898, or of any other time, or that upon such
alleged or any statement or settlement of account any
balance of monej- whatsoever was found due to plain-
tiff by defendants, or any or either or all of them, either
with or without said Lowe, ou said June 30th, 18^, or
at any other time, or at all.
V.
These defendants deny that on December 21st, 1898,
or at any other time, there was due or owing by defend-
38 \Ansel M. Easton vs.
ants, or any or either or all of them, either with or
without said Lowe, to plaintiff as iutei*est or otherwise,
any sum of money whatsoever upon any, sum of money
whatsoever.
VI.
These defendants deny that after December 21st,
1808, or after any other time, defendants or any or
either or all of them, with or without said Lowe, pur-
chased from plaintiff or that the latter sold or delivered
to defendant, or any or either or all of them, either
with or without said Lowe, goods, wares, or merchan-
dise, or that plaintiff bought for defendants, or any or
either or all of them, either with or without said Lowe,
as buyer's agent, or any agent, any goods or wares or
merchandise whatever upon an agreed or any commis-
sion of any per cent of the purchase price thereof, or
that plaintiff paid or laid out or expended any moneys
for any goods, or wares or merchandise, so alleged to
have been purchased, or for freight or insurance or any
other charg'es or expenses in connection with the trans-
portation or shipment of any goods, or wares or mer-
cliandise, or any or all of them, or otherwise or at all,
so alleged to have been sold to defendants and said
Lowe, and alleged to have been purchased for defend-
ants and said Low^, or that the same were shipped from
ixnj place to San Jose de Costa Rica, or any other place.
These defendants deny that the matters alleged in
paragraph IV of said second cause of action were all
or any of them for the use or benefit, or at the special
or any instance or request, of defendants, or any or
George Wofitenliolm & Sion, Limited. 39
oitlier or all of them, either with or without said
Lowe, and that the same were within two years before
the C'oninienfenient of this action, or within any other
time, or at all. These defendants deny that the
reasonable price and value, or reasonable price or
value of said goods or wares or merchandise, or any
or all of them, or of the amounts so alleged to have
been expended, or any or all of them, amount, either
with or without any deductions, to any sum of money
whatsoever. These defendants deny that any interest
is due thereon from any date whatsoever at any rate
l)er cent whatsoever, or amounted on December 21st,
1S98, less credits, to any sum of money whatsoever, or
to any sum at anj^ time.
VII.
These defendants allege that prior to June 20th,
]iS!)S, there existed between them and the said Lowe
referred to in said amended complaint a certain part-
nership known as Sichwartz, Lowe i& Co., and that the
business thereof was conducted at San Jose de Costa
Kica by said Lowe; that upon the day last aforesaid
said copartnership was dissolved and all of the assets
thereof, togetheir with] the books of account and the
li<iuidati(m thereof, and all papers pertaining thereto,
were sold to and turned over to said Lowe in San
Jose de Costa Rica, and that the same have remained
m the possession of said Lowe ever since said time.
That sinee said time these defendants have had no
knowledge whatsoever of the affairs or liquidation of
40 {Ansel M. Easton vs.
said partnership, nor any interest therein. That upon
said dissolution all of the debts, if anj', then due and
unpaid from said partnership to plaintiff were assumed
by said Lowe.
These defendants therefore allejje that they have no
information or belief upon the subject sufficient to
enable them to answer paragraph Y of the second
cause of action stated in said amended complaint, and
therefore, and upon that ground, deny that no part of
the sum claimed in said second cause of action, nor
any interest^bereon, has been paid to the date of said
amended complaint, also that the same, or any interest
thereon, is wholly or at all duo, or unpaid, or payable.
Upon the same grounds as heretofore stated in tit is
paragraph, these defendants allege that they have no
information or belief upon the subject of the v.arious
acts of said Lowe and therefore, and placing their
denial upon that ground, they deny that on October
1st, 1898, or at any other time, at the city and county
of San Francisco, or at any other place, an account was
duly or at all stated between the plaintiff and said
Lowe, either personally or as a member of said partner-
ship, as of June 30th, 1898, or as of any other date.
Upon the same grounds these defendants deny that
upon said alleged statement of account any balance of
money whatsoever was found due to plaintiff from said
Lowe, either personally or as said partner, on June
30th, 1898, or at any other time, or at all.
Upon the same grounds these defendants deny that
on December 21st, 18198, or at any other time, or at all^
f/covfie Wostenholni <G Son, TAmited. 41
there was due or o^ving to plaintiff by said Lowe, either
personally or as such partner, as interest, or otherwise,
any sum of money whatsoever upon any sum of money
whatsoever, or at all.
Upon the same grotinds these defendants deny that
after December 21st, 1898, or at or after any other time,
said T^owe, either personally or as such partner, pur-
chased from plaintiff, or that plaintifif sold or delivered
to said Lowe, either personally or as such partner, and
goods or wares or merchandise, or that plaintiff boug^ht
for said Lowe, either personally or as such partner, as
buyer's agent, or any agent, any goods or wares or mer-
chandise whatever, upon an agreed or any commission
(»f anv per cent upon the jnirchase price thereof, or upon
any price, or that plaintiff laid out or paid or expended
any moneys for any goods or wares or merchandise
so alleged to have been purchased, or for frieght, or in-
surance, or any other charges or expenses, in connection
with the transportation or shipment of any goods, or
wares or merchandise, or any or all or either of them,
or otherwise, or at all, so alleged to have been sold to
defendants and said Lowe, and alleged to have been
jjurchased for defendants and said Lowe, or otherwise,
or at all.
T'pon the same grounds these defendants deny that
said or any goods or wares or merchandise were shipped
from any place by or for plaintiff to San Jose de Costa
Kica, or any other place.
Upon the same grounds these defendants deny that
tlie matters alleged in paragraph IV of said second
42 'Ansel M. Easton vs.
{•ause of action were all or any of them for the use or
benefit, or at the special or any instance or request of
said Lowe, either personally or as such partner, or that
the same were within two years before the commence-
ment of this action, or within any other time, or at all.
Upon the same gTOunds these defendants deny that
the reasonable price and value, or reasonable price or
value, of said goods or wares or merchandise, or any
or all of them, or of the amounts so alleged to have been
expended, or any or all of them, amount, either with
or without any deductions, to any sum of money what-
soever. '
Upon the same grounds these defendants deny that
any interest is due thereon from any date whatsoever,
at anj' rate per cent whatsoever, from said Lowe, either
personally or as such partner, or amounted on Decem-
ber 21st, 18i98, less credits, to any sum of money what-
soever, or to any sum at any time,
ADDITIONAL ANSWER TO THIRD OAUSE OF
ACTION.
VIII.
These defendants deny that on October 1st, 1808, or
at any other time, defendants, or any or either or all
of them, either with or without said Lowe, by any writ-
ten agreement, duly or at all made or entered into, at
San Fraucisco, or elsewhere, with plaintiff, for a valu^
able or any consideration, promised or agreed to pay
plaintiff forthwith, or at all, any sum of money what-
Ciconjr WostnilKthn cC .So/i, Limited. 43
soever, either with or without interest from June 30th,
18{>8, or from any other date.
IX.
These defendants deny that on Derember 21st, 1808,
or at any other time, tliere was due or owin*; by defend-
ants, or any or either or all of them, with or without
said Lowe, to plaintiff any sum of money whatsoever,
as interest or otherwise, upon the sum named in para-
graph II of said third cause of action, or any other sum.
X.
These defendants deny that after June 30th, 1898,
or after any other time, defendants, or any or either or
all of them, either with or without, said Lowe, pur-
chased from plaintiff, or that the latter sold or deliv-
ered to defendants, or any or either or all of them,
either with or without said Lowe, any goods or wares
or merchandise, or that plaintiff bought for defend-
ants, or any or either or all of them, with or without
said Lowe, as buyer's agent, or any agent, any goods
or wares or merchandise upon an agreed or any com-
mission of any per cent of the purchase price thereof,
or that plaintiff expended therefor, or for any purpose,
any moneys, or that said moneys alleged to have been
so laid out were the reasonable value thereof, or that
plaintiff paid or laid out or expended any moneys for
freight, or insurance, or other charges or expenses, in
connection with the transportation or shipment of said
goods or wares or merchandise so alleged to have been
sold to defendants and said Lowe, or so alleged to have
44 lAnsel M. Easton vs.
been purchased for defendants and said Lowe, from
Slieffield, or any other place, to San Jose de Costa Rica,
or any other place, or any or all of them, or otherwise,
or at all, or that the same was the reasonable amount
of any charges as alleged in said paragraph IV of said
third cause of action, or at all. These defendants
deny that the matters, or any thereof, stated in said
paragraph last named were for the use or benefit, or
at the special or any instance or request of defendants,
or any or eitlier or all of them, either with or without
said Lowe. These defendants deny that the total value
of said goods or ware or merchandise, or the reasonable
value thereof, or t^ie total amount so alleged to have
been expended, either with or without deducting any
payments or credits, or any or either or all of them,
amounted to any sum of moneys whatsoever, eithei
with or without interest from any dates whatsoever,
or amounted to the sum alleged in said paragraph,
either with or without interest, on December 21st, 1898^
or at any other time, or to any other sum, or at all.
XL
These defendants allege that prior to June 20th, 1898,
there existed between them and the said Lowe referred
to in said amnded complaint a certain partnership
known as Schwartz, Lowe & Co., and that the business
thereof was conducted at San Jose de Oosta Bica by
said Lowe; that upon the day last aforesaid said co-
partnership was dissolved, and all of the assets thereof,
logother with the books of account and the liquidation
George Wostcnhohii <C Son, lAmltvd. 45
thereof, and all papers pertaining thereto, were sold
to and turned over to said Lowe in San Jose de Costa
Ivica, and that the same have remained in the posses-
sion of said Lowe ever since said time. That since said
time these defendants have had no knowledge whatso-
ever of the affairs or liquidation of said partnership,
nor any interest therein. That upon said dissolution
all of the debts, if any, then due and unpaid from said
partnership to plaintiff were assumed by said Lowe.
These defendants therefore allege that they have no
information or belief upon the subject sufficient to en-
able them to answer paragraph V of the third cause of
action stated in said amended complaint, and therefore,
and upon that ground, deny that no part of the sum
claimed in said third cause of action, nor any interest
thereon, has been paid to the date of said amended com-
plaint, or that the same, or any interest thereon, is
wholly or at all due, or unpaid, or payable.
Upon the same grounds as heretofore stated in this
paragraph, these defendants allege that they have no
information or belief upon the subject of the various
acts of said Lowe, and therefore, and placing their de-
nial upon that ground, they deny that on October 1st,
1898, or at any other time, said Lowe, either personally
or as such partner, by any written agreement, duly or
at all made or entered into, at San Francisco, f)r else-
where, Avith plaintiff, or for a valuable or any consid-
eration, promised or agreed to pay plaintiff forthwith,
or at all, any sum of money whatsoever, either with or
46 ^Ansel M. Easion vs.
without interest from June 30tli, 18t>8, or from any other
day.
Upon the »ame grounds these defendants deny that
on December 21st, 1898, or at any other time, there was
due or owing by said Lowe, either personally or as sucli
partner, to plaintilT any sum of money wliatsoever as
interest or otherwise upon the sum named in paragraph
II of said thir<l cause of action, or upon any other sum.
Upon the same grounds these defendants deny that
after June 30th, 189®, or after any other time, said
Lowe, either personally or as such partner, purchased
from plaintiff, or that plaintiff sold or delivered to said
Lowe, either personally or as such partner, any goods
or wares or merchandise, or that plaintiff bought for
said Lowe, either personally or as such partner, as
buyer's agent, or any agent, any goods or wares or mer-
chandise, upon ail agreed or any commission of any per
cent of the purchase price thereof, or that plaintiff ex-
pended therefor, or for any purpose, any moneys, or
that said moneys alleged to haA'^e been so laid out were
the reasonable value thereof, or that plaintiff' paid or
laid out or expended any moneys for freight or insur-
ance or other charges or expenses in connection Avith
the transportation or shipment of said goods or wares
or merchandise so alleged to have been sold to defend-
ants and said Lowe, or so alleged to have been pur-
chased for defendants and said Tx)we, from Sheffield,
or any other place, to San Jose de Cbsta Rica, or any
other place, or any or all of them, or otherwise, or at
all, or that the same was the reasonable amount of any
George Wostenhahn d- Sou, Limited. 17
charges, as alleged in said paragraph IV of said third
cause of action, or at all.
Upon the same grounds these defendants deny that
the matters, or any thereof stated in said paragraph
last named were for the use and benefit, or at the spe-
cial or any instance or request of said Lowe, either per-
sonally or as such partner.
Upon the same gTounds these defendants deny thai
the total value of said goods or wares or merchandise,
or the reasonable value thereof, or the total amount
so alleged to have been expended, either with or with-
out deducting any payments or credits, or any, or either,
or all of them, amounted to any sum of money whatso-
ever, either with or without interest from any dates
whatsoever, or amounted to the sum mentioned in said
paragraph, either with or without interest, on Decem-
ber 21st, 189iS, or at any other time, or to any other'
sum, or at all.
ADDITIONAL ANSWEB TO tX)UKTH CAUSE OF
AOTIION.
XII.
These defendants deny that on April 26th, 1899, at
San Francisco, or at any other time or place, an ac-
count was duly or at all stated between plaintiff and
the defendants, or any or either or all of them, either
with or without said Lowe, as of December 21st, 1898,
or as of njiy otiior time, or at all. These defendants
deny that upon said alleged or any statement or settle-
ment of account any balance of money whatsoever was
48 'Ansel M. Easton vs.
found due to plaintiff by defendants, or any or either
or all of them, either with or without said Lowe, on'
said December 21st, 1898, or on any other day, or at all.
XIII.
These defendants allege that prior to June 2.0th, 1898,
there existed between them and the said Lowe referred
to in said amended complaint a certain partnership known
as Schwartz, Lowe & Co., and that the business thereof
was conducted at San Jose de Oosta Rica by said Lowe.
That upon the last day aforesaid said copartnership!
was dissolved and all of the assets thereof, together
with the books of account and the liquidation thereof,
and all papers pertaining thereto, were sold to and
turned over to said Lowe, in San Jose de Oost Rica, and
that the same have remained in the possession of said
Lowe ever since said time. That since said time these
defendants haA^e had no knowledge whatsoever of the
affairs or liquidation of said partnership, nor any inter-
est therein. That upon said dissolution all of the debts,,
if any, then due and unpaid from said partnership to»
plaintiff were assumed by said Lowe.
These defendants therefore allege that they have no'
information or belief upon the subject sufficient to en^
able them to answer paragraph IV of the fourth cause"
of action stated in said amended complaint, and there-'
fore, upon that ground, deny that no part of the sumt
claimed in said fourth cause of action, nor any interesti
thereon, has b<}en paid to the date of said amendedj
George Wostenholm <& Son, Limited. 41)
complaint, or that the same, or any, interest thereon,,
is wholly or at all due, or unpaid, or payable.
Upon the same grounds as heretofore stated in this'
paragraph, these defendants allege that they have no;
iuformation or belief upon the subject of the variousl
acts of said Lowe, and therefore, and placing their de-'
nial upon that ground, they deny that on April 26th,,
1899, at San Francisco, or at any other time or place
an account was duly or at all stated between plaintiff
and said Lowe, either personally or as such partner, as'
of December 21st, 1898, or as of any other time, or at
all.
Upon the same grounds these defendants deny that
upon said alleged or any statement or settlement of ac-
count any balance of money whatsoever was found due
to plaintiff by said Lowe, either personally or as such
partner, on said December 21st, 1898, or upon any other
(lay, or at all.
ADDITIONAL ANm\^EKi TO FIFTH CAUSE OF
A€T!ION.
XIV.
These defendants deny that on January 20th, 1897>
or at any other time, or at any place, the plaintiff, for
a valuable or any other consideration, contracted or
agreed with said firm of Schwartz, Lowe & Co., that said
copartners, or any or either or all of them, with or-
without said Lowe, should be entitled to or receive a*
credit of eight months, or any length of time, upon any
goods or wares or merchandise purchased by them from
50 Amel M. Easton vs.
plaintiff, or upon any commissions earned by plaintiff
as buying or other agent for said copartners, or any or
either or all of them, either with or without said Lowe,
or upon any moneys advanced by plaintiff to or for the
use or benefit or behoof of, or at the special or any in-
stance or request of said copartners, or any or either or
all of them, either with or without said Lowe, in the
purchase of goods or wares or merchandise, for said
copartners, or any or either or all of them, either witli
or without said Lowe, or otherwise, or at all, or by
way of freight or insurance or other or any charges of
shipment of any goods or wares or merchandise, or thati
said plaintiff should have or receive a commission of
five per cent, or any per cent, upon the purchase of any
goods or wares or merchandise purchased by plaintiff
for or on behalf of said copartners, or any or either or
all of them, either with or without said Lowe, or should
have or receive interest on all or any of the amounts
mentioned in paragraph II of the said fifth cause of
action, from the date of invoice until payment, or upon
any other amounts, or from any other date or to any
(late whatsoever.
XV.
These defendants deny that thereafter, or within two
years and eight months, or within any other time, be-
fore the commencement of this action, or while said de-
fendants and said Lowe were copartners, or until De-
cember 21st, 1898, or until any other time, said copart-
ners, or any or either or all of them, either with or with-
out said Lowe, bought of plaintiff, or that the latter
George Wostcnholui <ۥ Son, Limited. 51
sold or delivered to the former, or any or either or all
of theDi, either with or without said Lowe, goods or
ware or merchandise, or that plaintiff purchased for or
on behalf of said copartners, or any or either or all of
them, either with or without said Lowe, any goods, t.r
Avares, or merchandise, or earned as buying agent or
other agent any commissions at any rate per cent upon
the purchase, or any price of any goods or wares or mer-
chandise. These defendants deny that plaintiff laid
out or expended any sums of money in payment for
goods or wares or merchandise, so alleged to have been
purchased, or in payment of freight or insurance or
other charges or expenses in connection with the trans-
portation or shipment of said goods or wares or mer-
chandise, from any place to Central America, or any
other place, or any or either or all of these, or other-
wise, or at all, or that any of the matter alleged in par-
agraph III of said fifth cause of action were at the spe-
cial or any instance or request of said copartners, or
any or either or all of them, either with or without
said Lowe, or that the reasonable value or price of
said goods, or wares, or merchandise, so alleged to
have been sold by plaintiff, or of said goods or wares
or merchandise so alleged to have been purchased by
plaintiff for said copartners, or that the aggregate
amount of said commissions so alleged to have been
earned, or the actual or reasonable amount of said al-
leged charges or expenses alleged to have been incurred
or paid out or expended, amounted either with or with-
52 Linsel M. Easton vs.
out interest, on December 21st, 1898, oi- at any other
time, to any sum of money whatsoever.
These defendants deny that at any of the times stated
in said amended complaint the laws of the Republic of
Costa Rica provided that a release of one or two or
more joint debtors does not extinguish the obligations
of any of the others.
i XVI.
These defendants allege that prior to June 20tli, 1898,
there existed between them and said Lowe a certain co-
partnership known as Schwartz, Lowe & Co., and that
the business tlierof was conducted at San Jose de Costa
Rica by said Lowe. That upon the day last aforesaid
said copartnership was dissolved and all of the assets
thereof, together with the books of account and tLe
liquidation thereof, and all papers pertaining thereto,
were sold to and turned over to said LoAve in San Jose
de Costa Rica, and that the same have remained in tlie
possession of said Lowe ever since said time. That
since said time these defendants have had no knowledge
whatsoever of the affairs or liquidation of said part-
nership, nor any interest therein. That upon said dis-
solution all of the debts, if any, then due and unpaid
from said partnership to plaintiff were assumed by sai.l
Lowe. ' i
These defendants therefore allege that they have no
information or belief upon the subject sufficient to en-
able them to answer paragraph V of the fifth cause of
action and therefore, and upon that ground, these de-
George WostenJiolm & Son, Limited. 53
feudants deny that altliough fiequeutly re<iuested said
Lowe has not, nor has his estate, nor any liquidator
nor trustee thereof, paid the sum claimed in the fifth
cause of action, nor any part thereof, nor any interest
thereon; and deny that the whole or any part thercH.)f
is now due or unpaid or payable, either with or without
interest from or after December 21st, 1898, or from or
after any other time whatsoever.
Upon the same grounds as heretofore stated in tliis
paragraph, these defendants allege that they have no
information or belief upon the subject of the various
acts of said Lowe, and therefore, and placing their de-
nial upon that ground, they deny that on January 20th,
1897, or at any other time, or at any place, the plaintiff
for a valuable or any consideration, conti'acted or
agreed with said firm of Schwartz, Lowe & Co., or with
said Lowe, either personally or as such partner, that
said Lowe, either personally or as such partner, should
be entitled to or receive a credit of eight months, or
any other length of time, upon any goods or wares or
merchandise purchased by them from plaintiff, or upon
any commissions earned by plaintiff, as buying or other
agent, for said Lowe, either personally or as such part-
ner, or upon any moneys advanced by plaintiff to or
for the use or benefit or behoof of, or at the special or
any instance or request of said Lowe, either personally
or as such partntn*, in the purchase of goods or wares
or merchandise for said rx)we, either personally or as
such ])artner, or otherwise, or at all, or by way of
freight, or insurance, or other or any charges of ship-
54 \Amel M. Easton vs.
ment of any goods, or wares, or merchandise, or that
plaintiff should have or receive a commission of five per
cent, or any per cent, upon the purchase of any goods
or wares or merchandise purchased hy plaintiff for or
on hehalf of said Lowe, either personally or as such
partner, or should have or receive interest upon all or
any of the amounts mentioned in paragraph II of said
fifth cause of action from the date of invoice until pay-
ment, or upon any other amounts, or from any other
date, or to any other date whatsoever.
Upon the same grounds these defendants deny that
thereafter or within two years and eight months, or
within any other time, before the commencement of this
action, or while said defendants and said Lowe were
partners, or until December 21st, 1898, or until any
other time, said Lowe, either personally or as such part-
ner, bought of plaintiff, or that the latter sold or de-
livered to said Lowe, either personally or as such part-
ner, goods, or wares, or merchandise, or that plaintiff
purchased for or on behalf of said Lowe, either person-
ally or as such partner, any goods or wares or merchan-
dise, or earned as buying agent or any agent any com-
missions at any rate per cent upon the purchase or any
price of any goods or wares or merchandise.
Upon the same grounds these defendants deny that
plaintiff laid out or expended any sums of money in pay-
ment for goods or wares or merchandise so allege<l to
have been purchasc^l, or in payment of freight, or in-
surance, or other charges or expenses in connwtion with
the transpoi-tation or shipment of said goods or wares
George WostenJiolm d Son, Limited. 55
or merchandise from anj place to Central America, or
any other place, or any or either or all of these, or
otherwise, or at all, or that any of the matters alleged
in paragraph III of the fifth cause of action were at
the special or any instance or request of said Lowe,
either personally or as such partner, or that the reason-
able value or price of said goods or wares or merchan-
dise so alleged to have been sold by plaintiff, or of the
goods or wares or merchandise so alleged to have been
purchasied by plaintiff for said copartners, or that the
aggregate amount of said commissions so alleged to
have been earned, or the actual or reasonable amount
of said charges or expenses alleged to have been in-
curred or laid out or expended amounted, either with or
without interest, on December, 1898, or at any other
time, to any sum of money whatsoever.
For a further and separate defense these defendants
allege :
XVII.
That the cause of action set forth in the first count of
said amended complaint is barred by the provisions of
section 339, subdivision 1, of the Code of Civil Procedure.
XVIII.
That the cause of action set forth in the second count
of said amended complaint is barred by the provisions
of section 339, subdivision 1, of the Code of Civil Pro-
cedure.
XIX.
Tliat the cause of action set forth in the third count
of said amended complaint is barred by the provisions
56 ^Ansel M. Easton vs.
of section 339, sulxlivision 1, of the Code of Civil Pro-
cedure.
XX.
That the cause of action set forth in the fourth count
of said amended complaint is barred by the provisions
of section 339, subdivision 1, of the Code of Civil Pro-
cedure.
XXI.
That the cause of action set forth in the fifth count
of said amended complaint is barred by the provisions
of section 339, subdivision 1, of the Code of Civil Pro-
cedure.
Wherefore, these defendants pray that this action be
dismissed and that defendants have their costs herein.
Dated March 23(1, 1901.
GEO. C. SARGENT,
Attorney for Defendants.
State of California, ^
City and County of San Francisco. J
Ansel M. Easton, being first duly sworn, deposes and
says : That he is one of the defendants in the above-en-
titled action; that he has read the foregoing answer to
the amended complaint and knows the contents thereof,
and that the same is true of his own knowledge except
as to the matters which are therein stated on informa-
tion or belief, and as to those matters that he believes
it to be true.
ANSEL M. EASTON.
George Wostcnhohn d- S!ou, Limiied. 57
Subscribed and sworn to before me, this 32d day of
March, 1901.
[Seal] GEORGE F. HATTON,
Notary Public in and for the City and County of San
Francisco, State of California.
[Kndorscd]: Receipt of copy of within admitted this
Mar. 23, 1901.
PAGE. McCUTCHEN, HARDING & KNIGHT,
Attorneys for Plff.
Filed March 23, 1901. Southard Ilofifman, Clerk.
In thr Iii'thfl Stoics Circuit Court, p,r the Xinlli Circuit,
Xi)rtJicrii District of Califoniin.
GEO. WOSTENHOLM & SON, LTD. (a
Corporation),
Plaintiff,!
vs.
ANSEL M. E ASTON et al.,
Defendants.
Amendment to Answer to Amended Comprint.
Now come Ansel M. Easton, William Schwartz and
Samuel Schwartz, and file this, their amendment to an-
swer to the amended complaint of plaintiff ou file herein,
as follows:
For a further and separate defense to all of the causes
of action set forth in plaintiff's amended complaint,
these defendants allege:
58 \Ansel M. Easton vs.
I.
That these defendants are informed and belio^^e, and
therefore allege, that at all the times mentioned in
plaintiff's complaint, the la^vs of the Republic of Costa
Rica provided as in this paragraph set forth.
That in the capital of each province there should be
established a public and general commercial register,
which should contain a general list of ail merchants
engaged in commercial pursuits, and in which should
also be recorded all documents by which mercantile
partnerships, whatever their object, were formed.
That ever}' merchant was required to cause to be reg-
istered in said general register of his province, the docu-
ments aforesaid, within fifteen days after tbeir execu-
tion.
That San Jose de Costa Rica is and since January
1st, 1800, has been the capital of a province of the Re-
public of Costa Rica.
That said laws further provided that partnership con-
tracts should be reduced to public written instruments,
executed with legal solemnity. That public written
documents were those entered into before notaries pub-
lic and Avitnesse^s, in the forms required by law.
That parties entering into an agreement of copartner-
ship, should embody their agreements in a private docu-
ment, which said private document should have the ef-
fect of obligating them to enter into a, solemn public con-
tract, of the kind last aforesaid. That said solemn
public instrument must, in all cases, be executed before
the partnership commenced commercial operations.
(leorge Wostenholm c6 San, Limited. 59
That said formal docuiuenf must coutaiu tire najues,
surnames aud domicile of the partners; the partnership
name, the partner who should have charge of its ad-
ministration and the use of its name; the cash capital
eontrihuted b}' each partner or credits or other effects,
with an estimate of the value of the latter; the propor-
ti(.n of profits and losses to be borne by each capitalist
partner; the duration of the partnership which must
necessarily be for a fixed time; the branch of business
in which the partnership intended to engaj^e; the
amounts allowed to each partner as compens-atinn aud
expenses; the mode of submission to arbitration in Ciise
of diiference among the partners, providing for the man-
ner of the appointment of the arbitrators; the in an nor
in which the partnership capital should be divided in
case of dissolution; and all other subjects in reference
to which the partners might wish to enter into special
agreements.
II.
Defendants are informed and believe and Iherefore
allege that said laws at all said times pro\ ided :
That an entry should be made as aforesai<l in said pub-
lic registry of such partnership agreement which entr^y
should contain the following matters:
1st. The date of the instrument and the domicile of
the notary public before whom it was entered into.
2d. The names, domiciles and vocations of the ]);u't-
ners who are not special partners.
od. The commercial title of the partnership.
60 )Ansel M. Easton vs.
4tb. The names of the partners authorized to manage
the partnership and use its signature.
5th. The sums deliveired or which are to be delivered
for shares of the partners.
fith. The duration of the partnership.
That only in partnerships formed as aforesaid was
such partnership empowered to enter into contracts
common to all the partners, and by which all the part-
ners were jointly liable for the debts of tliei firm, and
which were contracted by the person author ize<l to use
the firm signature. ' ;
That all changes in such partnerships must be effected
and recorded in the same way
IIL
These defendants are informed and believe and tliere-
fore allege that said laws at all said times provided :
That merchants could also without establishing a
formal partnership under the foregoing rules, interest
themselves mutually in operations of each other, and
contribute for such operations such capital as might be
agreed upon, and participate in the results thereof in
the proportion determined by themselves.
That such companies were known as casual companies
and were not subject on their formation to any solem-
nity. That the contract might be private and either in
writing or verbal.
That such partnerships did not create partnership
linbilities common to all the participants, nor was any
other crwlit pledged than that of the merchant who con-
George Wostciihohtt tC- »S'o», Limited. 61
(huted the negotiation which was upon his individunl
responsibility. ' '
That third parties dealing with tlie merchant >v]u)
conducted the negotiation could sue only such partner,
and not the others interested with him. That the par-
ti^'s interested with said partner could bring no action
against said third person who dealt with such negoti-
ating partner.
IV.
That from March 8, 1897, to June 20, 1898, there ex-
isted at San Jose de Costa Rica a casual partnershi])
between L. Leon Lowe, Ansel M. Easton, t^annul
Schwartz and William Schwartz, conducting a commer-
cial business. That said partnership was never at any
time created by any instrument in writing whatsoever,
nor was the same ever acknowledged before any notary
pultlic, nor was any agreement of any kind or descrip-
tion required by the laws set forth in paragTa])li TI
thereof, ever entered into by said partners last named,
or any of them.
N.
These defendants are informed and believe, and thci-e-
fore allege that no record or attempted record was (>v( r
made in San Jose de Costa Kica or elsewhere of ajiy ar-
ticles of copartnership by which said firm of Schwa H'.
Lov.e & Co., just referred to, was created.
That all the causes of action set forth in plaintiff's
amended complaint, arise, if they occurred at all, out
of the acts of said L. Leon Lowe solely, and dealings
exclusively between said Lowe and the agents of plain-
62 A usri .!/■. Efi.stnv vs.
tiff. That none of the defendants, Ansel M. Easton,
William Schwartz or Samuel Schwartz had any part in
the negotiations attending said transactions.
And for a second, further and sejiarate defense to
each and all of the causes of action set forth in said
amended complaint these defendants allege:
VI. I
That they are informed and believe, and therefore
allege that at all the times mentioned in said amended
complaint, the laws of the Republic of Costa Rica pro-
vided:
That partners in general partnerships, as regards
their obligations to third parties, should be considered
as if there existed no partnership between them.
That in case said partnership be obligated to third
parties, the partners shonld be liable in equal shares
for such obligations. That such partners were not
obligated jointly, except when so expressed in the title
of the obligation, and said obligation was contracted
by all of the partners, or by the special authority of
all of them.
VII.
That all of the transactions alleged in plaintiff's
complaint transacted exclusively between the defend-
ant L. Leon Lowe, and the plaintiff's agents, parti}' in
San Jose de Costa Rica, and partly in the Kingdom of
England. That none of said transactions were had in
the State of California, or between any of the other
defendants, except said Lowe and the plaintiff.
George Wostrnhdhn tC- Son, Liinitcd. (»3
And for a third, further and separate defens*' to
earh and all of the causes of action set forth in said
amended complaint, these defendants allege:
VIII.
That prior to June 20, 1898, there existed a partner-
sliip composed of L. Leon Lowe, Ansel M. Easton,
Samuel Schwartz and William Schwartz, known as
Sclnvartz, Lowe & Co., which said partnership did busi-
ness in the city of San Jose de Costa Rica under th<»
exclusive management of L. Leon Lowe.
That on the date last mentioned said partnership
was dissolved by the mutual consent and the transfer
to said Lowe of all the interests of all the otlier part-
ners thereof. That certain debts of the said firm were
assumed by the defendant Ansel M. Easton, the re-
mainder by L. Leon Lowe.
IX.
Tliat these defendants are informed and believe, and
therefore allege, that plaintiff had notice of said dis-
solution not later than December 2d, 1898.
That after said dissolution said Lowe continued in
business at said place, and in the conduction of said
business continued the use of the name "Sclnvartz.
Lowe & Co."
X.
That thereafter, on or about April 28, 1899, said
Lowe, tlien doing business under said name of Schwartz,
Lowe & Co., failed in business, whereupon said Lowe
called his creditors together at a general meeting; that
64 <Aiisel M. Easton vs.
at said meeting it wa.s stated tliat by reasou of the
previous dissolution of said partnership, all of the as-
sets and liabilities of said partnership belonged to said
Lowe. That said Lowe thereupon surrendered to a per-
son appointed by said creditors, all of his assets.
That thereafter an agreement was drawn up and
signed by said creditors, including plaintiff, giving Lowe
three years' time within which to pay debts, without in-
terest. That none of the defendants, Ansel M. Easton,
AVilliam Schwartz or Samuel Schwartz consented to
said extension of time, so given to said Lowe.
And for a fourth, further and separate defense to
eacJi and all of the causes of action set forth in said
aiiHMided coniplaint, these defendants allege:
XI.
That these defendants are informed and believe,, and
therefore allege, that at all the times mentioned in
plaintiff's complaint, the laws of the Republic of Costa
Ixica provided that a party acting as agent for another,
sI)ould be empowered so to do, by a written power of
attorney, executed before a notary public and witnesses,
which said power of attorney must be recorded in the
capital of the province of said Kepublic of Costa Rica
in which said agent resided. That no act of said party
until said power of attorney was so recorded, was bind-
ing upon tlie principal of said agent.
That at all the times mentioned in said amended com-
plaint said L. Leon LoAve resided at the citv of San
George WostcnholDi <& Sou, Limited. 60
Jose de Costa Kica, which said San Jose is the capital
of a province in which the same is situated.
That no power of attorney was given by the defend-
ants Ansel M. Easton or Samuel Schwartz to said Lowe,
to perform any acts for them in said Republic of Costa
Rica. ) 1
And for a fifth, further and separate defense to all
of the causes of action set forth in said amended com-
plaint, these defendants allege:
XII.
That at all the times mentioned in plaintiff's amended
complaint, prior to June 20, 1808, there existed at the
city of San Jose de Costa Rica, a partnership com-
posed of Ansel M. Eiaston, Samuel Schwartz, William
Schwartz, and L. Leon Lowe.
That durinof all the times mentioned in said amended
complaint said Lowe resided in said San Jose de Costa
Rica, and managed the business of said firm, and that
all the other defendants resided in and near the city
of San Francisco, State of Oalifornia.
XIIL
That on said date last mentioned, said i>artnership
was dissolved by the mutual consent of all said part-
ners; whereupon the assets of said partnership were
turned over to said L. Leon Lowe, and said Lowe as-
sumed the payment of all foreign creditors, including
the plaintiff.
66 \Ansel M. Easton vs.
XIV.
That on December 3(1, 1898, the plaintiff was notified
that said partnership had been dissolved.
XV. I
That at the time of receiving said notice of dissolu-
tion, the plaintiff had made shipments of goods, whose
dates of shipment and the arrival at Port Limon in
Costa Eica, the amounts thereof, and the delivery to
said defendants, were as follows:
Shipment of November 1st, 1898, for 519 pounds, 10
shillings, and 5 pence, arrived at the custom-house of
the Republic of Costa Rica at Port Limon on November
25th, 1898, and was delivered to said Lowe out of the
custom-house of said Republic at San Jose, on Decem-
ber 15th, 1898.
The shipment of November 9th, 1898, for 243 poundH,
19 shillings and 6 pence, arrived at said custom-liouso
at Port Limon on December 7th, 1898, and was de-
livered to said Lowe out of said custom-house at San
Jose on February 9th, 1890.
The shipment of November 18th, 1898, for 310 pounds,
5 shillings and 10 pence, arrived at said custom-liouso
at Port Limon on December 17th, 1898, and was de-
livered to said Lowe out of said custom-house at San
Jose on May 29th, 1890.
The bill of December 2d, 1898, for 363 pounds, 5 shill-
ings and 8 pence, was shipped from the works of plain-
tiff on December 2d, 1898, and arrived at said custom-
bouse at Port Limon on December 31st, 1808, and was
George Wostenholm & Son, Lhnited. 67
delivered to said Lowe out of said custom-house at San
Jose, in part on January 13th, 1899, and in part on
May 29th, 1899.
The bill of December 7th, 1898, for 147 pounds, 15
shillings and 2 pence, was shipped from the works of
plaintiff on December 7th, 1898, and arrived at said
custom-house at Port Limon on January 4th, 1899, and
was delivered out of said custom-house at San Jose, to
said Lowe, in part on February 14, 1899, in part on
^[ay 27th, 1899', in part on June 15, 1899, and the balance
thereof on July 13, 1899.
These defendants are informed and believe and there-
fore allege^ that the shipment of December 16, 1898,
for 217 pounds, 16 shillings, was shipped from the
works of plaintiff on December 16, 1898.
That all of said bills of goods last mentioned are
portions of the amounts sued for in this action, and
set forth in the various counts of plaintiff's amended
complaint.
XVI.
These defendants are informed and believe, and tliere-
fore allege, that plaintiff made no attempts of any
character, to stop the delivery of said goods or any of
them, or to regain possession of them, or to rescind tlu^
contract of sale of said goods, nor did plaintiff inform
any of the defendants, other than said Lowe of the
shipment of said goods or any of them.
That all of said goods were ordered from plaintiff
in the old firm name of Schwartz, Lowe & Co., by said
L. Leon Lowe.
68 ^Ansel M. Easton vs.
) XVII. ,
That these defendants are informed and believe, and
therefore, allege, that the plaintiff knowingly and in-
tentionally allowed said goods and all of them, to go
into the possession of said Lowe, after knowledge of
said dissolution, and with the intent that said Lowe
should be accepted as the sole debtor of the plaintiff
for said goods.
Wherefore these defendants pray that they be hence
dismissed, and that plaintiff take nothing by its action.
That these defendants be awarded their costs of court,
and such other, further and different relief as may be
just and in accordance with law.
Dated February 38th, 1903. '
GEORGE C. SARGENT,
Attorney for Defendants.
It is hereby stipulated between the pai'ties to the
above entitled action, that the verification of the fore-
going amendment to the answer of the defendant Ansel
M. Easton, William Schwartz and Samuel Schwartz,
to the amended complaint of plaintiff, is waived.
Dated March 11, 1903.
PAGE, McOUTOHEN, HARDING & KNIGHT,
PAGE, MicOUTOHEN & KNIGHT,
Attorneys for Plaintiff.
[Endorsed]: Filed March 19th, 1903. Southard
Hoffman, Olerk. By W. B. Beaizley, Deputy Clerk.
George Wostenholm dc Son, Limited. B9
Jn the Circuit Court of the United States, Ninth Circuit,
Northern District of California.
GEOUGE WOSTENHOT.M & SON,'
LTD. (a. Corporajtion),
Plaintiff, ,
vs.
ANSEL M. EASTON et aL,'
Defendants.
Amendments to Amended Complaint.
Plaintiff pursuant to the stipulation heretofore
entered into herein and by leave of the court first had
and obtained, hereby amends its amended complaint
in the above-entitled court as follows:
I.
f 'hamo-e the dates and amounts in paragraphs II
and III of the second count in said amended complaint
contained, page 6, so as to make said paragraphs read
as follows:
II.
That within two (2) years from the time of the com-
mencement of this action at said city and county of San
Francisco, State of California, an account was duly
stated between the plaintiff hereto on the one hand and
the defendants, together with said Luis Leon Lowe on
the other, as of the aist day of December, 1897, and upon
such statement of account a balance of £1669 ,7s. 4d,
equivalent to 18,123.13 United States gold coin, was
70 Ansel M. Easton vs.
found due to plaintiff by defendants and said Luis Leon
Lowe, and eacli of them, on said 31st day of December,
1897, and thereupon defendants promised and agreed
to pay the same with the interest thereon hereinafter
in tlie next paragraph stated.
IIL
Tliat on the 2llst day of December, 1898, there was
due and owing by defendants and said Lowe, and by
each thereof, to plaintiff as interest upon said sum last
mentioned, the further sum of £81 7s. 8d. English
money, equivalent to .f396.01 United States gold coin.
2. In paragraph IV of the same count insert after
the words "amounts so expended," line 13, page 7, of
said amended complaint, the word "with interest at
five (5) per cent per annum from the respective times
when said merchandise was so sold, payments so made
and commissions so earned as hereinbefore alleged to
tlie 21st day of December, 1898," and strike out the
words "date last mentioned" at the commencement of
said paragraph and insert therefor the words "said
31st day of December, 1897."
3. In the latter part of said paragraph IV of said
count change the sum £2261 3s. 8d. English money,
equivalent to flO,9G6.43 United States gold coin to
£2077 16s. 3d. equivalent to $10,110.43 and strike out
all of said paragraphi following the words "United
States gold coin" lines 18 to 23, inclusive, of said page
17'.
George Wostenholm & Son, Limited. 71
4. In paragraph II of the 5th count in said amended
complaint contained, make the date "20th day of Janu-
ary, ISOrr," read "38th day of January, 1897," and
throughout said amended complaint make the equiva-
lent in American money of £3747 3s. 7d. English money
read ^18,233.77 instead of |18,173.82.
PAOE, :McOUTOHEN, HARDING & KNIGHT,
PAGE, MtOUTCHEN & KNIGHT,
Attorneys for Plaintiff.
'\''erification hereof is hereby waived.
Dated April 8, 1908.
GEORGE C. SARGENT,
Attorney for Defendants.
[Endorsed]: Filed April 9, 1903. Southard Hoff-
man, Clerk. By W. B. Beaizley, Deputy Olerk.
CUrnit Court of the United States, Ninth Circuit, Northern
District of California.
GEORGE WOSTENHOLM & SON,i
LIMITED,
Plaintiff,!
vs.
ANSEL M. EASTON et al.,
Defendants.
Verdict.
We, the jury in the above-entitled action, find a ver-
dict in favor of the plaintiff and against the defendants,
as follows:
72 ii.nsel M. Easton vs.
Against, defendant Ansel M. Easton, |20,401.36.
Against defendant William Schwartz, |22,003.49.
Against defendant Samuel Schwartz, |22,003.49.
April 9th, 1903.
FREDERICK RUSSELL,
I , Foreman.
[Endorsed] : Filed April 9th, 1903. Southard Hoff-
man, Clerk. By W. B. Beaizley, Deputy Clerk.
In the Circuit Court of tlie United; States, Ninth Circuit,
Northern District of California.
CxEORGE WOSTENHOLM & SON,
LIMITED (a Corporation),
Plaintiff,
vs.
, Xo. 12,875.
ANSEL M. EASTON, WILLIAM,
SCWARTZ and SAMUEL'
SCHWARTZ,
Defendants. ^
Judgment.
This cause having come on regularly for trial upon
the 1st day of April, 1903, being a day in the March,
1903, term of said court, before the Court and a jury of
twelve (12) men duly and regularly impaneled, Samuel
Knight, Esq., appearing as attorney for plaintiff, and
Ceorge C. Sargent and W. B. Cope, Esqs., appearing as
attorneys for defendants; and the trial having been pro-
cee<led with on the 2d, 3d, 7th, 8th and 9th days of
April, 1903, and evidence oral and documentarj' having
George Wostenholni d Son, Limited. 73
been introduced on behalf of the respective parties and
tlie evidence having been closed, and the cause, after
arguments of the attorneys for the respective parties
and instructions by the court having been submitted to
the jury, and the jury having subsequently rendered the
following verdict, viz.:
'^We, the jury in the above-entitled action, find a ver-
dict in favor of the plaintiff and against the defendants
as follows:
Against defendant Ansel M. Easton, $20,401.30.
Against defendant William Schwartz, |22,003.-t0.
Against defendant Samuel Schwartz, .|;22,003.49.
April 9th, 1903.
FREDERICK RUSSELL,
Foreman."
And the Court having thereupon ordered that judg-
ment be entered herein in accordance with said verdict
against said defendants;
Now, therefore, by virtue of the law and by reason of
the premises aforesaid it is considered, ordered and ad-
judged by the Court that George Wostenholm & Son,
Limited, a corporation, plaintiff herein, do have and
recover of and from said defendant Ansel M. Easton
the sum of |20,401.36; from said defendant William
Schwartz the sum of |22,003.49, and from said defend-
ant Samuel Schwartz the sum of |22,003.49, aud against
all of said defendants said plaintiff's costs in this be-
half expended and taxed in the sum of two hundred and
three and 75/100 ($203.75) dollars.
74 \An8el M. Easton vs.
It is further ordered and adjudged that said plain-
tiff have execution upon the foregoing judgments, but
that no further sum be collected thereon than said sum
of $22,003.49, together with said taxed co«ts, interest,
accruing costs, and percentage of clerk and marshal;
but upon payment of said sum of |20,401.36 and said
costs, interest on said sum of |20,401.36, with said
costs, and percentage thereon, said judgment against
said defendant Ansel M, Easton shall be satisfied in full
as to him, and to such extent partially as to each of said
defendants William Schwartz and Samuel Schwartz;
and that upon further payment of the sum of 11,002.13
— being the difference between said sums of |22,003.40
and 120,401.36 — with interest and percentage thereon
and costs accruing after the payment of said sum of
$20,401.36 and said taxed costs, interest thereon, accru-
ing costs, and percentage thereon of clerk and marshal,
said judgment against each of said defendants William
Schwartz and Samuel Schwartz shall be satisfied in full.
Judgment entered Aipril 9th, 1903.
SOUTHARD HOFFMAN,
Clerk.
By W. B. Beaizley,
A true copy. Deputy Clerk.
[Seal] Attest: SOUTHARD HOFFMAN,
I Clerk.
By W. B. Beaizley,
' , Deputy Clerk.
[Endorsed] : Filed April 9, 1903. Southard Hoff-
man, Clerk. By W. B. Beaizley, Deputy Clerk.
George Wostenholm <£ Son, Limited.
In ihc United States Circuit Court, in and for the Ninth
Circuit, Northern District of California.
GEORGE WOSTENHOLM & S0N,1
LTD.,
Plaint ife,(
vs. > iNo. 12,875.
ANSEL M. EASTON' et al.,
Defendants.;
Defendants' Bill cf Exceptions.
Be it remembered that in the above-entitled action, the
following proceedings were had, and the following rul-
ings made; and that the defendants duly excepted sev-
erally and specifically to all of said rulings adverse to
themselves.
The amended complaint of plaintiff herein was served
upon the attorney for defendants on December, 17, 1900.
Thereafter, on March 26, 1901, defendants in said ac-
tion filed and served upon the attorneys for plaintiff, a
demand for a bill of particulars. The following is a
copy :
Demand for Bill of Particulars.
Messrs. Page, McCutchen, Harding & Knight, Attorneys
for Plaintiff in the Above-entitled Action.
Please take notice that the defendants in said action
demand a bill of particulars of the items of the accounts
7($ jAnsel M. Easton vs.
sued upon by plaintiff in said action, together with the
dates of shipment.
Dated March 26, 1901.
GEO. C. SARGENT,
. Attorney for Defendants.
That </n April 20, 1901, plaintiff served upon defend-
ants, the following pai>er, in response to said demand:
Response to Demand for Bill of Particulars.
[Title of Court and Cause.] !
"In addition to the schedules and copies of statements
of account and invoices heretofore delivered to the de-
fendants through their attorney herein, plaintiff above
named, in further response to defendants' demand for
a bill of particulars herein, herewith sets forth the dates
of the invoices of goods, wares and merchandise involved
in this action and shipped to the firm of Schwartz, Lowe
& Company at San Jose de Costa Rica :
Goods sold by plaintiff of its OAvn manufacture.
Part of invoice March 6, 1897.
Part of invoice September 16, 1898.
Goods Iwught for Schwartz, Lowe & Company as or-
dered by them.
1897: Invoice February 21; Invoice February 25; In-
voice February 27; Invoice February 27; Invoice March
6; Invoice March 13; Invoice September 8; Invoice Sep-
tember 11 ; Invoice September 28 ; Invoice September 30 ;
Invoice November 20.
1898: Invoice June 21; Invoice June 28; Invoice July
19; Invoice July 26; Invoice August 20; Invoice Septem-
George Wofitenhohn cC- Son, fjiinited. 77
ber 13; Invaire Septembei- 16; Invoice September 17;
Invoice October 15; Invoice November 1; Invoice No-
vember 9 ; Invoice November 18 ; Invoice December 2 ; In-
voice December 7; Invoice December 16.
Tbese invoices do not include amounts paid for cable-
grams, interest and other expenses as per accounts ren-
dered.
Dated April 19, 1901.
PAGE, McCUTCHEN, HARDING & KNIGHT,
Attorneys for Plaintiff."
In order to avoid a continuance by reason of the ab-
sence of defendant, Ansel M, Easton, from the State of
California, plaintiff admitted that none of the state-
ments of account or invoices alleged to have been mail^'d
by plaintiff subsequent to June 20, 1898, were received
by said defendant Ansel M. Easton,
Depositions.
The depositions of Thomas Wing and Harry Oxley are
substantially identical with that of J. C. Wing. The
same objections were made to the corresponding inter-
rogatories and answers, and the same rulings made and
the same exceptions taken. The evidence and rulings
and exceptions are not stated again in order to avoid
repetition.
The depositions of J. C. Wing, Thomas Wing and
Harry Oxley were then read at length. All of said wit-
nesses testified in all material respects to substantially
the same facts as are set forth in the deposition of J,
C. Wing herein except as herein stated, and in addition
78 lAmel M. Easton vs.
said witnesses also testified as hereinafter set forth.
Their testimony was in substance, as follows:
Deposition of J. C. Wing.
That he, J. C. Wing, was at the date of the taking of
his deposition (in 1902) of the age of fifty-seven years,
by occupation a gentleman, and formerly managing di-
rector of plaintiff since its incorporation up to June,
1900. That he had been with plaintiff corporation since
1875. That the character of plaintiff's business was and
is manufacturers and merchants, with works and offices
at Sheffield, England. That as part of the customary
business of plaintiff, since 1897, plaintiff had manufac-
tured and sold to customei's and bought from others,
and sold to customers as buyers or purchasing agent,
and purchased for customers as buyers or purchasing
agent upon a commission, percentage, profit or other
form of compensation, goods, wares and merchandise of
many different kinds. That the business consisted of
hardware goods generally, but also proprietary articles,
textiles, in fact, anything wanted by the market. That
the duties of witness included the direction and super-
vision of the purchase for customers, and the manufac-
ture, sale and shipment to them of goods, and the filling
of customers' orders therefor.
That he had known the defendants Ansel M. Easton,
William SchAvartz and Samuel Schwartz and L. Leon
Lowe as copartners in the firm of Schwartz, Lowe & Co.
That he met William Schwartz; in Sheffield in January,
1897, but that all the details of his requirements were
(I'eorgc Wostcnholm cG tioiiy Limited. 79
(Deposition of J. C. Wing.)
attendtHi by Thomas Wiug, his subordinato. That he
had never met any of the other defendants or L. Leon
Lowe. That he had acted at all times as an officer of
plaintiff, and that all the plaintiff's dealings were solely
on account of the firm of Schwartz, Lowe & Co., and
never on private account of the individual members.
That plaintiff transacted business with the firm of
Schwartz, Lowe & Co., and that the latter was doing
business at San Jose de Costa Rica and San Francisco.
21. Q. If you shall testify that plaintiff transacted
business with said firm, or with any person or persons
under the name of said firm, state how, when, where and
under viiat circumstances, if you know, such business
transactions were initiated.
A. William Schwartz was introduced by ilorris
Goldtree of Hamburg. Business started by correspond-
ence and personal interview between Wm. Schwartz and
J. C. Wing and Thomas Wing on Jan. 28, 1897, when it
was arranged Schwartz, Lowe & Co.'s orders should be
executed and shipped by Geo. Wostenholm & Son, Ltd.,
all original letters, invoices, documents, etc., being sent
to San Jose de Costa Rica, and duplicates there<if to
No. 19 Battery St., San Francisco, afterward to No.
308 Market St., San Francisco.
Defendants moved to strike said answer out, on the
gi'ound that it is hearsay.
Said motion was denied, to which defendants duly
excepted.
so Ansel M. EaMon vs.
(Deposition of J. 0. Wiug.)
28. Q. Who, if you know, constituted tlie firm of
Schwartz, Lowe & Co., while it was transacting business
with the plaintiff, if at all, giving the source or sources
of your information in this respect, if you have any?
A. Ansel M. Easton, William Schwartz, Samuel
Schwartz, Luis Leon Lowe.
The sources of our information were Morris Goldtree,
the introducer; William Schwartz and the letter head-
ings used by the San Francisco firm, bearing the names
of these four partners.
Defendants moved to strike out all of t^aid answer, so
far as the same purported to consist of statements of
Morris Goldtree, or William Schwartz, upon the ground :
That partnership could not be proved by the declara-
tion of one of the alleged partners, nor by the statements
of Goldtree, and that it is hearsay.
Said objection and motions were overruled, to all of
which defendants duly excepted.
The witness further testified that the first contract
between the parties is contained in the letter fi-om
Thomas Wing acting on behalf of plaintiff, to William
Schwartz acting on behalf of Schwartz, Lowe & Co., of
which a copy marked Exhibit No, 1 is attached to the
deposition, and reads as follows:
George WostenJiolm & Son, Limited. 81
(Deposition of J. C. Wing.)
Exhibit No. 1.
LETTER OF THOMAS WING TO WILLIAM
I SCHWARTZ.
Sheffield, 28th Jan. 1807.
^Pi". William Schwartz, c/o Messrs. Stalendorff & Reu-
shaw, #107 Princess St., Manchester.
Dear Sir: I have now much pleasure in handing yon
copies of order given this morning, and trust you Avill
find the same in order.
The terms upon which we arranged were as follows:
No commission.
Drafts to be received in England within eight months
from date of invoices.
Drafts to be discounted at current rates, and pro-
ceeds placed to your credit.
Five per cent (5%) interest to be charged from date
of invoice the receipt of draft.
All letters and documents, invoices, etc., to be sent
to San Jose de Oosta Rica, and duplicates of all to be
sf>nt to No. 19, Battery Street, San Francisco, U. S. A.
I shall be in Manchester to-morrow and will call at
Queen's Hotel to see you. Will you please leave word
at the office what time will suit you after 4 o'clock
to-morrow afternoon, and I will call accordingly.
Trusting this first transaction will lead to a mutually
profitable business between us, I remain,
' Yours very truly,
(Signed) THOMAS WING,
82 'Ansel M. Easton vs. '
(Deiposition of J, O. Wing.)
Witness further stated that no other arrangements
were made by plaintiff with the firm of St-hwartz, Lowe
& Co., with the regard to the termis upon which busi-
ness was to be transacted, except the original agree-
ment and the modification of October 1897. That the
arrangement as to the terms of credit upon purchases,
and in the regard to the filling of orders given by, and
sales made to, and articles manufactured for the de-
fendants and Luis Leon Lowe as such partners; the
length of credit and the amount of interest to be
charged on deferred payments from the date of the
order to the receipt of draft in Eligland, and payment
therefor, were made orally with William Schwartz, and
reduced to writing in said letter of January 28, 189!7.
No. 20. Q. How long, if at all, and covering what
period of time, did such business transactions continued
A. From January, 1897, to December, 1898.
That the firm wais at first represented by William!
Schwartz, and that subse-quently William Schwartal
sent orders from San Francisco, and Lowe from Oostaj
Rica.
That the character and extent of the business was the
buying of hardware, textiles, proprietary goods, etc. oi
commission and for profits, and that the extent of the
business was as follows:
Goods of Geo. Wostenholm & Son's own manu^
facture £ 130-17-
Goods bought for S. L. & Co. by us 4738- 6-
George Wostenholm d Son, Limited. 83
{ Deposition of J. O. Wing.)
Cablegrams 10-0-0
Interest as per accounts rendered 143-17-S
£5023- 1-9
That business dealings commenced in January, 1807,
and in regard to the partnership transactions ended on
December 16, 1898, but that small shipraents on the way
to I^owe were not stopped until February 3, 1899. That
goods, wares and merchandise were ordered of plaintiff
by said firm, and on its behalf and that the latter re-
quested and directed payment by plaintiff of expenses
in connection with the shipment of such goods, payment
of freight, insurance, drayage, etc.
No. 34. Q. If you shall answer the last preceding in-
terrogatory in the affirmative, state in detail when such
goods were ordered and expenses directed, or re<] nested
to be paid, what was thus ordered and what expenses
were thus paid. In every case where the orders or direc-
ti(ms therefor were in writing, i)roduce the same, have
them marked as exhibits and attached hereto as a part
of .your testimony herein, identifying in each case, if you
can, the signature or signatures appended to such orders
or direi'tions. If any orders or directions be lost or mis-
laid, produce, if you can, true copies thereof, and state
what becamie of the originals thereof. If any of such
orders or directions were given orally, state respectively
their substance, who gave them and on whose behalf
they were given, when and by whom received. If such
84 Ansel M. Easton vs.
( Deposition of J. C. Wing.)
orders or directions were given, by telegraph or cable,
append the copies thereof received by you or the plain-
tiff over the wire, marked as exhibits, and attach thera
hereto as a further part of your deposition and in everj'
instance, state, if you know, what answers, if any, were
made to, or action, if any, taken on the foregoing com-
munications, appending hereto as a further part of your
deposition true copies of such answers, if in writing, and
stating in such connection what became of the originals
of such answers,
A, I attach Exhibit No. 2, comprising orders received
and charges made for freight, etc. Acknowledgment of
these orders will be found in Exhibit No. 3, the originals
of which were sent to the defendants by post.
Defendants objected to the admission of said Exhibit
No. 3, as tending to prove that any of the communica-
tions therein refeiTed to were ever mailed, upon the
grounds that it had not been shown that any of the said
communications were ever actually deposited in tht
postoffice of Great Britain, and that although the wit-
ness had been requested to state what address was upon
each communication he had failed to do so. That there
was therefore no presumption that said communications
had ever been received.
The evidence in this behalf consists of cross-interroga-
tories No. 7 and No. 19, and the answers thereto, and the
iyther evidence herein stated. Said cross-interroga-
tories and answers are as follows:
George Wostenholm & Son, Limited. 85
( Defposition of J. C. Wing.)
No. 7. Q. You have been interrogated in your direct
interrogatories as to the sending of numerous state-
raentsi, invoices, letters, etc. Go over your answers to
the direct interrogatories and give all information of
matters within your own personal knowledge showing
the actual sending of each statement, invoice or letter.
Take them up individually, one by one, and state how
you know each was sent and what the address was upon
it. In these cross-interrogatories I will use the name
Lowe, in place of the German Lowe.
A. I know that the answers given are correct be-
cause I have personally seen the records and lists of
postage of letters, etc. specified in Exhibit No. 3, all of
which have been done by my instructions, and believe all
such to be a^ccurate.
No. 19. Q. If there are any records in the books of
tlie plaintiff corporation giving information as to the
matters interrogated upon in the above questions 17th
and 18th, produce the same before the commissioner tak-
ing this deposition, and cause to be made a literal trans-
cript of such records. If plaintiff has any letters or
otlier communications from any one upon the subject,
cause the same to be attached to this deposition.
A. I produce before the commissioner the books of
tlie plaintiff containing the copies of letters, invoices,
statements of account, etc., of which a literal transcript
is found in the various exhibits in the ease. I produce
86 Unsel M. Easton V8,
(Deposition of J. O. Wing.)
also, the register of letters mailed to prove that thest'
documents were duly forwarded by post.
It was also objected that it was not shown that the
copies of the invoices attached to the deposition were
copies of those alleged to have been sent.
The objections were all overruled, to all of which de-
fendants duly excepted.
S7. Q. If you can do so, produce and attach hereto, as
a part of your deposition, marked as an exhibit hereof,
full and true copies of all invoices, statements of ac-
count, letters, telegrams, cablegrams, and other papers
and communications not hereinbefore produced, sent, if
at all, to said firm of Schwartz, Lowe & Company either
to San Jose de Oosta Rica or to any one or firm connected
with said firm of Schwartz, Lowe, & Company at San
Francisico, California, specifying in each instance where,
when and to whom such Invoices, statements of account,
letters, telegrams, icablegrams and other communica-
tions, either originals or copies, were sent, if at all, and
have the same appropriately marked as exhibits as
aforesaid.
A. I attach Exhibit ''No. 3."
The following are copies or documents included in Ex-
hibits No. 2 and 3.
Oeort/e Wostenholm & Son, Limited. 87
( Deiposition of J. C. Wing.)
Exhibit No. 2.
Date Freight Miscel. and other Shipping charges.
189^. ! ',
Feb. 24 .£141-17- 9
Feb. 25 11- (K 6
Mar. 6 41-15-11
Sept. 8 266- 7- 9
Sept 28 5-0-0
Nov. le 30-2-5
1898. ) , I
Jnne 21 13-2-8
July 19 .' 5-3-4
Aug. 20 5-3-4
Sept. 13 5-3-4
Sept. 16 13-18- 7
Oct. 15 : 5-3-4
Nov. 1 211- 6- 6
Nov. 9 12-0-5
Nov. 18 63-14- 01
Dec. 2 74-13-11
Dec. 7 9-0-11
Dec. 16 80^19- 7
£995-14- 3
88
\Amel M. Easton vs.
(Deppsation of J. O. Wing.)
Exhibit No. 3.
Shipped by George Wosteniholm & Son, Ltd. on board
Royal Mail Steam Packet Co's. Steamer "Avon" for
^Messrs. Schwartz, Lowe & Co. at Limon.
LIMON.
J. D. HElWETT & COMPANY,
Forwarding Agents,
I Commission Merchants
and
Contractors,
101 Leadenhall St., London, E. C.
lOa Cases Swiss Milk Kilos 2850.
Total number of packages One hundred,
CJuantity 'Rate Amount.
116.8 20/- £2-18^ 4
5-10
TW
!£3- 4- 2
Three Bills of Lading, each of this Tenor, etc.
Dated in London this 15th day of August, 1898.
H. J. WILLIAMSON,
For the Royal Mail Steam Packet Company.
Shipped by George Wostenholm & Son, Ltd., on board
Royal Mail Steam Packet Co's. Steamer "Derwent," for
Messrs. Schwartz, Lowe & Co. at Limon.
Oeorge Wostenholm S 8m, Limited. 89
( Deposition of J. C. Wing.)
LIMON ,'
100 Oases Swiss Milk Kilos 2850.
Total number of packages One Hundred.
Quantity. Rate. Amount,
11B.8 20/-
Primage 10 per cent
£3.4.2
J. D. HEWETT & COMPANY,
Forwarding Agents, '
Commission Merchants
and
Contractors.
101 Lendenhall St., London E. C.
Three Bills of Lading, each of this Tenor etc.
Dated in London this 11th day of October, 1898.
W. M. MAILEY,
For the Royal Mail Steam Packet Co.
Shipped by Cunningham, Shaw & Co. Ltd., of Liver-
pool on board Majestic of "Atlas'' Steamship Co., Lim-
ited, Mail Steamers to San Jose, Costa Rica. Six HuU'
dred and fifty packages. Messrs. Schwartz, Lowe & Co.,
San Jose. i 1
90 [Ansel M. Easton vs.
(Deposition of J. C. Wing.)
Gross weight 44269 kilos Value £2il2.1.2.
150' bags salt.
150 baigs rice.
43.11.1. 16 at 25/- 54. 9. 3
10% 5. 8.11
15496 kilos at 86/- 66.13. 0
28773 kilos at 55/6 79.18. 4 XDr. 1/5
£206. 9. 6
Dr. 1. 5
£206. 8. 1
Three Bills of Lading etc. '
Dated at Liverpool this 2nd day of Novemlber, 1898.
By Ounningham, Shaw & Co. Ltd. of Llveppool "]Majes-
tic," Thirty-four Packages. Messrs. Schwartz, Lowe & Co.
Three Bills of Lading, etc.
Dated at Liverpool this 2nd day of November, 1898.
Cunningham, Shaw & Co., Liverpool. "Bovic." Forty-
six packages Messrs. Schwartz, Lowe & Co.
Gross weight 9522 kilos Value £230-9-0
1/46 46 bales empty sacks.
LIMON
F. L
517.6 at 25/- 16. 3.5
10% L12.4
9522 kilos at 86/- 40.19.0
£58.14.9
Dated at Liverpool this 18th day of November, 1898.
George Wostenholm & Son, Limited. 91
(Deposition of J. C. Wing.)
Cunningham, Shaw & Co., "Tauric." Fifty-four pack-
ages. ^Messrs. Schwartz, Lowe & Co., gross weight HOT
kilos. Value £269.13.9.
47/100 54 bales empty sacks.
F. I.
607.6 at 25/- 18-19-8
10% 1-18-0
1197 kilos at 86/- 48-3-0
i 69-0-8
Datetl at Liverpool, 2d day of December, 1898.
Cunningham, Shaw & Co., Liverpool. "Georgic." One
hundred and fifty-one packages. Messrs. Schwartz,
Lowe & Co.
Gross weight 15545 kilos. Value £178-16-0.
150 bags rice.
1 case mineral waters
LBfON
Freight 15.5.0.0 at 25/- 19.1.3
F. I, t
3.0 at 25 1.10
19i3.1
92 \Ansel M. Easton vs.
(Depiosition of J. C. Winig.)
Contd. from previous page 19. 3. 1
10% 1.18. 4
15,496 kilos at 74/- 57. 6. 8
49 « at 80/- 4.3
' •• £78.12. 4
T. W.
Dated at Liverpool 15th day of Diecember, 1898.
"Cunningham, Shaw & Co., Ltd., Liverpool. 'Majestic'
"Six hundred and fifty packages. Messrs. Schwartz
Lowe & Oo.
"Gross weight, 44,269 kilos. Value, £212-1-2.
"Sao bags salt.
"150 bags rice.
"T 43-11-1" 16 at 25/% 54-9-3
5- 8-11
"15,496 kilos at 86/- 66-13- 0
"28,773 " at 55/6 79-18- 4
£206- 9- 6
Dr. 1- 5
£206- 8- 1
"Dated at Liverpool 2d day of November, 1898.
"Cunningham, Shaw & Co., Ltd.
"Liverpool, 'M^ajestic'
"Thirty-four packages.
"Messrs. Schwartz, LOwe & Co.
"Dated at Liverpool, 2d day of November, 1898."
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(Deposition of J. C. Winig.)
There were also invoices and accompanying state-
ments attached to the depositions of plaintiff of sub-
stantially the same fonn as the foregoing, which are
summarized as follows:
Invoice of November 9, 1898, showing goods bought
by Schwartz, Lowe & Co., San Jose de Costa Rica of
plaintiff and forwarded to "Victoria Dock, Ix)ndon, for
shipment per "A^von" to the order of Messrs. J. D.
Hewett & Company, being "part of order dated Octo-
ber 1, 1898," consisting of condensed milk, meats, Gil-
beys' sherry, gin, whisky, Shaw Tablets and provisions
from Morton of London, being 145 packages, stated to
be of the value of 218 pounds, 12 shillings, 2 pence.
Accompanying the invoice last referred to is a state-
ment of account charging the amount of the foregoing
invoice and additional charges, making a total of 24B
pounds, 19 shillings, 6 pence.
Invoice of November 18th, showing goods bought by,
Schwartz, Lowe & Co., iSan Jose de Costa Rica, of plain-
tiff, shipped to Liverpool for shipment per SS. "Bovic,"
to the order of Messrs. 'Cunningham, Shaw & Com-
pany, Ltd., being "part remains of order," being for
bags, as per sample coffee bag, supplied and stamped
"Costa Rica Coffee," being 46 packages in all, of a
stated value of 230 pounds, 9 shillings.
Following the invoice last referred to is a statement
of account, charging the amount stated in said invoice,
and additional expenses, making a total of 310 pounds,
5 shillings, 10 pence.
Invoice of December 2d, showing goods bought by
Schwartz, Lowe & Co., San Jose de Costa Rica, of plain-
tiff and shipped to Liverpool for shipment per S'S.
98 >Ansel M. East on vs.
(Deposition of J. 0. Winig.)
"Tauric," to the order of Messrs. Ounninghara, Sliaw &
Co., being "part remains of order," being for bags as
per sample, each stamped "Oosta Rica Ooffee," being
100 packages, and of a stated value of 269 pounds, 13
shillings and 9 pence.
Following' the invoice last referred to is a statement
of account wherein the foregoing amount is charged,
and additional expenses charged, making a total of 363
pounds, 5 shillings, 8 ipence.
Invoice of December Tth, showing goods bought by
Schwartz, Lowe & Co., San Jose de Costa Uica, of plain-
tiff, and shipped to Victoria Dock, London, for ship-
ment per SIS'. "E'ssequibo," being "part remains of or-
ders," and being for condensed milk, oatmeal, barley
and other provisions, candies, sherry, gin and whisky;
being a total of 125 packages of a stated value of 132
pounds, 2 shillings.
Following the invoice last referred to, is an account
charging the amount stated in the foregoing invoice
and additional charges, making a total of 147 pounds,
15 shillings, 2 pence.
Invoice of December 16, 1'89»8, showing goods bought
by Schwartz, Lowe & Co., of San Jose de Costa Rica,
from plaintiff, for shipment by SS. "Georgic," being
"monthly shipment," and being composed of Patna
rice, chain cider, lemonade, soda water, ginger ale; be-
ing a total of 151 packages, of a stated value of 178
pounds, 5 shillings, 3 pence.
Following the invoice last referred to, is a statement
of account, wherein is charged the amount of the fore-
going invoice, and additional charges, making a total
of 270 pounds, 16 shillings.
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George Wostenholm cG Son, Limited. 103
(Deposition of J. O. Wimg.)
The witness further testified that all orders, direc-
tions and instructions hereinbefore referred to were in
every case exactly complied with by plaintiff. That
statements of account were repeatedly furnished by
plaintiff to the firm of Schwartz, Lowe & Co., both to
Costa Eica and San Francisco. That in Exhibit No. 3,
is a list giving information as to invoices, statements
of account, letters, telegrams, cablegTams, and other
papers and communication, when and to Avhom they
were sent and so on. That Schwartz, Lowe & Co. were
regularly furnished with statements of account, both
half-yearly and at other times when specially re-
quired, as per list attached marked Exhibit No. 4.
No. 42. Q. State whether or not duplicate invoices
of goods shipped to said fii'm of Schwartz, Lowe & Com-
pany, at San Jose de Costa Rica, and duplicate state-
ments of account between the plaintiff and said firm,
for said goods were also sent to said firm of Schwartz,
Lowe & Company, or anyone on its behalf, or to the
firm of Easton & Schwartz, or to anyone on its behalf,
at San Francisco, California.
To the answer thereto defendants objected upon the
same grounds as last stated; that the same called for
hearsay evidence, that no proof of mailing of said in-
voices or statements had been made as aforesaid, that
no act of any of the partners after dissolution (June
20, 1808), could bind any of the other partners; that
104 lAnsel M. Easton vs.
(Dieposition of J. 0. Wing.)
therefore, the evidence is incompetent, irrelevant and
immaterial.
The objection was overruled, and the answer read, to
which defendant duly excepted. Said answer is:
A. Yes, to Schwartz, LoAve & Oo., San Francisco,
as per list in Exhibit Nlo, 3.
The witness further testijied that he knew nothing
of the firm of Easton & Schwartz; that plaintiff had no
dealings wdth said firm; that all of plaintiff's corre-
spondence wasi with Schwartz, Lowe & Co. That Will-
iam Schwartz told him (the witness) and Thomas Wing
in January, 1897, that his firm had branches in COsta
Rica and San Francisco, and that afterwards the let-
ters from San Francisco were upon paper, bearing the
firm name and list of partners; that Lowe's letters
from Oosta Rica also bore the firm's name. That Low^e
and Samuel Schwartz nearlj' always signed the firm's
name.
47. Q. What did you or your house do in regard to
sending of invoices, statements of account, letters and
cablegrams on the filling of orders given by said firm
of Schwartz, Lowe & Company, if any?
To which the same objection as stated in question
No. 34 was repeated, overruled and exception duly
taken. The answer was then read, which was as fol-
lows.
A. We sent invoices, etc., to Costa Rica and dupli-
cates to San Francisco. See list in Exhibit No. 3.
George Wostenholm cC- Son, Limited. 105
(Deposition of J. O. Wing.)
That the respective values of the goods mentioned in
the invoices, were, at the time of the shipments of sucli
goods, the reasonable value thereof at said times, re-
spectively. That said merchandise was sent by plain-
tiff to said firm, and the expenditures therein set forth
were paid out by plaintiff for said firm as stated in said
invoices. That the invoices and statements of ac-
count sent to Schwartz, Lowe & Co., at San
Jose de Costa Rica and San Francisco were
true and correct in ev^ry respect. That all of
said charges were at the instance and request of the
said firm. That the amounts charged by plaintiff for
freight, etc., were exactly what plaintiff had paid, and
were, in every ease, reasonable, proper and necessary.
No. 53. Q. State whether or not the commissions
learned by the plaintiff and the charges and expenses
paid by the plaintiff, as mentioned in the preceding in-
terrogatories (if any commissions were so earned and
charges and expenses paid), were so respectively earned
and paid under an agreement between the plaintiff and
said firm of Schwartz, Lowe «& Oomi^any?
Defendants objected to the answer thereto, upon the
ground that it is hearsay.
The witness had already testified that he had met
Wm. Schwartz in January, 1897, and that all the details
were attended to by Thomas Wing, his subordinate;
that any modification of the original contract between
plaintiff and defendants in October, 1897, was by an
106 [Ansel M. Easton vs.
(Depiosition of J. O. Wing.)
arrangement between William Schwartz and Thomas
Wing, at which he was not present.
The objection was overruled and defendants duly ex-
cepted. The answer was then read, which was as fol-
lows:
A. They were earned by plaintiff and expenses paid
according to the arrangement, made with William
Schwartz, in October, 1897. That all letters received
by plaintiff came by mail. See Exhibit 5 attached.
That statements of account were sent to Schwartz,
Lowe & Co., Oosta Rica, regularly, money Avas remitted
or excuses made for nonremittance. In no case was
the accuracy of account disputed, but on the other hand
Lowe writes, October 219, 1897, ''with which we are in
accord." Alpril 6, 1898, "Its contents have our best at-
tention." February 7, 1899, "We are quite in accord
with the same." That duplicates were always sent to
Schwartz, Lowe & Co., San Francisco. For particulars
see Exhibit No. 3. That no protests or objections were
ever made by eii^er the Costa Bican or San Francisco
branch. That on the 2i9th day of Aipril, 1899, a state-
ment of account was rendered to defendants through
Mr. Sargent, San Francisco, showing the amount due to
plaintiff, December 21, 1898, to be £3747-3-7. That re-;
ceipt thereof was acknowledged the 15th of May, 1899,
by MSr. Sargent who stated that he Was acting as agent
for Mr. Easton. That on June 1st, 1899, Mr. Sargent
asked for an itemized statement. That in compliance
George Wosfenholm <& Son., Limited. 107
(Deposition of J. O. Wing.)
with such request an itemized statement, the amount,
being £3747-3-7, was on June 17th sent to Mr. Sargent-
as representing Mr. Easton. The receipt thereof was
acknowledged by Mr. Sargent, July 3d, 1899. That all
statements of account furnished as hereinbefore stated
were full, true and correct as of the times respectively
therein indicated. That statements of account were
sent as per Exhibit Nos. 3 and 4.
10«l
\Afisel M. Easton vs.
60
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George Wostenholm <& Son, Limited. IQO
(Deposition of J. C. Wing.) '
Three statements as above sent to Mr. Sargent on
above date for presentation to William Schwartz.
Samuel Schwartz.
Ansel M. Easton.
Itemized statement (copy attached) £347-3-7, sent
June 18, '99, to Mr. Sargent.
The witness also stated that three statements for
£3747-3-7 were sent to Mr. Sargent on April 26, 1899,
one for each of the San Francisco partners.
These statements were accompanied by letters which
they were informed by Mr. Sargent he duly delivered to
the respective partners. That copies of these state-
ments and letters are attached as Exhibit No. 6.
The witness then appended a list amounting to
£2396-18-9, for commissions earned, goods purchased,
and expenses incurred from June 30, 1898, to December
21, 1898, which was as follows:
110 \Ansel M. Easton vs.
(Deposition of J. C. Wing.)
PLAINTIFF'S CLAIM TABULATED.
From June 30/98 to December 21, 1898.
1898.
Goods Purchased Expenses Paid. Commia. Earned Total
July 19 86. 5. 0 4. 6. 3 90.11.3
26 5. 3. 4 5. 3.4
Aug. 20 86. 5. 0 5. 3. 4 4. 6. 3 95.14.7
Sep. 13 86. 5. 0 5. 3. 4 4. 6. 3 95.14.7
Sep. 16 165. 2. 7 165. 2.7
Sep. 17 13. 5. 4 13. 3 13.18.7
Oct. 15 86. 5. 0 5. 3. 4 4. 6. 3 95.14.7
Nov. 1 281.11. 5 216.10. 5 21. 8. 7 519.10.5
Nov. 9 218.12. 2 13.14.11 11.12. 5 243.19.6
Nov. 18 230. 9. 0 66. 1. 4 14.15. 6 310.5.10
Dec. 2 269.13. 9 76. 5.11 17. 6. 0 363. 5.8
Dec. 7 130.17. 0 9.17. 5 7. 0. 9 147.15.2
Dec. 16 178. 5. 3 79.12.10 12.17.11 270.16.0
£1819.11. 2 495. 1. 6 102.19. 5 2417.12.1
LESS.
1898.
Nov. 9 Overcharge on insurance.... 12- 1
Nov. 9 Overcharge on freight 9- 6-3
Dec. 7 Deferred returns (freight)... 6-15- 9
Dec. 10 do 8-11
Dec. 21 do 3-10- 4
20-13-4
£2396-18- 9
George Wostenholm d Son, Limited. Ill
(Deposition of J. O. Wing.)
68. Q. "When did you first learn, if at all, that the
said firm of S<?hwartz, Lowe & Company had dissolved,
if at all, and through what channels of information, or
in what particular manner did you obtain such knowl-
edge? A. The Orocker-Woolworth National Bank,
Ltd., cabled to plaintiffs, December 2i, 1898, 'Ansel
Easton no longer partner, Schwartz, Lowe & Oo.' "
In reply to a question: "What informatiou plaintiff
received which it considered trustworthy in regard to
such dissolution, witness said plaintiff considered Mir.
Sargent's letter trustworthy. That plaintiff's first in-
formation of dissolution of said firm was in Mr. Sar-
gent's letter (of Dec. 1, 1898).
The witness also stated that plaintiff received a let-
ter from air. Sargent, dated Dec. 17, 1898.
The witness stated that plaintiff received no notice,
such as it was stated in Mr. Sargent's letter, Mr. Lowe
had agreed to give, and that he had been informed by
another English creditor that he likewise had had no
notice.
Witness also stated that plaintiff relied upon the
presence and interest of Mr. Ansel M. Easton, Mr. Will-
iam Schwartz and Samuel Schwartz in the firm, and
considered that their connection with the firm added
to it great strength. That when plaintiff's representa-
tive was in San Jose de Costa Rica in 1898, he reported
that the firm appeared to bo in very good standing.
That Mr. Lowe often referred to Mr. Easton's wealth,
112 \Ansel M. Easton m.
(Deposition of J. C. Wing.)
and consequently plaintiff had no hesita.tion in supply-
ing them with what they required, and did so, on the
distinct understanding that Mr. Easton, a wealthy man
was a member of the firm, and liable for its engage-
ments. That plaintiff would neither have given the
credit nor have entered into business transactions with
the firm, if the foregoing had not been the casie.
Witness also stated that the following payments had
been made upon plaintiff's demand, and no other:
1897.
Sept. 29. Proeeeds on draft for £G50 £645-10-2
1898.
Mar. 26. Draft at 90 days 400- 0-0
May 28. Expenses in San Jose re samples 2- 7-10
Apr. 19. Cash to Mr. Thos. Wing 57- 6-10
Sept. 17. Draft at 90 days ,. 350- 0- 0
Sept. 19. do. , 150- 0- 0
Nov. 9. Overcharge on insurance... 12- 1
Nov. 9. Overcharge on freight 9-6-3
Dec. 7. Deferred returns (freight) 6-15-9
Dec. 10. do. 8-11
Dec. 21. do. 3-10-4
1625-18- 2
The above draft for £350 was returned dishon-
ored December 20/98 350- 0- 0
Parsed to the credit of their ledger acct 1275-18- 2
I
George Wostenholm & Sony Limited. 113
(Deposition of J. O. Wing.)
Witness also stated that on the 29th Sept. 1899, plain-
tiff authorized Lyon & Cox, San Jose de Costa Rica, to
sign the agreement signed by the other creditors of Luis
Leon Lowe with the provision in writing as follows:
"Without waiving or in any way affecting our claims
against the other members of the recent firm of
Schwartz, Lowe & Co., which it is not intendetl this
agreement shall operate to discharge.''
Witness also stated that on December 21, 1898, t4io
reasonable value of the goods theretofore sold, shippetl
and delivered to and received by defendants, at their
special instance and request, and the reasonable com-
missions earned by plaintiff, and to which it l>ecame en-
titled as buying agent in the purchase of goods for said
defendants under the promise of said defendants to pay
therefor; and the amount of money expended by plain-
tiff, at the special instance and request, and for the use
of defendants in payment for said goods, and in the pay-
ment of freight, insurance and other charges and ex-
penses, or in connection with the transportation of said
goods, less payments made thereon amounted to £3747,
3 shillings, 7 pence, of fl8,235.r.4. That nothing had
been paid on said amounts since said date That many
applications had been made; in some cases money had
been paid, and in other excuses given.
Cross-examination of J. C. WING.
Upon cross-examination, the witness was asked :
No. 7. Q. You have been interrogated in your direct
114' \Ansel M. Easton vs.
(Depiosition of J. C. Wing.)
interrogatories as to the sending of numerous state-
ments, invoices, letters, etc. Go over your answers to
the direct interrogatories and give all information of
matters within your own personal knowledge showing
the actual sending of each statement, invoices or letter.
Take them up individually, one by one, and state how
you know each was sent, and what the address was upon
it. In these cross-interrogatories I will use the name
Lowe, in place of the German name Lowe.
A. I know that the answers given are correct be^
cause I have personally seen the records and lists of
postage of letters, etc., specified in Exhibit No. 3, all of
which have been done by my instructions, and believe
all such to be accurate.
Witness also stated that the modification of the origi-
nal contract between Schwartz, Lowe & Co. and plain-
tiff, did not take place in his presence, but in an inter-
view between William Schwartz and Mr. Thomas Wing.
That all orders for goods given by Schwartz, Lowe &
Co., from the time they first commenced doing business
to and including the very last order, are attached to
his direct interrogatories and embodied in Exhibit No.
2. ' . ■ . i
No. 18. Q, Give all information in your possession
or that of plaintiff as to when each individual shipment
of goods was delivered out of the custom-house in Costa
Rica to Schwartz, Lowe & Ct>. or to L. Leon Lowe.
A. I know of no information at our disposal beyond
the acknowledgment by Schwartz, Lowe & Co., of the
George Wostcnholni & Son, Limited. 115
(Deposition of J. C. Wing.)
correctness of our accounts, and it is clear the steam-
ship companies would not deliver except upon produc-
tion of the bills of lading sent to the firm, a copy of
which is attached to each copy of invoice in Exhibit No.
3. -• I
iVo. 19. Q. If there are any records in the books of
the plaintiff corporation giving information as to the
matters interrogated upon in the above questions 17th
and 18th, produce the same before the commissioner
talcing this deposition, and cause to be made a literal
transcript of such records. If plaintiff has any letters
or other communications from any one upon the sub-
ject, cause the same to be attached to this deposition.
A. I produce before the commissioner' the books of
the plaintiff containing the copies of letters, invoices,
statements of account, etc., of which a literal transoript
is found in the various exhibits in the case. I produce
also, the register of letters mailed to prove that these
documents were dul^' forwarded by po.^^t.
No. 22. Q. Has plaintiff any orders for goods signe<l
Schwartz, Lowe & Co., which were on file on December
21st, 1898, and which plaintiff did not fill?
A. Yes, immediately I learned that the partnership
was dissolved all orders in hand were suspended, ex-
cept such as were in saicli a position that dispatch could
not well be avoided, and plaintiff paid a considerable
sum to eancel contracts entered into on defendant's ac-
count. I understood that all goods dispatched after
that date could not be charged 1o the firm as originaUj/ con-
IIG \Ansel M. Easton vs,
(Depiosition! of J. C. Wing.)
stituted, and no claim for them is made in the present aciion.
The defendants moved to strike out the last sentence
of said answer (the part in italics), upon the ground
that it was the opinion of said witness. Said motion
was denied, to which defendants duly excepted.
Witness also stated that an order is contained in the
letter from Schwartz, Lowe & Co., dated October 1, 1898,
asking for monthly shipments, included in Exhibit No.
2. That the reason why the plaintiff did not fill such
orders, is given in the preceding answer.
Answering a question as to what authority plaintiff
had to incur and charge defendants with freight, insur-
ance, and other matters, alleged in the complaint, wit-
ness replied:
"It is almost universally the case that shippers pay
freight, insurance, and other expenses. October 1,
1898, Schwartz, Lowe & Co., Costa, Rica., say: "Freight
paid through to San Jose." These terms, I understand,
were made between William Schwartz and Thomas
Wing, when the account was opened.
It was stated to the witness, that he had been inter-
rogated as to information of the dissolution of the firm
of Schwartz, Ijowe & Co., and asked to give such infor-
mation as he considered trustworthy. He was then
asked to give all information, without regard to his
opinion as to its trustworthiness received by him, or by
any other member of said firm, to his knowledge. Also
all information that would suggest the possibility of
a dissolution or change. The witness then replied:
George Wostenholm <ۥ Soriy Limited. 117
(Depiosition of J. C. Wing.)
No. 28. A. As the defendants' Costa Rica branch
proposed to make shipments of coffee and other pro-
duce, which wouhl involve considerable sums, plaintiff
considered it prudent to obtain further information, as
to the' standing of the San Francisco branch.
When William Schwartz was in Sheffield, I under-
stand he informed Thos. Wing that if plaintiff wished
at any time to aipply for reference he should do so to
the Crocker- Woolworth National Bank, San Francisco.
At the end of November, 1898, plaintiff wired to that
bank, asking if Schwartz, Lowe & Co., were good for
£15,000. Reply was that bank had no particulars, but
on December 2d, plaintiff received a cablegram from the
Crocker Woolwoi'th National Bank, San Francisco, as
follows: "An»el Easton no longer partner Schwartz,
Lowe & Co." This was the first intimation of any
change in the firm. Mr. Sargent's letter of December
1st, was the official information. I know of no oral or
wi'itten intimation from any person whatsoever previous
to these dates. I attach the above-mentioned cable-
grams and letters to Crocker Woolworth National Bank,
as Exhibit No. 8.
30. Q. Did the plaintiff or any of its officers ever
make any inquiries or pursue any investigations to as-
certain whether there had been a dissolution of the firm
of Schwartz, Lowe & Co., after July 5, 1898; if so, state
what inquiries or investigations were made, and when
they were begun. State what was done in that way by
reason of each particular piece of information, who
118 r \Ansel M. Easton vs.
(Depiosition of J. C. Wing.)
made the investigations, or inquiries ; how far the inves-
tigations or inquiries were cai'ried and what was the re-
sult in each case?
A. Inquiries were made as detailed in my answer to
interrogatory 28, and later of the usual commercial
agencies. No information as to dissolution of the part-
nership was disclosed to the plaintiffs through any chan-
nel before December, 1898,
In regard to the person upon whom plaintiff relied,
witness stated that it relied upon the San Francisco
partners, believing each to be a wealthy man. He be-
lievesi that Mr. Lowe himself had no capital.
Witness then stated, that, as part payment of its ac-
count, a draft No. 3591, drawn August 27, 1898, at
ninety days' sight, by Minor C, Keith, in favor of
Schwartz, Lowe & Co., of San Jose, upon Hoadley & Co.,
London, for £350, was received by plaintiff on Septem-
ber 16, 1898, and was accepted September 17, 1898.
That nothing was ever received upon said draft by
plaintiff. ] 'f
Witness also stated that the charge on the plaintiff's
books of the shipment for 180 pounds, (\ shillings, 9
pence, of June 21, 1898, was upon the order taken by
plaintiff's representative Thomas Wing in San Jose de
Costa Rica, on March 30, 1898. That said Thomas
Wing was plaintiff's accredited traveler, authorized to
take orders, receive payments, and make any needful
business arrangements. The order is contained in Ex-
George Wostenholm dc Son, Limited. 110
(Deposition of J. C. Wing.)
hibit No. 2, signed by i?chwai'lz, Lowe & Co., is in tbe
handwriting of Mr. Lowe, and is as follows:
ORDER MARCH 30, 1898.
Order from Messrs. Schwartz, Lowe & Co., San Jose
de Costa Rica, C. A., to Geo. Wostenholm & Son, Ltd.,
Sheffield.
Shipment via New York mark.
LIMON.
Terms as before.
t»8 doz. IXL pocket knives assorted
doz.
20 doz. Butcher's knives ea. 33072 (>" 8"
20 doz. Butcher's knives ea. 330()9 6" 8"
20 doz. Butcher's knives ea. 33070 6" 8"
5 doz. Razors ea. 0722, 01107, 0967, 03G04.
10 doz. Razors Electric Hollowed N. P. J" blade.
Basins. Doifble amount of last invoice 12" 13" 14."
Padlocks, Double amount of last invoice.
2 Tons Danish Pots asstd. sizes as before.
5 gross knives and forks asistd. 3 patterns Tiial.
100 cases Nestle's Swiss Milk a mouth for six months if
at 17/6 case.
3 doz. shovels to each sample sent to arrive July.
50 cases Apol. Water ea. lOOJ hot. if at less than 38/.
5%.
San Jose 30th Mar. 1898.
(Lowe) SCHWARTZ, LOWE & CO.
120 \Ansel M. Easton vs.
(Deposition of J. C. Wing.)
Testimony of Thomas Wing.
The witness, Thomas Wing, testified, so far as is ma-
terial, to substantially the same facts as testified to by
the witness J. C. Wing and in addition thereto fnrthei-
testified as follows:
Witness stated that he was of the age of thirty- four
years at the time of taking of his deposition (in 1902)
and resided at Summerfield, Sheffield. That his pres-
ent occupation is a wood-turner. That he had been for
sixteen years, clerk and buyer for plaintiff. He had
known plaintiff since 1875, and during that time its
business had been that of manufacturer and merchants.
That he had acted as clerk, buyer, and as a representa-
tive on one journey to South and Central Americai, dur-
ing the times mentioned in the amended complaint
herein. That he met William Schwartz, as the repre-
sentative of Schwartz, Lowe & Co., in Sheffield in Janu-
ary, 1897, and that witness arranged, on behalf of plain-
tiff to purchase goods for the firm of Schwartz, Lowe &
Co. at a profit; that the plaintiff was to pay all charges
for freight and insurance on goods to Port Limon and
Punta Arenas, Coeta Rica, and through freight to San
Jose de Costa Rica, as requested by the defendants. A
commission was to be charged on payments made for
freight and insurance. That he met William Schwartz
in Manchester, in January, 1897. and took an order for
goods for the firm of Schwartz, Lowe & Co. That he
met William Schwartz agaip, in London, in October,
1897, Avhen it was arranged that on certain goods, in-
Georgp Wosteiiholm t£- Son, Limited. 121
(Deposition of J. C. Wing.)
stead of charging a profit, the itlaiutilt should charge a
5/0 commission on all propri('tary articles that they
bought for defendants. That he met Luis Leon Lowe
in San Jose de Costa Rica., in March, 1898, when he took
orders and made arrangements to sliip further goods to
the firm of Schwai'tz, Lowe & Co., at a profit and on com-
mission, all freight and insurance to be paid in Eng-
land, and charged to Schwai'tz, Lowe & Co., plus a
commission. That in all these matters he acted as
plaiutitt's agent. That William Schv.artz was intro-
duced by Morris Goldtree of Hamburg. That business
stai'ted by corresjmudeuce and personal iuteniew be-
tween William Schwartz, representing the firm of
Schwai'tz, Lowe & Co., and J. C. Wing and Thomas ^^'ing
representing the plaintiffs, on Januar^^ 28, 1897. That
he sent the letter Exhibit No, 1, of Januar}^ 28, 1897, to
William Schwartz at Manchester. That business deal-
ings with the firm extended from January, 1897, to De-
cember 16, 1098, and with Luits Leon Lowe to February,
1899.
Upon being questioned as to the person upon whom
plaintiff relied in his dealings wath the firm of Schwartz,
Lowe & Co., the witness replied:
A. Ansel M. Easton. I always understood, from
both William Schwartz and Luis Leon Lowe that Easton
\\ as a very wealtliy man, and good enough for any debts
he might contract. When the firm w^as introduced to
tlie plaintiff by Morris Goldtree, he (Morris Goldtree)
told me that Eiaston was worth a quarter of a million
122 Ansel M. Easton vs.
(Deposition of J. C. Wing.)
sterling, and a ver^' straight and upright man, and on
these recommendations the plaintiff gave the credit
asked for."
That plaintiff would not have given such credit, if
Mr. Easton had not been a member of the firm.
Tlie plaintiffs have made many applications for pay-
ment as follows:
On Xoveraber 25, 181>7, plaintiffs wrote "We shall be
glad if you will send a draft at once for £500 in payment
due last February and March, according to arrange-
ments," and a reply was received, dated December 24,
1897, "Exchanges can only be bought here at excessive
rates, tinijes not prosperous, ask your indulgence." On
January 14, 1898, the plaintiffs wrote, "Received yours
of December 24th, but the time allowed having expired,
you should have sent us the money." On February 8,
1898, defendants wrote, "We have yours of Jan. 14th,
and regret are still unable to remit, again ask your in-
dulgence." On March 1, 1898, the plaintiffs wrote,
"Glad to hear there is some prospect of receiving a re-
mittance, please make it £1500 instead of £500 or better
still, clear it all off." I received their reply, dated
April 5, 1898, "We send you £400 draft, 90 days' sight,
March 5th, and soon hope to make you further remit-
tances." We applied many more times, but received no
money.
Gcorf/c WostenJiolm tf- Son, Limited. 123
Cross-examination of TIJOMA8 WING.
In answer to cross-interrogatorj' #1, as to mailing in-
voices and statements, which was identical with that
asked witness J. C. Wing, the witness said:
"I gave instructions to ray assistant to copy and direct
the letters, invoices, etc., and our letter-books here con-
lain a copy of the same. Our mail dispatch book shows
who posted the letters, the date of said posting, and the
hour thereof, as detailed in Exhibit #3."
Witness also stated that the original arrangements
by which business was initiated between plaintiff and
said firm Schwartz, Lowe & Co., were oral, and took place
in his presence, and were confirmed by his letter on be-
lialf of plaintiff to William Schwartz, dated January 28,
1897.
Witness also stated that he had no knowledge as to
when the individual shipments of goods were delivered
out of the custom house at Costa Rica to Schwartz,
Lowe & Co., or Luis Leon Lowe, further than plaintiff
insured the goods for said defendants at their request,
from the time of leaving the manufacturer's house in
England,
The witness also stated that the only order received
by plaintiff which he did not fill, is dated October 1,
1898, as shown in Exhibit No. 3. That the reason they
did not fill it was because they heard Ansel M. Easton
was no longer a member of the firm of Schwartz, Lowe
&Co.
124? ]Ansel M. Easton vs.
(Testimony of Thomas Wing.) '
As to the aiithorit}' of plaintiff to incur charges for
freight, insurance and other matters, witness stated:
A. "When I opened the account as representative of
plaintiff with William Schwartz, representing Schwartz,
Lowe & Co., it was arranged that all charges for freight
and insurance on the goods should be paid by the plain-
tiff and charged to the defendants, plus a commission.
In a letter dated October 1, 1898, from Schwartz, Low(!
& Co., San Jose, de Costa Rica, it distinctly says:
"Freight must be paid through to San Jose."
In answer to a question, what inquiries or investiga-
tions were made by plaintiff, or any of its officers, as to
a dissolution of the firm of Schwartz, Lowe &0o., after
July 5, 1898, the witness replied in substance: that the
plaintiff made inquiries of the Orocker-Woolworth
National Bank, as already stated by witness J. C. Wing,
and later inquired through the several commercial agen-
cies, but never received any information as to the dis-
solution of the partnership, and none was disclosed to
the plaintiff through any channel previous to December,
1898.
The witness also stated that he was the person who
took the order of March 30, 1898, and that it was given
by Luis Leon Lowe, on behalf of the firm of Schwartz,
Lowe & Co., with instructions to ship as soon as possible,
paying freight and insurance to Port Limon. That tfiere
Avere only two orders given by Schwartz, Lowe & Co., in
1898, one of which was the order of March 30, above
George Wostenholm <£• Son, Limited. 125
(Testimony of Thomas Wing.)
referred to, and an order contained in the letter dated
October 1, 1898, signed Schwartz, Lowe & Co., in the
handwriting of L. Leon Lowe. (The letter is given
hereafter.) '
The followng is a copy of said order of October 1, 1898
ORDER OF OCTOBER 1, 1898.
Direccion OablegTafica.
''SOn'LOWE" San Jose de Oosta Rica de de
189
A. B. O. Code.
Pedido que hacen.
Schwartz, Low^e y CIA.
a Sr de .para embarcar por
en con destino a. por su cuenta.
y a consignacion
Marca: S. L. &C.
Xnniero Clase, Articulo. Observaciones.
de bultos.
10 tin 7 lbs. each Ripe apples.. Candy.
20 tin 7 lbs. each Turkey eggs Candy.
20 tin 7 lbs. each Birds eggs Candy ass. colors.
20 tin 7 lbs. each Rifle balls Candy ass. colors.
20 tin 7 lbs. each All Englands , Candy.
10 tin 7 lbs. each Annis balls Candy.
20 tin 7 lbs. each China marbles. Candy.
12© 'Ansel M. Easton vs.
(Testimony of Thomas Wing.)
10 tin 7 lbs. each Ohing Ohang marbles Oandy.
10 tin 7 lbs. each Pineapples confits..;. . . . . .Ciandy.
10 tin 7 lbs. each Ripe pears, 6 to oz Candy.
10 tin 7 lbs. each Tangerine ,. ., Candy.
20 tin 7 lbs. each Toffee confits Candy.
20 tin 7 lbs. each Swiss " ,. .Candy.
20 tin 7 lbs. each Sugared Almonds Candy Barcelono.
•20 tin 71bs. each Scotch mix Candy.
20 tin 7 lbs. each Ctist. gum drops Candy, cheap.
20 tin 7 lbs. eachltalian gum drops. .. .Candy, cheap.
i20 tins in each case well packed conversacion lozanges
in cartoons.
00 bxes of 120 cartoons each, Spanish.
ORDER OF OCTOBER 1, 1898 (page 2).
Numero. Clase. Articulo. Observaeiones.
de bultos.
5 cases Liebig's Meat Etxtract 1 oz pots. 1 doz. ea, case
carnes conservadas
5 cases Liebig's Meat Extract 2 oz. pots 1 doz. ea. case
T) sacks Black pepper in grain
Pinienta en gTano.
Singapore original package.
5 Pinienta Carraway (Comino) seeds Malta.
Seuulla de carraway
in original packages.
5 Senulla sago pearl in original packages.
Sagu engrano
double sacks fine grain
All these goods from Morton.
George Wostenholm d Son, Limited. 127
(Testimony of Thomas Wing.)
ORDER OF OCTOBER 1, 1898 (page 3).
(Same heading as page 1 of order.)
Nnmero. Clase. Articulo. Observaciones.
30 doz. Huntley & Palmer's Crackers,
in 1 lb. tins as follows:
1. doz. dessert.
1 doz. afternoon tea.
1 doz. combination.
4 doz. Albert.
2 doz. Boudoir.
2 doz. Butter fingers.
2 doz. (raribaldi.
2 doz. Maccaroons. . '
4 doz. Mary.
2 doz. Milk.
2 doz. Sugar wafers. Lemon.
2 doz. Sugar wafers Vanilla.
2 doz. Sugar wafers. Strawberries.
2 doz. Tea.
2 cases 15 doz. in each crate.
Galletas .
12® \Amel M. Easton vs.
(Testimony of Thomas Wing.)
ORDER OF OCTOBEiR 1, 1898 (page 4).
(Same heading as page 1.)
Nnmero. Clase. Articulo. Observaeiones.
2 cases Morton's Jams 1 lb. tins.
' 6 doz. Strawberries
c-onservas 3 doz. Raspberries fi doz. in each
2 doz. Gooseberries case
' 1 doz. Greengage
12 doz. 2 cases.
6 cases J. Laming & Sons Edam cheese
Red, from Morton 2 doz. in case,
qnesoe.
4 cases Oat Meal 2 lb. tins fine ground
harina de ovena 4 doz. each case.
4 cases Pearl Barley 2 lb. tins.
cebada perlada 4 doz. each case.
2 cases Mortadella 125 gTammes i.
2 cases Mortadella 250 grammes ^.
Salchichones 100 tins each case.
The witness also stated that plaintiff's claim for in-
terest, freight, commissions and insurance are segre-
gated as follows:
Interest £124-0-9
Freight £775-3-10
Commission . ., 124-12-11
Insurance , 27- 7-11
That the details are set forth in Exhibit 11 following:
§/Xi
7\j,is
129
Com mi3si on-
C8ble«i-ams,
115
.;- ; I I!
as 1.2! 2.
i
;i
9
4
9
^
3
4
«
7
C I 15
-=t ! e 1 3
4 e
Xts
'7 1:6
7
A:2.S6S- IS 5 -yyj :3 '\o
i
Sundries. Inreres"- Total
I I
z
i 3" 1^4
t
:80
3o l[ 3
3-3 '=-
9o-
i4
-
3-r
:-=■
-
6^
■2.
-
;3
:s
r \
0^ ;
14
7 ■
i
^
^
;47 I IS
4-7 1 10 i
37*^ 3 7
George Wosfenholm tC- /Sfo», Limited. 131
(Testimony of Thomas Wing.)
DESCEIPTION OP EXHIBITS.
The documents included in the various exhibits re-
spoctivelv are as follows:
Exhibit No. 1.
Letter of Thomas Winp,- to William Schwartz of date
Jan. 28, 1S07 .
Exhibit No. 2.
Statement of Freight Miscel. and other shipping
charges, to the amount of £995-14-3.
Order of ^Ich. 30, 1898, from S. L. & Oo. Oosta Rica
to Wostenholm & Son.
Order of Oct. 1, 1808, from S. L. & Co. Costa Rica to
Wostenholm & Son.
All of the above are upon loose sheets of paper at-
tached together in the form of an exhibit.
Exhibit No. 3.
.\11 bills of lading herein contained.
All invoices, statements of account, letters, telegrams
and cablegrams sent by plaintiff to Schwartz, Lowe &
Co. either to San Jose de Costa Rica or to San Francisco,
California, or to any one connected with said firm,
which are herein contained and not specifically included
in other exhibits.
All acknowledgments herein contained of orders re-
ceived by plaintiff from Schwartz, Lowe & Co.
List showing dates of shipment, amount of invoices,
amount of freight; ship by which goods were carried;
and dates upon which original letters, invoices, bills of
132. \Ansel M. Easton vs.
(Testimony of Thomas Wing.)
lading, and accounts, freight charges, etc. were niailed
to SIchwartz, Lowe & Co., San Jose; together with list
giving information as to the sending of duplicate in-
voices, bills of lading, freight charges, etc., to Schwartz,
Lowe & Co., San Francisco, California.
The invoices, statements of account, letters, tele-
grams, cablegrams, and acknowledgments above re-
ferred to are the originals or copies thereof.
The list purporting to show dates of shipment,
amount of invoices, amount of freight, ship by which
goods were carried, dates upon which original letters,
invoices, bills of lading, accounts, freight charges, etc.,
were mailed to Schwartz, Lowe & Co., San Jose; also
the list purporting to give information as to the send-
ing of duplicate invoices, bills of lading, freight charges,
etc., to Schwartz, Lowe & Co., of San Francisco, are on
separate sheets of paper assembled together in the form
of an exhibit. None are in the form of a bound volume,
the papers purporting to show dates and to give infor-
mation as aforesaid, in regard to the mailing of said
matters, are upon large sheets of paper ruled off into
columns, with appropriate headings, and relate exclus-
ively to letters and other matters aforesaid, stated to
have been sent to Schwartz, Lowe & Co., at San Jose,
and to Schwartz, Lowe & C!o. at San Francisco, and
members of said firm. No portion of saidexhibit con-
tains any record of any letters or matters stated to
have been sent to any other persons.
George Wostenhohn d Sov, Limited. 133
(Testimony of Thomas Wing.)
Exhibit No. 4.
List sliowinfj,' dates of sending statements of account,
to whom sent, where, up to what date, and the amounts
tliereof.
Said list is upon a large sheet of paper ruled off into
appropriate columns, purporting to show dates of send-
ing statements of account to Schwartz, Lowe & Co. of
San Jose, or Schwartz, Lowe & Oo. of San Francisco,
or members of said fini:, but not to any other persons.
Copy of itemized statement sent Mr. Sargent on .Tune
17, 1809, to the amount of £3747-3-7.
(Copy of statement showing plaintiff's own gomls,
goods bought, cablegrams, interest, etc. to amount of
£5023-1-9.
Exhibit No. 5.
All letters received by plaintiff from Schwarty., Lowe
& Co.
Exhibit No. 6.
Three identical statements, each to amount of £3747-
3-7, sent to Mr. Sargent on April 2f)th, 1899, one for
each of the San Francisco partners, together with thP
accoinipanying letters.
Exhibit No. 7.
Copy of Mr. Sargent's letter as to dissolution of firm,
received by plaintiff on December 17th, 1898.
Exhibit No. 8.
Odblegram of i)laintiff to Crocker-Woolworth Na-
tional Bank of date Nov., 1898. '
134 lAnsel M. Easton vs.
(Testimany of Thomas Wing.)
Reply to bank thereto.
Oablegram of bank of date December 2d, 1898.
Letter of plaintiff to bank of date Noyember 20th,
1898.
Letter of plaintiff to bank of date December 3d, 1898.
Exhibit No. 9.
Mr. Sargent's letter of July 3d, 1899, to plainrtiff.
Exhibit No. 10.
Draft for £1000 by Schwartz, Lowe & Cio. on Lowe &
Co., New York. •
j Exhibit No. 11.
List segregating amounts claimed by plaintiff for in-
terest, fi-eight, commission, insurance, and so forth.
Exhibit No: 12;
Certificate of incorporation of plaintiff, together with
its articles of association.
Exhibit No. 14.
All letters received by plaintiff from Mr. Sargent,
and not specifically included in other exhibits.
Exhibit No. 15.
All letters from plaintiff to Mr. Sargent.
Exhibit No. 16.
Original letters received by plaintiff from Mr. Sar-
gent of date May 15th, June 1st, and June 8th, 1899.
George Wostenhohii cC- Kon, Limited. 135
Testimony of Harry Oxley.
Harry Oxley testified, so far as is material, to sub-
i<tantially the same facts as testified to by the wit-
uesses, J. O. Wing and Thomas Wing, and in addition
thereto further testified as follows:
The witness testified that he was at the time of the
taking of his deposition in 1902 of the age of twenty-
two years, and by occupation a clerk in the cutlery,
manufacturers and merchants' office of plaintiff. That
he had been a general clerk from March, 1895 to De-
cember, 1901. That from October 27, 1897, to May 14,
1898, he received orders and was also ordering, forward-
ing and invoice clerk; from May 14, 1898, he was as-
sistant clerk in the merchants' department. That he
never met Ansel M. Easton, William Schwartz, Samuel
Schwartz, or L. Leon Lowe. That the business between
plaintiff and said firm extended from January, 1897, to
February 3, 1899.
The witness first learned of the dissolution of the
firm of Schwartz, Lowe & Co., through the letter of
Mr. Sargent, dated December 1, 1898. That he consid-
ered this letter trustworthy. That the person upon
whom plaintiff relied in transacting business with said
firm was Ansel M, Easton.
Cross-examination.
In reply to cross-interrogatory No. 7, as to mailing
invoices and statements, which was identical with that
asked witness, J. C. Wing, the witness, said:
136' {Ansel M. Easfov vs.
(Testimony of Harry Oxley.)
A. "As general clerk, in charge of the department,
T know of my own personal knowledge that the state-
ments, invoices, and letters referred to were actually
sent. I addressed and posted most of them myself."
Witness also said that the modification of the origi-
nal contract with William Schwartz was oral and not
in his presence.
Witness was asked to give all information in pos-
session of plaintiff as to when each individual shipment
was delivered out of the custom house to Schwartz,
Lowe & Oo., or Luis Leon Lowe. He replied:
A. "I have no knowledge of when they were deliv-
ered out of the custom-house in CJosta Eica. We in-
sured the goods for defendants, at their request, from
the time of leaving port on this side."
In answer to cross-interrogatory No. 19, which was
identical with that asked witness, J. C. Wing, the wit-
ness replied:
"I produce before the commissioner the books of the
plaintiff, containing the copies of letters, invoices,
statements of account, etc., of which a literal transcript
is found in the various exhibits in the case. I also
produce the register of letters mailed, to prove that
these documents were duly forwarded by post."
The witness being interrogated as to any information
on the subject of the dissolution of Schwartz, Lowe &
Co., regardless of his opinion as to whether it wa^
trustworthy or not, testified as to the telegram of the
George Wostenholm <C- Son, Limited. 137
(Testimony of Hari*y Oxley.)
Crocl^er-Woolworth National Bank of December 2, 1898,
and the letter of December 1, ISOS, from Mr. Sargent.
Witness also testified in regard to the draft of Angust
27, 1898, for £350, that nothing had ever been received
by plaintiff upon said draft; that he did not know what
had become of it.
Witness also stated that Mr. Thomas Wing, at the
time he took the order of March 30, 1898, was manager
of the merchants' department for plaintiff.
LETTEIRS.
There were also introduced, as a part of plaintiff's
evidence, the folloAving letters, which are set forth as
far as material. Stars indicate where matter is left
out by consent.
SheflSeld, 27th Feb., 1897.
Via New York and New Orleans.
3Iessrs. Schwartz, Lowe & Oo., San Jose de Oosta Rica.
Dear Sirs: A short time since we had the pleasure of
a visit from your Mr. Wm Schwartz, who kindly gave
us some orders on your a/c.
Enclosed we now beg to hand you invoices, (\)nsnl;ir
Invoices, B/L and A/c for Freight and Insurance for
1245 packages shipped per Oosta Rican"s for Punta
Arenas and 102 Packaged, shippedf or "Aurania"s for
Limon, all of which we trust you will receive in good
condition, and find a ready sale for the same.
The remainder of the goods we hope to ship per
"Etruria," sailing 6th March.
I3i8 'Ansel M. Easton vs.
Trusting this first transaction will lead to a mutually,
profitable business between us.
We are, dear sirs,
Yours very truly,
GEORiGE WOSTENHOLM & SON, LIMITED.
Pr. THOMAS WING.
Sheffield, 2^1 Feb., 1897.
Messrs. Schwartz, Lowe & Co., 19 Battery Street, Sail
Francisco.
Dear Sirs: As requested by your Mr. Wm] Sehwartzi
when here, we now have much pleasure in enclosing'
copies of Invoices, B/L, etc., for goods shipped per:
"Costa Rican"s and "Aurania"s from Liverpool and
trust all will be found in order.
Trusting that the pleasant relations the writer had
with Mr. Wm. Schwartz when here may continue long
to our mutual satisfaction, and awaiting your esteemed
favours,
We are, dear sirs,
Yours very truly,
GEORGE WOSTENHOLM & SON, LIJ^riTED,
Pr. THOMAS WING.
Sheffield, 1st Mlarch, 1897.
Messrs. Schwartz, Lowe & Co., San Jose de Costa Rica.
Dear Sirs: • • ♦ ♦ the present serves to hand you
Invoice, Consular Invoice, B/L and Account for Freight
and Insurance for 778 Packages shipper per "Etruria"s,
1
George Wcstenhohii cC aS^o//, Limited. 139
via New York for Limou aud thence to San Jose de
Costa Kica.
* ' » jt * * * »
I Yours very truly,
GEORGE WOSTEN'HOLM & SON, LIMITED,
Pr. THOMAS WING.
Sheffield, 13th March, 1897.
Messrs, Schwartz, Lowe & Co., 19 Battery Street, San
Francisco. ,
Dear Sirs: Confirming ours of the 27th ulto., enclosed
we now beg to hand you copies of papers, etc., for 778
packages shipped per "Etruria"s from Liverpool, which
we trust you will find in order.
• » * ♦ « » *
Yours very truly,
GEORGE \VOiSTENHOLM & SON, LIMITED,
Pr. THOMAS WING.
A. M. Easton. f W. Schwartz.
S, Schwartz. L. L. Lowe.
SOHWA'BTZ, LOWE & 00.
I 308 Market Street.
Cable Address:
"Blackhawk."
A. B. C, Code.
San Francisco, Oal., March 15th, 1897.
Thomas Wing, Esq., Sheffield.
Dear Sir: Tlie rainy season in Costa Rica begins in
May, it is therefore absolutely necessary to have goods;
.shipped with as little delay as possible. Therefore, I
140 ^Ansel M. Easton vs.
would respectfully request you to urge manufacturers
to make shipments as soon as possible, a long delay is
apt to cause goods being kept an indefinite time at Port
Limon. '
With personal regards,
' Yours very truly,
WM. SCHWARTZ.
A. M. Easton. ' W. Schwartz.
S. Schwartz. L. L. Lowe.
SCHWARTZ, LOWE & CO.,
308 Market Street.
Cable Address:
"Blackhawk."
A. B. C. Code.
San FYancisco, Oal., March 19th, 1897.
Thomas Wing, Esq., Sheffield:
Dear Sir : I am just in receipt of your favor of the 3d
inst. * ♦ ♦
Our Costa Rica house will report to you about the
square tin pans, and will, from time to time, order such,
articles as they are in need of.
Without anything further for today, I am with kind-
est regards,
Yours very truly,
W^M. SCHWARTZ.
Genryc Wostcnholin cC Son, Limited. 141
A. M. Easton. L. L. Lowe.
S. Schwartz. W. Schwartz.
SCHWARTZ, LOWE & CO.
' SaS Mlarket Street.
Cable Address:
"Black Hawk."
A. B. C. Code.
San Francisco, Cal., May 14th, 1897.
Thomas Wing, Esq., Sheffield.
Dear Sir: Up to the present time, I have not had any
reports about goods purchased through you. My,
brother arrived in Costa Rica a week ago, and I expect
his reports in about a fortnight, when you can look for
additional orders. Meanwhile, I remain, with kindest
regards,
Yours very truly,
WM. SCHWARTZ.
A. M. Easton. L. L. Lowe.
S. Schwartz. W. Schwartz-
SCHWARTZ, LOWE & CO.
308 Mlarket Street.
Cable Address:
"Black Hawk."
A. B. C. Code.
San Francisco, Cal. April 6th, 1897.
Thomas W^ing, Esq., Sheffield.
Dear Sir: Expecting some news from our Costa Rica.
firm regarding some shipments made by your house, I
have not replied to your favor of the 13th ultimo any
142f ^Ansel M. Easton vs.
sooner. No reports have reached ns up to the present
time.
Yours very truly,
WM. SCHWARTZ.
Importadores. C/omisionistas, Exportadores.
Giros de Lestras.
SCHWARTZ, LOWE y Cia.
Direccion Oablegrafica:
"Schlowe,"
A. B. O. Code.
San Jose' de Costa Rica, July 9, 1897.
Messrs. Geo. Wostenholm & Son, Sheffield:
Dear Sirs: By to-days mail, we send you sample of
Coffee Bags; kindly order for us 30 Bales of 250 bags,
each providing they can be bought at 4 pence each.
) ' Very resj^ectfully,
' SCHWARTZ, LOWE & Cb.
A. M. Easton. L. L. Lowe.
S. Schwartz. W. Schwartz.
SCHWARTZ, LOWE & CO.,
308 Market Street.
Cable Address:
"Blackhawk."
A. B. a Code. I
\ San Francisco, Cal. July 12th, 1897.
Thos. Wing, Esq., Sheffield.
Dear Sir: » ♦ * ♦ *
Our firm has a contract to erect a "hippodroime" !
and I enclose an order for some iron, which kindly shij)!
George Wosienholm & Son, Limited. 143
Avith as little delay as possible, as the buildings must be
completed by December 1st. » # • ♦
Yours very truly,
WM. SCHWARTZ.
A. M. Easton. L. L. Lowe.
S. Schartz. W. Schwartz.
SOHWAiRTZ, L5WE & CO.,
308 Market Street. '
Cable Address:
''Blackhawk"
A. B. C. Code.
San Francisco, Cal., July 12th, 18S7.
Mess. Geo. Wostenholm & Son, Lira., Sheffield.
Gentlemen: Please ship via Liverpool and New York
per "Atlas" Line steamier —
Three thousand, two hundred (.3200 sheets ten (10) foot
20 guage Galvanized Iron small corrugations
One thousand six hundred (1600) sheets nine (9) foot 2G
gnage do.
Five hundred and eighty (580) running feet galvanized
iron Roof Cap.
^rark "Hipodromo."
San Jose de Costa Rica.
Consign to "Compania del Hipodromo de la Sabana
and send documents to our firm in San Jose C. R. and du-
plicate of bill to us.
Yours respectfully,
SCHWARTZ, LOWE & CO.
144 'Ansel M. Easton vs.
A. M. Easton. L. L. Lowe.
S. Schwartz. W. Scliwart^..
SOHWARTZ. LOWE & CO.,
308 Market Street.
Cable Address:
"Blackhawk."
A. B. C. Code.
San Francisco, CaL, July 15th, 1897.
Mess. George Wostenhohn & Son, Lim., Sheflfield.
Gentlemen: Please ship to Juan Ramirez, Limon Costa
Rica 10' Bales Coffee Bags each bale to contain 200.
30x40 bags, material like inclosed sample. * • »
Bills and documents to our firm in San Jose and dupli-
cate bill to us.
Yours very truly,
SCHWARTZ, LOWE & CO.
A. M. Easton. L. L. Lowe.
S. Schwartz. ' W. Schwartz.
SCHWARTZ, LOWE & CO.,
308 Market Street. '
Cable Address:
"Blackhawk."
A. B. C. Code.
\ San Francisco, Cal., July, 15th, 1897.
Thomas Wing, Esq., Sheflfield.
Dear Sir: I confirm my letter of the 12th inst and now
inclose an order for 2000 Coffee Bags, which you will
kindly forward with as little delay as povssible. » • •
' Yours very truly,
, W. SCHWARTZ.
George Wostenholm d Son, Limited. 145
A. M. Easton. L. L. Lowe.
S. Scliwartz. W. Schwarta.
SCHWARTZ, LOWE & CO.,
I 308 Market Street.
Cable Address:
"Black Hawk."
A. B. O. Ctode.
San Francisco, Oal., July 21st, 1897.
Thontas Wing, Esq., Sheffield.
Dear Sir: Mr. Juan Ramirez requests us to change the
mark on his coffee bags. He wants instead of having
liis full name on the bags simply the letters H. F. put
on. If you have placed the order already kindly have
the change made if possible. The bags should be
marked
(Costa Rica Coffee)
H. F.
Without any further news for the present, I remain,
dear sir, with best wishes.
Yours very truly,
) WM. SCHWARTZ.
Sheffield, 11th Aug., 189T.
Via Queenstown per ''Britannic" s.
Wm. Schwartz, Esq., San Francisco.
Dear Sir: As is customary with us, I send you Ac-
count Current to June 30th, showing a balance in our
favor of £1109-12-9, wiiiih 1 trust you will tind conwt.
» •♦»♦♦♦ ♦
Yours very truly,
(Signed) THOMAS WING.
146 ^Ansel M. Easton vs.
Sheffield, 11th August, 1891.
Messrs. Schwartz, Lowe & Co., San Jose de Oosta Rica.
Dear Sirs: We are in receipt of your esteemed order
of the &th ultimo, which we have delayed answering for a
few days pending the arrival of the sample bag. * * *
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED,
pr. THOMAS WING.
Sheffield, 11th August, 1897.
Messrs. Schwartz, Lowe & Oo., San Francisco.
Dear Sirs : We are in receipt of your esteemed favours
of the 12th and 15th ulto, with orders, which have onr
most careful attention.
Galvanized Iron. We hope to ship this per steamer
about 31st inst. and trust same will arrive in plenty of
time for your requirements. Owing to the sheets being
extra long it takes a little more time to get goods from
rolling-mills. As regards the 580 running feet Galvan-
ized Ridging, we are sending you 100 lengths 6 ft. x. 15"
X 26G, which is the customary thing and hope same will
meet with your approval.
Coffee Bags. These we hope to deliver in about three
weeks. '
COSTA RICA COFFEE
Marked as requested
H. F.
Awaiting your further esteemed favours,
We are, dear sirs.
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED,
pr. THOMAS WING.
George Wostenliolm & Son, Limited. 147
Sheffield, 11th Sep., 181>7.
Messrs. Scliwartz, Lowe & Co., San Jose de Costa Rica.
Dear Sirs: Enclosed we have much pleasure in hand-
Ino- von Invoice, Consular Invoice, B/L for 482 Packages
Galvanized Iron shipped per "Bovic"s, via New York
and trust you will find the same in order. Account for
Freiglit, Insurance, etc., shall follow by next mail.
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED,
(Signed) J. C. WING.
Sheffield, 15th Sept., 1897.
:\Iessrs. Schwartz, Lowe & Co., 308 ]klarket Street, San
Francisco.
Dear Sirs: Enclosed we have now much pleasure in
lianding .you invoice for the Galva^nized Ir(m shipped per
"Bovic"s, from Liverpool on your a/c. We have sent
invoice and bill of lading to Costa Rica as usual, and
trust, that tlie sheets will arrive in time for your re-
quirements. » » « ♦ ;
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED,
Per H. OXLEY.
Sheffield, 18th Sep., 1897.
Messrs. Schwartz, Lowe & Co., San Jose de Costa Rica.
Dear Sirs: ConfiTming our letter of the 11th \uM.,
we have now much pleasure in handing you Account for
Freight and insurance for 482 Packages shipped per
148 i4.mel M. Easton vs.
"Bovic"s, from Liverpool on your a/c and trust same
will be found in order. ■
Yours very truly,
rxEORGE WOSTENHOLM & SON, LIMITED,
pr. THOMAS WING.
Sheffield, 18th September, 18»7.
Messrs. Schwartz, Lowe & Co., 308 Market Street, San
Francisco. '
Dear Sirs: Enclosed we have now much pleasure in
handing" you copy of a/c for freight and insurance for
goods shipped per "Bovic"s. for a/c of your San Jose
house. '
*******
GEORGE WOSTENHOLM & SON, LI:MITED,
pr. THOMAS WING.
i Sheffield, 29th September, 1897.
Messrs. Schwartz, Lowe & Co., San Francisco,
Dear Sirs: • ♦ ♦ the present serves to hand you
Invoice for 10 Bales of Coffee Bags shipped per "Teu-
tonic" on your a/c. A/c for Freight, etc., shall be sent
next mail. • :
Yours very truly,
GEORGE W0STENH0L:M & SON, Li:\riTED,
pr. THOMAS WING.
I
George Woatenholm d Son, Limited. 149
Tinportadores. Comisionistas. Exportadores.
Giros de Letras.
SCHWARTZ, LOWE Y CIA.
Direocion Cablen^rafica:
"Schlowe." '
A. B. C. Code.
5 L
6 C
San Jose de Costa Rica. September 3d, 1S97.
>ress. Geo. Wostenholm & Son, Lmtd., SheflBeld, Eng-
land. '
Gentlemen: Enclosed we beg to hand yon Ist of Ex-
change #6, a. 90 days sight, on Mess. Riensch & Held
of Hamburg payable in Lonfon, for £650. O. O., which
amount please place to our credit.
When acknowledging receipt of this, we would be
glad if you would send us statement of account to date,
and A\ith<mt anything further,
We remain.
Yours faithfully,
SCHWARTZ, LOWE & CO.
COPY.
Sheffield, 15th Sept. 1897.
Messrs. Schwartz, Lowe & Co., 308 Market Street, San
Francisco.
Dear Sirs: Enclosed we have now much pleasure in
handing you invoice for the f Jalvanizeil Iron shipped per
••Rovic'' s, from Liverpool on your a/c. We have sent
invoice and Bill of Lading to Costa Rica as usual, and
150 '^Ansel M. Easton vs.
trust that the sheets will arrive in time for your require-
ments. By Saturday's mail we will send you account
for Freight and Insurance. We also hope to send you
invoice for the bags for Mr. Juan Raminez which are
now in Liverpool.
Awaiting your further favours,
We are, dear Sirs,
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED,
per H. OXLEY.
Sheffield, 29th September, 1897.
Messrs. Schwartz, Lowe & Co., San Jose de Costa Rica.
Dear Sirs: *****
We beg to hand you invoice for 10 Bales of
Bags sihipped from Liverpool per Teutonic consigned to
your good selves. These are for Mr. Juan Raminez at
Limon and we received the order from your San Fran-
cisco house. A/c for freight and insurance shall be
sent per next mail.
»«♦»»•♦
Yours very truly,
GEORGE WOSTENIIOLM & SON, LIMITED,
pr. THOMAS WING.
Sheffield, 2d October, 1897.
Messrs. Schwartz, Lowe & Co., San Jose de Costa Rica.
Dear Sirs: « • • * the' present serves to hand
you a/c for freight and insurance for 10 bales Coffee
Bags shipped per "Teutonic" s.s.
George Wostenholm <£• Son, Limited. 151
We also enclose account to date, showing a balance in
our favour of £1494.16.3, which we trust you will find
correct.
Yours very truly,
GEORGE WOSTEXnOOI & SOX, LIMITED,
pr. THOMAS WING.
Sheffield, 2d October, 1S97.
Messrs. Schwartz, Lowe & Co., 308 Market Street, San
Francisco,
Dear Sirs: ♦ • • » the present serves^; to hand
you a/c for freight and insurance for 10 Bales Coffee
Bags shipped per "Teautonic" ss. on your a/c. * • *
We also enclose copy of a/c current to date, as re-
(iu(«ted by 3'our San Jose house, showing a balance in
our favour, which we trust yon will find correct.
*******
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED,
luiportadores. Comisionistas. Exportadores.
Giros de Letras
SCHWARTZ, iXiWE y CIA.
Direccion Cablegrafica :
"Schlowe."
A. B. C. Code.
San Jose de Costa Rica, 0th Oct., 1897.
Mess. Geo. Wostenholm & Co., Lmtd., Sheffield, England.
Gentlemen: Confirming our last respects of the 3d ult.
wherein we enclosed 90 dys. draft for £650.0.0 and which
152 'Ansel M. Easton vs.
wo trust reached you safely, -we now bavr tlio x^l^^asure
to acknowledge receipt of your esteemed favors of tlie
11th and 18th September, coutentss of which have re-
ceived our best attention.
The various papers Consular Invoices B/Ladiug &c.
have just come to hand, and the amounts of your in-
voices £62il.l4.3 and £266.7.9, we have duly credited to
your account.
Our Mr. Schwartz is at present in Europe, and in all
prohability will pay you a visit shortly after receipt of
this.
♦ • * • ♦ ♦ ♦ * .
Yours faithfully,
SCHWARTZ, LOWE & CO.
Importadores. Comisionistas. Exportadores.
Giros de Letras.
SCHWARTZ, LOWE y CIA.
Direccion Cablegrafica :
"Schlowe."
A. B. C. Code.
San Jose' de Costa Rica. 29th Octr., 1897.
Mess. Geo. Wostenholni & Son, Lmtd., Sheffield, Eng-
land.
Dear Sirs: We are in receipt of your esteemed favors
of the 29th ult and 2ud inst. — with the various enclo-
sures'— contents of which have our best attention.
With your last we also received your statement of
(Jeorye Wosteiiholiii tfc (S'o», Liinited. 153
a/c, showiug a balance in yonr favor of £1494.10.3. \vitli
which wc are in accord.
'. Yours faithfuil}",
SCHWARTZ LOWE & CO.
Sheffield, 30th Oct., 1897.
Messrs. Schwartz, Lowe & Co., San Jose de Costa Rica.
Dear Sirs: We are in receipt of your favour of the
9th inst. with 2ud of Exchange for £650. We acknowl-
edged receipt of the 1st Ex. on the 29th ulto.
\Ve are very pleased that Mr. Schwartz is likely to
t-all upon us shortly. The order he gave to our Mr.
Thomas Wing when in London is well in hand and we
hope to send you invoice in a day or two.
Yours verj truly,
GEORGE WOSTENHOLM & SON, LIMITED,
Per H. OXLEY.
Sheffield, 19th Nov., 1897.
Messrs. Schwartz, Lowe & Co., San Jose de Costa Rica.
Dear Sirs: • ♦ ♦ * enclosed we have now much
pleasure in handing you Invoices, Consular Invoice,
B/L and A/c for Freight and Insurance for 210 ]);u-k-
ages shipped per "Nicaraguan" from Liverpool, whicii
we trust you will find in order.
Apollinaris Water. Yimr Mr. Wm. Schwartz kindly
gave to our Mr. Thomas Wing when in I^ondon an order
for 10 cases Apollinaris Water and 3 cases Ilunyade
154 Ansel M. Easton vs.
Water. The makers now ad\ise us that they cannot
enter this small order for San Jose, as according to their
books they have had orders from you to the amount of
5,000 bottles at a time. We shall be pleased if you can
increase the order to their minimum of 20 cases, when
we will ship at once. We have kept this line open in
the hope of seeing your Mr. Wm. Schwartz according
to your letter of the 9th October, but as he has not yet
called, we thought it would be best to refer the ordcT
to you.
♦ ♦♦***«
Yours veiT^ truly,
GEORGE WOSTENHOLM & SON, LBIITED,
Per H. OXLEY,
Sheffield, 20th Nov., 1897.
Messrs. Schwartz, Lowe & Co., San Joso de Costa Rica.
Dear Sirs: You will notice in the enclosed invoice
that Ave have taken 11-6 Discoimt from the account for
Freight and Insurance. This we had to do because the
shippers made out consular invoice without taking dis-
count ofif.
*******
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED,
Per H. OXLEY.
Sheffield, 20th November, 1897.
Wm. Schwartz, Evsq., 308 Market Street, San Francisco.]
Dear Sir: Enclosed we now have much pleasure inj
handing you copy of invoice. B-L and account for freight]
(hovfH' Wostcuholm & Son, Liinited. 155
and insuraut-e for 240 packages shipped per "Nicara-
^uan" from Liverpool, which wo trust voii \\\\\ find in
order. Originals have gone to Costa Rica as usual.
Yours very truh',
GEORGE WOSTENHOLM & SOX, LIMITED,
Per H. OXLEY.
Sheffield, 27th Nov., 1897.
Messrs. Schwartz, Lowe & Co., San Jose de Costa Rica.
Dear Sirsi: Since ours of the 19th inst, we have had
The pleasure to receive your favor of the 20th ulto, con-
tents of which are noted.
Enclosed we now beg to hand you Duplicate B-L, Copy
of Invoice, Copy of A-c for Freight aud Insurance for
240 Packages shipped per Niearaguan from Liverpool.
*«»♦»*»
Yours very trulj-,
GEORGE WOSTENHOLM & SON, LIMITED,
Per H. OXLEY.
COPY.
Sheffield, Uth January, LS98.
Messrs. Schwartz, Lowe & Co., San Jo.se de Costa Rica.
Dear Sirs: We have your favour of the 24th ulto, and
regret to hear that times are not prosperous, and Ex-
change is high, but at the same time, we think that the
time allowed for the aiTanged credit having expired,
you should have sent us the money, which we (piite de-
pended upon. We sincerely hope that before this reaches
156 'Ansel M. Easton vs.
you, circumstances will have so chaugod as to enahle you
to make the remittance, and relying upon which,
We remain, dear Sirs,
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED,
i( Signed) J. C. WIN(J.
Importadores. Comisionistas. Exportadores.
Giros de Letras.
SCHWARTZ, LOWE Y CIA.
Direccion Cablegrafica :
"Schlowe." S L
A. B. C. Code. & C
San Jose de Costa Rica, February 8th, 1808.
Mess. George Wostenholm & Son, Sheffield.
Gentlemen: We have your favor of the 14 ulto, and re-
gret that we are stiir unable to remit. We have tried it
very hard to purchase an Exchange for you, but it is
impossible and when your Mr. Wing aiTives here he w'ill
find the same condition of things we fear & bear us out
in our statement. It will, however not be vei-y long be-
fore we can remit your money; we are shipping coffee
now to our friends in San Francisco & if we do not suc-
ceed in finding the exchange here, shall ask these gentle-
men to send you £500. Again asking your indulgence.
We are.
Yours Truly,
SCHWARTZ, LOWE & CO.
Grorge WofttcnJiolni cC- Son, Limited. 157
CX>PY.
Sheffield, Ist M'arch, 1898.
^fessrs. Schwartz Lowe & Co., San Jose de Costa Rica.
Dear Sirs: Confirming our respects of the 14th Jan-
nary last, we have had the pleasure to receive your
favour of the 8th February, and are glad to hear there
is some prospect of our receiving a remittance from you
through San Francisco. We shall be glad, however,
if you will kindly make it £1500, instead of £500, or
better still, clear off the whole of the amount that we^
may have the pleasure of starting with a plain sheet.
We hope by the time this arrives that our Mr. Thomas
Wing will be with you, as his instructions are to send
letters to him c-o your esteemed house. We bespeak
for him your kind favours, and awaiting your further
commands.
We remain, dear Sirs,
Yours very truly,
GEO/EGE WOSTBJilHOLM & SON, LIMITED,
(Signed) J. C. WING.
Iiiiportadores. Comisionistas, Exportadores.
Giros de Letras.
SiOHW^ARTZ, LOWB Y OIA.
Direccion Cablegrafica:
SL
&C
"Schlowe."
A. B. 0. Code.
San Jose de Costa Rica, 28th May, 1898.
Mr. Thos. Wing, Sheffield:
Dear Sir: We addressed you on the 19th ult. to New
158 'Ansel M. Easton vs.
York, to the address you left with us prior to your de-
parture, we also sent you to New York quite a lot of
letters, wTiich we trust you receiAed safely. We alsoi
addressed you on the 10th of the present month, since
writing which, we have not had the pleasure of hearing
from you.
We are glad to say that we have finally got the Bill
of Lading from Eohrmoser & Co., of Limon, for
1 Piece of Cedar
2 Bundles Shovels
2 c. Merchandise.
which we herewith enclose, the original was sent direct
to Messrs. Cunningham, Shaw & Co., of Liverpool, ac-
cording to your instructions.
Also we beg to hand you bill of expenses in shipping
the goods, $30.51 Costa Rica Currency, equalling £2. 7.
10, which we have charged to account of Mess. Geo. Wos-
tenholm & Son, Ltd.; we trust you will find the same in
order.
Without anything further by this opportunity and
with best regards,
We remain,
Very Faithfully,
SCHWARTZ, LOWE & CO.,
Per S. V. PLENDER.
George Wostenholm d Son, Limited. 159
Importadores. Comisionistas. Exportadores.
Giros de Letras.
SCHWARTZ, LOWE Y OIA.
l^iroecion Oablegrafica:
SE
&C
"Schlowe."
A. B. C. Code.
San Jose de Costa Rica, 28th May, 1808.
Sr. Kr. Thos. Wing:
Slay 0. Freiii^ht railroad 5 packages
Mdse. from San Jose to Lim-
on $29.50
May 20. Expenses Rohnnoser & Oo.
shipping same 1 .01
$30.51
a' 256%=|11.»1 U. S. Gold,
a' 5.00=£2. 7. 10.
Transferred to a-c of Mess. Geo. Wostenholm & Son,
Ltd. 1
THOMAS WING TO WILLIAM SCHWARTZ.
Sheffield, 22d June, 1898.
Wm. Schwartz, Esq., #19 Battery St., San Francisco,
Dear Schwartz: I want again to write and thank you
for all your kindness I received from your San Jose
liouse while I was there during last April. Nothing
could have been kinder tlian the manner in which Mr.
T.owe treated me, and I feel very grateful to you for
160 Ansel M. Easton vs.
your vei*y kind recommendation of me to this Gentle-
man. We liad a very good time, and the only drawback
was the illness of Mrs. Lowe, whom I did not have the
pleasure of meeting.
I trust shortly to again see you over in England, and
I) oping you are in the best of health, with kindest re-
yards, I remain,
Yours Sincerely,
(Signed) THOM'AS' WING.
Shelfield, 22d June, 1898.
Messrs. Schwartz Lowe & Co., San Jose de Costa Rica.
Dear Sirs: * * * Enclosed we beg to hand you
invoice for 150 cases shipped per s. s. "Dee" from
London, which we trust you will find in order. We trust
the goods will arrive in safety, and open to your entire
satisfaction. Bill of Lading and Consular Invoice shall
be sent per next mail.
» * * * * ♦ *
Yours very truly,
GEORGE WiOSTEN!HOLM & SON, LIMITED,
(Signed) J. C. WING.
Sheffield, 22d June, 1808.
Messrs. Schwartz, Lowe & Co., #10 Battery St., San
Francisco.
Dear Sirs: Enclosed we have much pleasure in hand-
ing you copy of invoice for 150^ cases shipped per "Dee"
from London for account of your San Jose House. Copy
of account for freight and insurance shall be sent next
mail.
George Wostenholm & Son, Limited. 161
Without further of importance, and awaiting jour
esteemed favor, we remain, dear sirs,
Yours very truly,
GEOKOE WOSTENHOLM & SON, LIMITED,
Per THOMAS WING.
Sheffield, 25th June, 189S.
Messrs, Schwartz Lowe & Co., San Jose de Costa Rica.
Dear Sirs: ♦ * ♦ "Dee." Enclosed we beg to
hand you copy of Invoice, Consular Invoice, B-L and A-c
for Freicrht and Insurance for 150 packages shipped per
s. s. "Dee" from London, and trust you will receive the
same in due course.
»**♦*•♦
Yours very truly,
GEORGE WiOSTENIHOLM & SON, LIMITED,
(Signed) Per THOMAS WIN(J.
Sheffield, 25th June, 1898.
Messrs. Schwartz, Lowe & Co., 19 Battery Street, San
Francisco.
Dear Sirs: Confirming ours of the 22d inst, press copy
(enclosed, the present serves to hand you copy of Bill
of Lading and copy of a-c for Freight and Insurance
for 150 cases shipped per "Dee" ss, which we trust you
will find in order,
• «*»♦»»
Yours very truly,
GEORGE WOiSTENlHOLM & SON, LIMITED,
Per THOMAS WING.
162 ^Ansel M. Easton vs.
Slieffield, 28th July, 1898.
Messrs. Schwartz, Lowe & Co., San Jose de Costa Rica.
Dear Sirs: * * * The present serves to hand you
invoice for 100 case Swiss Milk shipped from London,
per s.s. "Derwent" also Account for Freight and In-
surance, Bill of Lading, and Consular Invoice for same,
which we trust you will find in order.
4)- * » • * « «
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED,
(Signed) Per THOMAS WING.
Sheffield, 26th July, 1898.
Messrs. Schwartz, Lowe & Co., 19 Battery Street, Sum
Francisco.
Dear Sirs: Enclosed we have now much pleasure in
handing you copy of invoice for 100 cases Swiss Milk,
shipped to Port Limon on arc of your Costa Rica House.
»♦***♦»
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED,
Pr. THOMAS WING.
Sheffield, 20th August, 1898.
Messrs. Schwartz, Lowe & Co., San Jose de Costa Rica.
Dear Sirs: * » * The present serves to hand you
invoice for 100 Boxes Swiss Milk shipped from Liver-
pool per "Avon" s. s., also a-c for freight and Insurance
George Wostenholm & Son, Limited. 163
Bill of Lading, and Consular Invoice for same, all of
wbicli we trust you will find in order.
*******
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED,
(Signed) Per THOMAS WING.
Sheffield, 20th August, 1898.
:\Iessrs. Schwartz, Lowe & Co., 19 Battery Street, Sam
Francisco.
Dear Sirs: Enclosed we have now much pleasure in
handing you copy of invoice for 100 cases of Swiss Milk,
shipped to Port Limon, on account of your Costa Rica
Rouse.
* * -X- « » I » ♦
Yours very truly,
GEORGE WO8TENH0LM & SON, LIMITED,
pr. THOMAS WING,
LOWE TO THO^ilAS WING.
Letter-head of S. L. & Co.
Aug. 2G, 1898.
To ^h: Thoma« Wing, Sheffield, Eng. '
M}' dear Mr. Wing: I should have written to you long
before this but as I had no good news to communicate to
you, T thought I better keep quiet until I could write
you a cheerful kind of letter, but as there is nothing
(Specially bright, I have made up my mind to drop you
:• few lines. I send by this same mail to you two drafts
amounting to £500.0.0. Not much, but business is such
164 ^Ansel M. East on vs.
that it is almost impossible to do better. I had ac-
tually to beg for these drafts, as no one is selling.
When you were here we thought exchange was very
high, and if you remember it was 150 per cent.
The fact of the matter is that for the remittances I
am sending your house today, I had to pay 195 per cent.
The trouble is we have lots of Costa Kica Money in the
Bank but we can't buy foreign exchange, and in as
much that you people have been so nice to us, I thought
it only right to make this sacrifice, that you may see the
color of our money.
Your offer for coffee, I cabled you we could not ac-
cept, as no such quality of goodkS are in the market at
the present moment, but the season will open on or
about Dec. 1st of this year, and then I will see my way
of making you some consignments. I wish you please
keep me posted how your market is keeping up in this
airticle. '
You no doubt are surprised that I have not shipped
you the cedar, but the fact is that we have a law suit
with Schuback & Son, on hand, and we hold the stuff
here to prove their swindling, but as soon as we get the
decision I will ship to you the 200€i tons which we have
here. '
Goods are selling" to a good advantage and we have
hopes that as soon as the coffee season opens, exchange
will drop and we will be able to settle with you in full,
as buying exchange at these rates is ruinous. I hope
you will be able to explain the situation to your father
(as you personally know how it is). You may say to
George Wostenhohii cC- f>on, Limited. 165
liim that .your lious<? is perfectly safe with us, as you
know how we stand, 2.200 pounds will pay all our debts,
and shortly we will not owe one penny.
I do not order any goods from you, as I do not think
it ver.y pleasant to fill orders for people who are so
sloiw in piijing. •
I hope your wife and baby are well and my wife and
folks send their best rejj,ards to you and them hoping
this will find you in the best of health, I remain, with
regards to your father,
Very sincerely,
L. LEON LOWE.
Sheffield, 24th Sept., 1898.
Messrs. Schwartz, Lowe «& Co., San Jose de Oosta Rica.
Dear Sirs: * * *Enclosed we hand you invoices in
triplicate Consular Invoices, Bsi/L and a/c
for Freight and Insurance for 100' packages
"Dee" shipped per s. s. ''Dee'' and 149 packages per
"Cymric" s. s. "Cymric" all of which we trust will
reach you safely and open to jour entire sat-
isfaction. ♦ ♦ *
Yours very truly,
CiEORlGE WOSTENHOLM & SON, LIMITED,
per THOMAS WING.
166 Ansel M. Easton vs.
Sheffield, 24th Sep,t., 1898.
Messrs. Schwartz, Lowe & Co., San Francisco.
Dear Sirs ; * » • Enclosed beg to hand you copies
of Invoices and Documents for goods shipped per
"Dee" and "Cymric" on account of your San Jose house.
♦ *»««♦«
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED.
Per THOMAS WING.
SCHWARTZ, LOWE & CO. TO THOMAS W^ING.
Letter-head S. L. & Co.
San Jose, Oct. 1, 1898.
Tliomas Wing, Esq., Sheffield.
My dear Mr. Wing: Since writing to you Aug. 2€>th, I
have not heard from you and would like to know if you
were satisfied with the small remittance I made you.
As soon as I hear from you I will act accordingly and
should it be urgent, I will send you £500.0.0 or more, as
exchange is so very high I j^refer to pay interest, but if
the a/c has to be covered it will be done at your first
indication. I do hate to let you wait, and I want you
to be open witli me. There is no trouble to cover your
a/c only the very high exchange prevents it. Now,
have a talk with your father, and let me know just ex-
actly your views. I expect (of course, if j^ou are willing)
to cover our a/c with coffee shipments. Our suit with
Schubaeh hais not been decided yet, but those people
have tried to rob us, and we will see that we will be
reimbursed before long; that is the reason I have not
George Wostenholm c6 Son, Limited. 167
shipped you auy lumber yet. I need 500 baj?s John
(^orbett's Worcestershire Salt "Bread" at 25/6 per ton,
aiud 25000 coffee bags as per sample given you 5 l/16d.
less 5%. Freight to be paid through to San Jose/ The
salt in 125 pound bags and the coffee bags in bales of
250 each. Also each month for six months 100 cases
Gilbey's Sherry Oastle No. 1 Gilbey's Old Tom Gin 10
cases each mouth, and Scotch whiskey 5 cases each
month. If patna rice can be bought 1 l/2d. per pound
I would take from 100 to 150 bags per month. On rice
freight must be paid through to San Jose. I also en-
close an order for Morton's goods, Avhich please fill if
you feel like it.
Hoping this will find you in the best of health, I re-
main with regards to your wife and child and 3^our
father,
Youi*s very sincerely,
SCHWAETZ, LOWE & 00.
(LOTV^)
}i\y family wish to be remembered to you and yours.
L. LEON LOWE.
SOnWARTZ, LOWE & CO. TO GEORGE WOSTEN-
HOLM & SON.
Letter-head S. L. & Co.
San Jose de Costa Rica, 15th Oct. '98.
Messrs. George Wostenholm & Son Ltd., Sheffield.
Dear Sirs: We beg to confirm our last respects of the
1st inst., since which writing we have been favored with
168 Ansel M. Ea.Hloii vs.
your kind letter of Ang^ 27tli, its contents received our
best attention.
For your reraarlvs regardinjr remittances, ''Sliould ex-
(^hange be high, take your time" we beg to thank you
and to assure you of our appreciation of your indulgence.
From enclosed cutting from the oflficial "Gazeta" you
will see that although the banks are not drawing, yet
the rates for liquidating drafts sent on to them for col-
lection still remaini very high, 3/d sight on New York
being quoted at 197% premium.
Cedar. We are under negotiations with some of the
largest land owners on the Pacific Coast of this Repub-
lic, with the view of forming a company to control tbe
entire exportation of cedar from Costa Rica. Wben
this is consummated, the shipping will all be done
throngh our firm, and we can assure you that we will
then send you some large consignments.
Coffee. Within two months or so coffee shipments
will begin from this coiintry, and it is expected that ex-
change will naturally go lower, should it not do so,
however, we will send you some consignments of t-his
article, and in this manner liquidate your account.
We have nothing further by this opportunity, and
awaiting your esteemed favours, and with best personal
regards to your Mr. Thos. Wing, we remain,
Yours faithfully,
(LOWE) SCHWARTZ, LOWE & CO.
(icnrye Wosteiihohn tt- i^oii, Limited. 169
Sheffield, 15th October, 1898.
.Alessrs. Schwartz, Lowe & Co., San Jose de Costa Rica.
Dear Sirs: * • * "Derwent" ss. Enclosed we
beo; to hand 3'ou invoice, account for freight and insur-
ance, consular invoice and bill of ladinp: for 100 t-ases
milk, shipped per "Derwent" ss, from Loudon on your
account and we trust goods will arrive in good condi-
tion.
Yours very truly,
GEOKOE WOSTENHO'LM & SON, LIMITED,
pr. THOMAS WING.
Sheffield, 15th October, 1808.
:Messrs. Schwartz, Lowe & Co., 19 Battery Street, San
Francisco.
Dear Sirs: Enclosed we have much pleasure in hand-
ing you copy of invoice and bill of lading for 100 cases
of milk, sihipi>ed per "Derwent" s. s. from London to
Limon, for account of your San Jose house.
»»«*»♦♦
Yours very trul^',
(JEOKiGE WOSTENHOLM & SON, LIMITED.
pr. THOMAS WING.
Sheffield, 22nd October, 1898.
Messrs. Schwartz, Lowe & Co., San Jose de Costa Rica.
Dear Sirs: * * * enclosed we beg to hand you
170 Ansel M. Euston vs.
copy of iiivoiee of floods f-iliii>pod per "Derwent" ss.
Yours very truly,
GEORGE W OSTENHOLM & SON, LIMITED.
/ pr. THOMAS WING.
THOMAS WING TO LOWE.
Letter-head G. W. & Sou, Ltd.
Sheffield, 26th October, 1S98.
L. Leon Lowe, Esq., c/o Messrs. Schwartz, Lowe & Co.,
San Jose de Costa Rica.
My dear Mr. Lowe: I was very pleased to receive your
kind letter of the 1st inst. and also the order which it
contained, which is in liaud and shall be shipped as
soon as possible'.
Remittances. We quite understand this and I havo
spoken to my father and we are quite willing to accept
any orders that jon liiay send us, knowing full well that
as soon as the high rate of exchange goes down you
will remiit us, or as soon as the coffee crop commences
you will cover your indebtedness with sihipmients. IIow
is it that the rate of exchange is so high again? Is it on
account of the trouble you had with Nicaragua?
Lumber, This still remains at prices as formerly ad-
vised and we sincerely trust that you will come out on
top with Schubach and then let us have as many logs
as ever you can, which you may rely on us disposing of
to the best advantage, and anyway we Avill not cheat
you, as we value your friendship too much, and the old
adage is very true, that "Rogues are always found out."
George Wostenholm d Son, lAmxted. 171
Salt. I have bought 500 bagsi Black Horse John Oor-
bett's Worcestershire Bread salt at 19/ — per ton, f. o. b.
Liverpool, stout double warp bags at 3 l/2d. each extra,
Avhieh you will see is a good reduction on the prices we
formerly quoted you. These 500 bags we hope to ship
in a day or two from Liverpool via New York, and we
are paying freight through to San Jose. If you want an-
other 500 or 1000 bags of salt, as I trust you may do at
this low figure, cable us "salt" for 500 bags or "Resalt"
if your require 1000 bags, and we will ship them to you
at once. You have no need to add your name to this
cable, as we shall know who it is from with just the one
word. • !
Coffee bags. Although the price is higher than
when we quoted you, we have managed to get your
good order through at prices given, and shall ship in
.about 15/20 days half the quantity, as 3'ou tell us
the coffee crop will commence early in December and
we know you will want some for use.
Gilbey's. We have bought:
100 cases Spanish Sherry "rastle" at 10/(i per cafse.
10 cases Gin "Old Tom" at &/ — per case.
5 cases Scotch Whiskey "C^an Castle" at 14/(5 per
case, tlie above prices subject to 5% cash (liscoimt,
dd fob Jyondon, and we have bought this quantity for
0 monthly shipments. We shall bo making the first
slupment by the "Avon" ss, from London on the Dth
Prox.
Patna Kice. This we are buying at a shade less
tlian your limit of 1 l/2d. per lb. and intend sending
172 Ansel M. Easton vs.
you 150 bags per uionth for six mouths, but are buy-
ing first only deliveries for Nov., Dec, Jan. and per-
haps Feb., but we have not yet completed arrange-
ments with the suppliers. The reason Ave did not
buy for the full six months is, because the new crop
is expected in London, Feb/'Mar., and therefore rice
will be cheaper after that date. We will write you
by Saturday's mail what we intend doing in the mat-
ter.
Morton. We have put Morton's goods in haud,
and are trying to ship them by steamer of 9th Nov.
Tf we cannot ship complete we Avill send part, and re-
mainder 14 days later.
There is one line in your order that is rather per-
plexing. You say 5 Sacks of Oarraway "Comino"
seeds, Malta, in original packages and we presume from
this you mean "Cummin," seeds fine Malta, in bales of
about 180 lbs. at 30/ — per cwt. and trust this Avill be
correct. '
Coffee. Prices are still bad, but the news of the trou-
ble between ourselves and France is tending to harden
I)rices all round. For ourselves we think there will be
no trouble with l^rance, but nothing can be said at the
present time, as the French Ministry was defeated yes-
terday and resigned and nothing can be done for the
next 10 days. In the mean time Salisbury is very firm
and we are getting our ships into trim in case of need.
Now you know Mr. Lowe that we will do all we can
to help you and trust you will find a ready sale for the
things we are sending you, and let us have some more
George M^ostenholm & Son, Limited. 173
orders. You will see from my lotter I wrote in .'luswer
to vonrs that v.e can understand your position and have
every faith that whatever you have from us will be duly
paid for.
Give my kindest regards to your good people and ac-
cept the same from mine, and with kindest regards to
yourself and 'Mr. Plender, believe me,
Yours very sincerely,
THOMAS WING.
GEORGE' WOkSTENHOLM & SON TO SCnWARTZ,
LOWE & CO.
Sheffield, r>th Nov., 1898.
Messrs. Schwartz, Lowe & Co., San Jose de Costa Rica.
Dear Sirs: Confirming ours of the 2d inst., we have
since received your esteemed favor of the 15th nlto., and
contents are carefulh^ noted.
''Majestic." Enclosed we have now much ])lea«ure in
handing you Invoice, Consular Invoice, Rill of Lading
and account for freight and insurance for 084 packag<'S
shipped per '''Majestic" ss. from Liverpool on your ac-
count. As instructed we have paid the freight through
to San Jose on the rice and salt. You will notice that
we have allowed half primage on the ocean freight
12-18-11 and there is a further lO^o £5-17-10 which is
leferred and w'e shall receive from the Steamship Com-
pany most likely early in January next when we will
credit you in a,/c and duly advise.
Exchange. Wherever is this going to? It seems as
if it would never stop. We of course, arc quite willing,
174 Ansel M. Easton vs.
as v/e said before, for 3-011 to wnit until t'lis j^oes lower,
imd of course we hope you vrill ship us cofTi o under any
circumstances.
Cedar. We are glad to liear what you say in this sub-
ject. We are keeping our eyes open and getting to
know all we possibly can, to be ready for you when you
get your shipment. The price remains as before, al-
though some of the manufacturers of cigar boxes seem
to be importing tlie cedar direct.
Coffee. We are glad to say that although very little
Costa Eican coffee has been offered this week, prices
have been maintained and "Futures" are a shade bet-
ter.
i^^hipuients. Nestle's t^wiss Jlilk peo])l(' advise us this
morning that they are afraid they will be only able to
ship 50 cases per "Avon" ss, of the &th inst., owing to
the scarcity of milk, but we hope this will be enough
for your requirements and the remainder will be
shipped by tlie follovring boat. We are shipping ]\Ior-
ton's goods and Gilbey's also by this opportunity. Wt
hope to ship also by steamer of the IGth inst., from
Liverpool^ the coffee bags, Apollonaris W^ater an<l
I'rice'si Candles. Aren't you using an}^ of either of these
articles, as it is quite a time since Ave shipped you any
candles, and you should have used up the 50 cases of
Apollinaris sent 3'ou some time since?
With kindest regards and best wishes, Ave remain,
dear Sirs, Yoursi veiy truly,
pr. THOMAS V/INC
George WostenJiolm & Son, Limited. 175
(JEORiGE WOSTENHOLM & SON TO SCHWARTZ,
LOWE & CO.
Sheffield, 15th Nov., 1898.
>roPsrK. Schwartz, Lowe & Co., San Jose de Costa Rica.
Dear Sirs: Confirming our respects of the 9th inst.,
we aip since witliont anv of your esteemed favours.
''Avon'' ss. Ench)sed we liave now much pleasure in
handing yow invoice in triplicate, consular invoice, R/1
and aciount for 115 packages shipped per "Avon" ss.
from London, and we trust goods will open to your en-
tire satisfaction. You will notice Messrs. W. «& A. Gil-
lev sent a case of show cards. We rather objected to
them doing this, but thej- assured us you would be
])!( ased to have same for advertisement purposes, and
thei-efoi'e \\Q let them send them. Morton's unfortu-
iiately could not complete their goods in time for this
steamer and four cases of Oatmeal, 4 cases of Barley
and 10 cases of Confectionery will come forward by
next opportunity.
Coffee. Tliis remains as last advised. There has
been very little business doing.
Awaiting your further esteemed favours, witli our
kindest, regards, we remain, dear sirs,
Yours very truly,
(JEOR<5E WOSTENTTOLM & SON, LIMITED,
pr. THOMAS WING.
1T6 Ansel M. Eastern vs.
Sheffield, 15tli November, 1898.
Messrs. Schwartz, Lowe & Co., 10 Batterj' Street, Sau
Francisco.
Dear Sirs: Enclosed we have much pleasure in hand-
ing you copy of invoice and B-L for 145 packages shipped
pf r "Avon'' s. s. from London for account of your Costa
Bica house.
♦ *«*«*♦»»*
Yours very truly,
GEOBOE WO'STENHOLM & SON, LIMITED,
pr. THOiMiAS WING.
GEOBGE WOSTENHOLM & SON TO SCHWABTZ,
LOWE & CO.
Sheffield, 23rd Nov., 1898.
Messrs. Schwartz, Lowe & Co., San Jose de Costa Bica,
Dear Sirs: Since ours of the ISth inst., we are with-
out any of your esteemed favours.
"Bovic" ss. Enclosed we beg to hand you invoice,
consular invoice, B/L and account for freight and in-
surance for 46 bales of Coffee Bags shipped from Liver-
]iool per "Bovic" ss. on your account. Eemainder of
the bags is well in hand and we hope to ship shortly.
"Coffee.'' ^Ve duly received your cablegram which
we read "May we draw on you at three months sight
against shipments coffee, Jan./Feb., we are quite sure
6000 bags. To what amount may we draw? Answer
by telegram." We had some difficulty in making out
the first Avord and had to ask you to repeat it before we
could understand your telegram, and in reply we wired
George WostenJiolm & Son, Limited. 177
''Will reply in a few daj^s, are getting' particular.'^." As
this business is quite new to us, we had to make in-
quiries and we find that we cannot do so by correspond-
ence, so the writer leaves Sheffield this evening for Lon-
don, and we hope to wire you our answer on Friday.
We trust we shall be able to arrange this business) with
you.
With our kindest regards, awaiting your further es-
teemed favours, we remain Dear Sirs,
Yours very truly,
GEORGE W^O'STENHOLM & SON, LIMITED,
pr. THOMAS WING.
Sheffield, 23rd November, 1898.
Messrs. Schwartz, Lowe & Co., 19 Battery Street, San
Francisco.
Dear Sirs: * * * The present serves to hand you
copy of Invoice and Bill of Lading etc. for 46 bales of
Coffee Bag.ss, shipped from Liverpool on account of your
Costa Rica house.
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED,
pr. THOMAS WING.
178 Ansel M. Easton vs.
SCHWARTZ, LOWE & 00. TO GEORGE WOSTEN-
HOLM & SON.
Letter-head of S. L. & Co.
Nov. 25, 1898.
ifossis. George Wostenholm & Son, Ltd., Sheffield,
England.
Dear Sirs: We now beo- to confirm the various cables
we have sent you, as per copies enclosed, and to ac-
knovv'ledf^e the receipt of yours, as follows: On the
l8th, we telegraphed you. "May we draw on you.
draw at 3 luos. sight against shipmentsi cofl'ee
Jany. Feby. shipments, we are quite sure COOD bags, to
what aiiiount may we draw, answer by telegraph A B 0
Code.'' On the 19th inst. we received your message.
"Repeat first Avord" to which we replied the same day
'First v.'ord "may we draw on you."
Not hearing from you we cabled you again on the
22n(l. "TV^e await your reply" and on the following day
your message came, "Cannot reply for a few days, now
making every arrangement." On the 23" inst. we tele-
graphed "We have commenced cleaning large quantity
coffee, must liave permisision to draw at three months
siglit, would prefer you, but we can draw elsewhere, re-
ply immediately A B C Code" and yesterday we received
your reply. "We will accept your draft net proceeds,
do not know the value, enquiry is being made, how much
shall we insure." Last evening we then cabled you.
"^^e are quite certain GOOD bags Jany./Feby. ship-
ments, insure open policy of insurance, we will draw
George Wostenholm d- Son, Limited. 179
less than value. We shall require a sailing vessel up
to 1200 tons 1st of March Punta Arenas, Cedar, at what
I'ate can you secure."
As Ave advised you by cable, we have now commenced
cleaning a large quantity of coffee and have now in our
"Reneficio" in Ileiedia some eight or OOO quintals of
very good coffee.
We telegraphed you that we could make Jany. and
]">by. shipments, but this was a conservative statement,
as we will be ready to ship you by the middle of next
month, at least 500 bags, and can from that date make
you regular weeklj'^ shipments.
Our urgency in cabling you on the 23rd that we must
have permission to draw, was caused by the fact of the
failure of E. L. :\[adur() & Co. of Paris and Hoadley &
Co. of London and New York, there having been sold
here a great deal of pAper on both houses, and exchange
has jumped from 19-57^ to 215% premium and with a
possibility that it n\iy go higher, when the protested
drafts are returned.
We have sold some of your drafts for 215% premium
and you can understand how cheap we are buying cdffee
now, when instead of only getting for our drafts 196%
premium and paying 20.00/ per quintal, exchange is up
to 215% and we are now buying and making further
contracts for coffee at 18.00 and 19.00 per quintal.
Even should exchange go down a little, which is not
likely for some months to come, we calculate on making
a verj' good profit on our coffee this year, and the com-
180 Ansel M. Easton vs.
mission that you will have on the sales will not be a
small one. '
The coffee that we will ship you should be worth cer-
tainly £3.00.0 per bag, but we will not draw for any-
thing like this amount, as we intend to pay up your
entire a/c and have a balance to our credit by March
of next year from our shipments.
If our Mr. Lowe can arrange, he will make a visit to
Europe next summer, and the first house he will visit
will be yours, and be glad to see your Mr. Wing again,
and the other members of your firm.
We now beg to refer to that part of our cable yester-
day, referring to cedar.
The principal cedar growers have formed a Company.
"The Costa Rica Lumber Export Co., Ltd.," in which we
have taken some stock and through this we have the
privilege of shipping all the cedar through our Punta
Arenas house. In Feby. the Cbmpany will have ready
for its first shipment 2i,500 logs, for this reason we ask
you at what rate could you secure a sailing vessel to 'be
in Punta Arenas March 1st. of 1,200 tons. We would
like you to inform us therefore, what arrangements you
can make for a vessel of this size, rates of insurance
and so forth, as we are satisfied that all the cedar that
the company ship to England, will be consigned to you.
We have nothing further by this oppurtunity, and
with ibest regards, we remain,
Yours faithfully,
(LOWE) SCHWARTZ, LOWEl & CO.
George Wostenholm cC- 8on, Limited. 181
SCHWARTZ, IX>AYE & CO. TO GEORGE WOSTEN-
HOLM & SON.
Letter-head of S. L. & Co.
iSan Jose de Costa Rica, Nov. 26, 1898.
Messrs. Geo. Wostenholm & Son, Ltd., Sheffield.
Dear Sirs: Confirminp; our of the 2l5th under separate
cover, we now beg to advise you that we have drawn up-
on ,you as follows: #'iW'~ at 90 days in favor of Walter
Field for UIC^.CkS. #1804 at 90 days in favor of Walter
Field £3000.0.0. ajjainst coffee shipment as explained in
our other letters. Please honor our drafts on presenta-
tion, and oblige,
Yours faithfully,
(LOWE) SCHWARTZ, LOWE & CO.
L. LEON LOT^^ TO MR. WING.
Letter-head of S. L. & Co.
Nov. 27, 1898.
My dear Mr. Wing (Thos. Wing): Your favor of Oct.
2i6th to hand and respecting all your indications I must
say that I thank you heartily for the confidence shown
me, and though we have not done much business form-
erly, I have made up my mind that whatever is to be
done with your company shall ^be done by you and I
feel confident I will be treated right.
Afe we stated in our business letter "we will shii) 0,000
bags of coffee" is simply a conversative estimate. We
have arrangements for that amount and I feel sure it
will be way above those figures.
182 ' Ansel M. Easton vs.
As a matter of course you will make quite a few
pounds out of these transactions, which is only natural.
I was offered £-10,000. O. O. credit from a strong Lon-
don firm, but I go with the Spanish maximi that it is
better to deal with those you know than strangers not
known to you. I have also ready a large quantity of
wood for my own account, and as soon as we hear from
you, what rate you can get a sailing vessel, I will get
ready to ship to you.
I also enclose the contract in the official paper of the
Lumber trust formed here of which I am vice president
and will virtually have the management of the concern.
This trust was formed to control all the cedar output
in this republic, and I have made them understand that
the IXL people will handle our business in Euro[X».
We will have sufficient lumber after the 15th of March
to load a vessel of 1200 T. d/v each month for eight
months, so you see if we do go slowly in this country,
once vre commence we do a thing with a whim.
In accordance with your cable I have drawn on you
against coffee shipments. As a matter of course, you
will have realized on the coffee I will send you, long be-
fore these drafts mature. I will cable each time I have
a lot of coffee in the port, the number of bags all ready
for shipment, so that joii may insure them under open
policy at £3,0.0. each per bag, please make insurance
policy read from moment of leaving our coffee cleaning
place in Ileredia, until arrival in London, against fire
and marine risk. I will also cable you how much each
steamer takes each time they leave Limon or Punta
Cicorfic Wostenhohn <6 Son, LiiiiHed. 183
Aronas. I rather spend some money on cables than
make a loss. It may seem extravagant, but it is safer.
Hoping this will find you in j'our usual good health,
I remain, with regards to 3'ou,
Your sincerely,
L. LEON LOAVE.
My regards to all your folks.
OEOKGB V^OST'EiNHOLM & SON TO SCHWARTZ,
LOWE & 00.
Sheffield, 20 Nov., 1898.
3resf;rs. Sclnvartz, ivowe & Co., San Jose de Costa Rica.
Dear Sirs: We have had the pleasure to receive your
A'arious telegrams and in reply to yours of the 24th inst.,
we cabled "We will accept draft for Net Proceeds re-
ceived''. We do not know the value inquiries are being
made. What shall we insure for"? Which we beg to
confirm.
In reply you wired ''We are quite certain 6000 bags
Jan. /Feb. shipment, insure open policy. We will draw
less than value. We shall require steam tonnage up to
1200 tons Punta Arenas Cedar. At what rate can you
secure"?
We regTet the delay in replying to your first telegram,
but we found we could not get the information we
wanted by correspondence and our Mr. Thomas Wing
went to London to see the brokers and get, if possible,
some idea of the value. The information you give is so
vague that we are much in the dark as to quality of
c(jffee, but will be aible to form a good idea of probable
3 84 Ansel M. Easton vs.
value, and we note your assurance that you will not
overdraw. You will of course provide for the payment
of your own account, Avhich, by the time coffee is real-
ized, will be a pretty large sum. We gathered from the
broker that the coffee might realize 55/ for good crops,
and that, as supply of Santos and Rio is short this sea-
son prices may stiffen and make up somewhat for the
heavy recent fall. We purpose charging the usual com-
mission, 2 1/27^ for sale and 1/2% acceptance, besides
expenses, and we trust the result will give you fullest
satisfaction. We are under obligation to provide 200
bags 1 equal to salmple brought by our Mr. Thomas Wing
at 5!2/ — in Liverpool, as per our correspondence re-
cently.
When our Mr. T. Wing saw Mr. W. Schwartz in Shef-
field, he understood him to name the Crocker Wool-
worth National Bank, San Francisco, as reference, and
for the satisfaction of our Board of Directors, we wired
to them. They reply "Have no particulars, do not
know,'' so either the telegraph Company has muddled
your name, or our representative has given us the wrong
bank.
We presume on such quick sale goods as we are now
shipping you, you will not require the eight months cred
it given on iron. These big credits are a large hind-
rance to business and they make accounts too large if
shipments are heavy, and we greatly prefer cash busi-
ness on smaller commission.
George Wostenholm <t Sou, Limited. 185
With our best wishes for the approaching Christmas
season, Yours very truly,
GEORGE WOSTENHOLM & SON, LTD.,
(Signed) T. C. WING,
P. S. We are not yet able to state rate of insurance.
T. W.
(JEORGE WOSTENHOLM & SON TO CROCKER
WOOLWORTH NATIONAL BANK.
Sheffield, Nov. 30, 185^8.
Messrs. Crocker-Woolworth National Bank, San Fran-
cisco.
Dear Sirs: When our Mr. Thomas Wing saw Mr.
William Schwartz of Messrs. Schwartz, Lowe & Co. in
Sheffield, he understood him to say that if ever ,we
wanted i\uj information as to their standing, we might
^PPly to yon. A sudden question having arisen which
required to be settled at once, we took the liberty of
wiring to you on the 28th inst., asking if that house
might be trusted up to Fifteen Thousand pounds, and
next morning we get your kind reply. You say ''With-
out any particulars, do not know". Either we have got
the wrong name of the Bank or the cable company has
muddled our telegram. We understand Messrs.
Schwartz, Lowe & Co., have a branch house in San Fran-
( isco (10 Battery St.) We are telling them by this mail
what we have done, and beg to thank you for j^our kind
courtesy in this matter. We are. Dear Sirs,
Your very truly,
(lEORiGE WOSTENHOLM & SON, LTD.
pr. THOMAS WING,
186 Ansel M. Easton vs.
(iEC). C. SAKCJEINT' TO (JEORGE WOSTENHOLiM &
SON.
San Francisco, December 1st, '98.
George Wostenliolm & Son, Ld., Sheffield, England.
We beg leave to inform jou that the firm of Easton
& Schwartz, of which the undersigned composed all the
partners, has been dissolved this day, by consent of all
the partners. The above firm of Easton & Schwartz
was, as you are probably aware, the San Francisco
agents of Schwartz, LoAve & Co., doing business at San
Jose de Costa Rica, which latter firm was dissolved on
June 20th, 1898. Please acknowledge receipt hereof.
Yours respectfully,
SAJIUEL SOHWIARTZ,
WILLIAM SCIHWARTZ,
ANISEL M. EASTON,
By GEO. 0. SARGENT.
308 Market Street,
San Francisco.
SCHWARTZ, LOWE & 00. TO (JEORGE WOSTEN-
HOLM & SON.
Letter-head of S. L. & Co.
Dec. 2, 1898.
^Messrs. (Joo. Wostenholm & Son, Sheffield, England.
Dear Sirs: We beg to confirm our respects of the 2S"
and 26" ult, since which writings we have not received
:'.ny of your favors.
On the 1st iust. we drew upon you as follows:
I
George Wosienholm c6 Sou, Limited. 187
#1816 at i>(> days f^igllt iu favor of Minor C.
Keith for £500.0.0
if 181 7 at 90 daj-s sight in favor of Minor C.
Keith for £500.0.0
#1818 at IK) (lays sight in favor of :\rinor C.
Keith for £500.0.0
#1811) at 90 days sight in favor of Minor C.
Keith for £500 .0.0
#1820 at 90 (lays siglit in favor of Minor C.
Keith for '. £500.0.0
£2500.0.0
which please honor on presentation.
Since our last writing, we have received quite a large
(]uantity of coffee at the "Beneficio'' and expect by
about the 15th of this^ month to have ready for ship-
ment, from 8j00 to 1000 bags.
We have nothing further to add by this mail, and
with best regards from Mr. Lowe to I\Ir. Wing we re-
main.
Yours faithfully,
SCHWARTZ, LOWE & 00.
THOMAS WIXG TO WILLIAM SCHWARTZ.
Letter-head C. AV. & Son, Ltd.
Sheffield, 3rd Dec, 1898.
Wm. Schwartz/Es(i., 19 Battery St., San Francisco.
Dear Mr. Schwartz^: As you will no doubt have
gathered from the invoices we have been sending 3'ou
along, we are doing a good sized business with your es-
188 Ansel M. Easton vs.
teemed house. For the satisfactiou of our Board of
Directors, we telegraphed to the Crocker-Wool worth
National Bank, San Francisco, wliom I understand you
fo name to me when in England, as a reference; asking
them as to your standing, and in reply they wired
^'Without any particulars, do not know" and we have
since had another wire from them "Ansel Easton no
longer partner Schwai'tz, Lowe Co." As you know, I
do not doubt for one instant that you Avill order any-
thing you cannot paj^ for, still as the directors wished,
we hnd to telegraph and as I had of course told them
<ibout Easton being with you and his capital, they won-
der now if this will affect you at all.
In addition to the large business we are doing, there
was the question of our accepting drafts against Coffee
shipments, which would involve us in a certain auioujjt
of responsibility, and when the directors asked nie what
f could tell them as to your ftrm I could only give them
llie iiiforiiiation I had gathered from Morris Goldtree
and whilst in San Jose.
Kindly let me have a line from you at your con-
venience, that I JUciy place before the D'irectors.
Trusting that you and your family are very well and
with my best wishes for Christmas and the New Year,
I remain,
Yours very truly,
(Signed) THOMAS WIN(K
George Wostenholm & Son, Limited. 189
(}EOK(5E WOSTENHOJJM & SON TO S'OHWARTZ,
LOAVE & CO.
Letter-head G, W. »& Son.
Sheffield, 3rd Dee., 1S98.
Messrs. SchAvartz, Lowe & Co., San Jose de Costa Kica.
Dear Sir.^: (.'onfirming onr respects of (he 30tli ult., we
are since withont any of 3a)nr esteemed favours.
"Tauric" ss. Enclosed we have much pleasure in
handing you invoice, consular invoice, B/L and a/c foi'
freight and insurance for 54 bales of coffee bags,
shipped per "T'auric" ss. from Liverpool and trust you
will find the same in order.
"Essequibo" ss. We are making you a shipment by
Ihis vessel from London next week, when we shall shi])
tJie monthlj^ lot of Gilbey's goods, remainder of last
monthly shipment of Swiss JMlk and remains of C. & E.
Morton's order.
Coffee. No change of importance has occurred in
Ihis mai'ket. There is a good demand for good class
(offees, but other kinds are slow. The market for
futures shows a slight decline from the late highest
]><iint. Only a few bags of Costa Rica were offered.
Ordinary 30/6 to 38/- low middling, dull greenish 58/6.
Peaberry 79/6.
Cedar. The only offer we have had up to the present
lime, has been a small sailing vessel. We can get no
steamer the size you mention, and the Kosmos line in-
form us, they do not carry cedar, except from June/
December. We are on the look-out, and as soon as we
190 Ansel M. Easton vs.
liear anything will cable you. The rates have gone up ,
tremendously, and the sailing vessel wanted 40/- per
ton of 40 cubic feet.
Easton. The Crocker-Woolworth National Bank of
San Francisico have telegraphed us further "Ansel
Easton no longer partner Schwartz, LoAve & Co."
This of course does not give us any information, and we
await your advices.
Insurance. Our Insurance Co. quote us as follows:
"We haA'e gone fully into the risks named in yours of
the 25th ulto., and are prepared to accept the business i
on the following terms, which we may mention are
based on a tariff framed in Hamburg, not included war
risk.
To United Kingdoui, If via United States.
Average on ea. 50 Bags 3% 12/67o 15/-%
Average on ea. 20 Bags 3% 15-% 17/6%
These rates include risk from interior by land car-
riage only and the United Kingdom business is limited
to following lines of steamers: Hamburg American,
Cie., General Transatlantique, Royal Mail, West India
& Pacific, and the Dutch Mail steximers — 2/6% extra
to be paid if transhipped from a port on the Continent
to England. "
Undershirts and Overshirts. W'e have had a traveller
from Nottingham, with a good selection of these shirts,
such as the writer saw you offering in the store wlien in
San Jose last April. There are a good many varieties,
such as Singlets like Niggers wear with a colored front
George Wostenholm & Son, Limited. Idl
iittaclied, aud they are iu merino, white, brown cotton,
merino linish and wool of various kinds. The prices
run from 4/- upwards. We should very much like to
send you some samples of these, but are rather in the
dark as to tlie method of getting them through the Cus-
tom House. If you feel inclined to go into this at all
and Mill let us know how we are to send the samples,
we shall be pleased to give your order attention at once.
Awaiting your further esteemed favours, with our
kindest regards, we remain, dear sirs.
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED.
pr. THOMAS WING.
Sheffield, 3rd December, 1898.
.Messrs. Schwartz, Lowe »S: Co., 19 Battery Street, San
Francisco.
Dear Sirs: * * * the present serves to hand you copy
of invoice and B-L for 54 Bales of Cioffee bags, shipped
from Livoipool, on account of your Costa Rica house.
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED,
pr. THOMAS W^ING.
192 Ansel M. Easton vs.
GEORGE WOSTENHOLM & SON TO CROOKEB-
WOOLWORTH N'AJTIONAL BANK.
Telegraphic Address^: "Wostenliolm, iShefiSeld."
National Telephone No. 88.
George Wostenholm & Son, Limited,
Washington Works,
Sheffield, 3rd December, 98.
Messrs, Crocker- Woolworth National Bank, San Fran-
cisco.
Dear Sirs: Confirming our respects of November 30th,
A\ e have had the pleasure to receive your cablegram
"Ansel Easton no longer partner Schwartz, Lowe Co."
for which we are much obliged. We presume Mr.
Easton has desired you to inform us that he is no longer
connected with the Company, but if you have been put
to any expen.se in the matter, kindly apply to our Agent,
Mr. George Quirk, 9fi & 98 Reade Street, New York,
who will reimburse you.
With many thinks, we remain, dear sirs,
Yours very truly,
GEORGE WOSTENHOLM & SON, LOIITED.
J. C, WING.
GEORGE WOSTENHOLM & SON TO SCHWARTZ,
LOWE & CO.
Sheffield, Dec. 7th, 1898.
ile.ssrs. Schwartz, Tx)we & Co., San Jose de Costa Rica.
Dear Sirs: Confirming our respects of the 3rd inst.,
we are since without any of your esteemed favours.
Oeortje Wostenholm & Son, Limited. 193
'Tiiuric" ss. Enclosed we beg to Land you copy of
invoice for j;oods shipped per this steamer.
Credit Note. Enclosed we beg to hand you credit
note for £-0-15-9, amount we have collected tliis day for
deferred returns for your shipments via New York.
We hope in due course to credit you with further re-
turns on goods shipped by this line.
Steamer. We regret we have, up to the present time,
been unable to get an offer for 1200 tons steam tonnage.
We are keeping our eyes open and will advise you as
soon as we are in a position to do so.
*'Essequibo" ss. We have made you a shipment to-
day per this steamer and shall forward you documents
by Siaturday's mail.
Awaiting your further esteemed favours and com-
mands, we remain. Dear Sirs,
Yours very truly,
GEORGE WOSTENHOLil & SON, LIMITED,
pr. THOMAS WING.
Sheffield, 7th December, 1898.
Messrs. Schwartz, Lowe & Go., 19 Battery Street, San
Francisco,
Dear Sirs: ♦ • * the present serves to hand you copy
<»f Credit Note for deferred returns, which we have col-
lected today. There are other deferred returns, which
we shall collect in due course and give you credit.
•* »• #« * » • * *
Yours very truly,
(;e(>kge a\'ostenholm & son, limited.
pr. TIIO^IAS WING.
1'94 Ansel M. Easton vs.
SCHWARTZ, LOWE & 00. TO GEORGE WOSTEN-
HOLM & SON.
Letter-head S. L. & Co.
San Jose de Costa Rica, Dec. 9th, 1898.
Messrs. Geo. Wostenholm & Son, Limited, Sheffield,
England.
Dear Sirs: We beg to confirm our last respects of the
2*' inst. and also our cable of today as per copy en-
closed. ''Shall commence beginning of next week coffee
shipments, now ready 500 bags, we await your reply
with regards to cedar freight." As we wrote you on
the 21th ult. we will be ready to ship cedar about the
J 5" of March, and would like to be informed, in the
meantime, if you could charter a vessel capable of carrv-
iug 1200 tons and under what arrangements.
By this mail we have drawn upon you as follows:
#1822 at 90 sight in favor of Andrew Phillips
for £500.0.0.
#1823 at 90 sight in favor of Andrew Phillips
for . £250.0.0.
#1824 at 90 sight in favor of Andrew Phillips
for £250.0.0.
#1826 at 90 day sight in favor of Walter J.
Field for £2000.0.0
in all £3000.0. which please honor on presentation.
We will send you a cable the day we ship, advising
you simply the number of bags, and the name of the
vessel, in order that, you may effect the insurance.
George Wostenkolm & Son, Limited. 195
Without anythinfi: further by this opportunity, and
with best rej^ards from our Mr. Lowe to your Mr. Wing,
we remain,
Yours faithfully,
(LOWE) SCHW\\RTZ, LOWE & 00.
GEORGE WOSTENHOLM & SON TO SGHWARTZ,
LOWE & CO.
\ • Sheffield, 10 Dec., 1898.
Messrs. Schwartz, Lowe & Co., San Jose de Costa Rica.
Dear Sirs: C'Onfirraing our respects of the 7th inst.,
we are since without any of your esteemed favors.
"Essequibo" ss. We have not been able to get hold
of documeuts fop shipment by this steamer, but will
send them you by Royal Mail Steamer on Tuesday next.
Coffee. We are glad to know that you will make us
a sihipment early next week of 500 bags of coffee, and
we await your reply as to amount we are to insure for,
and name of steamer. You will be pleased to know that
28 bags of new crop were offered this week on the Lon-
don market and realized: Low Middling 61/6, Bold
92/(5, Peaberry 85/ — . This coffee was London cleaned.
The market for "Futures" has shown a downward ten-
denc}' owing to decline in freights. There is very little
demand for the cheaper grade of coffees, but for Colory
coffees the demand is good and they can always be sold,
196 Ansel M. Easton vs.
Awaiting your further favors, with your kindest re-
gards, we remain, dear sirs.
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED.
Per THOMAS WING.
Sheffield, 10th December, 1898.
Messrs. Schwartz, Lowe & Co., 19 Battery Street, Sam
Francisico. '
Dear Sirs: » * ♦ the present merely serves to
hand you copy of credit note for further return of Pri-
maige, which we have obtained and credit you 8/11 in
account.
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED,
pr. THOMAS WING.
Importadores. Comisionistas. Exportadores.
Giros de Letras.
SCHWARTZ, LOW^E Y CIA.
Direccion Cablegrafica
S L
&0
"Schlowe"
A. B. C. Code.
San Jose de Costa Rica, Deer. 10th, 1898.
Mess. Geo. Wostenholm & Son (Limited), Sheffield, Eing-
land. ' I
Dear Sirs: We beg to confirm our respects of yester-
day's date, and this morning received your dispatch as
follows: ^'tonnage is scarce and a good demand pre-
George Wostenholm & Son, Limited. 19^7
vails; cannot secure 1,200; the best offer we can make
2,500 register, at per ton weiftiht 40 — ." We immedi-
ately cabled you in reply "freight is too high, we wonM
prefer waiting" — as per copy enclosed.
With such an expensive freight rate offered, we think
it is better not to make any contracts at that figure, and
feel confident that before the time the cedar is ready to
ship, that we will 'be able to obtain vessels at a lov.c^r
freight. f
Referring to the various drafts we have drawn upon
you at 90 d-s sight, we would like to say that our ad-
vices of yesterday complete what we shall draw, amd
that very shortly we shall commence shipping coffee
in order that you may realize on it long before the
drafts fall due. '
When coffee is beginning to be exported also, it is
confidently expected that exchange will go lower, and
we will send you on remittances to apply on our mer-
chandise account. i
We are sorry to say that our Mr. Lowe has not been
well for the last few days, it is nothing serious, but
he has been confined to the house, and under the doc-
tor's orders, he has to be confined to the house for a
little time.
Next week, we will write you regarding the various
invoices we have received from you recently, and would
like you to send us statement up to Dec. 31st.
Yours Faithfully,
SCHWARTZ, LOWE & CO.,
Per GEO. V. PLENDER.
P. S. — 'Mr. Plender sends regards to your Mr. Wing.
198 Ansel M. Easton vs.
GEORGE WOSTENHOLM & SON TO SOHW.'^BTZ,
LOWE & CO.
Sheffield, 13th December, '98.
3Iessrs. Schwartz, Lowe & Co., San Jose de Costa Rica.
Dear Sirs : *'
"Eisisequibo" ss. Enclosed we have now mucli pleas-
ure in handing you invoice, consular invoice, B/L etc.,
for 125 packages, shipped per this steamer from London
on your aicount and we trust you will receive the goods
safely.
Trusting shortly to hear further from you, with our
kindest regards, we remain, dear sirs,
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED.
) pr. THOMAS WING.
Sheffield, 13th December, 1898.
Messrs. Sehwartz, Lowe & Co., 19 Battery Street, San
Francisco. '
Dear Sirs: » » * the present serves to hand you
copy of invoice and document for 125 packages shipped
per s.s. "Essequibo" from London, for account of your
San Jose house, which we trust you will find in order.
• « ♦ • ♦ » ♦
Yours very truly,
GEORGE: WOSTENHOLM & SON, LIMITED,
pr. THOMAS WING.
Gcoige Wostenholm <C- »SiO», Limited. 199
GEORGE WOSTENHOLM & SON TO SCHWARTZ,
LOWE & CO.
Sheffield, 17th Dec. 1898.
Jlessrs. SchAvartz, Lowe & Co., San Jose de Costa Rica.
Dear Sirs: We have your kind favours of the 25th
nnd 26th of November , and this morning^ the drafts
named have been presented for acceptance.
The telegTams you detail are correct, with the excep-
tion of one word, to which we will refer later on.
Your» of the 18th Nov. says "May we drarw at 3 mos.
7 p. a/s, ag'aiust shipment of coffee, etc.," and we have
now yours of the 10th inst., "Shall comimence shipping
coffee next week, now ready 500 bags," etc.
You will readily see that your anxiety to take ad-
vantaige of high rate of exchange has led you to go be'-
yond the agreement you fii*st propoised. December 10,
your purpose shipping 500 bags "next week" value s'ay
£1500, aud you draw Nov. 26 for £3476, 21 days before
shipment. We were under the impression that we
should receive B/L by the same mail which brought the
drafts, and thus have some tangeable security, though
when our Directors considered your proposal, they de-
cided, as we cabled you to accept for Net I'roceeds re-
ceived, meaning that we should have cash in hand be-
fore accepting. This would probably have meant, that
when B/L was here and security deemed ample, the
drafts would be accepted, but, as it is, you put us in a
:*Ttj difficult position.
We have a high respect for your house, and believe
you to be perfectly sound and have given proof of this
200 Ansel M. Easton vs.
by the large credit we haver given you recently, and
which we are increasing by the current monthly ship-
ments, but now that you go so far beyond the arrange-
ment proposed by yourselves, we think it doubtful
whethier our directors will accept, until they have some
evidence of shipment aad to an adequate value. The
matter must of course be submitted to them at their
meeting next week and we hope it will be so arranged
that there shall be no damage to your good name.
The acceptance when made will be as from to-day, so ni»
loss will accrue. You shall have advice at once of the
decision. This being the first transaetiou of the kind
we have had with your house, it was specially desirable
th'at all should have been in order.
We have a letter this forenoon from O. C. Sargent,
San Francisco, informing us that you San Franicisico
house Baston & Schwartz dissolved partnership 1st
Dec, and that Schwartz, Lo'we & Co., San Jose, was
dissolved 20th June last. We do not know the bear-
ing of the latter statement, and should have been glad
to have been informed at the time. We speak with the
utmost frankness and shall be glad for you to be equally
frank with usi •
Awaiting your further favours, with our kindest re^
gards, we remain, dear sirs.
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED.
(Signed) J. 0. WING.
George Wostcnholm & Son, Limited. 201
GEO. C. SARGENT TO THOiMAS WING.
San Francisco, December 17tb, 1898.
Mr. Thomas Wing, Care Geo. Wostenliolm & Sou, Ld.,
Sheffield, England.
Dear Sir: Mr. William Schwartz received yesterday
y<mr letter addressed to him at 19 Battery Street, in
this nty, and dated 3rd, 1898. He requests me to reply
to the same.
You have probably received by this, time the notice
sent by me lately of the dissolution of Easton &
Schwartz. As stated in that notice, the old firm of
Schwartz, Lowe & Co. was dissolved on June 20th,
1898. At that time both Mr. William Schwartz and
Mr. Ansel M. Easton withdrew from the firm. All the
assets were turned over to Mr. Low^e, and all liabilities
wore assumed by him. He agreed to give notice of the
change to all persons with whom the firm had dealt. 1
am informed that your agent, or rather the agent of
Geo. Wostenholm & Son Ld. wa® tliere in San Jose de
' \>sta Ricai shortly afterwards, and was notified. Mr.
Lowe has since the above time conducted the busiuesss
strictly upon his own account. '
Yoursi respectfully, SS
GEO. C. SARGENT.
Sheffield, 17th December, 1898.
^lessrs. Schwartz, lyowe & Co., San Jose de Costa Rica,
Dear Sirs: • ♦ • "Georgic" s. s. Enclosed we
now beg to hand you invoice, consular invoice and full
202 Ansel M. Easton vs.
documents for 151 packages shipped per this boat,
which we ti'ust j'ou will find in order.
♦ ♦♦♦♦♦♦
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED,
pr. THOMAS WING.
Sheffield, 17th December, 1898.
Messrs. Schjwartz, Lowe & Co., 19 Battery Street, San
Fl*ancisico.
Dear Sirs: * * * the present serves to hand you
copy of invoice aud do'cuments for 151 packaiges shipped
from Liverpool per s. s. "Georgic" on account of your
San Jose house, which we trust you will find in order.
♦ ♦ ♦ ♦ * * »
Yours vei-y truly,
GEORGE WO'STENHOLM & SON, LIMITED,
pr. THOMAS WING.
GEORGE WOSTENHOLM & SON TO SCHWARTZ,
LOWE & CO.
Sheffield, 21st Dec, 1898.
M'essrs. Schwartz, Lowe & Co., San Jose de Costa Rica.
Dear Sirs: Confirming ours of the 17th inst., we beg
to say that we sent you yesterday the following cable-
gT'anr: "We cannot accept your bill, accept but for cash
only, as per our telegram will undertake cedar, the best
offer we can get, rate of freight per sailing vessel,
86/3, at onie port only, will carry a'bout 2500 tons dead
weight."
d
Otorge Wostenholm & Soiiy Limited. 203
Our Board of Directors carefully considered the ques-
tion of accepting the two drafts, and decided to adhere
to their former resolution of accepting onlj- to the
aanount of cash in hand. We fear this will cause you
some inconvenience, which we sincerely regret, as we
are most anxious you should have e\erj possible facil-
ity for proceeding with the business, which we trusted
also would be so mutually satisfactoiy that you would
repeat the consignment of coffee annually, we being
confident in our ability to manage the matter to your
satisfaction, and by our relations with you hitherto
you will have seen that you are treated with the ut-
most, fidelity.
It should not be forgotten that your account is now
near upon £4000. for which we have no security, except
our confidence in the standing of your house. Against
this we have the advise we mentioned from San Fran-
cisco that your firm as 'been reconstituted, and we ase
in ignorance of its present composition. Through
^lessi's. Hoadley & Go's, failure, your last draft of £350.
has been dishonored, and the other failure you mention
(Iocs not increase onei'a confidence in the way in which
this bill-broking is managed.
It is not surprising, therefore, that he dii-ectors came
to the conclusion to wait, before undertaking further
responsibilities, until some more definite step than the
promise of a shipment of coffee has been taken.
Yesterday a notary formally presented the drafts for
acceptance, which was declined on the ground that they
204 Ansel M. Easton vs.
have been drawn prematurely. Before next mail we
shall probably have a wu*e from you, giving us further
information, and it will afford us much pleasure to do
all we can to meet your wishes. We also hope to re-
ceive from you some account of the reconstruction of
your Arm.
Awaiting your kind advices, we remain, dear sirs.
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED.
J. C. WING.
Siheffiield, 21st December, 1808.
Messrs. Schwartz, Lowe & Oo., 19 Battery Street, San
Francisco.
Dear Sir: ♦ ♦ ♦ enclosed we beg to hand vou-
copy of credit note for deferred returns, which we have
collected on account of your San Jose house this day.
Yours very truly,
GEOiRGE WOSTENIHOLM & SON, LIMITED,
Per H. O.
Sheffield, 24th December, 1898.
Messrs. Schwartz, Lowe & Oo., San Jose de Costa Rica.
Dear Sirs. * ♦ * W'e regret to have to inform
you that we have received the enclosed protest by the
Notary Public. Your draft on Messrs. Hoadley & Oo.
is not honoured, and we therefore beg to return it, hav-
ing debited your account with £350. 12. 6., and we trust
George Wostenholm <£• Sou, Limited. 205
you will not be put to any loss in the matter, but will
be able to recover amount from the drawers.
Yours very truly,
GEOKGE WOSTENHOLM & SON, LIMITED,
(Signed) J. 0. WINO.
COPY.
Sheffield, 24th December, 18»8.
Messrs. Schwartz, Lowe & Co., San Jose de C^sta Rica.
Dear Sirs: Since writing to you on the 2ilst inst., we
have none of your favours to acknowledge, and as we
have received no reply to our telegram, we conclude
that you have placed your business elsewhere, especial-
ly as we learn from Liverpool, that the "Altavela" and
the "Earl Derby" are reported as fixed for Punta Arenas
at 38-9. We should have secured the vessels at 35-.
We need hardly say that we extremely regret the
correspondence between us has ended in this manner,
but when you get our letters, we feel sure you will ac-
quit us of any want of consideration in the matter, and
we shall hope to continue to be useful to you in other
ways. We trust, however, that the 200 bags of coffee
we have undertaken to deliver at 52- per cwt. will be
duly sent off, and the quality will not be inferior to the
sample brought by our ISfr. T. Wing.
We regret to have to inform you that we have re-
ceived the enclosed protest by the Notary Public. Your
draft on Messrs. Hoadley & Co. is not honoured, and we
therefore beg to return it, having debited your account
with £350. 12. 6,, and we trust you will not be put to
206 Ansel M. Eastm vs.
any loss in the matter, but will be able to recover'
amount from the drawers.
Yours very truly,
GEOBGE WOiSTENHOLM & SON, LIMITED,
(Signed) J. C. WING.
Importadores. Oomisionistas. Exportadores.
Giros de Letras.
SiOHWABTZ, LOWE Y OIA.
Direccion Oablegrafica:
SL
&0
"Schlowe"
A. B. C. Code.
San Jose de Oosta Kica, Dec. Slst, 1898.
Mess. Geo. Wostenholm & Sbn, Ltd., Sheffield, England.
Dear Sirs: Since writing you on the lOth inst., we
received on the 21st inst., your cable translated as fol-
lows: "We cannot accept your bills, accept but for cash
onl3% as per our telegram of. Will undertake cedar.
The best offer we can make, rate of freight per sailing,
vessel is 36-3 at one port only. Will carry about 2,500
tons d-w."
The news that you could not accept our bills came as a
great surprise to us, as we had drawn upon you in good
faith, and could easily have covered the amounts by
coffee shipments. When you telegram came, our Mr.
Lowe was very unwell, confined to his bed, and the news
did not help to encourage him. We can only say that
we are very sorry that we misunderstood your first
cable advising us that you would "accept for net pro-
George Wostenholin d Son, Limited. 207
ceeds received." On the 26th inst., we cabled you as
follows: "we have drawn upon you, good faith, as per
jour telegram: please accept bill for £1,000 drawn 1st
day of December, favor Phillips, it is very important
for us": we sent this cable after due consideration,
knowing that we had certain compromise for coffee,
that we must meet.
On the 28th inst. your reply came "we will accept
£1000, if you have shipped coffee. Telegraph what you
have done. We are very sorry you have misunderstood
the matter entirely. Should like to know about cedar/*
TVe replied to you on the same date, "we thank you very
much. With regard to cedar, please refer to our letter."
We repeat our thanks regarding the acceptance of the
£1,000, and we have already 50O Bags of Ooffee in the
port, and more being cleaned at the present time.
When the coffee leaves we will telegraph you the name
of the steamer, and the number of bags. Mr. Lowe is
still very unwell, we are sorry to say, but is able toi
come down to business a few hours every day, and will
write you personally, fully about cedar this week.
We send best regards to your Mr. Wing, and wishing^
you a Happy and Prosperous New Year, remain.
Yours faithfully,
S0HWART1Z, LOWE & OO.,
Per S. V. PLENDER.
Enclosures — 2 copies telegrams.
208 Ansel M. Easton vs.
GEOEOE WOSTENHOLM & SON TQi GEO. C. SAR-
OEINT.
Letter-head G. W. & S. Ltd.
Sheffield, 24th December, 18^8.
Geo. O. Sargent, Esq., 308 Market Street, San Francisco.
Dear Sir: We are in receipt of your favor of the 1st
inst., informing us of the dissolution of partnership by
mutual consent of Easton & Schwartz, and Schwartz,
Lowe & Co., of San Jose de Oosta Rica, for which please
nccept our thanks.
Yioursi very, truly,
GEORGE WOSTEN'HOLM & SON, LIMlITED,
Pr. THOMAS WING.
GEORGE WOSTENHOLM & SON TOi SOHWART^^,
LOWE & 00.
i Sheffield, 2mh Dec. 1898.
Messrs. Schwartz, Lowe & Co., San Jose de Costa Rica.
Dear Sirs: Oontirming our respects of the 2'4th inst.,
we have the pleasure to acknowledge your favor of the
2nd.
As to the drafts you mention, we fear our recent ad-
vices must be confirmed, as the resolution of the Board
of Directors is explicit.
We also received this morning your telegram of yes-
terday, of which we enclose copy, and we have wired
to you this morning, as follows: "We will accept £1000.
If you have shipped coffee. We are very sorry you have
misunderstood the matter. Should like to know about
cedar. Telegraph us what you have done."
George Wostenholm & ^on, Limited. 209
It is holiday time, and our Directors are scattered
about England. The present writer has therefore no
opportunity of consulting them, and he has no authority
to promise acceptance, but he is personally so con-
vinced of your bona fides that he takes the responsibility
upon himself and will guarantee to the company the
£1000. Only in this way does he see that you can have
an answer within reasonable time, and so relieve your
anxiety.
Yours of the 2nd inst., does not mention the £1000
draft in favor of Phillips. Possibly you refer to two of
tlie £'500' which have been endorsed to Phillips.
We have no doubt whatever that you have acted in
perfect good faith in selling the drafts, and we can only
regret extremely the annoyance to which you are sub-
jected by the misunderstanding, but we hope that it will
all come out well in the end.
We remain, dear sirs,
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED.
(Signed) J. C. WING.
GEORGE WOSTENHOLM & SON TO SCHWARTZ,
LOWE & 00.
Sheffield, 31st December, 18&8.
Messrs. S<«hwartz, Lowe & Co., San Jose de Costa Rica.
Dear Sirs: Confirming ours of the 28th inst., we have
the pleasure to acknowledge your favours of the 9th
and 10th inst., and' on the terms of our last, we shall
210 Ansel M. Easton vs.
be happy to accept the three bills in favour of Andrew
Phillips, total £1000.
The 5 drafts of £500 each, advised in your favor of the
2nd inst., have been presented for acceptance, and we
have explained that they have been drawn under a
misunderstanding. We shall be happy to accept them
when coffee, which you propose sending us has been
realized.
We note that yon will cable us the day you ship,
advising us the number of bags of coffee, and the name
of the vessel. We are expecting to receive advice every
day, on receipt of which we shall, of course, accept
Phillips £1000. If you send 6000 bags, we should im-
jigine they would fully cover the £1000 you have drawn
and the amount of your account.
We enclose herewith statement of account to this day,
showing a balance to us of £S755. 7. 9.
We regret to hear that M. Lowe has not been well,
but ti'ust ere you get this, he will be fully to his usual
health.
Awaiting your further favours, with our kindest re-
gards, we remain, dear sirs.
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED.
(Signed) J. C. WING.
George Wostenholm <& Son, Limited. 211
GEIOROE WOSTEiNHO'LM & SON TO GEO. C.
SARGEiNT.
Sheffield, 4th January, 1899.
Geo. 0. Sargent, Esq., San Francisco.
Dear Sir: We are obliged by your favor of the 17th
ulto., contents of which greatly surprise us.
We duly received the notice of the dissolution of the
firm of Easton & SIchwartz, and that the old firm
Schwartz, Lowe & Co. was dissolved from 20th June.
You are wrong in supposing that we have received in-
timation of the change, and all our shipments have
been made on the understanding that the firm remained
as it was when our representative was there last April.
Nobody representing us has been in Oosta Rica since
that date, nor has Mr. Lowe sent us any advice of the
withdrawal. It was certainly the duty of Mr. Schwartz
and Mi'r. Easton to see that creditors were duly in-
formed, and it should not have been left to Mr. Lowe
to perform that essential act. A considerable portion
of our account is for goods shipped before the dissolu-
tion, and the remainder amounted to about £4,000 be-
fore we received any notice. We are clearly entitled,
therefore, to ask Mr. Schwartz and Mr. Easton to take
their share of the responsibility for payment, which,
however, we trust will be merely a matter of form. We
are writing to the Oosta Rica house to-day.
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED.
J. C. WING.
212 Ansel M. Eastmi vs.
GEORGE WOSTENIHOLM & SON TO SCHWARTZ,
LOWE & Co.
Sheffield, 7th January, 1899.
Miessrs. Schwartz, Lowe & Co., San Jose de Costa Rica.
Dear Sirs: Enclosed we beg to hand you invoice, con-
sular invoice and a/c for 57 packages of Gilbey's goods,
shipped per ss. "Dee," from London, on your account,
which we trust you will find in order.
Awaiting your further kind favors,
We remain, dear sirs.
Yours very truly,
GEORGE WOSTEINHOLM & SON, LIMITED.
Pr. THOMAS WING.
LOWE TO THOMAS WING.
On Letter-head of Schwartz, Lowe & Co.
iSan Jose de Costa Rica, Jany. 11, 1899.
Mr. Thomas Wing, Sheffield,
My Dear Rriend: I have your various favors to hand,
also the several cables. I am sorry this misunder-
standing happened, and I assure you it has done me
considerable damage as to my standing in this com-
munity. Of course I drew on you in good faith, and it
is now imi)o&sibIe to ship you the coffee, as I had to
make good these drafts, and will have to ship to Fruh-
ling & Goshen all the crop for a/c of holders of drafts; it
is really unfortunate, as these arrangements I could have
made with other houses, but I preferred to place myself
in your hands, knowing with what honesty and good
J
George Wostenhohn dc Son, Liinited. 21,3
will you always treated me; of course I do not blame
your directors, not knowing me, but they should never
have told me I could draw when it was with a string
to it; if they had cabled me plainly only against B/L, I
would have made arrangements with people who are
just as anxious to handle my coffee. I am sending your
people to-day £1,000.0.0, and with next mail or two will
send more, and will settle your a/c in short order, and
then if your directors wish to do more business with
me, good and well. I hope you have not felt badly on
my account, as you know more or less how I stand, and
nil my obligations will be paid, though a little overdue.
Hoping this will find you well, and with best regards
1o your good self, father, wife and Babe, I remain, as
ever/
Yours very sincerely,
L. LEON LOWE.
I have been very ill (brain fever), but feel myself
again.
Iraportadores Oonijisionistas Exportadores.
Griros de Letras.
SOHWAIRTZ, rX>W'Ei Y OIA.
Diroccion f^ablegraJfica
■S L
"Schlowe" & O
A. B. O. Code.
San Jose de Costa Eica, January 2f)th, 1800.
yionH Ceo. Wosteuholm & Son, Ltd., Sheffield, England.
Dear Sirs: By last mail we were pleased to receive
214 Ansel M. Easton vs.
your valued favors on the 28th and 31st ult. contents of
Avhich have received our ibest attention.
With the last mentioned we also received your state-
ment of account, showing balance in your favor to l!Tecr.
31, '98, of £3,755.7.9. Of course you have since received
our letter of the 12th inst. with 90 d-s exchange for
£1000.0.0; we shall examine your statement, comx)are it
with our books and report to you.
A'bout other matters touched upon in your last favors,
wo beg to refer you to our Mr. Lowe's letter of the 22nd.
inst. to your Mr. Wing. With best regards. We remain
Yours faithfully,
SOIIWIART'Z, LOWEi & CO.
GEO. C. SARGENT TO GEORGE WOSTENHOLM &
SO'N.
Sah Francisco, January 28th, 1S99.
Geo. Wostenliolm & Son, Ld., Sheffield, England,
Dear Sirs: Yours of January 4th, 1899, was received
in due time, but has not been answered by reason of
the a^bsence of Mr. Easton.
It seems strange that you did not hear of the dissolu-
tion. Mr. Easton has always 'been under the impression
that Mr. Lowe promptly attended to the matter. Possi-
bly failure of the mails may account for it.
However, Mr. Lowe has paid all accounts up to date,
as far as Mr. Easton knows, and I trust yours will be;
y)aid in due course.
I have written to Costa Rdca to-day.
George Wostctiholin tC Son, Limited. 215
I shall be pleased to hear from you from time to time.
Yours respectfully,
GEO. C. SARGENT.
THOMAS AVING TO LOWE.
Sheffield, 3rd February, 1899.
Leou Lowe, Esq., San Jose de Oosta Rica.
My dear Frieud: I am iu receipt of your faAour of the
11th Jan. and contents are noted.
Now, I want to ask you to do me a personal favor.
You know that the bag of coffee you so kindly let me
have when with 3'ou, was distributed amongst my var-
ious friends over here, and one of them, a j^reat personal
friend of mine, who is in the coffee and tea business,
asked me if I could secure him a couple of hundred bags
of the same kind. The coffee was shown to various
brokers on the London Exchange, and we were offered
53/- per cwt. Since then the price of coffee has declined
and if you can see your way to send, consigned to ^Messrs.
Cunningham, Shaw & Oo., Liverpool, for our account,
200 bags, you will be doing me a personal kindness, and
the amount can go towards the liquidation of your ac-
count. Please receipt of this send me a wire, saying
whether yim can oblige me in this matetr. I shall quite
understand if you just telegrnph the word "Yes", and
shall be verj' happy to bear the cost of the cablegram.
As regards your account, I have never doubted for
one moment, but what you would pay for all you or-
dered, and of course it was on my recommendation that
the directors allowed you the credit that they have done.
21f> A7is€l M. Eafttnii vs.
I trust that business is looking up in Oosta Kica, and
tliat 3'ou are finding it easier to get in accounts, than
was the case at the time of the war scare.
With kindest regards to your goodself, wife and fam-
ily, hoping shortly toh ear from you again, believe me,
Very sincerfely yours,
THOMAS WING.
Importadores. Exportadores.
Oomisionistas.
Giros de Letras.
SOHWARiTZ, LOWE Y CIA.
5 L
6 C
Direccion Oablegrafica
"Schlowe" '■
A .B. C. Code.
San Jose de Costa Rica, February 7th, 1899.
Mess Geo, Wostenholm &. Son, Ltd., Sheffield, England.
Dear Sirs: Confirming our last of the 26th ult., we
beg to advise j^ou that Ave have examined your state-
ment of account up to the 3ilst of December last, and
are quite in accord with the same. The balance as
shown £3,7155-7-1), we have therefore ibrought down, and
appears to your credit under date of January 1st of this
year.
With best regards.
We remain,
Yours faithfully,
SCHWARTZ, LOWEi & CO.
ijleorge Wostcnhobn d Son, Liinilcd. 217
(JEOKGE ^^-0STENlH0lL3^ & SON TO GEO. C. SAK-
OENT.
Sheffield, 15th February, 1899.
^Ir. Geo. C Sargent, 530 California Street, San Fran-
cisco.
Dear Sir: We are obliged by your favor of the 28th
iilto., and are glad to hear that Mr. Lowe has paid all
accounts up to date. He sent us last week £1000 at
Three Months Sight on his branch in New York, which
of course is no payment whatever. We will keep you
informed from time to time of the payments he makes.
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED.
J, C. WING.
J. C. WIN<I TO' GEO C. SARGENT.
Sheffield, 26th April, 1899.
(ki). 0. Sargent, Es(i., Attorney at Law, San Francisco.
Dear Sir: Referring to jour letters of 1st and iTtli
Dec. and 28th Jan. last, and ours of the 4th January,
we request j^ou to be good enough to hand to Messrs.
Ansel M. E'aston, Wni. Schwartz and Samuel Schwartz,
the retiring n:eni'bers of the firm of Messrs. Schwartz,
Lowe & Co., San Jose de Costa Rica, the enclosed let-
ters, juaking formal request for payment of the amount
i)f our account due from that firm.
Mr. Lowe stated that he intended paying off every-
thing not later than March last, but so far we have re-
ceived nothing, and we must therefore look to the re-
tiring partners who failed to give us notice of the disso-
218 Auficl M. Easton vs.
lutiou until 21st December last. As we have already
stated, our representative has not been in San Jose
since early in April last and Mr. LoAve failed to send us
anj^ notice of the change in the firm.
We are, dear sir.
Yours very truly,
GEOKOE WOSTElN'HOiLM & SON, LIMITED.
(Signed) J. C. WING.
Importadores Etxportadores
SOHWARTZ, LOWE & CIA.
Comisionistas,
Direccion Oablegrafica:
"Schlowe."
A. B. 0. Code.
San Jose, C. R., March 11th, de 1899.
Mess. Geo. ^Vostenholni & Sou, Ltd., Sheffield, England.
Dear Sirs: Since writing you on the 7th ult., we are
in receipt of your esteemed favors of the 4th, 8th, and
ISth, of the same month, with enclosures, contents of
all have received our best attention.
We regret that we do not see our way clear to send
you 30i() ibags of the same coffee that your ]Mr. Thos.
Wing got from us last year. The price mentioned 52-
per cwt. Avithout allowing for any decline in the market,
is very much lower than we received last year in San
Francisco, and what we are also off'ered this season.
By this week's mail, reports of sales of first grade
Costa Rica coffees were received, showing that they
realized from 85>- to 98- per cwt., and we will endeavor
I
George Wostenholm d Son, lAinited. 210
to send you a nice shipment of first-grade cofEee, after
we have completed our other shipments.
Our Mr. Lowe will write you regarding the cedar
business.
Very shortly we expect to send you another draft
upon New York, or upon our San Francisco house, and
with best regards, we remain.
Yours faithfully,
SOHWARTZ, LOWE & CO.
GEOROE WOSTENHOLM & SON TO ANSEL M.
EASTON.
S'heffield, 26th April, ia99.
.\nsel M. Easton Esq., San Francisco.
Dear Sir: We beg to hand you statement of our ac-
count with Messrs. Schwartz, Lowe & Ck)., San Jose de
Tosta Rica £3747-3-7.
You will notice that the larger portion of the account
is for goods supplied for orders given by the firm before
the dissolution, which we are informed by Mr. Sargent,
took place on 20th of June last, and the whole of the re-
mainder before we received, on 21st December last, Mr.
Sargent's letter, giving us formal notice of the dissolu-
tion.
We have made repeated applications for payment,
but with no response except a draft at 90 ds. on Messrs.
Schwartz, Lowe & Co., New York, which has been duly
received, but as we informed them, is no payment and
would be credited onlv when the amount was collected.
220 Ansel M. Easton vs.
As we opened the account and continued dealing with
the firm only because we supposed you were connected
with it, and we regularly sent to your San Francisco
house copies of all invoices included in the account, as
arranged with Mr. William Schwartz when it was
opened, so that you were kept fully informed of what
was being done, Ave naturally look to a'ou for payment,
and hereby request you to be good enough to forAV?rd
the arcount at jour early couveuieuce, with interest at
5 per cent, to date of receipt of remittance. We are
writing to this effect to Messrs. William and Samuel
Schwartz, and awaiting the favor of yonr reply, we are,
dear sirs.
Yours very truly,
GEORG'E WOSTENHOLM & SON, LTD.
' (Signed) J. C. WINO.
The following is a copy of the statement enclosed in
the above letter. (Copy statement:)
RIGHT' HALF OF STATEMENT.
Dr. Messrs. SchAvartz, Lowe & Co., In.
Interest Calculated to
1898. Days Interest.
June 30 To Balance down 1442. 2. 9 174 34. 7. 5
July 10 To Goods 90.11. 3 155 1.18. 5
July 26 To Freight .... 5. 3. 4 148 2. 1
* George Wostenholm <£ Son, Limited. 221
Aug. 20 To Goods, etc.
Sept. 13 To Goods
Sept. 16 To Goods
Sept. 17 To Freight . . . .
Sept. 20 To Exp. re ace. of
draft . . .
Oct. 15 To Goods etc.
Nov. 1 To Goods etc.
Nov. 9 To Goods
Nov. 18 To Goods
Nov. 19 To Cablegram . .
Nov. 22 To Caiblegram . .
Nov. 24 To Cablegram . .
Dec. 2 To Goods etc . .
Dec. 7 To Goods etc. . .
Dec. 10 To Cablegram . . .
Dec. 1(> To Goods etc. . .
Dec. 20 To Cablegram . . .
Dec. 20 To Drafts unpaid
4219.17.3 50. 7.10
95.14.
7
123
1.12. 3
95.14.
7
99
1. 6. 0
165. 2.
7
96
2. 3. 5
13.18.
7
95
3. 7
92
3. 7
95.14.
7
67
17. 7
519.10.
5
50
3.11. 2
243.19.
6
42
1. 8. 1
310. 5.
10
43
1. 8. 1
1. 5.
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32
1. 8. 1
1. 5.
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29
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27
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363. 5.
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19
1.18.11
147.15
14
1. 5. 8
2.10.
2
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1. 5. 1
270.16.
2
5
1. 3. 9
2.18.
4
1
1. 3. 9
350.18.
4
1
1. 1. 9
222
Ansel M. Easton vs.
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224 Ansel M. Easion vs.
Letters and statements identical with the immediately
preceding, were in the same enclosure received by Mr.
Sargent and by him delivered to the addressees Wm.
Schwartz and Samuel Schwartz.
GEO. C. SARGENT TO GEORGE WOSTENHOLM &
SON.
San Francisco, May 15, 1899.
Geo. Wostenholm & Son, Ltd., Sheffield, England.
Dear Sirs: Both your letters of April 26, 1899, have
been received. While I represent primarily Mr. Easton,
whose interests may become adverse to yours; still, there
is not any reason why I should not treat you with cour-
tesy. I have, therefore, felt it entirely consistent with
my duty to my client to deliver your letters (two) on
May 12th to Mr. Samuel Schwartz, and two to Mr.
William Schwartz on May 13th. Mr. Easton I have
been expecting to see daily upon other matters, and will
deliver him as soon as I see him. In case we shall be-
come opposed, I shall nevertheless be at all times happy
to oblige you in every manner consistent with my duty.
As I am not as yet acquainted with the contents of
the letters, I cannot reply for the persons addressed. I
have not seen either of the Messrs. Schwartz since Fri-
day (12th).
Yours i^espectfully,
GEO. C. SARGENT.
m
George WostenJiolm & Son, Limited. 225
GEORGE WOSTENHOLM & SON TO GEO. C. SAR-
GENT. I
Sheffield, 20th May, 1899.
Geo. C. Sargent, Esq., Attorney at Law, San Francisco.
Dear Sir : Confirming our letter of the 26th April, we
beg to inform you that we have received intimation from
our agent in New York that the Thousand Pounds Draft
on Messrs. Schwartz, Lowe & Co.'s office there has been
dishonored, and we also learned that the firm in Cosita
Rica has failed. They have given us no formal intima-
tion as yet, and when we receive it, we will communi-
cate with you further. In the meantime, we await re-
mittances from your clients in the amounts due from
them.
We are, dear sars.
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED.
(Signed) J. C. WING.
GEORGE WOSTENHOLM & SON TO GEO. C. SAR-
GENT.
Sheffield, May 31, 1899.
Geo. C. Sargent, Esq., Crocker Building, San Francisco.
Dear Sir: Confirming our respects of the 20th inst.,
accept our thanks for your courteous letter of the 15th,
and that you have been good enough to hand our letters
to Mr. Samuel Schwartz and Mr. William Schwartz.
Had we been in possession of their present address, we
should not have troubled you. We left the letters un-
226 Ansel M. Easton vs.
sealed that you might have the opportunity of acquaint:
ing yourself with their contents.
Trusting soon to hear from both them and Mr. Easton,
we remain, dear sir.
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED.
(Signed) J. C. WING.
GEO. C. SARGENT TO GEORGE WOSTENHOLM &
SON.
San Francisco, June 1, 1899.
Geo. Wostenholm & Sons, Ld., SheflSekl, England.
Dear Sirs: I handed your last letters to Mr. Easton,
and the others, as stated in my last letter.
After consultation, I am directed to request that you
will send an itemized statement of your account. I
understand that a part is for your own goods sold; part
for goods procured by you for Schwartz, Lowe & Co.,
and a part for money loaned.
Kindly make the statement segregate these three dif-
ferent classes of items.
Yours respectfully,
GEO. C. SARGENT.
GEO. C. SARGENT TO GEORGE WOSTENHOLM &
SON.
San Francisco, June 8, 1899.
Geo. Wostenholm & Son, Ld., Sheffield, England.
Dear Sirs : Replying to yours of May 20th, I would say
that mine of June 1st was posted a few hours before I
Qeorge Wostenholin cfc Son, Limited. 227
*
received yours. That letter will answer your communi-
cation for the present.
Before Mr. Easton is called upon for so large an
amount of money, it is but fair that he be furnished with
the items charged against him.
I should perhaps say that my client in this matter is
Mr. Easton; although I shall take pleasure in handing
to the others any communications you may wish to in-
trust to me.
Why Lowe has not paid your claim is a mystery to
me, in view of letters to his relative which I have seen.
I begin to suspect or rather I do suspect, that crooked
work is being done.
Awaiting the itemized account, I am,
Yours respectfully,
(Signed) GEO. C. SARGENT.
GEORGE WOSTENHOLM & SON TO GEO. C. SAR-
GENT.
Sheffield, 17th June, 1899.
Geo. C. Sargent, Es(|., Crocker Building, San Francisco.
Dear Sir: AVe are obliged by your kind favour of the
1st inst., stating that you had handed our letters to ^fr.
Easton and the others.
In accordance with your request we enclose itemized
statement of our account, part of which is for our own
goods, part for goods bought by us, part for cost of cable-
grams, and the rest is for interest. There is no money
loaned indudwl in the account as we have lent none to
the firm or to Mr. Lowe himself. Messrs. Schwartz
2'28 Ansel M. Easton vs.
have received copies of all the invoices represented in
thisi account. i
We have received this week the formal notice of Mr.
Lowe's failure and the copy of arrangement which has
been agreed to by the local creditors, which we are dis-
posed to sign ourselves, without prejudice to our claims
against the recent partners.
We are, dear sir,
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED.
J. C. WING.
GOODS SOLD BY GEO. WOSTENHOLM & SON, LD.,
OF THEIR OWN MANUFACTURE.
6th March, 1897. Part of Invoice 21. 1. 5
10th September, 1898. do 109. 16. 3
£130. 17. 8
GOODS BOUGHT FOR SCHWARTZ, LOWE & CO., AS
ORDERED BY THEM.
1897.
Feb. 24. Invoice 616. 6. 5
25. Invoice , 105. 13. 4
" 27. Invoice IL 0. 6
" 27. Invoice 141. 17. 9
Mar. 6. Invoice 212. 10. 4
13. Invoice 41. 15. 11
Sep. 8. Invoice , 621. 14, 3
11. Invoice 266. 7. 9
28. Invoice 59. 9.10
30. Invoice 5. 0. 0
1
•, George Wostenholm & Son, Limited. 229
Nov. 20. Invoice 155. 5. 1
1898.
June 21. Invoice 180. 6. 9
25. Invoice 13. 2. 8
July 19. Invoice 90. 11. 3
20. Invoice 5. 3. 4
Aug. 20. Invoice 95. 14. 7
Sep. 13. Invoice 95. 14. 7
Sep. 16. Invoice 55. 6. 4
17. Invoice 13. 18. 7
Oct. 15. Invoice 95. 14. 7
Nov. 1. Invoice 519.10. 5
9. Invoice 243. 19. 0
18. Invoice 310. 5. 10
Dec. 2. Invoice 303. 5. 8
7. Invoice 147. 15. 2
IG. Invoice 270. 10. 0
£4738. 6. 5
Sundry amounts paid for telegrams 10. 0, 0
(Second Page.)
To Ooods of O. W. & S., Ld.'s. own manu-
facture 130. 17 8
To Goods bought by G. W. & S. Ld. f(^r S.
L. & Co 4738. 6. 5
To Cablegrams 10. 0. 0
To Interest as per accounts nMidered 143. 17. 8
£5023. 1. 9
230 Atisel M. Easton vs.
By Sundry Drafts 1195. 10. 2
By Expenses re samples .... 2. 7. 10
By Cash to Mr. T. Wing. ... 57. 6. 10
By Return Primage 20. 13. 4 1275. 18. 2
Balance as per Account rendered £3747; 3. 7
21st December, 1898.
The draft for £350, upon Hoadley & Co., which was
not met at maturity is not taken account of in above
statement.
J. C. WIMJ TO GEO. C. SARGENT.
Sheffield, 22d June, 1899.
Geo. C. Sargent, Esq., Crocker Building, San Francisco.
Dear Sir: Confirming our letter of the 17th, we have
the pleasure to acknowledge yours of the 8th inst , and
beg to thank you for your courtesy in consenting to com-
municate with the Messrs. Schwartz. We are inclined
to think with you that Mr. Lowe is not acting houesth'
but we have no evidence, and it seems somewhat against
that view that all the residents in San Jose have .signed
the agreement.
We have placed our interests fn the hands of Jlr.
Samuel Knight, Mills Building, San Francisco, who will
probably before now have communicated with you. We
only received his answer to our first letter this morning.
Mr, Knight will probably have conferred with you as
to signing the agreement.
We are, dear sir.
Yours very truly,
GEORGE WOSTENHOLM & SON, LIMITED.
J. C. WING.
* George Wostcnholm c£- Son, lAmitrd. 231
GEO. C. SARGENT TO (^lEORGE WOSTENHOLM &
SON.
San Francisco, July 3, 1899.
Geo. Wostenholm & Son, Ld., Sheffield, England.
Dear Sirs: Replying to yours of June 17th, 1899, en-
closing statement of account, I would say that upon in-
quiry of Mr. William Schwartz, who had most to do with
the San Francisco end of the business of Schwartz, Lowe
& Co., I am informed that the invoices referred to in
your account were never sent to him. It would have
been better for both of us if they had been. I think you
are in error, and that they must have sent to Mr. Ix)we
at San Jose de Costa Rica.
It will probably save time if you will make out a new
set and send them to me.
Yours respectfully,
GEO. C. SARGENT.
N. B. I should have said that I approve your resolu-
tion to sign the agreement with Mr. Lowe. Every dol-
lar he pays you brings us nearer together. I may say
that Mr. Easton wishes to be just; but does not wish to
carry someone else's liabilities.
A letter just received from Costa Rica from a friend
says he is assured that Mr. Lowe will pay all his cred-
itors in full. The assurance was given by Mr. Lowe's
attorney or counsel. Not knowing him, I have no com-
ment to make, but state it as a piece of news interesting
to you.
G. C. S.
232. Aitsd M. Eaaton vs.
GEORGE WOSTENHOLM & SON TO GEO. C. SAR-
GENT.
Sheffield, 21st July, 1899.
Geo. C. Sargent, Esq., Crocker Buildiug-, San Francisco.
Dear Sir: Confirming our letter of the 22d June, in
which we informed you that we had placed our interests
in the hands of Mr. Samuel Knight, Mills Building, San
Francisco, we have the pleasure to acknowleflge yours
of the 3rd inst. and in reply, beg to state that invoices
each accompanied by a letter and a cop3^ of Bill of Lad-
ing, were regularly sent for every shipment to Messrs.
Schwartz, Lowe & Co., 308 Market Street, San Fran-
cisco, in addition to the documents forwarder! to San
Jose de Costa Rica. The above address is the one to
which Ave have always sent these invoices.
Mr. Knight has copies of them all, and will no doubt
be glad to hand them to you.
We are glad to hear that you approve our resolution
to sign the agreement. Mr. Knight will doubtless see
you on the subject and carry out our Avisbes, as we have
left the matter with him after conference with you.
We gladly note that Mr. Easton wishes to be just in
the matter, and we have no doubt you will amicably ar-
range it.
We wish we could think with you, that Mr. Lowe
would pay his debt® in full. Advices we have privately
are, that only about 40% of the assets are likely to be
George Wostenhohn t£ »S'o», Limited. 233
recovered, and it is doubtful if tliis will leave anvtliing
for unsecured creditors.
We are, dear sir,
Yours very tnily,
GEORGE WOSTENHOLM & SON, LIMITED.
J. C. WTNG.
Testimony of William Schwartz.
William Schwartz, sworn on behalf of plaintiff, testi-
fied in substance as follows:
That he was one of the defendants, and formerly a
member of the firm of Schwarta, Ivowe & Co.
Q. I will ask you whether or not after the 20th of
June, 1898, you transacted any business with Mr. Lowe
under the firm name of Schwartz, Lowe & Co., busi-
ness which was not pending on the 20th of June, 189^.
Mr. COPE. — I object to the question as irrelevant,
incompetent, and immaterial, and not within the issues
in this case. '
The objection was overruled and an exception taken.
Mr COPE. — We make the further objection that as
far as the defendant Easton is concerned and Samuel
Schwartz, there is no notice shown to have been brought
to them of the transaction of any business.
^Ir. SARiGENT.— 'Will counsel show that any acts
were brought to the knowledge of Easton or Mr.
Sch warty/?
Mr. KNIGHT. — There are three defendants in the
234 Ansel M. Eastern vs.
(Testimony of William Schwartz.)
case. After we get the testimony in, it Avill be proper,
if it is to be resitricted, to so restrict it by instructions.
Mr. KNIGHT. — Q, Answer the question, Mr.
Schwartz.
A. I was acting here ais agent for Mr. Lowe, and
held a power of attorney from Mr. Ix)we to transact
business here as Lowe & Oo.
Mr. KNIGHT. — Was the business that you did with
Mr. Lowe after the 20th of June, 1898, conducted at
all in the name of Schwartz, Lowe & Co.?
Mr. OOPE.^ — We make the same objection.
The objection was overruled and exception taken.
A. I erroneously signed one paper, either one or
two papers, I don't remember which "Schwartz, Lowe
& Oo."
The witness further stated that since June 20, 1898,
the only business he did with Mr. Lowe under the firm
name of Schwartz, Lowe & Co., was the negotiating of
one or two drafts, which he signed erroneously. A
draft was then exhibited to the Avitness.
Mr. OGPE.— It will be understood that all this testi-
mony gioes in under the same objection.
The COURT.— Yes.
Mr. KNIGHT. — Yes. With reference to the trans-
action of business.
A draft for £1000., dated San Jose de Costa Rica,
August 2, 1898, payable at ninety days sight, to the
George Wostenholm d Son, Limited. 235
(Testimony of William Schwartz.)
order of Schwartz, Lowe & Co., signed Minor C. Keith,
was exhibited to the witness, and he read from the
back thereof, the following endorsement:
"Pay to the order of Lowe & Co., Ooffee Exchange
Building, New York, Schwartz, I^we & Co." Then
"Pay to the order of William Schwartz, Lowe «& Co.
Per John F. Baker, Attorney." Then "William
SchwajrtiZ. Pay to the order of the Anglo-Californian
Bank, Schwartz Lowe & Co."
The witness stated that he wrote the words
"Schiwartz, Lowe & Co.," last set forth, and the name
"William Schwartz." That he could not recollect the
exact date when he received it, because the draft was
in so many hands before it came to him. That he
negotiated it, and that the draft was afterwards pro-
tested, but finally paid. That iu the course of business
dealings with Mr. Lowe after the 20th day of June,
1898, he learned that there was a branch in New York
under the name of Lowe & Co. The draft was there-
upon offered in evidence by plaintifF.
3Ir. SARGENT.— Objected to on the ground that it
lia,si not been shown that the defendant Easton or the
defendant Samuel Schwartz knew anything about this,
and, if they did not, it being after the di^olution, they
could not be bound by it; further, it is not shown that
plaintiff knew anything about this at the time it sup-
plied the goods; hence, they were not misled in any
way to thedr prejudice.
236 Amel M. Eastori vs.
(Testimony of William Schwartz.)
Thie objection was overruled, and an exception taken.
The witness also sitated that he had negotiated five
£200 drafts in the name of Schwartz, Lowe & Co. since
June 20, IS&S, in San Francisco. That these drafts
were not drawn at the same time as the £1000 draft
above referred to. That he did not know what date
was on them. That in the case of Keith vs. Easton,
now pending in the Su]>erioir Cburt of the city and
county of San Francisco, in which he is a defendant,
he gave a deposition, in which he was interrogated as
to these drafts.
Regairdinjg whether or not one of those drafts was
dated the 21st of August, 1808, that it was hard to
answer. Would not say that it was this draft exactly.
Q. Just refresh your mind, if you can, in any way,
so as to answer the question as to the date.
A. I think I have answered it that I did negotiate
some draft. '
Q. I want the date of those drafts.
A. They can be produced.
Eiegarding whether or not he could give the dates
of the drafts negotiated by him since the 20th of June,
1'8©8, he testified that his answer in that deposition
had been that he had negotiated, to the best! of his
recollection, five drafts of £200 each; in order to deter-
mine when he had negotiated them he said that the
drafts must be shown.
The OOURT. — Q. Does your own testimony furnish
Oiiorge Wostenholm & Soti, Jjiiiiitrfl. 237
(Testimony of William Schwartz.)
you no inforaiation or suggestion as to what the dates
were?
A. It was after the 2181; of June.
Q. You are presented with a copy of your own
testimony, where you have testified before. Does that
furnish you no suggestion as to the date?
A. Yes, sir.
Q. Then answer.
A. I think they are.
The witness later testified that all those drafts were
of date August 21st, 1898.
The witness also testified that he had transacted no
other busiiness except the negotiation of the above
drafts in the nam« of Schwartz, Lowe & Co. after June
20, 1808. That he was quite sure, he thought.
The witneiss was then shown his deposition in the
above case of Keith aigainst Boston, and asked
whether it refreshed his memory; to which he replied
that it did. That he could give a negative answer to
the question whether he had transacted any of the
bnsinesis for thm reason: That he bought goods and
paid for theni with funds which he had, and that they
were not charged, all being cash transactions, so that
lie considered it no business. That he did no business
in the firm name of Schwairtz, Lowe & Co. after June
20, 1898, other than the negotiation of the drafts. That
he did not buy goods and tell them to charge them to
Schwartz, Lowe & Co. He also stated that Ms deposi-
238 Ansel M. Easton vs.
CTestimony of William Schwartz.)
tion was correct. The answer of the witness was read
from the deposition, in which he stated that perhaps
he bought some goods and had them charged up to
them. (Sch'wartz, Lowe & Co.) That people knew him
as representative of Schwartz, Lowe & Co. and asked
no questions. That he paid cash. The witness stated
that he had so testified. That he did not remember
making any protest to Mr. Lowe or anyone represent-
ing him, against the use of the name Schwartz, Lowe
& Co.
Mi*. Knight then read from the above deposition as
followsi:
"Q. Did you make any protest to Mr. Easton or Mr.
Lowe albout endorsing that name on those bills? A.
No, sir. Ml-. Easton didn't know anything about it.
I didn't mention any endorsement, because Mr. Meyer
looked to me personally to pay those bills, in case of
protest."
The witness also stated that Mr. Easton knew that
witness was transacting business with jMr. Lowe after
June 20, 1898. That he was not sure that Mr. Easton
knew^ that these dl'alts were at the place of business
oni Market St. at the time they were received, or a little
later on.
Mr. Knight reading from the above deposition:
"Q. Did he know of it at the time thiey were disi-
counted? A. I am not certain. Q. Did you show
him the drafts? A. I don't think so. Q. Did you
George Wostenholm & ^on, Limited. 239
(Testimony of William Schwartz.)
tfll himi then about them? A!. I told him later on; in
fact he knew all about my business with Lowe. He
knew I was his agent, aaid he knew I was doing busi-
ness for Lowe. Q. When, to the best of your knowl-
edge, did Mr. Eaiston obtain knowledge of the existence
of these drafts, and the fact that you had discounted
them? A. Well, my letters were open; he had access
to them; he could read them. Q. Did you show him
these letters when you received them? A. Sometimes
I did, and sometimes I didn't. If he happened to be
in when the mail arrived I would hand him the letters.
If he was niot in town, I left them on my desk, and he
could read them if he wanted to."
The witness sitated that the above was correct.
The witness further testified that he was not in town
when the office of Schwartz, Lowe & Ck>. was removed
from 19 Battery St. to 308 Market St. He thought it
wais in the winter of 1897 or 1898. He was then asked
as to the signs Easton and Schwartz, and Schwartz,
Lowe & €\>. upon the door, and at the entrance to the
building.
^fr. Sargent objected to any evidence in that behalf
after June 20, 1898, unless it should be shown that
the facts were brought to the knowledge of the plaintiff,
and misled it ini some way, that othenNUse it would be
irrelevant. The objection was overruled and exception
taken.
The witness then sitated that there was a sign
Schwartz, I^owe & C5o. on the office door, and one down-
240 Ansel M. Eastern vs.
(Testimony of William Schwartz.)
stairs on the signboard, and that they remained there
about ninety days after his return from Oosta Rica,
when he took the one off the office door. That the one
downstairs was the janitor'si business. That he re-
moved the sign upstairs after he had been in San Fran-
cisco about ninety days after a return from sowie trip.
Regarding what trip it was, he would say, no trip, that
he didn't exactly remember what trip it was; that it
wns in ISW. That he rememibered going down with
Mlark Kerr to San Jose re Costa Rica in May or June,
18^8. That it was after his return from a trip in 1898
that the sign Schwartz, Loiwe & Co. remained about
ninety days. That the trip was made during the
Spanisli- American War. That he must have returned
some tiim© in the middle of July, and that the sign re-
mained up ninety days after that more or less, or about.
Cross-examination of WILLIAM SCHWARTZ.
The witness then identified, and there was received
in evidence, a. power of attorney signed "L. Leon Lowe,"
( niipowering witness to act for him. It was dated June
25th, 1898.
The witness also testified, that prior to June 20, 1898,
the date of the dissolution, there was no such concern
as iJOiwe & Co. That it was first established after Mr.
M. B. Kerr sold out the business to Mr. Lowe. That
Mr. Kerr was not a member of the fi.rm.
Mr, Sargent then read from the above deposition
witness in th^e case of Keith vs. Easton, as follows:
George Woatenholm & Son, Limileil. 241
(Testimonv of William Schwartz.)
Q. TV) the best of your recollection did you tell Mr.
Easton of the existence of those bills (the drafts testi-
fied to on direct examination), and of the fact that they
were neg-otiated by you within a day or two after it
was done.
A. I couldn't remember because liis presence was so
uncertain, and these bills of exchange were sent to me
by Lowe to cash them immediately and send the money
immediately. Sometimes he would have me telej^raph
Iiim the money. I couldn't have told him before it
was done, because the mail always came in on Sunday;
I would fjo to the postofflce and get the mail, somje-
times he would come in on Monday and sometimes he
wouldn't, and if I had anything to do, I would stay in
the office, and sometimes Mr. Easton would come to
town and I wouldn't see him.
Q. When you informed him of the fact that you
negotiated these bills which I have shown t>o you, what
did he siay. A. Nothing.
Q. Did you state to him, ]Mr. Schwartz, that you had
endorsed them in the firm name Schwartz, Lowe & Co.?
A. No.
Mr. SAROENT.— This all refers to Mr. Easton. This
is a portion that Mr. Knight di<l not read. "Q. Did
lie (Mr. Easton) see the bills? A. I don't think so.
I don't think he did. If I told him I simply told him
I received some drafts from Mr. I^we for negotiation,
with instructions to send him the money, which I did."
242 Ansel M. Easton vs.
(Testimony of William Schwartz.)
The witness stated the above-quoted testimony was
true. ,
The witness further testified that he was acting
purely as the agent of Mr. Lowe after June 20, 1898,
and received a salary of $200 a month, which arrange-
ment continued until about the beginning of 1899.
Certaiin billsi of lading were shown to witness, pur-
porting to be shipments of goods from San Jose de
Costa Eiiica to Lowe & Co., San Francisco. They were
three in number, and there was a memorandum on one
bill "Care Schwartz, Lowe Co.," and on the other two,
'•'Care of Max Dierssen," the latter of whom is in busi-
ness in Costa Rica. He also stated that he did not
know who' put on the memorandum "Schwartz, Lowe
& Co.," but that it would probably be the drayman,
and that it was done in Costa Rica. That the memo-
random was made in order to indicate from whom the
export duty was to be collected, which would be
Schwartz, Lowe & Co., or whoever the shipper might
be. That the date of the bill of lading upon which the
memiorandum as to Sch'wartz, Lowe & Co. was con-
tained, was Miarch 4, 1899.
Q. (By Mr. SAiRGENT.) How long after the date
of the dissolution?
Mr. KNIGHT.— The teamster did not know anything
about the date of the dissolution.
The T\'itness also testified that he had nothing to do
with the establishment of Lowe & Co., other than that
George Wostenholm d Son, Limited. 243
(Testimony of William Schwartz.)
he was their agent in San Francisco. That he did not
know of its establishment in New York at tJie time it
was done.
Redirect Examination of WILLIAM! SCHWAKTZ.
Regarding those protested drafts, the five of which
were shown witness endorsed "William Schwartz,"
witness stated he paid them in San Francisco. That
tliey were paid out of some of the proceeds of the ship-
ments of coffee, the bills of lading for which had been
put in eviden<?e. That as to whether Mr. Easton got
any part of the proceeds of those shipments, he would
have to consult his books. That Mr. Easton received
some money on some shipments, iinder instructions of
^Ir. Lowe to pay some notes. That there were othei
shipments received from Mr. Lowe in Costa Rica beside
those represented by the bills of lading in evidence.
That he had d'estroyed them. Thiat Mr. Easton might
have thought tlie money that took up the drafts right-
fully belonged to him. That whether Mr. Easton
stated to him that he wanted those drafts, because the
money that went to taike them up rightfully belonged
to him, he didn't know whether he (Mr. Baiston) thought
so or stated so. That perhaps he considered the coffee
his. That it was a long time ago, and he couldn't re-
member. That ilr. Easton received part of the pro-
c(hh1s of the shipments. That part went to pay the
drafts, part his salary-, and expenses, and a part to
Mr. Easton.
244 Ansel M, Easton vs.
RecrosR-examination of WILLIAM SOHWfAIRTZ.
Witness testified in substance that Lowe was in-
debted to Mr. Easton, which I^owe had agreed to pay
by remittances in cash, or by shipments of coffee or
cedar to the witniesis, and that he was to realize on
these shipments, aind pay the money to Easton in dis-
charge of the indebtedness.
Plaintiff thereupon closed its evidence.
DEFENDANTS' CASE.
Testimony of Eva E. Digges.
Defendant prodnced, as a witness on their behalf,
]\riss EVa E. Digges, wlio testified as to her competency
to translate Spanish into English, in substance, as fol-
lows:
That she had been acquainted with the Spanish lan-
guage for the last twelve or fifteen years, and l;ad trans
lated English into Spanish and Spanish into Englsh
during that time, and had made translations to be used
in courts of justice, just how frequently she could not
state.
That within the last year she had completed a course
in commercial Spanish and commercial law; had trans-
lated a book on electricity, one on physics; translated
from the Penal Code of Mexico, the Civil Code, part of
the land and water laws, and some raining laws, also
various legal documents. That all of these had been
translated from Spanish into English.
George Wostenholm & Son, Limited. 245
Cross-examiuation of EVA E. DIGGER.
On ( rops-cxainination, the witness testified in ?nb-
:-"tance as follows:
That she carried on the business of typewritina; and a
general office business. That she is of American nation-
ality. That the only codes of any Central American
nation which she had translated are those, of Oosta
Kica, being- the translations made for this case. That
she had translated papers to be used in Central America,
documents to be used by courts in Duranyo and differ-
ent parts of Central America. That she had never taken
Ihe stand before, to qualify as an expert in Spanish.
That she did not know that any translations she had
made, had ever been in evidence.
The witness also stated that she knows Mr. Gom-
pertz.
Q. You have had occasion to go to Mr. Gompertz
for information i-especting a translation of portions of
either the Civil or Commercial Code, in connection with
ths case?
A. No, sir, except on one occasion and one section.
Q. You went to Mr. Gompertz for information?
A. Yes, sir.
Q. "What was the character of the information you
wanted from Mr. Gompertz?
A. Simply in regard to where — I think I can recol-
lect the section — it was where there were two npgatives,
and I think I can possibly repeat the Spanish.
246 Ansel M. Easton vs.
(Testimony of Eva E. Digges.)
Q. Did you not asli Mr. Gompertz wlietlier or not
in Sipanisli two negatives made an affirmative?
A. That was the question in my minrl, whether tliey
did or not.
Q. You had the impression that they did?
A. Yes, sir; in that case.
Q. Did he then tell you that instead of making the
affirmative, two negatives strengthened the negative?
A. I don't think they do to this time.
Q. You do not think Mr. Gompertz wns right in the
information he gave you?
A. I do not think Mr. Gompertz understood my
question. In looking the matter up and giving it re-
search I thought they were applicable where they ,vere
not opposed to the laws as I interpreted it, and T liave
consulted other translators on the same subject, and
they have agTeed with me.
(The section referred to by the witness was number
1206 of the Civil Code of Costa Rica.)
Mr. SARGENT.— I submit that, if your Honor
please, the witness has been shown to be competent.
The COURT.— That is a matter that the jury will have
to decide.
The witness' translations were then received in evi-
dence.
Further Cross-examination of EVA E. DIGGES.
Upon further cross-examination, the witness testified
in substance:
Charge Wostenholm <€ ^on, Liniitnl. 247
(Testimony of Eva E. Digges.)
That in section 1234 of the Civil Code, the word ''ex-
clusively'' had been left out bj"^ accident in recopying,
which was thereupon inserted by consent.
Referring to article 1235 of the Civil Code, the wit-
ness was asked whether the word "solidariamente" did
not. mean ''jointly and severally," to which she replied
that it did not; that it meant "solidly," "together,"
"jointly." That it might mean jointly and severally
but that in looking it up she did not find amy such
me^aning.
She also stated, as to section 1198 of the Civil Code,
that the word "aportes" could also be translated ''con-
tribution"; that the word meant, what the partner had
contributed in capital to the firm.
Also, that the word "razon" in section 21, paragraj)!!
2 of the Commercial Code, should be translated ''cal-
culations" instead of "establishment."
That in article 22 of thf Commercial Code, by the
words "the first will be that of a general mei-chants'
license," is meaiit "where they record the names of
licensed merchants."
Q. You said it Avas a general merchants' lictnse,
not a list of licensed merchants which you really inean?
A. 1 mean recording the name of licensed mer-
chants. Of course, as I say, I have not this in good com-
mercial law; it is absolutely impossible.
That through mistake in copying from, lu r i-ough
draft, she had left out the words in article 2C, of the
Commercial Code, "who afterwards mav have them-
248 Amel M. Easton vm.
(Testimony of Eva E. Digges.)
selves recorded, for the purpose of exercising the mer-
lantile provisions." That she remembered distinctly
translating tJiose words. That she was called away to
Santa Rosa, and came back and made her final copy
hurriedly, and had no opportunity to go over it a second
time.
(The words were inserted by consent.)
That in section 212 of the Commercial Code, she had
translated the word ''commandita" as "stock company
limited," because it is so defined by Cortina in his com-
mercial law.
■Mr. SARGENT.— Sitory translates that "special i):irt-
nershlp."
Mt. page.— Well, that is the same.
The WITNESS.— It means "a partnership between
parties; a special partnership, if you wisli to call it tlial,
where the funds are pooled together, but managed by
a special party."
Q. Then the next phrase (in section 232 Coniinercial
Code) "the capital which each partner introduces in
cash, credit, or effects . . . . " yon have omitted the
word "credit" — cash, credit or effects.
A. Cash, credit, or effects.
Referring to the word "commandita" in section 237,
the witness stated that after their previous discussion,
she would translate it as "special partnership."
That section 303 of the Commercial Code should read,
"the merchant" instead of "a merchant."
George Wostciiholm dc Son, Limited. 249
(Testimony of Eva E. Digges.)
Mr. SARGENT.— I tliiuk if Mr. Page (who ooiuhuted
this portion of the cross-examination) and Miss Digges
would sit down together with that translation, it would
be very easily brought together into shape.
The WITNESiS.— I think Mr. Page and I have Avorked
on a translation together.
Mr. S'ARGENT. — As regards the question askod as
to the use of the words "stock company limited" and
the statement that a stock company could emit shares,
whereas a company in comandita could not, there is
a section in this Code, giving a company in comandita
that right, and if counsel desire it, I will hunt it up and
])ut it in.
Testimony of Charles F. Gompertz,
Charles F. Gompertz, being called for plaintiff in re-
buttal, testified in substance, as follows:
That lie is the keeper of the Spanish Archives in San
I'Yancisco, and has been acquainted with the Spanish
language for forty-seven years. Had lived in Chili,
Peru, Bolivia, and ^lexico. and can translate Sjianish
and read it. That he had made translations of certaiu
secti(Mis of the Code of Commerce and Civil Code of
Costa Rica. The witness was then handed a transla-
iton, which l.-e identified, and stated that it contained
correct translations made by him into English of the
corresponding sections of such codes.
250 Ansel M. Easion vs.
Cross-examination of CHARLES F. UOMPERTZ.
On cross-examination the witness testified in sub-
stance as follows:
That he had not examined the translation of Miss
Dijjges, and could not state to what extent it compared
with his. That he was present when a comparison was
made. That the word "solidariamente" translated by
Miss Dig^ges, according to Bscriche, a recognized author-
ity, should be "severally and jointly." That Escriche
was the author of a book on legal jurisprudence, and is
a recognized authority on all legal terms in Spanish.
That it is not a dictionary, but a treatise in Spanish
on the Sipanish laws.
The witness was then asked whether they were any
other inaccuracies, and stated that there were. For
instance, the words "toma razon." That he forgot ex-
actly her translation.
Q. You may take her translation, if you desire?
A. Xo, as I am giving it from memory, I will keep
on. She said, "reckoning the firm name." She admitted
all corrections and excused herself.
Q. Any other respects in which you found it inac-
curate?
A. Yes, sir, there was the omission of a word that
was very pertinent, "exclusively."
The COURT. — What is the purpose of this cross-ex-
amination? She admitted there were mistakes.
George Wostenholm & Son, Limited. 251
(Testimony of Charles F. Gompertz.)
Mr. SARG'EiNT. — She admitted tliere Avere mistakes,
but I want to see if this witness specifies things she did
not specify.
Mr. KNIGHT. — If we do not bring them out, we will
admit tliey are sufficiently correct in every way. We
only touched the principal ones.
Mr. SARGENT.— Well, if that is admitted, that will
(h).
The translations made by both witnesses were then
offered and received in evidence.
OOSTA RICA LAWS.
The translations from the laws of Co»sta Rica offered
in evidence by the plaintiff and the defendants were in
substantial agreement as to the following matters:
CIVIL CODE.
Art. IID^S. If a partnership in fact be formed with-
out any contract sufficient to give it legal existence,
each partner shall have the right to demand the liqui-
dation of its previous operations, and to withdraw his
contribution therefrom, except in the case of partner-
ships void because of illegality of origin or object. To
such the provisions of the Penal Code shall be applic-
able.
Art. 1206. The provisions of this chapter are appli-
cable to commercial partnerships when not opposed to
the laws and usages of commerce.
Obligations of Partners with Respect to Third Persons.
252 Ansel M. Easton vs.
(Testimony of Charles F. Gompertz.)
Art. 1232. The obligations of partners with respect
10 third persons are to be considered as if no partner-
ship existed.
Art, 1233. It shall be understood that a partner
contracts in the firm name, only when it is so expressed
in the contract, or the circumstances so indicate in an
unequivocal manner. In case of doubt it shall be un-
derstood that he contracts in his individual name.
Art. 1234. If a i)artner contracts in the name of the
firm, but without sufficient authority, the firm is not
bound thereby, except to the extent that it has derived
benefit from the transaction.
If he contracts in his own name, the firm is not bound
even it has derived benefit therefrom, and the creditor
can recover from the firm only to the extent of the
interest of the debtor partner therein.
The provisions of this, and the prfcedincj article ai<'
applicable also to the partner charp,e<l with the num-
ag'ement of the partnership busines^s.
Art. 1235. (a) When the partnership is bound to
third peisons, the partners shall be liable in equal pro-
portions, although their respective interests in the firm
may be unequal, but shall be liable among themselves
in proportion to their partnership interests.
The witnesses of the parties to the action differed as
to the translation of Article 1235 (b) of the Civil Code.
Said translations are as follows:
George Wostenholm & Bon, Limited. 253
(Testimony of Charles F. Gompertz.)
Defendants' translation: Art. 1235 (b). It shall bo
understood that the partners are bound jointly only
Avlien it is so expressed in the title of the oblif^ation
which has been contracted by all of the partners, or
v.ith their special authorization.
Plaintiff's translation: Art. 1235 (b). It shall be un-
derstood that the partners are bound jointly and sever-
ally (in solido) only when it is so expressed in the title
of the obligation which has been contracted by all the
l)artners, or with their special authorization.
OOiMMEKCIAL CODE.
Title II.
Of tlip Obligations Common to All Wlio Engage in Com-
merce.
Art. 21. All who engage in connnerco, thereby un-
dertake to comply with the requirements of law estab-
lished to prevent the abuse of credit in mercantile
relations.
These requirements are:
1st. The inscrii)tion in a formal register of all docu-
ments, the tenor and authenticity of which must be
made public.
2ud. The keeping of a uniform and strict system of
accounts and calculations.
3rd. The preservation of all correspondence having
Illation to the business of the merchant.
254 Ansel M. Easton vs.
(Testimonj of Charles F. Gompertz.)
Section I.
The Public Ke«i,ister of Connnerce.
Art. 22. In each capital of a province a general and
public register of commerce shall be established, which
shall be divided into two sections.
The first shall be the general list of niercliants; and
in this shall be recorded all certificates of inscription
issued to those who engage in commerce, as set forth in
article XI hereof.
In the second shall be recorded in numerical and
chronologica 1 order :
1st. The deeds of dower and marriage settlements
made or executed by the merchants at the time of, or
prior to, the time of devoting themselves to commerce,
as well as the agreements executed in case of the resti-
tution of the dowry.
2nd. The articles of formation of the mercantile com-
pany, whatever may be its object or nature.
3rd. The powers that may be given by the merchants
to their agents or employees in the direction and man-
agement of their mercantile business.
There shall also be a general index arranged in al-
phabetical order, both of the towns and names of all
documents recorded, indicated in each instance, upon
the margin thereof, the number and page of the reg-
ister wherein it is to be found.
Art. 25. El^ery merchant is required to present in the
general registry of his province, for recordation, the
George Wostenliolm & Son, Limited. 2S5
(Testimony of Charles F. Gomperte.)
tlu'ee classes of do<!iiinents meatioced in article 22 here-
of.
With respect to the articles of association of the
company, a legally anthorized certificate, containing
the matters described by article 237 will be sufficient
lor this purpose.
Art. 2i6. The presentation of said documents shall
be made within fifteen days after their execution, and
with respect to deeds of dower and marriage settle-
ments made or executed by persons not merchants, but
who may, after the making or execution thereof, devote
themselves to commerce, the fifteen days shall be
counted from the day on which the certificate of in-
scription was delivered to them by the projxer authority.
Art. 28. The commercial documents required to be,
but not recorded in the general register of commerce
shall be without effect in actions among the partners
executing the same, in demand of rights which would
have been recognized if said documents had been re-
corded; but said documents &hall have full force and
effect in favor of third parties interes'ted, who may
have contracted with the company.
Art. 211. The contract of copartnership in which two
or more persons unite, placing in common their capital
and industry, or either of these things, is applicable to
every kind of commercial operations under the general
rules of the common law, with the modifications and re-
strictions prescribed by the laws of commerce.
256 Ansel M. Easton vs.
(Testimony of Charles F. Gompertz.)
Art. 212. Mercantile companies may be formed:
1st. In a collective name, under a contract common
to all the partners, who participate in the proportion
mutually agreed upon, in the same rights and obliga-
tions. This is known as a regular collective partner-
ship.
2d. By one or more persons advancing funds to be
used in the partnership operations, subject to the re-
sults thereof and under the exclusive direction of other
partners who conduct the business in their own partic-
ular name. This is known as a partnership in coman-
dita.
3'd. By establishing a common fund to which each
contributes a certain share, with the purpose of draw-
ing upon the fund for the pursuit of one or more ob-
jects which give the name to the enterprise, the man-
agement of which may be committed to agents or ad-
minitrators romovable at the will of the partners. This
is known as an anonymous partnership.
The witnesses of the parties to the action differed as
to the translation of article 214 of the Commercial
Code. Said translations are as follows:
Defendants' translation: Art. 214. All those who
form a mercantile company, be they managers or not
of the funds in the treasury, are jointly bound as to the
results of the operations in the name and for the ac-
count of said comipany, under the signature which has
been adopted, and by the person authorized to transact
the business.
Chorge Wostenholm & ^on, Limited. 257
(Testimony of Charles F. Gompertz.)
Plaintiff's translation: Art. 214. All those who form
a collective commercial partnership, whether they are
or are not administrators of the partnership capital,
nre bound jointly and severally (in solido) by the results
of operations conducted in the name and for the ac-
count of the partnership, by a person authorized to con-
duct and administer its business.
Art. 231. All partnership agreements must be made
in writing and executed with all the legal formalities.
Art. 232. If parties who have decided to form a com-
pany shall have reduced their articles of agreement to
a private document, this shall have the effect of oblig-
ing them to formulate the contract in the aforesaid
form, which must be duly certified to before the com-
pany may commence commercial operations.
The violation of this article shall be a suflBcient de-
fense to every action that the partnership may bring
for its rights, or that any of the partners may bring
for their respective rights, and the burden shall be upon
the company, or the partner demanding an accounting
to prove that the partnership was constituted with the
prescribed formalities in case the defendant so requires.
The company shall, further, for such violation incur
a fine of two hundred dollars.
Art. 233. The document aforesaid must necessarily
state:
The names and residences of the contracting parties;
The firm name or denomination;
258 Ansel M. Easton vs.
(Testimony of Charles F. Gompertz.)
The partners who are to have charge of the manage-
inent of the company and the right to use the firm
name;
The capital which each partner puts in, whether in
cash, credit or goods, with a statement of the valuation
placed thereon, and the basis upon which such valuation
is made;
The proportional interest in the profits and losses of
each partner contributing capital, or services, if there
be any of the latter class;
The duration of the partnership which must be for a
fixed time, or for a defihite object;
The branch of commerce, manufacture or navigation
in which the company intends to engage, in case it is
limited to one or more kinds of business;
The sums allowed annually to each partner for his
])rivate expenses, and the amount which, in case of a
profit, each shall be entitled to withdraw;
A provision for the arbitration of differences among
the partners, and the manner of selecting the arbitra-
tors therefor;
The manner in which the assets shall be divided in
case of dissolution of the partnership;
All other special agreements of the partners.
Art. 237. The document required by articles 22 and
26 to be recorded in the general registry of each prov-
ince, whether it be the case of a collective partnership,
or one in comandita, must contain the following partic-
ulars:
Oeorge Wostenholm & Son, Limited. 25<>
(Testimony of Charles F. Gompertz.)
1. The date of the document and the name of the
notary before whom it was executed.
2. The names, residences and iprofessions of those
who are not partners in comandita.
3. The firm name or denomination.
4. The names of the persons authorized to manage
the company and use the firm name.
5. The sums paid, or to be paid in for the respective
shares, or for the interest of a partner in comandita.
6. The duration of the partnership.
The evidence presented to the principal tribunal of
commerce, requisite to the recordation of the document
aforesaid, shall be filed therewith.
Section IV.
Casual Partnerships or Accounts in Participation.
Art. 301. Merchants, without establishing a formal
company under the rules prescribed therefor, may in-
terest themselves in the operations of each other, con-
tributing- for this purpose an amount of capital agreed
upon, and participating in the profits and losses in a de-
termined proportion.
Airt. 30'2. These partnerships, which are known as
accounts in participation, are not subject to any solem-
nities in their formation, and may be formed by private
contract either in writing or orally; and the partner
who brings an action based thereon, may prove the;
same by any kind of evidence received in law to prove
contracts in general.
260 Ansel M. Easton vs.
(Testimony of Oharles F, Gompertz.)
Art. 303. In these enterprises a firm name common to
all of the participants cannot be adopted, nor can al
greater credit be used than that of the merchant who
carries on the business in his own name and under his
individual responsibility.
Art. 304. Those who contract with the merchant in
whose name the business is carried on have an action'
afj^ainst him only, and not against the other partners.
Nor have the latter any action against the third
party upon obligations contracted by him with the
partner who carries on the business, except upon a for-
mal assignment to them of the rights of such partner.
Art. 305. The liquidation of these casual partner-
ships shall be made by the same partner who carried'
on the business; who, upon the termination thereof,
shall render an account to the parties interested, sub-
mitting to them as vouchers the various documents in-
volved. .
In addition to the foregoing, the following transla-
tions from the laws of Costa Rica were offered in evi--
dence by the plaintiff:
OIWL OODE.
Art. lO^S. Every person who, by fraud, fault, neg-'
ligence or imprudence, causes damage to another, is
bound to make amends therefor, together with the dam-
ages. '
Art. 119i9. The nullity of the contract of partnership
does not prejudice the rights that belong to third par-
Oeorge Wostenholm d Son, Limited. 261
(Testimony of Charles F. Gompertz.)
ties in good faith against all and each of the partners,
on account of the acts of the partnership, if this exist]
in fact.
Art. 1207. It may be stipulated that the partnership]
that is contracted, although civil in its character, may
be subject to the rules applicable to commercial part-
nerships.
Art. 1^9. A dissolution of partnership can be set
up against a third party in the following cases only:
1st. When the partnership has expired by the ar-
rival of the day fixed for the termination of the con-
tract.
2d. When it is proved that the third party has had
timely notice thereof.
OOlMlMEKiOIAL CODE.
Art. 11. Every person who devotes himself to com-
merce shall make a declaration in writing to that effect
before the civil municipal authority of his residence, in
which he shall state his name and surname, whether
he is married or single, his place of birth, his intention
of undertaking the mercantile profession, and whether
he intends to conduct a wholesale or retail business, or
both. This declaration shall be endorsed by the prose-
cuting officer of the town unless there be a proved or
reputed reason for legal incapacity on the part of the
interested party that stands in the way of his carrying
on business; and, in view of such endorsement there
shall be issued to him without charge by the civil au-
262 Ansel M. Easton vs.
(Testimony of Charles F. Gompertz.)
1 hority aforesaid a certificate of inscription in the guild
of merchants of the province.
Art. 213. A collective partnership must do business
under the name of all or one of the partners; provided
that in the filrm name or style there shall not be in-
eluded; the name! of a person who does not at the time
belong to the partnership.
Art. 234. The partners cannot make any secret
agreements, but all must appear in the articles of co-
partnership.
Art. 235. The partners cannot contradict the con-
tents of articles of copartnership by any private docu-
ment or parol evidence,
AH. 236. Any modification of the articles of copart-
nership must be formalized with the same solemnities
prescribed for its original execution.
Art. 238. If the partnership shall have commercial
houses situated at different places, all the formalities
prescribed by articles 22 and 31 shall be carried out in
the respective domicile of each establishment.
Art, 239. Any additional writings that the partners
may make to amend, modify or extend the original part-
nership contract, as well as contracts for its dissolu-
tion before the time therein prescribed, and any agree-
ment or decision occasioned by the retirement of any
partners, and the rescission or modification of the part-
nership contract, are subject to the same formalities
George Wostevholm & Son, Limited. 263
(Testimony of Charles F. Gompertz.)
of inscription and publication prescribed by articles 22
and 31 under the penalties prescribed in article 28.
Art. 276. Mercantile partnerships may be dissolved
by the following causes:
1. By the expiration of the term fixed in the articles
of copartnership, or when the enterprise that was the
special object of its formation shall have been com-
pleted.
2. By the entire loss of the partnership capital.
3. By the death of one of the partners, if the partner-
ship writing does not contain an express agreement
that the heirs of the deceased partner shall continue
in the partnership or that this shall subsist among the
surviving partners.
4. By insanity or any other cause which may produce
incapacity in a partner to administer his property.
'5. By the bankruptcy of the partnership, or of any of
its members.
6. By the will of one of the partners when the part-
nership has no term or fixed object.
Art. 280. The dissolution of an unlimited partner-
ship by the will of one of its members does not take
place until the rest of the partners have accepted it,
and these can refuse whenever bad faith may appear
in the partner who may propose it.
Art. 282. The dissolution of a commercial partner-
ship by any cause other than the expiration of the term
for which it was contracted shall have no effect to the
264 Ansel M. Easton vs.
(Testimony of Samuel Schwartz.)
damage of a third party, until it has been noted in the
mercantile register of the province, and been published
in the tribunals where the company may have its fixed
residence or establishment.
Testimony of Samuel Schwartz.
The above witness, called on hehalf of defendants,
testified in substance as follows:
That he is the brother of the witness, William
Schwartz. That he was a member of the firm of
Schwartz, Lowe Co., which was dissolved about June,
1808. That he took an active part in its business up
to that time, but that after its dissolution he had taken<
no part in the business of the firm. That he did not
know of any business of the firm Schwartz, Lowe & Co.
being transacted after the dissolution. That he re-:
ceived an invoice or statement of account from plain-
tiffs about a year after the dissolution though Mr. Sar-
gent, but that he never received any others, nor did he'
know or hear of any invoices of goods being sent by the
plaintiff to Schwartz, Lowe & Co. after the dissolution.
Cross-examination of SAIMUEL SCHWARTZ.
Upon cross-examination, the witness testified in sub-
stance: That he attended principally to the correspond-
ence in San Ftancisco, during the existence of the firm.
That between January 28, 1897, and June 20, 1898, he
didn't remember receiving any statements of account
from plaintiff. The statements all went to Costa Rica.
That he received all the mail which came to Schwartz,
Gi'onje WosteuhoJm & Sou, Limited. 265
(Testimony of Samuel Schwartz.)
Lowe & Co. at San Francisco, as far as he knew. That
his brother was at the office; "of course we all received
it." It was all delivered at the office, and some his
brother opened and some he opened. That he was pre-
pared to say that no such statements of account had
been received to his recollection. That he certainly
would have seen them. That he was nearly always in
San Francisco, with the exception of a trip or two to
Japan. That he made one in 1897, just when, he could
not say, but it was generally in the early part of the
year. That he was gone not over two months, and
and could not say when he returned. That he went
at all seasons. That he went once a year in 1897 and
1898. That he could not say whether he went in 1898
or not, but his practice was to go about once a year.
That he took a trip to Oosta Bica, but he could not state
the date or what time of year or what year it was.
That he could not say how long he was absent on his
trip to Oosta Rica, because he did not know whether he
went that year or not. That he thought he was gone
about three months. That he was not absent on any
other trip in 1897 or 1898, beside those he had men-
tioned. That he does not remember being out of town!
for more than a day or so at a time, on any other occa-
sion. That it is not likely that he was out of townj
without recollecting it. That William Schwartz wasi
here when he was absent.
266 Ansel M. Easton vs.
Redirect EJxamination of SAMUEL SCHWARTZ.
Witness testified in substance: That he was, at the
time of giving his testimony, employed by Siutro & Oo.,
at San Francisco, and went into their employment x\pril
or May, 1898. That he had been in San Francisco stead-
ily ever since, and had not been in Oosta Rica or Japan.
Recrossrexamination of ^AMUEIL SCHWARTZ.
Witness testified in substance; that he left the firm of
SchwartT;, Lowe & Co. and Easton iS: Schwartz, before
the disi^olution of the firm of Schwartz, Lowe & Co.
That the public dissolution took place later. That when
he went into the employ of Sutro & Co., he had dissolved
his partnership relations with Lowe and his brother
and 3Ir. Easton, doing business under the uanio of
Schwartz, Lowe & Oo. That it was done right at that
time. That he left them to go with Sutro & Co.
Q. And the others continued under the name of
Schwartz, Lowe & Co. until some little time later.
A. Not that I know of ... . We were simply dis-
solving.
That witness further testified that he had no office
at No. 308 3Iarket street after he went into the employ
of Sutro & Co., but that his brother had, and that 'Mr.
Easton continued to have a desk there.
STIPULATIONiS.
Defendants also read in evidence, the following stip
ulations between the parties to this action:
J
George Wostenhnlni d- Son, lAmited. 267
(Testimony of Samuel Schwartz.)
FIRST STIPULATION.
(Title of Court and Cause.)
It is hereby stipulated between the parties hereto
that llie ^oods, wares and merchandise mentioned iu
the amended complaint were shipped by plaintiff and
delivered to Luis Leon Lowe, in the manner and form
as follows:
All those shipments charged for by plaintiff wliicli
Avere shipped prior to November 1, 1898, were delivered
to said Lowe before December 2, 1898.
The nurchandise mentioned in the bill of November
1, 1898, for 519 pounds, 10 shillings and 5d., Avas shipped
from the Avorks of plaintiff on said November 1st. mid
arrived at the custom-house of the Republic of Costa
Rica at Port Limon on November 25, 1898, and \> jis de-
livered to said Lowe out of the custom-house of sjiid
Republic at San Jose on December 15, 1898.
That the merchandise mentioned in the bill of No-
vember 9, 189'8, for 243 pounds, 19 shillings and (I d.,
was shipped from the Avorks of plaintiff on said No-
vember 9th, and arrived at said custom-house at Port
l.imon on December 7, 1898, and Avas delivered to sai<l
LoAA-e out of said custom-house at San Jose on February
9, 1899.
That the merchandise mentioned in the bill of No-
vember 18, 1898, for 310 pounds, 5 shillings and 10 d.,
was shipped from the works of plaintiff on said Novem-
ber 18th, and arrived at the said custom-house at Port
3S8 Ansel M. Easton vs.
(Testimony of Samuel Schwartz.)
Limon on December 17, 1898, and was delivertd to said
Lowe out of said custom-house at San Jose, on May 29, ]
1899.
That the merchandise mentioned in the bill of Decem-
ber 2, 1898, for 363 pounds, 5 shillings, and 8 d., was
shipped from the works of plaintiff on said December
2d, and arrived at said custom-house at Port Limon on
December 31, 1898, and was delivered to said Lowe out
of said custom-house at San Jose in part on January
13, 1899, and in part on May 29, 1899.
That the merchandise mentioned in tJie bill of Decem-
ber 7, 1898, for 1-17 pounds, lu shillings, 2 d., was t
shipped from the works of plaintiff on said December
7th, and arrived at said custom-house at Port Limon en
January 4, 1899, and was delivered out of said custom-
house at San Jose to said Lowe, in part on February
14, 1890, in part on May 27, 1899, in part on Jum; 15.
1899, and the balance thereof on July 13th, 1899.
That tlie expenditures mentioned in said amended
complaint for insurance, freight or other charges on or
connected with said goods, wares and merchandise, Avtre
made by pbiintiff in the amounts and at the times stated
in the depositions taken on behalf of plaintiff herein.
That in reply to a message by cable by plaintiff to the
Orocker-Woolworth National Bank of San Francisco,
on November 28, 1899, asking if the firm of Schwartz.
Lowe & Co. was good for a further credit of 15,000
pounds, said bank, at the request of the defendant
George Wostenholm de Son, Limited. 269
(Testimony of Samuel Schwartz.)
Easton, replied by cable to plaintiff on December 2,
1898, as follows:
"Ansel Easton no longer partner Schwartsf;, Lowe &
Co." which said reply was duly received by plaintiff
upon December 3, 1898.
On December 1, 1898, at the rocpiest of the defendant
Easton, a notice of dissolution was mailed to plaintilT,
of which the folio winjr is a copy:
"San Francisco, December 1st, 1898.
(Jeorge Wostenholm & Son, Ld., S'hefiield, England.
We beg leave to inform you that the firm of Easton
& Sthwartz, of which the undersigned composed all the
j)artners has been dissolved this day, by consent of all
the partners. The above firm of Easton & Schwartz,
was, as you are probably aware, the San Francisco
agent of Schwartz, Lowe & Co., doing business at San
Jose de Costa Rica, which latter firm was dissolved
on June 20th, 1898. Please acknowledge receipt hereof.
Yours respectfully,
SAMUEL SCHW^^RTZ,
Wl LLI AM «(^H W A RTZ,
ANSEL M. EASTON.
By GEO. C. SARGENT.
308 3Iarket Street, San Francisco, Cal., U. S. A."
Said notice was thereafter, in due course of mail re-
ceived by plaintiff on December ITth, 1898.
270 Ansel M. Easton vs.
(Testimony of Samuel Schwartz.)
That ou said December 1, 1898, said Eastou had uo
knowledge of said message of Nov. 28, 1898, from plain-
tiff to said Crocker- Woolworth National Bank.
That on or about April 21, 1898, Luis Leon Lowe,
then doing business under the name of Schwartz, Lowe
& Co., failed in said business, and tliereafter on May
29, 189'9, there was mailed to plaintiff, at the request
of said Lowe, the following communication, which was
duly received by said plaintiff, in due course of mail, on
June 12th, 1899.
San Jose, 19th, May, 1899.
Messrs. George Wostenholm & Sons, Sheffield.
Sirs: 3Ir. Luis Leon Lowe, 'Simon, has called to-
gether his creditors to lay before them the state oi liis
affairs and show them the impossibility of his can-ying
on.
In the meeting which was held for tlmt purpose, it
was stated to those interested, that, by the previous dis-
solution of partnership of the firm of Schwartz, Lowe
& Co., the Asset.s and Liabilities of the House belonged
f-olely to Mr. J^owe.
In view of the approximate statement presented by
this gentleman, and taking into consideration the heavy
expenses and long proceedings required in judicial
bankruptcy, the creditors present, resident here, unani-
mously agreed to accept Mr. Lowe's proposition which
is stated in the annexed copy.
George Wostenholm <& Son, Limited. 271
(Testimony of Samuel Schwartz.)
As you will see, that proposition is signed by all the
fTPditors in this country, who thought it much better
to have a prompt and economical extra judicial liquida-
tion with expenses comparatively small, than to carry
tlie matter to the tribunals, in which by the defects
of our commercial law the result would be much worse.
While the consent of the foreign creditors is being
obtained for this arrangement, as to be valid unanimity
is indispensable, the plan has been put in action, a per-
son being named to sell the effects on the best possible
terms, and I have been appointed as final liquidator and
to attend to legal matters.
As the proposed liquidation cannot be carried oul
without the consent of yourselves nnd the other foreign
creditors, the sums received in the mean time are being
deposited with the Bank of Costa Rica.
I beg that you will consider the reasons given here
and in the annexed papers and be good enough to reply
to me a Si early as possible accepting or rejecting the
arrangement.
If the first, you will be good enough to authorize some
person in this country, possessing your confidence, to
sign the arrangement. In the other case, bankruptcy
must be applied for and the effects sold by auction
which would truly be a disaster.
Hoping you will be good enough to favor me with a
272 Ansel M. Easton vs.
(Testimony of Samuel Sichwartz.)
prompt reply and to authorize some person in your
confidence, to sign the arrangement,
I am, etc.,
(Signed) LEONIDAS PAOHECO."
That, theretofore, the following" parties other than
plaintiff claiming to be creditors, of Schwartz, Lowe
& Co., had signed an agreement, of which the following
is a copy:
CREDITORS' AGREEMENT.
'•The undersigned creditors of iS^chwartz, Lowe & Co.
agreed with that house on the following terms:
1. The said house has handed to its creditors all its
assets and which are specified in the statement pre-
sented to yesterday's meeting.
2. The creditors proceed to the immediate realiza-
tion of the assets througli a person named by the ma-
jority of the residents here, or who have representatives
in Costa Rica. The proceeds are to be deposited with
the Bank of Costa Rica, to be divided amongst the
creditors with the preference the law accords.
3. Benjamin E. Pizo and Walter J, Field are privi-
leged creditors of said house, the first under a docu-
ment signed 24th December last, in which is constituted
a mortgage guarantee in favor of Schwartz, Lowe &
Co. for the obligation under which they were to pay a
^•um of ,^3000 pesos (about), due on promissory note, ex-
ecuted by Eugenio Lamicq and with the surety of the
said bouse in favor of Pizo, and included in the sums
Oeorge Wostenholm d Son, Limited. 273
(Testimony of Samuel Schwartz.)
which that document establishes as guaranteed by
Schwartz, Lowe & Co. or by Luis Leon Lowe; the second
under a deed dated the 10th of December last. It is
intended that tlie products of tlie liquidation of the
liouse referred to shall in the first place be applied to
the interests of the said two creditors.
4. The creditors agree to grant to Lowe a credit of
three years, from this date, without interest or guar-
antee, for the payment of the balance which remains
uncovered.
5. This arrangement will be effective only in the
event of its being accepted by all here within eight
days from this date, and by foreigners within the four
months following.
San Jose, 21st At)ril, 1899.
Signatures endorsed.
L. Leon Lowe.
Without prejudice to the .superiority of my privilege
wliich is stated in the deed mentioned behind, and in
that which states Luis Leon Ix»we shall pay 12000 pesos
to the Curador of the Costa Rica Mercantile Association,
W. .L Field.
For Deposits de Maleriales Juan J. deJongh.
Without prejudice of the privilege we have on mer-
chandise in the custom-house for freight and expenses
belonging to them. Tlohrmoser & Co., p. p. Tropical
Ti-ading & Transport Co. Txl. Marras Scott, Jose P.
274 Ansel M. Easton vs.
(Testimony of Samuel Schwartz.)
Eodi'iques & Hno.; B. Ventura Hidalgo-de Ambroszo &
Valle; Felipe J. Alvarado & Co.
Reserving' the right whatever reclamation may hap-
pen. Andrew Phillips; Pedro Gulienez.
Thanking the government for the privilege the law
gives, I accept this. Manuel A. Mora; for English Costa-
rica Bank — ^^Percy A. Harrison.
I accept without relieving- Mr. Palis from responsi-
bility. For the successors of Juan Knohr of AUacia;
OHcar Knohr; L. Cliarpantior & Hno.; p. p. Bene Char-
annean & Co., B:. Jiminez iSi; B,. Alvarado Gonzales;
Lindo Bros; Bafael Gutienez.
I accept without prejudice to any of my privileges.
Benjamin E. Piza; J. B. Nata.
I accept this arrangement without prejudice to my
rig-hts with the co-obligors. Jaime F. Bennett; Minor
C. Keith; Wra. Peters; p. Vicotira Oanossa,--Oanossa;
Basigo & Alvarado; p. Alberto Alvarado & Co., Vin-
cente Basigo, Pagas & Canas; F. Montenegro; Jose
Manuel Zamora; Ezequil Aguilar; for the firm of Elias
L. Maduro & Co.
The undersigned attorney for Munzer & Co. believes
this arrangement suitable, but he waits the reply of his
principals, whom he has recommended to accept it.
Octovio Beeche."
Tliat thereafter on the 15th day of October, 1899, the
plaintiff who was mentioned in the schedules (sent
plaintiff May 29, 1890) of said debtor as a creditor to
George Wostenholm & Son, Ldmited. 275
(Testimony of Samuel Schwartz.)
the extent of £3889.10.0, or $19,447.50, signed said agree-
ment, after the plaintiff had added thereto the following
claims:
"Without waiving, or in any manner affecting our
ilaims against the other members of the recent firm of
Schwartz, Lowe & f'o. which it is not intend<Nl tliis
agreement shall operate to discharge.-'
That the assets of said Lowe were thereupon talcen
in cliarge by one M'tinnel Esquivel, as received, ami have
ever since been, and are now being administered as in
bankruptcy by .said receiver, but no payments have been
made to plaintiff by said receiver. Subject to \tvoc.i that
said payments have been made, or that said receiver-
ship lias been closed.
Dated January 7, 1903.
SECOND STIPULATION.
(Title of Court and Cause.)
It is hereby stipulated between the parties hereto:
That the merchandise mentioned in the bill of the
plaintiff herein, dated December 16, 1898, for 270
pounds, IG shillings, was shipped from the works of
plaintiff on said December IG, 1898, and arrived at the
custom-hoiisp of the Republic of Cosita Rica at Port
Limon about January 1<>, 1899, and was delivered out of
the Custom House of said Republic at San Jose to Luis
Leon Lowe or to the assignee in bankruptcy of Lowo,
at some time in the month of July, 1899, sub.sequeut
to July 13th.
276 Ansel M. Easton vs.
(Testimony of Samuel Schwartz.)
(The above portion of the stipulation is made sub-
ject to proof that said goods were not so delivered.)
That the plaintiff made no further efforts to retake
any of the goods shipped by them to Luis Leon Lowe
than are stated in the depositions now on flic in this
action.
That the printed laws of the Republic of Costa Rica
now in the possession of George C. Sargent, the attorney
for the defendants Ansel M. Easton, Samuel Schwartz
and William Schwartz may be received in evidence, so
far as the same may be material and relevant in this
action.
That the deposition of Minor C. Keith, taken In the
suit of AFmor C. Keith vs. Ansel M. Easton et al.,
#71545, in the Superior Court of the City and County
of San Francisco, may be used upon the trial of tliis
action, so far as material and relevant, relative to ihe
alleged payment of draft No. 3591, dated Angust 27,
1898, for 350 pounds, alleged to have been drawn by
Minor C. Keith upon Hoadley & Company, London,
England, in favor of Schwartz, Lowe & Com]jany, en-
dorsed by the latter to Ceorge Wostenholm & Son, Lim-
ited, and further endorsed by the latter and by John S.
Elmore.
That (subject t,o further proof hereof, if produced, on
ilie subject next hereinafter mentioned) prior to the
year ISO'S, defendant Ansel M. Easton withdrew from
said firm as profits, certain amounts of monev which
George Wostenholm & Son, Limiied. 277
(Testimony of Samuel Schwartz.)
were without said defendant's knowledge real]\ drawn
from i^aid firm's capital, but no profits or moneys re-
ceived as such were obtained by said defendant at any
time in said year 1898."
That all the evidence as to the efforts of the plaintiffs
to retake said goods is included in this bill of excep-
tions.
THIRD STIPULATION.
(Title of Court and Cause.)
It is furtjier stipulated by and between the parries
hereto :
That in the year 1894 at Snji I'^ancisco, Califru'nia,
defendants, together v.'ith Luis Leon Lowe s.ud one D.
Speyer, associated themselves together as partners
under tlie firm 7inme of Schwartz, Lowe «S: Company,
by articles of copartnership, a true copy whereof is set
forth in pages 5G-9 of the deposition of A. ^I. Easton
lieretofore taken in the case of Minor C. Keitli v. A. 31.
Easton et al. No. 71,54r), ut)W pending iu tlie Superior
Court of said City and County of San Francisco in said
State, to whch pages of said deposition reference is
hereby made and the same may be considered a i)art of
tliis stipulation; and that in December of the following
year, to wit, 1895, William Schwartz, acting for the
other members of said firm otlier than said Speyer, pur-
chased in San Jose de Costa Kica the interest in said
firm of said Speyer, who thereupon retired therefr«)m,
and said firm otherwise unchanged thereafter con-
278 Ansel M. Easton vs.
(Testimony of Samuel Schwartz.)
tinued in business under said firm name without ex-
ocuting new articles of copartnership.
That (subject to proof to the contrary regarding the
recording of instrument affecting said partnership) no
instrument creating said partnership or denoting any
change therein and no document containing the sub-
stance of any such instrument or evidencing the crea-
tion of said partnership or of any change therein, or of
its dissolution, was ever recorded or filed in any public
office of the Republic of Costa Rica, but this provision
does not refer to any lease, deed or other instrument
affecting the title to or right of possession of real prop-
erty.
That said copartnership maintained during its exist-
ence a place of business at said San Jose de Costa Rica
and also at said city and county of San Francisco, at the
latter place first at No. 19 Battery Street and thereafter
to the time of the dissolution of said firm at No. 308
Market Street.
That (subject as aforesaid and to the evidence con-
tained in the deposition next hereinafter mentioned, but
under the objections to such deposition specified in the
next paragraph) said firm was disisolved June 20, 1898,
but no publication of notice of such dissolution was
made until December 8, 1898, which said publication was
then made in said City and County of San Francisco in
an evening newspaper for four consecutive daj's. and
no notice of such dissolution was given plaintiff except
George Wostcnhohn ct *S'o», Limited. 279
(Testimony of Samuel Schwartz.)
as previously stipulated (subject, however, to proof to
the contrary on the subject of such notice).
That so much of the deposition of said Mark B. Kerr
taken in the said case of Minor C. Keith v. Ansel M.
Easton et al. as may be desired, may be introduced in
evidence by either party hereto, subject to the same ob-
jections as if the witness were present and testifying
upon the stand, except the objection that any question
propounded to him was leading.
That at the time of the commencement of this action
said Luis Leon Lowe did not nor does he now reside in,
nor was he then nor is he now an inhabitant of the State
of California, nor was he then nor is he now a citizen
thereof, nor had said Lowe at any of the times mentioned
in the amended complaint herein resided or been an in-
habitant of said State or citizen thereof, nor could he
at the time of the commencement of this action nor can
he now be found within said State or Northern District
of California.
That upon the trial hereof Uie pleadinjjs of either
party may be so further amended, if counsel be so ad-
vised, as to make the same conform to the evidence ad-
mitted upon the trial hereof.
Dated March 28, 1903.
ARTICLES OF COPARTNERSHIP.
Articles of Copartnership mode and entered into the
28th day of December, A. D. 1894, by and between L.
Leon Lowe of San Jose de Costa Rica, Central America,
280 Ansel M. Easton vs.
(Testimony of Samuel Schwartz.)
David Speyer of San Jose de Costa Kica, Central Amer-
ica, Ansel Mills Easton of San Francisco, California,
Samuel Schwartz of San Francisco, California, and
William Schwartz, of San Francisco, California, wit>-
nesseth :
That the said parties have agreed to become; and by
these presents do become copartners in business under
and by the firm name and style of SchAvartz, LoAve Y
Gia, said copartnership to commence on the 1st day of
January, 1895, and to continue for the term of five (5)
years, that is to say, until the 31st day of December,
1899.
That the business to be cari'ied on by said copartner-
ship shall be a general merchandise business in Central
America and in the United States and Europe, the prin-
cipal place of business of said copartnership beinj^ the
city of San Jose de Costa Rica, Central America, and the
said copartners shall have and own an interest in the
said copartnership in the following proportions and
shares, that is to say :
L. Leon Lowe, one-third;
David Speyer, one-third;
Ansel Mills Easton, one-ninth;
Samuel Schwartz, one-ninth;
William Schwartz, one-ninth.
And it is agreed, by and between the said parties, that
at all times during the continuance of this copartner-
ship, they and each of them will give their attendance,
and to the utmost of their skill and power exert them-
Gcortfc Wostenliolm cG Sim, Limited. 281
(Testimony of Samuel Schwartz.)
selves in the conduct and management of the firm's busi-
ness for their joint interest, profit, benefit and advan-
tage, with their joint stock, and the increase thereof, in
the business aforesaid; that they shall and will, at all
fjmefl, dnring their copartnership, bear, pay and dis-
charge between them in the proportion above set forth,
all rents and other exi)ensi»s that may be required for
the support and management of the said business; that
all gains, profits and increase that shall come, grow or
arise, from or by means of the said business shall be
divided between them in the proportions above set
forth, and all loss that shall happen their said joint busi-
ness, shall be borne and paid in the same proportions;
that there shall be kept at all times during the continu-
ance of their partnership just and true books of account,
wherein shall be entered and set down, as well all
money received, paid out, laid out, and expended, in and
alK>ut the said business, as also the goods, wares, com-
modities, and merchandise, bought and sold, by reason
(»f or on account of the said business, and all other mat-
ters and things whatsoever, to the said business and
management thereof in any wise belonging, which books
shall be used in common between the said copartners,
so that either of them may have access thereto, without
any interruption or hindrance of the other; that once
in each year, during the continuance of said copartner-
ship, as aforesaid (to wit, on the first day of eTanuary
in each year), or oftener if necessary, there shall be
282 Ansel M. Easton vs.
(Testimony of Samuel Schwartz.)
taken and made a true and just inventory and account
of all the profits and increase made, and of all loss sus-
tained in said business; and also of all payments, re-
ceipts and disbursements, and of all other things in said
business, and the said account being so made, said co-
partners shall and will clear and adjust each to the
other, at the time, their just share of the profits so made
as aforesaid.
And it is agreed by and between the said parties that
at all times during the continuance of this copartner-
ship said Lowe and Speyer shall manage and control
the business of the copartnership transacted and to be
transacted in Central America, and that the said Eas-
ton, Samuel Schwartz and William Schwartz shall man-
age and control the business of said copartnership trans-
acted and to be transacted in the United States of Amer-
ica and in Europe; that at the end or other sooner deter-
mination of their copartnership, the said copartnei's,
each to the other, shall and will make a true and final
account of all thinga relating to their said business, and
in all things truly adjust the same; and that all and
every stock and stocks, as well as the gains and increase
thereof, which shall appear to be remaining, either in
money, goods, wares, fixtures, debts or otherwise, shall
be divided between them in the shares and proportions
hereinabove set forth. M
In witness whereof, the said parties to these presents
George Wontenholm S Son, Limited. 283
(Testiimmy of S^auuiel Schwartz.)
have hereunto set their hands and seals the day and year
first above named. In duplicate.
(f) L. LEON LOWE.
(f) DAVID SPEYER.
(f) ANSEL MILLS E ASTON.
i (f) SAMUEL SCHWARTZ.
(f) WILLIAM SCHWARTZ.
Defendants then read from the deposition of Minor 0.
Keith taken in the action referred to in the second depo-
sition herein in substance as follows:
That from January 16, 1897, to and including Novem-
ber 12, 1898, the witness had drawn and delivered to
Schwartz, LoWe & Co., at San Jose de Costa Rica, fifty-
two drafts, aggregating over 1100,000, of which twenty-
two were drawn upon Hoadley & Co. in London. That
yaid Hoadley & Co. were his agents, and that they had
failed on November 16, 1898. That he had paid obliga-
tions of his own, drawn upon Hoadley & Co., to the
amount of |1,250,000. Said deposition shoAved that the
counsel for Ansel M. Easton in said case had closely
cross-examined said Keith as to the date of payment of
each one of the drafts above referred to. As to draft
#3591, referred to in the depositions of plaintiff, said
witness testified that he paid the same at the Union Dis-
count Co., in London, on December 19th, 1898. The
original draft is attached to said deposition as an ex-
hi^t. The same is in the Spanish language, and is as
follows : '
284 Ansel M. Easton vs.
(Testimony of Samuel Schwartz.)
THE THREE HUNDRED AND FIFTY POUND
DRAFT.
£350.0. Agosto 27 de 1898.
A noventa dias vista so serA iran Udi« mandar paj^ar
ixtr esta Primera de Cambis (no liabiendolo lieclio por
la segnnda o Thercera) a la orden de Schwartz, Lowe &
Co la cautidad de Treseientas cincuenta Libras
Esterlinas.
Valor recibidomque cargaran Uds en cuenta seguu
ariso de. '
Su afmo y S. S. p. p. MINOR C. KEITH.
MAURAUS SCOTT.
Messrs. Hoadley & Co., London.
No. 3,591.
' Across face:
Accepted Sept. 17, 1898.
"Payable at the Capital and Counties Bank Limited.
Per Pro HOADLEY & CO.,
J. A. HOLLIDAY."
On Back.
Pay to the order of Geo. Wostenholm & Son, Limited.
i SCHWARTZ, LOWE & CO.
Schwartz, Lowe & Co.,
Agosto 26, 1898. ' '
San Jose, Costa Rica. i
Pay John S. Elmore, Esq., or order.
GEO. WOSTENHOLM & SON, LIMITED.
J. C. WING, a Director.
Per pro JOHN S. ELMORE,
' FRED R. BAYER.
Gconjc M^ostrtiliolin c6 Sun, Limited. 285
(Testimony of Samuel Schwartz.)
Said draft is stamped across the face with the words
"Accepted Septemher 17, 1898. Payable at the Capital
& Counties Bank, Ltd., per pro Hoadley & Co. J. A.
Holliday."
On the back thereof it is endorsed "Pay to the order
of George Wostenholm & Son, Ltd., etc. Ogosto 26,
1898, San Jose de Costa Rica, Schwartz, LoAve & Co."
Also endorsed, "Per pro J, S. Elmore, Fred Bayer."
<ieo. C. Sargent, one of the attorneys for defendants,
A\as permitted to testify that he had first seen the cred-
itors' agreement on July 6, 1899, when ^Ir. Kniglit
handed him a copy of it.
Defendants' attorney stated by consent of attorneys
for plaintiff that the White Star steamers upon which
plaintiff's shipments from England to Schwartz, Lowe
& Co. were made, sailed from Liverpcx)l on "NY* m1 Tuesday
of each week.
Testimony of George C. Sargent.
(Jeo. C. Sargent was then produced as a witness on be-
half of the defendants, and testified in substance as fol-
lows :
That the original document which he then exhibited to
the Court was received by him on June 29, 1899. That
it was a supplemental statement of account sent in re-
ply to his letter of June 1st, in which he had asked for a
statement more itemized than the one received hy him
in April. The document was as follows:
286 Ansel M. Eastoti vs.
(Testimony of George C. Sargent.)
GOODS SOLD BY GEO. WOSTEKHOLM & SON, LD.,
OF THEIR OWN MANUFACTURE.
6th March, 1897. Part of invoice 21. 1. 5
16th September, 1898. do 109. 16. 3
1 £13a. 17. 8
GOODS BOUGHT FOR SCHWARTZ. LOWE & CO.,
AS ORDERED BY THEM.
1897.
Feb. 24 Invoice 616. 6. .")
25 Invoice 105. in. t
27 Invoice IL 0. (i
27 Invoice 141. 17. 9
Mar. 6 Invoice 212. 10. 4
13 Invoice 4L 15. 11
Sep. 8 Invoice 621. 14 P.
11 Invoice 266. 7. 9
28 Invoice 59. 9. 10
30 Invoice 5. 0. 0
Nov. 20. Invoice 155. 5. 1
1898.
June 21 Invoice 180. 6. 9
25 Invoice 13, 2. S
July 19 Invoice 90. 11. 3
26 Invoice 5. 3. 1
Aug. 20 Invoice 95. 14. 7
Sep. 13.. Invoice 95. 14. 7
16 Invoice 55. 6. 4
17 Invoice 13. 18. 7
George Wostenholm d Son, Limited. 287
(Testimony of George C. Sargent)
Invoke 95.
Invoice 519.
Invoice 243.
Invoice 310.
Invoice 363.
Invoice 147.
Invoice 270.
Oct.
15
Nov.
1
9
18
Dec.
2
7
16
14.
10.
5
19.
6
5.
10
5.
8
15.
2
16.
0
6.
5
0.
0
£4738.
Sundry amounts paid for telegrams 10.
GEO. WOSTENHOLM & SON. LD., IN ACCOUNT
WITH SCHWARTZ, LOWE & CO.
To Goods of G. W. & S. Ld's, own manu-
facture 130. 17. 8
To Goods bought by S. G. & S. Ld. for S.
L. & Co
To CablegTams
To Interest as per accounts rendered. . . .
£5023. I.
By Sundry Drafts 1195. m 2
By Expenses re samples. 2. 7. 10
By Cash to Mr. T. Wing. ..57. 6. 10
Bv Return Primage 20. 13. 4 1275. 18.
4738.
6.
5
10.
0.
0
143.
17.
8
Balance as per Account rendered. . .£3747. 3. 7
21st December 1898.
The Draft for £350 upon Hoadley & Co., which was not
met at maturity is not taken account of in the above state-
ment.
288 Ansel M. Easton vs.
(Testimony of George 0. Sargent.)
Mr. COPE. — It will be stipulated by counsel that we
may be deemed to have made the objections to all the
testimony in the depositions, upon the subject of sending
invoices to San Francisco.
Mr. KNIGHT.— What will be the character of your ob-
jection?
The COURT. — ^I suppose it will be on the ground that
it is not sufficient to establish prima facie evidence of
the mailing or sending of the invoices and statements.
Mr. COPE. — No sufficient foundation for the intro-
duction of this testimony — i. e., not sufficient to establish
any presumption that these invoices were received in
San Francisco. The testimony is immaterial, irrelevant
and incompetent, and that we may move to strike out all
the testimony in the depositions relating to that subject
upon the same grounds, and we do now make the objec-
tion and the motion to strike out, which I have indicated.
The motion was denied, the objection overruled, and
the exception taken to both rulings.
Mr. SARGENT. — I made an objection, because of the
failure to furnish a bill of particulars.
The OOURlT.— Ttat oibjection is overruled.
Mr. SIARGENT.— We will note an exception.
Mr. KNIGHT. — ^I desire to show what was done in the
way of furnishing Mr. Sargent a bill of particulars.
George WostenJwlm cC 8on, Limited. 289
Testimony of Samuel Knight.
Samuel Knight then testified in substance as follows:
That tliere was a demand, as he recalled it, for a bill
of particulars served upon him, by counsel for defend-
ants nearly two years before the time he was testifying,
and that he furnished counsel, if not when the demand
was served, at some time prior to that, with copies of
statements and papers in his possession, which he had
received from his clients. That further in response to
the demand for the bill, he furnished certain statements
wliicli are referred to in the bill of particulars itself.
That about that time he had a talk with Mr. Sargent,
who stated that if that was all the papers, in his posses-
sion, it was all right — it would ibe satisfactory. That
no further demand was made for any additional papers.
That from time to time Mr. Sargent would ask if the
witness had certain papers, and if he had them would
he furnish copies; for instance, a copy of the agreement
entered into with Lowe in Costa Rica. That there was
never any objection raised by Mr. Siargent as to his
inability to furnish him with any papers which he de-
manded. That that was his present recollection; that
it happened several years ago.
C'ross-examination of SAMUEiL KNIGHT.
Upon cross-examination Mr. Knight testified as fol-
lows:
(i. Mr. Knight, do you not recollect my asking you —
1 called 3H)u up on the telephone — saying that one thing
I principally wanted was the dates of these shipments.
290 Ansel M. Easton vs.
(Testimony of Samuel Knight.)
A. I do not recall that, Mr. Sargent; my impression
is that I had three copies made of every account in my
possession, and furnished you with a pretty complete
statement. I do not recall the particular conversation
that you refer to.
Q. Is it not this way, 'Sir. Knight? Did you not send
around the original copies of invoices which you had in
your possession for me to look at? Did you not say to
me, that it was too much trouble to make copies, and
you would prefer to let me take the original invoices you
had in your possession?
A. That may have been the way it'was at first.
Q. And you afterwards sent these around, and al-
lowed me to retain them for at ime andt hen took them
back? A. Yes, sir.
Q. And you never furnished any account, did you,
other than the invoices?
A. I furnished you copies of certain schedules and
statements of account and the invoices themselves, or
rather, the copies of invoices themselves that I had in
my possession.
Q. You first handed me copies of invoices, and you
afterwards took them back?
A. I think you stated that you would make such
copies as you desired; and you retained them in your
possession for awhile and then you sent them to me.
Q. And that is all you ever sent me?
George WostenJiolm cC f^on,' Limited. 291
(Testimony of Samuel Kniglit.)
A. No; in reply to yonr demand, I sent you addi-
tional papers.
Q. No, you are mistaken in that, Mr. Knight. That
is the only thing you ever sent me, and m)^ office records
will bear that out.
A. I then sent you the information contained in the
bill of particulars.
Q. That is the only thing joi\ ever sent me in reply
to the bill of particulars — the one paged paper you have
there. ,
A. No, I sent you all the papers I had first. I sent
you the originals of papers I had in my possession,
which included the accounts and statements which had
been sent me from Eingland, and you asked me at the
time if that was all I had, and I believe I told you yes,
and you said that would be satisfactory, and I didn't
hear any more from you.
Q. Did you ever serve me with anything, have you
any recollection of any service on me of anything at all,
except the paper which the judge now has in hand?
A. That I will have to look up.
Q. My office records will demonstrate the fact that
nothing was ever sent me, in response to the demand for
that bill of particulars, except what the judge now has
in his hand. I had previously been loaned duplicates of
the whole bunch of statements which are attached to
this deposition, but never any account at all, never any-
thing of the semblance of an account. Mr. Knight's
292 Ansel M. Easton vs.
(Testimony of Saiinuel Knight.)
recollection is at fault, I think, because I am very sure I
did not receive any.
A. I am quite positive that you stated that was suffi-
cient.
Q. At any rate, that was all prior to the amended
complaint. Then, when the amended complaint was
filed, this demand for the bill of particulars was served,
and the only reply to that was the document which the
Court has in its hand.
Mr. COPE. — This is all the evidence you are j?iving,
Mr. Siargent? '
Mr. SARGENT.— Yes.
Mr. KNIGHT. — I will state that when counsel re-
turned to me the accounts which I handed him, which
are copies of the accounts in evidence, counsel stated
that he wanted additional evidence on one or two points
and I furnished him as much as my papers would allow
me, which was the stuff I furnished in reply to the bill
of particulars which he demanded.
Mr. SARiGENT.— This that you speak of, Mr. Knight,
was it all prior to the filing of the amended complaint?
The COURT. — Do you claim you have had no bill of
particulars? '
Jfr. SlAiRGENT. — ^None at all except what your Honor
lias here. I
The OOURT.—I will overrule this objection.
George Wostenholm & Son, Limited. 293
(Testimony of Samuel Knight.)
Mr. SAliGENT.— We will take an exception. We
now make a motion to strike out all the evidence on the
subject of the sending of statements of account subse-
quent to June 20', 1898.
Tlie C'O'URT. — On the ground that the partnership wa^
dissolved?
Mr. SARiGENT. — That the partnership was dissolved,
and the partners had no power to enter into any new
contracts. The Supreme Court of California has* de-
cided that an account stated is a new contract. We
make the motion on the ground that the testimony is
immaterial, irrelevant and incompetent.
Tlie motion was denied and an exception taken.
ilr. SARGENT.— That we had a motion to strike out
all evidence of Vvllliam Schwartz, as to acts done in the
firm name by himself after the dissolution on June 20,
1S98, which were not done with the knowledge of his
brother Samuel Schwartz and Mr. Easton, and which
were not brought to the attention of the plaintiff in the
action. The firm was dissolved, there is no contention
about that, and the only ground upon which evidence of
that kind could be received, would be that it showed
an ostensible partnership. An ostensible partnership
is an apparent partnership.
The OOURT.— I shall hold that this partnership con-
tinued so far as the plaintiffs are concerned, until they
received notice.
294 Ansel M. Easton vs.
(Testimony of Samuel Knight.)
Mr. SARIGENT.— Will your Honor hold that the part-
nership continued, or that the liability of the partner-
ship continued?
The COURT.— That is what I mean— the liability as
partners continued until the plaintiffs had notice of the
dissolution of the partnership.
Mr. S'AROENT. — ^The testimony is irrelevant. The
ruling on the deposition oft he witness Kerr was exactly
right, and I think the Court should follow it with a sim-
ilar ruling, as to the evidence given by Mr, Schwartz
while on the stand. No act by one of the partners after
the dissolution in the absence of his partners, could ac-
tually bind them. That would be res inter alios acta.
The COUBT.-nWhat is the motion I have to rule on?
Mr. SAEiGENT. — The motion is to strike out all evi-
dence of the acts of William Schwartz, the using of the
firm name or doing any business in the firm subsequent
to June 20, 1898, which was not brought to the attention
of the plaintiff before it received notice of the dissolu-
tion, but which was done without the knowledge of his
former partners. ^
The COIJRT. — ^The motion to strike out portions of
the testimony of Schwartz is denied, and the matter will
be limited iby an instruction.
Mr. SARGENT.— We will note an exception.
The evidence was thereupon closed. The case was
argued before the jury.
George Wostenholm cC- f<ov, JAwilrd. 295
The following were the ,
INSTRUCTIONS RlEQiUESTED BY DEFENDANTS.
(Title of Court and Cause.)
A. JURISDICTION OF COURT.
The Court instructs you that the jurisdiction of this
Court in cases of the character now before it, depends
upon the citizenship of the parties. In order to sustain
such jurisdiction, the plaintiff must be capable of suing
all the parties named as defendants. Partnership lia-
bilit}' is a joint liability; therefore, under the decisions
of the Supreme Court of the State of California, by
which this Court is bound in an action of this character,
all of the defendants must be made parties defendant.
It appearing by an inspection of the complaint in this
case that L. Leon Lowe is a party defendant, although
he is not so named in the caption, and that a judgment
against him on the complaint as it stands could be sus-
tained, if the proper citizenship existed; and it further
appearing, upon such inspection, that said Lowe is not
a citizen of this district; it results that we have one of
the necessary parties defendant against Avho plaintiff
could not bring an action in this court. The Court has
therefore, no jurisdiction of the case. You will there-
find a Aerdict for defendants.
(In case the foregoing instruction is refused, the fol-
lowing are requested.)
I. PI/ACE OF SALE.
A contract is considered as made in the country in
which the parties perform,' the last act necessary to com-
2D6 Ansel M. Easton vs.
plete the contract. A' sale is a contract, and this is
therefore true of sales of goods made by plaintilBf to
Schwartz, Lowe & Co. If, therefore, you believe that
Mr. Thomas Wing, agent of the plaintiff, made to L. L.
Lowe (the latter acting on behalf of Schwartz, LoAve &
Co.), at San Jose, de Costa Rica, a proposition for the
sale of any goods, or that Mr. Lowe made to Mr. Wing a
proposition for such sale and that that proposition was
unconditionally accepted, then and there, then you must
find that such sale was made in Cbsta Rica, and would
be controlled as to the liabilities of the parties, by the
law of Costa Rica.
II. PABTNERiSIHIP DEFINED.
Partnership is a contract among two or more per-
sons, for the purpose of carrying on business together,
and dividing its profits between them. Like every other
contract, it is governed as to the method of entering
into it and the obligations of the parties thereunder, by
the place where the partutership is formed. If, there-
fore you shall find that the partnership of Schwartz,
Lowe & Co., was entered into in Costa Rdca then, the
method of forming such partnership and the liabilities
of partners would be governed by that law. If, on the
other hand, \o\\ shall find that the partnership was en-
tered into in California, then the law of California Avould
control.
III. D'ISiSOLUTION OP PARTNElRSHIP.
A partnership which is not formed for any defi"nite
time may be dissoh^ed at any time, by any of the part-
(hon/r Wostcnhohn cC- Son, L'umtcd. 297
uers by merely expressing bis wisb tbat sucb dissolution
take place. Tbe consent of the other partners is not
necessary. This wisb of tbe retiring partner may be
shown by bis notice of withdrawal. Dissolution may
also be shown by any contracts entered into between
tbe for5)ier partners, which are inconsistent with the
continued existence of tbe partnership. It maj' also be
shown by agreements between the partners so changing
their liabilities to each other or to third persons, as to
indicate that tbe intent is to sever the community of in-
terest and liabilities among them.
IV. LIABILITY AFTER DISSOLUTION.
If you shall have found that the partnership of
Schwartz, Lowe & Co. was entered into in Costa Rica,
then it is for you to determine what tbe liabilities of the
l)artiiers would be under Costa Rica law, both before
and after dissolution. Tliis, for the reason that foreign
laws are questions of fact to be determined by the jury.
On the other hand if you find that the partnership of
Schwartz, Lowe & Co. was entered into in California,
then, I instruct you tbat the liability of each partner
for the acts of his copartners continues even after dis-
solution, in favor of persons who have had dealings
with, and given credit to the partnership during its ex-
istence until tlK\y have bad personal notice of the dis-
solution to tbe extent to which such persons part w'ith
vj'.lue in good faith, and in the belief that sucb partner
is still a member of the firm.
298 Aiisvl M. Eastoii vs.
V. CONSTRUCTIVE NOTICE.
Bearing upon the question of personal notice of disso-
luton last referred to, there is a further principle of law
known as constructive notice. By this principle "Every
person who has actual notice of circumstances, sufficient
to put a prudent man upon inquiry as to a particular
fact, has constructive notice of the fact itself, in all
cases in which, by prosecuting such inquiry, he might
have learned such fact."
Constructive notice is notice which the law conclu-
sively presun^es a man to have, because, under the cir-
cumstances it is his duty to have it. Therefore, he will
not be allowed to state that he has not had such no-
tice. This duty arises where the circumstances are
such as would cause a prudent man to inquire. There-
fore, under such circumstances, the law casts the
upon the party to inquire, and will not permit him to
say that he has not made the inquiry. Under such cir-
cumstances, the partj' is conclusively presumed to knoAv
everything which he would have learned if he diligently
prosecuted the inquiry.
Ignorance of facts "can avail nothing where it is in-
tentional and deliberate, or where the circumstances are
such as reasonably to put the 'party' upon inquiry.
"The general rule is intended to protect the vigilant,
not to aid those who, advised by the situation an3 sur-
roundings that an inquiry should be uYade make none,
and ignorance of the existence of facts which might
have been ascertained with ordinary diligence, is no pro-
tection. Where the situation naturally and reasonably
I
George Wostcnholm tC- Son, Limited. 299
suggests that some iuquirj or iuvestigatiou should be
made, and none is made, the person failing to make it
will be deemed in law possessed of such facts as the in-
quirj- would have disclosed."
There is one thing 3'ou must bear in mind, and that
it:*, that where a party learns of a part of a fact or trans-
action, Avhich is interesting to him, the law imposes up-
on him the duty of learning the whole of the fact or
transaction, as far as the means to do so may be in his
power.
It is stipulated in this case, that on Dec. 3, 1898, the
plaintiff learned that the firm of Schwartz, Lowe & Co.
had alread}- been dissolved. If you shall believe that
that fact bore upon their relations to the former part-
ners of the firm, then the court instructs you that it is
their dutj^ to learn all about the dissolution; when it
took place, and what arrangements were made between
the parties upon such dissolution, so far as means were
at hand for the obtaining of such knowledge, and that
the}' were bound to obtain this knowledge, as promptly
as the means at hand permitted.
VI. KESOISSION OF OONTUACT.
Where two parties have entered into a contract of
sale and the purchaser has knowingly made a false rep-
resentation, material to the contract, upon which the
seller has relied, the seller has two options, whicli, how-
ever, he must exercise within a reasonable time;
300 Ansel M. Easton vs.
1st. He may either repudiate the coutract, that \.\
rescind it as soon as he learns of the falsity of the
representation ;
2nd. Or he may affirm the contract. If, however, he
affirms the contract, he affirms it as it was actually
made, and not as he supposed it to have been made.
An unreasonable delay in rescinding may be considered
as evidence of an intention to affirm tlie contract in con-
nection with other evidence. In the case at bnr, it ap-
pears that at the time the order of Oct. 1, 1898, was
received by the plaintiff, it believed the firm of
Schwartz, Lowe & Co. to consist of AVilliam g.chwarlz,
Samuel Schwartz, L. Leon Lowe and Ansel M. Easton.
In fact, however, the partnership had been dissolved
on June 20'th preceding, and the giving of that order in
the firm name by L. Leon LoAve was a material and
false representation. If, after learning the falsity of
tliat representation, the plaintiff affirmed it as a con-
tract, it affirmed it as a contract betAveen itself and L.
Leon Lowe, and not as between itself and the former
partnership.
Whether or not it did affirm the contract, it is for you
to judge.
VII. KECMEDY UPON RESCISSION.
In case a party rescinds a contract into which he Isas
been induced to enter by a false representation, sn<li
as that above referred to, he has the right to recover
back immediately, by process of law, everything he has
parted with under the contract. This right he can as-
George Wofttenholm d Son, Limited. 301
sert by an appropriate action at law, at anj' time with-
in a. reasonable time, as long as the property can be
identified, even thongh it may have passed into the
actual physical possession of the purchased.
yUI. DUTY TO MINBIIZE DAMAGE.
Where one party has suffered loss or damage of any
kind, by reason of the act or negligence of any other
part3', the law casts upon liini tlie duty of saving him-
self as much loss as is possible. In other words, it is his
duty to minimize his loss. He can charge the neg1ig<>iit
I)arty for only such portion of his loss as he coiTld not
avoid, by the use of reasonable diligence to save him-
self.
Therefore, if you believe that L. Leon Lowe falsely
represented to the plaintiff that the firm of Sichwartz,
Lowe & Co. wasi still in existence, and thereby induced
tliem to accept orders for goods, and that after they
learned of the fraud thej' could have saved themselves
a portion of the loss, which they claim to have sus-
tained, then, you must find against them for sucli por-
tion of that loss as you lind they could have saved them-
selves.
IX. STOPPAGE IN TKAN^SITU.
Where one party sells goods to another, and before
the goods have reached the possession of the purchaser,
the seller learns that the purchaser is. insolvent, the
seller has a right to stop the goods either in transit or
in warehouse, and to retake them.
302 Ansel M. Easton vs.
X. INSOL^^ENCY DEFINED.
A person is insolvent avIio is unable to pay his debts
as they fall due in the usual course of business.
It is claimed that L. Leon Lowe, Avithout the associa-
tion of the defendants Easton and William Schwartz
and Samuel Schwartz, was insolvent, at the time when
it was in the poAver of plaintiff to retake a portion of
the goods sued for in this action. It is fc^r you to deter-
mine whether this was the fact. If he was so insolvent,
then the rip;ht of stoppage in transit on behalf of the
plaintiffs existed as soon as such insolvency' became
known to the plaintiff.
XL PIJESlUMPTiOX OF PAYMENT.
The Jaw presumes that an obligation or order for the
payment of money Avhich has been delivered up to the
debtor, has been paid. Possession, therefore, by a
]>arty of an order drawn upon himself by himself, or
drnwn upon him by anyone else, gives rise to the pre-
sumption of payment. An order drawn upon the agent
of a party, is considered in law as dra^vn upon the parly
jiimself.
XIII. JUD(}JIEiNT FOR DEFENDANTS ON SEC-
OND COUNT.
As a portion of the second count of plaintiff's com-
plaint is based upon an account stated as of Oct. 1, 1898,
and as all of plaintiff's witnesses have testified that no
account was stated as of that date, you will find against
George Wostenholm <£ Son, Limited. 303
the plaintiff under that count to the extent of £1442, 2
shillings, and 9 pence, or |6,994.37.
XIV. JUDGMENT FOR DEFENDANTS ON THIRD
COUNT,
The third count of plaintiff's complaint is founded
upon an account stated as of Oct. 1, 1898. As plaintifTs
witnesses have all testified that no account was stated
as of that date, you will find against the plaintiff upon
the tliird count of the complaint.
XV. JUDGMENT FOR DEFENDANTS ON FOURTH
COUNT.
The fourth count of plaintiff's complaint is based upon
:ni account stated as of April 20, 1899, and of Dec. 1,
1898, amounting to £3747, 3 shillings and 7 pence, or
^18,173.82. As this so-called account stated embraces
a large number of items for goods ordered after the dis-
solution of the firm by L. Leon Lowe, and as to which
Easton and his codefendants are not shown to have had
any kiu)wledge, no recovery can be had upon such ac-
count stated, and you are therefore directed to find for
the defendants upon this count.
In explanation of the directions as to finding tipon
The second, third and fourth counts, I would say that
these instritctions leave you at liberty to find for plain-
till" under the first and fifth counts, for such sums as
may be due it under the original contracts of sale, tak-
iiiir into account all defenses thereto.
304 Ansel M. Easton vs.
XVI. BURDEN OF PROOF.
In this action the burden of proof, tliat is, the duty
of convincing you by preponderance of evidence, rests
upon the party who has the affirmative of any issue
})resented for your decision. The plaintiff must show
by preponderance of evidence, tlie purchase and sale
of the goods sued for, and as it claims a liability against
defendants by reason of a partnership relation, the
burden of proof is on it to show that partnership. For
acts under the partnership claimed to have been done
in California, it must prove a i^artnership under the
laws of California. For acts claimed to have been done
in Costa Rica, it must prove a partnership under the
laws of Oosta Rica.
XVII. EFFECT OF STIPULATIONS.
A stipulation is an agreement between the parties to
an action that certain facts exist. The effect of such
f^'tipulations is to absolutely bind the parties, and the
court and jury. Wherever, therefore, anything is found
in a stipulation, it is conclusively presumed to be true,
and you must find in accordance therewith.
XVIII. INVOICES, STATEMENTS AND LETTERS
DELIVERED TO A PARTY.
Evidence has been introduced, tending to show that
plaintiff mailed various statements of account, invoices,
and letters addressed to Schwartz, Lowe & Co., 19 Bat-
tery St., San Francisco, Cal., I instruct you that no state-
ment received by any of the partners, after the dissolu-
George Wostenholm cC- Son, Limited. 305
lion of the firm, which was June 20, 189^8, gave rise to
i\ny joint obligation or any obligation against anyone,
except the party actually receiving the same. As this
action is founded upon a joint liability, you cannot
charge the defendants by any of such invoices, or state-
ments or letters received by any partner, after the above
date.
XIX. NEGLIGENCE AND RESPONSIBILITY
THEEEFOR.
It is a maxim of law "Where one of two innocent per-
sons must suffer by the act of a third, he, by whose neg-
lig'ence it happened, must be the sufferer."
It is also a maxim of law: ''The law helps the vigi-
lant, and not those who sleep upon their rights."
Evidence has been introduced before you, to show
that the partners of the firm of Schwartz, Lowe & Co.
were negligent in that they were dilatory about giving
notice of the dissolution of the firm to the plaintiff in
this action. On the other hand, evidence has been of-
fered, tending to show that tlie plaintiff, after it learned
of the dissolution could have saved itself a portion of its
loss, if it had acted with diligence, but that it neglected
to take such measures as it could have taken, and al-
lowed a portion of the g'oods sued for herein to passi into
the i)ossession of L. Leon Lowe.
Under the maxims above quoted, you should find for
tlie plaintiff for such amount of its loss as was due to
the negligence of the defendants in giving notice of the
306 Ansel M. Easton vs.
dissolution, but you should find ag-ainst the plaintiff
for such portion of its loss as was due to its OAvn neg-
ligence in failing to avail itself of its opportunities to
minimize its loss.
Whether or not the plaintiff made reasonable use of
its opportunities, you are the sole judge.
XX. PROOF OF MAIL.
Evidence has been introduced before you tending' to
prove that certain invoices, letters and statements of
account were mailed by the plaintiff both to Costa Rica
and to San Francisco.
A letter which is shown to have been duly directed
and deposited in the postoffice, is presumed to have been
received, unless proof to the contrary be produced. It
is open to the party addressed, for instance, to deny
that he received the letter or other paper mailed, which
would rebut the presumption.
ITowever, before the presumption arises, it must be
shown that the letter was duly directed, that is truly
directed upon the exterior with the proper address.
You must not, therefore, indulge this presumption of
the receipt of the paper mailed, unless you are first
convinced by a preponderance of evidence that it was
properly directed,
XXI. RECEIPT OF LETTERS.
Evidence has been introduced before you, tending to
])rove the sending- of certain invoices and statements
of account, and that some of them were directed to
George Woftteuholin cC- Son, Limited. 307
Schwartz, Lowe &. Co., San Francisco, and some to
Sclnvartz, Lowe & Co., 19 Battery St., San Francisco.
I therefore instruct 3'ou that after the dissolution of
the firm, the fact that such papers were mailed to the
firm name, does not jrive rise to any presumption that
they were received by any particular one of the defend-
ants.
It havin«- been stipulated tluxt the defendant Easton
receive none of the letters or invoices, and none of tlie
S'tatements of account except the one of April 26, 189J),
you cannot make the mailinj^- of any of sucii statements
or any of tlie invoices or letters the basis of a verdict
against him. So far as he is concerned, It is as if the
letters and invoices, and all of the statements, except
the one of April 2r>th, had not been sent, since none of
his former partners after the dissolution of the firm
could bind him by receiving them, nor can defendant
Easton be held negligent in failing to reply or take ac-
tion upon them.
As to the effect of the mailing of tlie statement of
April 20, 1899, the court lias elsewhere instructed you.
So far, therefore, as your verdict would be based tipon
such letters and invoices, it would have to be in favor
of the defendant Easton.
You are at liberty, in case you believe from the evi-
dence, under the instructions which have been given
you, that the plaintiff is entitled to judgment against
one or more of the defendants, but not against all, t«)
render a verdict in favor of such of the defendants as
308 Ansel M. Easton vs.
you think should be charged, and if you believe from the
evidence that the defendants should be charged in dif-
ferent amounts you may so find by your verdict.
XXIV. D'UTY NOT TO SHIP.
In view of the law that the retiring partners are lia-
ble only for such goods as the creditor furnishes in
good faith, and in the belief that the partner continues
a member, the Court instructs you that all goods which
the plaintiff could have withheld after receiving notice
that Ansel M'. Easton was no longer a member of the
firm, and which was supplied under the order of Oct.
1, 1898, cannot be recovered for in this action, if you
believe the telegram received Dec. 3, 1898, was suffi-
ciently definite as to cause a prudent man to inquire as
to the date of dissolution. If it was so definite, then
plaintiff's are bound to the same responsibility as if
ihey had made inquiry and had learned the fact that
the dissolution took place before Oct. 1st, and are held
with responsibility for all the consequences of such
knowledge.
XXY. SENDING BILL OF LADING.
A bill of lading being the evidence of title to prop-
erty shipped by a common carrier, without which the
property cannot be obtained, the Court instructs you
that the sending of such bill of lading after the receipt
of the telegram of Dec. 3d, would involve plaintiff in
the same consequences as if it had shipped the goods
on that day. It is an evidence that the plaintiff sent
George Wosleitholm & Son, Limited. 309
the bill of lading for the shipment of Dec. 2d, to L. Leon
Lowe, in the same letter in which it called his atten-
tion to the fact of the receipt of the telegram of Dec.
3d. The shipments, therefore, of Dec. 2d, 7th and 16th
would stand upon the same basis so far as liability or
duty of the plaintiffs under the telegram of Dec. 3d
is concerned.
XXVI. ]M AILING NOT PROVED.
The Court instructs you that it not having been
proved that tlie invoices were duly directed, no pre-
sumption of their receipt arises, and you will therefore
disregard all such invoices and the evidence of the mail-
ing of them.
XXI. A. EFFECT OF REJECTED PROOF.
Oentlemen of tlie Jury, in arriving at a verdict in
this case you must be governed entirely by the evidence
;ind instructions of the Court. You must not regard as
evidence any suggestions or statements which may have
been made by the attorneys on either side, as to what
they expected or desired to prove, or what they would
Ivave proved if the Court had allowed them. It is the
function of the Court to decide what evidence shall be
admitted, and when any evidence offered is rejected, or
after bring admitted is stricken out by order of the
Court, the jury must pay no attention to it. Your ver-
dict must be based upon the evidence in the record, and
not upon any evidence which may exist but which the
Court has not permitted to be placed before the jury.
310 Ansel M. Easton vs.
XXIX.
Certain evidence lias been introduced tending to show
that the defendant, William Schwartz, transacted cer-
tain business in the name of the firm Schwartz, Lowe &
Co., after the s^aid firm had been dissolved on June 20th,
1898. This evidence was only admissible by reason
of the fact that William Schwartz is himself one of
the defendants in this action, and is only to be con-
sidered as against him. The evidence shows that
neither the defendant, Ansel M. Easton, nor the defend-
ant, Samuel Schwartz, had any knowledge that this
business referred to wasi being transacted by William
Schwartz, and for that reason such evidence cannot be
made the basis of any liability as against the defend-
ants, Ansel M. Easton and Samuel Schwartz.
XXX
It appears from the evidence in this case that the
plaintiff made three of the shipments sued for in thiis
action upon the following dates: December 2d, Decem-
ber 7th and December 16th, 1898.
It further appears that the bill of lading for the
shipment on Decemlber 2d was not sent to Costa Rica
until after the cablegram from the Orocker-Woolworth
National Bank twas received by plaintiff on December
3d, 1898. You are therefore instructed that as to these
three shipments the plaintiff was in a position, after
tlie receipt of the' cablegram from the Cl-ocker-Wool-
worth National Bank, to have prevented the same from
gettingi into the hands of Lowe at Costa Rica. If,
George Wostenhohn tC- f^nu, Limited. 311
thowfore, yon consider that, nnder all the circnni-
stanices of this case, it wonld have been a proper ex-
ercise of ordinary care for the plaintiff, as a prudent
businesis concern, to have prevented those shipments
froan being &hipi)ed or delivered to Lowe, until such
time as it could have learned by reasonable investiga-
tion that defendant Ansel Easton was not a member
of the firm, Schwartz, Lowe & Oo. at the time the said
shipments were ordered, then I charge you that the
plaintiff canmot recover from the said defendant Easton
for such shipments.
B. DISSOLUTION OF PARTNERvSHIP.
It having- been stipulated in this case that the firm
of Schwartz, Ix)we & Co. was dissolved on June 20,
1898, you Avill accept such stipulation as final, and
govern yourselves accordingly,
C.
Notice of retirement of a partner us notice of a dis-
solution so far as he is concerned.
To each instruction refused and to eaicli instruction
as modified, the defendants severally and separately
exicepted.
The COiIJKT thei-eui>on gave the following
OHARiaE TO THE JUBY.
The COURT. (Orally.) Gentlemen of the Jury:
This is an action on contract brought by 'George Wos-
tenholm & Son, of Sheffield, Enghmd, plaintiff, against
312 Ansel M. Easton vs.
defendants! Ansel M. Easton, William Schwartz and
Samuel Schwartz, to recoA^er from thean the sum of
£3747-3si.-7d. or its equivalent in United States money of
$1'8,235.64 with interest thereon from December 21,
1898, at the rate of 5% per annum upon a balance of a'c-
count for the value of certain goods, wares and mer-
chandise alleged to have been sold to the firm of
Schwartz, Lolw^ & Oo., of which the defendants were
miembers with one Luis Leon Lowe, and for commis-
sions, freight, insurance and other charges alleged to
have been expended in connection with the shipment of
these goods, wares and merchandise from England to
San Jo«e de CHosta Rica in Central America, and inter-
est on deferred payments from respective dates of in-
voices to December 21, 1898, at the rate of 5% per
annum.
The complaint as filed by the plaintiff contains five
counts. The third and fourth counts have been with-
drawn from your consideration, leaving the first, second
and fifth counts before you for the determination of the
issues in this case.
Thie first count alleges a partnership between the de-
fendants commencing prior to the 30th day of January,
1897, and continuing until and inclusive of the 21st
day of December, 1898. It is alleged that the defend-
ants are indebted to the plaintiff for goods, wares and
merchandise sold and delivered to the plaintiff in the
sura of £3747-3s.-7d. English money, equivalent to tlie
sum of $18,173.82 in gold coin of the LTnited States,
George WostenJwlw ct Finn, TAmited. 313
T)ie second toiint as aiuonded alleges, as in the first
connt, the partnership of the defendants and that
within two years from the time of the commencement
of this action at said Oty and Contny of San Fran-
cisco, State o-f California, an account vi'as duly stated
between the plaintiff hereto on the one hand, and the
defendants, together with said Luis I^on LoAve, on the
other, as of the 31st day of December, 1897, and upon
swch statement of account a balance of £1669-7s.-kl.,
equivalent to $8,123.13 United States gold coin, was
found due to plaintiff by defendants and said Luis I^eon
Lowe, and each of them, on said 31st day of December,
1897, and thereupon defendants promised and agreed
to pay the same with the interest thereon as in the next
paragraph specified.
That on the 21st day of December, 1898, there was
due and owing by defendants and said Lowe, and by
each thereof, to plaintiff, as interest upon said sum
last mentioned, the further sum of £81-7s.-8d. English
money, equivalent to |396.01 United States gold coin.
In this count it is alleged there was a further indebt-
edness for goods, wares and merchandise sold and de-
livered to the defendants amounting to £2077-ir>s. 3d.,
equivalent to ^10,110.43 in gold coin. This last amount
represents the amount charged in the account suibse-
quent to the account stated which I have just explained
to you, the two added together amounting to £3747
3s.-7d., as in the first count.
The fifth count alleges the partnership as in the first
count; and alleges the plaintiff sold and delivered to
314 Ansel M. Easton vs.
the defendants goods, wares and merchandise to the
a,raount of £3747-3s.-7d. in English nionej^, equivalent to
f 18,173.82 in gold coin of the United States. It also
alleges the insolvency of one of the partners, Luis Leon
Lowe, who was then and after the said 21st day of
December, 1898, engaged in busijiess alone at the place
laist named, under said firm name and style of Schwartz,
Lowe & Co., which said agreement also provided for the
disitribution among his creditors of his estate, if any,
in a certain manner, plaintiff thereby releasing and dis-
charging said Lowe from all claimis and demands then
held or asserted by it against him; but said agreenint
was so executed' by plaintiff with the following express
provision tO' wit: "without waiving or in any manner
affecting our (plaintiff's) claims against the other (said)
members of the recent firm of Schwartz, Lolwe & Com-
pany, which it is not intended this agreement shall
operate to discharge."
You will observe, gentlemen of the jury, that the last
count of this complaint differs from the first count
mierel3- in the allegation concerning the insolvency of
Luis Leon Lowe in Costa Rica, the distiribution of his
estate amonig the creditors, and the provision that the
releasie of the bankrupt by the plaintiff should not re-
lease these defendants in this case. The legal effect
of these statements is: not that the plaintiff should re-
cover on all three of these counts. The three counts
state their claims in different forms. Their claim is
that they are entitled to recover in this case the sum
of £3747-3is.-7d. English money, or the equivalent ini
ljl(ur<jc Wostcnholm d Sou, Limited.
315
«;ol(l coiu of the United States under one or the cipher
of Ihese three counts, as you shall find the facts to be.
In this action the burden of proof— that is, the duty
of convincing you by preponderance of evidence— rests
upon the party who has the affirmative of any issue
presented for your decision. The plaintiff nnust shdw
by preponderance of evidence the purchase and sale of
the goods sued for, and as it claims a liability aigainst
defendants by reason of a partuei-ship relation, the
burden of proof is ou it to show that partnership.
Evidence has been introdiieed before you tending to
prove that certain invoices, letters, and statements of
account were mailed by the plaintiff, both to Costa Rica
and to San Francisco. A letter which is shown to have
been duly directed and deposited in the post-office is
presumed to have been received unless proof to the con-
trary be produced. It is open to the party addressed to
deny that he received the letter or other paper mailed,
which denial, if believed by the jury, would rebut the
presumption.
A stipulation betiv^en the counsel in the case is an
agreement between the parties to an action that certain
facts exist. The effect of such stipulation is to abso-
lutely bind the parties, and the court and jury. Wher-
ever, therefore, anything is found in a stipulation, it is
conclsively presumed to be true.
According to the law of this State, by the term "gen-
eral partner" is meant a member of any partnership
that is not formed in full compliance with the law con-
cerning special partnerships; one who, although not
316 Ansel M. Easton vs.
actually a general partner, permits himself to be held
out as su'ch partner is, in the eye of the law, a general 1
partner. When a person has ibeen shown to be a part-
ner he is presumed to be a general partner until the
contrary isi esttablished.
According to the law of thisi State, each and every
general partner is liable to third persons in full for all
debts and obligations of his firm without regard to the
proportion of his interest in the firm and irrespective of
the ability of his co-partners to contribute.
The liability of a general partner continues in favor
of third, persons who have had previous dealings with
and given credit to the partnership during its existence
and before its dissolution or before the withdraiwal
tlierefrom of the partner or partners sought to be
charged until such third persons have had personal
notice of such dissolution or withdraiwal; and this is
not only the rule as tO' obligations contracted by thie
partnership before its dissioultion but also as to those
incurred after the dissolution or withdrawal of a, part-
nei' sought to be charged and before notice thereof.
A JUROR. — May I ask what "personal notice" means
in that 'Conine ctiion?
The COURT.— "Personal notice" would mean that the
person whose interests are involved has received actual
notice of the fact contained in the notice.
It having been stipulated in this case that the firm of
Schwartz, Lowe & Co. was dissolved on June 20, 1898,
you will accept such stipulation as a fact.
Gtnrffc WofitniJmhn cC- f^rrn, Limited. 317
The liability of each partner for the acts of his co-
partner continues even after dissolution, in favor of
persons who have liad dealings with, and given credit
to the partnership during its existence, until they have
had personal notice of the dissolution to the extent to
Avliich such persons part \\ith value in good faitli and in
the belief that such partner is still a metmber of the
firm.
Bearing upon the question of personal notice of disso-
lution; just refen-ed to, there is a further principle of law
known as constructive notice. By this principle every
person who has actual notice of circuinstaoices sufficient
to ]>iit a pa-udent man upon inquiry as to a particular
fact, ha«i constructive notice of the fact itself, in all
cases in which, by prosecuting such inquiry, he might
have learned such fact.
Constructive notice is the notice which the law con-
clusively presumes a man to have because, under the
circumstances, it is his duty to have it. This duty
arises where the circumstances are such as would cause
a prudent man to inquire. Under such circumstances
tlie laiw casts the duty upon the party to inquire, an«l
Avill not permit him to say that he has not made the in-
quiry Under such circumsances, the party is conciu
s-ively presumied to know everything which ho would
have learned if he diligently prosecuted. the inquiry.
TMiere the situation naturally and reasonably sug-
gests that some inquiry or investigation should be
made, and none is made, the person failing to make it
318 Ansel M. Easton vs.
will be deemed in law to be possessed of such facts as
the inquiry would have disiclosed.
The personal notice necessai-y to be given creditors
who have had previous dealings with the partnership
need not necessarily be given by the partners; but it is
e&sential that in some manner the creditor should have
gained actual knowledge of the termination of the ^)art-
nership with which he had been dealing, or the retire-
m'ent therefrom of the partner who is sought to be
chargd. Whether or not in this case such notice, it
given, was in fact sufficient to bring home to the mind
of the creditor an actual knowledge of the termination
of the partnership with which he has been dealing, or
withdrawal therefrom of the partner sought to be
duirged, or at least was such as reasonably to put the
creditor upon his inquirj^ is for you to determine as a
questioii of fajct.
Certain evidence has been introduced tending to sihow
that the defendant William Schwartz transacted cer-
tain business in the naime of the firm, Schwartz, Lowe
& Co., after the said firm had been dissolved on June
20, I'S^S. This evidence was admissible by reasom of
the fact that William Schwartz is himself one of the de-
fendanlts in this action, and isi only to be considered as
agiainst him. The evidence sihows that neither the de-
fendant Ansel M. Easton nor the defendant Samuel
SchT;Vartz had any knowledge that this business re-
ferred to was being transacted by William Schwartz;
and for that reason such evidence cannot be made the
George Wostenholm & Son, Limited. 319
basis of any liability a« agaiu&t the defendants Ansel
M. Easton and Samuel Sckwartz.
It is stipulated in this case that on the 2Stli day of
November, 1898, plaintiff cabled the Oocker- Wool worth
Bank at San Francisco to ascertain if defendant^ were
o-ood for an additional credit of £15,000, to wliich cable
the bank replied, "Are without particulars; do not
know." That on the 2d day of December, 1898, the
Orocker-Woolwortli Bank further cabled plaintiff, "An-
sel Easton no longer partner Scwartz, Lowe & Oa"
The information which the plaintiff thus received con-
cerning the change in this partnership required that,
as prudent business men, inquiry should be made con-
cerning the retirement from the partnership of Mr.
Easton, when it took place, what arrangements were
made between the parties upon such retirement of ]Mr.
Easton, as far as means were at hand for the obtaining
of such knowledge, and that they were bound to obtain
lliis knowledge as promptly as the means at hand per-
initted. '
The notice received by plaintiff by the cable sent by
the Crocker-Woolworth Bank of this city, December 2,
1898, must have been sufficient to put plaintiff, as an
ordinarily prudent business concern, upon inquiry in
order to charge the latter with knowledge of whatever
facts concerning the dissolution of the firm of Schwartz,
Lowe & Oo., or the retirement therefrom of defendant
Easton as one of its members, a reasonable Investiga-
tion would have disclosed. It is not claimtnl, gentk-
nien, that plaintiff knew or had any reason to believe,
320 Avsel M. Easton vs.
before December 17, 1898, that the defendants William
and Samuel Bchlwartz retired from the firm of Schwartz,
Tjowe & Oo., and it is for you to determine whether or
not, under all the circum-stances of tMs case, the cable-
crraim received fi'om the Orocker-Woolworth Bank just
prior to that time was sufficient to charo'e i^laintiff with
knowledge then that defendant Easton had retired
from the firm.
In view of the law that the retiring^ partners are lia-
ble only for such goods as the creditor furnishes in good
faith, and in the belief that the partner continues a
member, I instruct you that all goods which the plain-
tiff could, by the exercise of ordinary diligence, have
Avithheld after receiving notice that Ansel M, Eiaston
was no longer a member of the firm, and which were
supplied under the order of Oictober 1, 1898, cannot be
recovered for in this action, if you believe the telegram
received December 3, 1898, was sufficiently definite as
to cause a prudent man to inquire as to the date of dis-
solution. If it was so definite, then plaintiff is bound
to the same responsibility as if it had made inquiry and
had learned the fact that the dissolution took place be-
fore October 1st, and is held with responsibility for all
the consequences of such knowledge. But, on the other
hand, if this telegram was not sufficiently definite to
put a business man upon inquiry, then he is not held to
responsibility for the consequence of such lack of
knowledge.
It appears from the evidence in this case that the!
plaintiff made three of the shipments sued for in this
Oeorge Wostenholm dc Son, Limited. 321
action upon the followinf? dates: December 2d, Decem-
ber 7th, and December IGth, 1898.
It further appears that the bill of lading for the ship-
ment on December 2d was not sent to Oosta Rica until
after the cablegram from the Crocker-Woolworth Na-
tional Bank was received by the plaintiff on December
3, 1898. If, therefore, you consider that, under all the
circumstances of this case, it would have been a proper
exercise of ordinary care for the plaintiff as a prudent
business concern, to have prevented those shipments
from being forwarded until such time as it could have
learned by reasonable investigation that defendant An-
sel Easton was not a member of the firm Schwartz,
Lowe & Co. at the time the said shipments were or-
dered, then I charge you that the plaintiff cannot re-
cover from the said defendant Easton for such ship-
ments.
This instruction will be subject to a qualification to
which I will now call your attention. Relative to the
shipments of December 2d, 7th and 16th, 1898, with
respect to the liability of the defendants William and
Samuel Schwartz, there is no evidence that plaintiff was
advised before December 17th, 1898, which was after
these shipments, that these defendants were not mem-
bers of the firm of Schwartz, Lowe & Co., or that as to
them the firm was dissolved; therefore their liability
to plaintiff upon these shipments exists as if there had
been no dissolution of the firm.
As to defendant Easton, if you believe that plaintiff,
acting as a purchasing agent of the firm of Schwartz,
322 Ansel M. Easton vs.
Lowe & Co., bought the goods of which these consign-
ments consisted, before receiving information concern-
ing Mr. Easton's retirement from the firm, then, subject
to a lien which plaintiff might have for their price, these
goods became the property of said firm of Schwartz.
Lowe & Co., and defendant Easton is liable therefor,
although the shipment of the goods to Costa Rica was
made subsequent to the receipt of the information that
Mr. Easton was no longer connected with the firm of
Schwartz, Lowe & Co,
Under the circumstances of this case, I instruct you
further that the title to the goods, wares and mer-
chandise sold by the plaintiff and consigned to the firm
of Schwartz, Lowe & Co., passed to the latter as soon
as such merchandise was delivered to the common car-
rier in England for transportation, regardless of the
time when the bill of lading therefor was mailed to
Costa Rica,
With respect now to this account stated of date the
31st of December, 189i7, I instruct you that when, in
tlie course of business transactions, a statement of ac-
count in connection therewith showing a balance due
is prepared by the creditor and properly mailed to the
debtor, directed to his usual or customary address, a
presumption arises that the statement in due course of
the mails was received by the debtor; and unless he
make objection thereto within a reasonable time, he
will be deemed to have acquiesced in its correctness,
and his acquiescence will be taken as an admission that
the account was duly stated. Accordingly, under such
Oeorge Wostenholm & Son, Limited. 323
circumstances, the law implies a new agreement by the
debtor to pay the balance of the account thus stated,
if against him, from which it follows that the creditor,
if he chooses, may bring his action upon this new agree-
ment; and this is called and the right of action is said
1o rest upon an account stated. Upon this instruction
and upon the evidence in this case, the plaintiff would
be entitled to recover in any event upon this account
stated contained in the second count of the complaint,
namely, for the sum of £1669-7s.-4d, equivalent to
.18,123.13, gold coin, as of date December 31, 1897.
I further charge you, gentlemen, that plaintiff was
under no legal liability to endeavor to retake or recover
l)ossession of any of the goods, wares or merchandise
mentioned in the complaint which it sold and shipped
to Oosta Rica before learning of the dissolution of the
firm of Schwartz, Lowe & Oo.
You are further instructed, gentlemen, that the lia-
bility of the partners of a firm established and duly
domiciled, and having a place of business in California,
although transacting business in foreign places as well,
is governed by the law of California in the absence of
any express provision to the contrary known to the
creditor of such firm. In the case at bar the contracts
for the merchandise in question with the payments of
money in connection therewith w-ere all to be per-
formed in England, and are governed by the law of Eng-
land as to their interpretiition and liability of the per-
sons entering into such contracts respectively; but the
liability of the partners of the persons so respectively
324 Ansel M. Easton vs.
entering such contract is governed, as I liave just)
stated, by the laws of this state. You should, there-
fore, entirely ignore all testimony regarding the lawsi
of Oosta Rica offered in evidence in this case.
There has been some testimony concerning the law in
Costa Rica with respect to the formation of partner-
ships and the liability of partners. All those ques-
tions that were involved in that matter have been with-
drawn from your consideration.
With respect to the draft for £350 drawn by Mtr.
Keith on Hoadley & Oo., in favor of Schwartz, Lowe
& Co., that amount has not been credited by the plain-
tiffs in their accounts. The law presumes that an ob-
ligation or order for the payment of money which has
been delivered up to the debtor, has been paid. Pos-
session, therefore, by a party of an order drawn upon
himself, by himself, or drawn upon him by anyone else,
gives rise to the presumption of payment. An order
drawn upon the ajijent of a party is considered in law^
as drawn upon the party himself. This presumption
n ay be rebutted by other evidence; and the fact whether
oi not payment was made of the £350 draft in this
case is for you to determine.
The burden of proving that the draft for £350 in
evidence in this case was paid to plaintiff by or on be-
half of defendant is upon them, and unless you are sat-
isfied by a preponderance of testimony in their favor
that such draft was paid to plaintiff, then in this re-
spect your verdict should be in plaintiff's favor.
Oeorge Wostcnholm <& Son, Limited. 325
Gentlemen of the jury, in arriving at a verdict in
this case, you must be governed entirely by the evi-
dence aud instructions of the Court. You must not
reo:ard as evidence any suggestions or statement which
may have been made by the attorneys on either side as
io what they expected or desired to prove, or what
they would have proved if the Court had allow-ed them
Io do so. It is the function of the Court to decide what
evidence shall be admitted, and when any evidence of-
fered is rejected, or after being admitted is stricken out
by order of the Court the jury must pay no attention to
it. Your verdict must be based upon the evidence in the
record, and not upon any evidence which may exist,
but which the Court has not permitted to be placed
before the jury.
To which charge and each and every part thereof,
except so far as the same coincided with the instruc-
tions requested by said defendants, the said defend-
ants severally and separately duly excepted, as stated
in tlie specifications of error hereinafter set fortli.
Defendants requested the court, as provided in sec-
tion 609 of the Code of Civil Procedure of the State of
California, after the giving of said charge and before
the jury had retired, to designate which of defendants'
instructions had been given, which had been refused,
and which had been modified; in such a manner that it
might distinctly appear what instructions were given
in whole or in part. This the Court refused to do, to
which the defendants then and there duly excepted.
326 Ansel M. Easton vs.
Tliereafter aud after the exceptions to the refusal
of defendants' proposed instructions and to the charge
of the jury had been duly taken, the jury retired and
thereafter rendered the verdict which appears of rec-
ord in this action.
SPECIPIOATIONS OF BKiROR.
1. The denial of defendants' objection to the intro-
duction of evidence under any of the counts of the
amended complaint, except such as set up accounjtsi
stated.
2. Overruling the objection of defendants that the
Court had no jurisdiction, because plaintiff and one of
the defendants (Lowe) were not citizens of this State.
3. Overruling defendants' objection to any evidence
under any of the counts of the amended complaint, ex-
cept those upon account stated, upon the ground that
plaintiff had failed to furnish a bill of particulars upon
demand as required by section 454 of the Code of Civil
Procedure of California.
25. The denial of defendants' motion to strike out,
the answer to question No. 21, upon the ground that it
is hearsay.
20. The denial of defendants' motion to strike outi
the answer to question No. 28, upon the ground thatj
Goldtree was a stranger, and that his statements were
not evidence against defendants. That partnership)
cannot be proved after June 20th, 189^8, by the declara-
tion of William Schwartz, an alleged partner. That
the answer was the conclusion of the witness and was
hearsay.
George Wostniliolm <G »S'o«, LiinUrd. 327
27. The admission of Exhibits 2 and 3 attached toi
plaintiff'i^ depositions against defendants' objections!
Ihat they were mere schedules, mere copies of another
record, not the best evidence, not made by the witness.
That all of the witnesses testified to the same memo-:
randa. That they were not shown to have been made
at the time of the occurrences, and therefore, not ad-
missible as memoranda. That they were incompetent,
irrelevant and immaterial.
Also against the further objection that it had not;
been shown that any of said communications had ever'
been actually deposited in the postoffice, or postage
paid. That, although plaintiff's witnesses had been re-
quested to state the address on each communication,
they had all failed to do so, and that, therefore, there;
was no presumption of the receipt of such communica-
tions.
Against the further objection that it had not been
shown that the invoices att<ached to said depositions
were true copies of those alleged to have been sent.
28. Overruling the renewed objection to the ad-
mission of Exhibit No. 3, upon the same grounds and,
upon the further ground that the question called for
hearsiiy testimony. That no act of the partners after
the dissolution could bind the other partners, and that,
the evidence was incompetent, irrelevant and immate-
rial.
20. Overruling defendants' objection to the witness
being allowed to answer question No. 53, upon the
ground that it is hearsay.
328 Ansel M. Easton vs.
30. Refusing to strike out the wliole of the answer
to question No. 71 of J. C. Win<jf, upon a motion made;
upon the ground that the question called for the con-
clnPMin of f •-'. ",■!^np••-■••, ihni it ■-.v.-p. not responsive, that
it made no difference whefther the other creditors had
received notice or not.
31. Refusing to strike out the last part of the an-
swer to cross-question No. 22, of J. C. Wing, upon the
motion of defendants; upon the ground that it was the;
opinion of the witness, and incompetent, irrelevant and
immaterial,
32. Overruling defendants' objection to the testi-
mony of William Schwartz, and denying the motion to.
strike it out, upon the grounds that no act of said
William Schwartz subsequent to the dissolution of the'
firm (June 20, 1898), could bind any of the former part-
ners, or be used as evidence of a joint obligation. That
it did not appear that any of said acts of William
Schwartz, ever came to the knowledge of plaintiff, and
that, therefore, they had not relied upon such acts.
That it was incompetent, irrelevant and immaterial.
33. Refusing defendants' requested instruction A,
to the effect that the Court had no jurisdiction, because
the plaintiff and one of the defendants (Lowe) were
both non-citizens of the State of California.
34. Refusing defendants' instruction I, defining the
place of contract.
35. Refusing defendants' instruction II, defining
partnership, and stating by whp-^ law the partnership
contract was governed.
George Wostenhohn tfc Hon, Ijiinitcd. 3lil)
36. Refusing defendant's instruclion III, defining,
dissolution of partnership and the evidence of such dis-
solution, !
37. Refusing defendants' instruction IV, defining,
the liabilities of partners after dissolution, under Costa,
Rica laAv, and under California law.
38. Refusing to give the whole of defendants' in-
struction V, on the subject of constructive notice and
omitting therefrom the statement that the law protects
the vigilant; that where a party learns a part of a
transaction, it is his duty to learn the whole of it, as
far as the means may be in his power; that ignorance
of the facts which might have been ascertained with
ordinary diligence, is no protection; that upon the re-
ceipt of the telegram of December 2, 1898, it was their
duty to learn all about the dissolution; when it took
place, what arrangements were made; so far as the
means were at hand for obtaining such knowledge, and
that they were bound to do it as promptly as such means
permitted.
3D. Refusing defendants' instructions VI, to the ef-
fect that plaintiff has a right of rescission upon learn-
ing of the fraud, which had been perpetrated upon it,
and defining its rights upon such rescission.
40. Refusing defendants' instruction VII further de-
fining plaintiff's rights upon such rescission.
41. Refusing defendants' instruction VIII, defining
plaintiff's duty to minimize its damage upon learning
of the dissolution of the partnership of Schwartz, Lowe
& Co. ! '
330 Aiisvl M. Easton vs.
42. Refusing defendants' instruction IX, to the ef-
fect that plaintiff had a right of stoppage in transitu,
and defining its rights in such case.
43. Refusing defendants' instruction X, defining in-
solvency, in cases of stoppage in transitu.
44. Refusing that part of defendants' instruction
XVI, which states that for acts performed in Costa
Rica, a partnership under the laws of that country
must be shoAvn by plaintiff, and that for acts performed-
in Oalifornia, a partnership under the laws of Califor-
nia must be shown.
45. Refusing defendants' instructions XVIII, to the
effect that invoices, statements of account and letters
received after dissolution by one partner, could not
give rise to any joint liability, and hence, defendants
could not be charg'ed upon any such invoices and letters
received by one partner alone.
46. Refusing defendants' instruction XIX, defining
tlie rights of the plaintiff and defendants, in case they
were both found to be negligent.
47. Refusing defendants' instruction XX, to the ef-
fert that no pre^^umption of the receipt of a letter arises
until it is shown tlint it is properly directed on the ex-
terior.
48. Refusing defendants' instruction XXI'v,, upon
the subject of plaintiff's duty to stop shipping such
goods under the order of October 1, 1898, as it could
have withheld after receiving the telegram of Decem-
ber 2d.
George Wostenhobn & »So», Limited. 331
41). liefusing defendauts' iustriictioDS XXV, to the
effect that as the cou«ignee cannot get goods without
the production of a bill of lading, the sending of such
bill of lading of the shipment of December 2d after the
plaintiff had received the telegram of that date, put
the shipments of December 2d, Tth and 16th, upon the
same footing.
50. Refusing defendants' instruction XXVI, that as
mailing of the invoices, statements of account and let-
ters attached to the depositions of plaintiff had not.
been proven, there was no presumption that any of
them were received, and that therefore, all eviden<*e of
mailing them sliouhl be disregarded.
51. Refusing defendants' instruction "C," to the ef-
fect that notice of the retirement of a partner is notice
of dissolution, so far as he is concerned.
52. To the statement by the Court in its char-io to
the jury of the provisions of the law of California as to
partnership; upon the ground that it had been shown
that the firm of Schwartz, Lowe & Co. was formed in
(^osta Rica.
53. The statement in said charge, that onr who' per-
mits hiiiiself to be lield out as partner is a general i>art-
ner; upon the ground that there Avas no evidence that
either Easton or Samuel Schwartz permitted himself
to be held out as a partner after the dissolution.
54. To the statement in said charge that each gen-
eral partner is liable for the whole of the debts of the
firm in California; upon the ground that none of the
332 Ansel M. Easton vs.
contracts sued upou were entered into or were to be per-
formed in California.
55. Stating in said charge that the laws of the State
of California as to partnership liabilities controlled this
case; upon the ground that it is not shown that any
of the contracts between the plaintiff and Schwartz,
Lowe & Co., were entered into in California, or that any
of its acts, so far as plaintiff is concerned, were per-
formed therein.
56. The statement in said charge that it is necessary
that a creditor should gain actual notice of the termina-
tion of a partnership, upon the ground that such in-
struction ignores constructive notice, and upon the
ground that it contradicts that part of the charge Avhich
deals with constructive notice.
57. To the statement in said charge that the evidence
of the acts of William Schwartz subsequent to the dis-
solution was admissible; upou the ground that no evi-
dence of any act of any partner subsequent to dissolu-
tion is admissible in any suit upon the partnership ob-
ligation.
58. To the statement in said charge which leaves to
the jury the question whether the telegram of Decem-
ber 2, 1898, was sufficient to put plaintiff upon inquiry,
upon the ground that the Court had already stated tliat
it was so sufficient.
59. The limiting to said Easiton in said cliarge, of
The effect of tlie telegram of December 2d, sent on be-
half of the defendant Easton, upon the ground that
George Wnalciiholin d- *S'o;/, l/niiHrd. 333
plaintiff was bound upon receiving said telegram, to
learn all the facts with regard to the dissohition ol
said firm which inquiry would disclose, and that such
inquiry would have brought to its knowledge the fact
that Samuel Schwartz and William Schwartz had also
ceased to be members of the firm of Schwartz, Lowe &
Co. That the Court had already instructed the jury
that plaintiff was bound, upon receipt of said telegram
to learn all about the arrangements between the par-
ties.
60. Stating in said charge, in two places, that it
was not claimed that plaintiff had any reason before
December 17th, 1898, to believe that William Schwartz
and Samuel Schwartz had retired from the firm of
Schwartz, Lowe & Co., upon the ground that the defend-
ants do claim that plaintiff had notice by the telegram
of December 2, 1898, and that said telegi-am indicated
a dissolution; that the Court had already instructed the
jury that said telegram imposed the duty of iuciuiry
upon the plaintiff which inquiry would have disclosed
the real facts; that even if the Court had not so in-
structed the jury, the question should have left fo the
jury to determine, under proper instruction as to con-
structive notice, whether plaintiff' had notice of tlie
retirement of William Schwartz and Samuel Schwartz.
I^pon the further ground that there was no statement
or evidence during the trial, to the effect that defend-
ants made no such claim as stated in the charge.
334 Ansel M. Easton vs.
61. To the statement in said charge that if plaintiff
bought the goods as purchasing agent of Schwartz.
Lowe & Co., they became the property of that firm, and
that the defendant Easton is liable thereon, even though
plaintiff shipped such goods after information that Eas-
ton was no longer connected with the firm; upon the
ground that there was no evidence of such agency, and
that, even, if such agenc}' existed, plaintiff would have
the same right to protect itself as if said goods had
been of its own manufacture or purchased by plaintiff
for itself without reference to Schwartz, Lowe & Co.
62. To the statement in said charge that tlie title
of the goods passed as soon as they Avere delivered to
the carrier, regardless of the time when the bill of lad-
ing was mailed; upon the ground that there was no evi-
dence as to any fact upon which any statement as to
the passing of the title could be predicated, and tliat
the bill of lading being the evidence of title, without
wliich possession of the goods could not be obtained,
said title could not be said to pass as long as the con-
signor held the same; that even if the title had passed,
it was within the power of plaintiff to retake said ship-
ment of December 2, 1898, by reason of its possession of
said bill of lading, and therefore the sending of such
bill of lading was equivalent to a voluntary parting
Avith the goods. That it is contradictory to what the
Court had already said to the effect that if the jury
considered that it would have been a proper exercise of
business prudence for plaintiff to have prevented the
George Wostenhohn & Son, Limited. 335
shipments from being forwarded until such time as it
could have made inquiries it should have done so.
63. To the statement in said charge to the effect
that plaintiff was under no duty to retake goods ship-
ped before learning of the dissolution; upon the ground
'that as soon as plaintiff learned actually or by construc-
tive notice of the dissolution, it became subject to an
active duty to protect itself, as far as it could do so, by
reasonable exertions. Then at the very least defend-
ants had a right to have submitted to the jury, the ques-
tion whether by the exercise of such reasonable exer-
tion, plaintiff could have retaken any of said goods so
shi])ped before learning of the dissolution.
01. To tlie statement in said charge, to the effect
that a California partnership is governed by the laws
of California, in the absence of an expressed provision
to the contrary known to the creditor; upon the ground
tliat the laws of California have no extra territorial
force. That this part of the said charge ignores: the
jtrinciple of the lex loci contractus, and the law of the
])lace of performance.
0.5. To the statement in said charge to the effect that
nil the contracts were to be performed in England, and
are governed by the laws of England as to their inter-
pretation, and that the liability thereunder is governed
by the laws of England; upon the grounds that it was
contrary to what the Court had stated immediately
preceding, and that the interpretation and liability of
the parties is governed by the lex loci contractus. That
336 Ansel M. Easton vs.
there was no evidence that said contracts were to be
performed in England. That it appeared that said con-
tracts were to be partly performed in England, and
partly in Costa Rica.
00. To the statement in said charge to the effect that
the liability of the partners is governed by the laws of
California; upon the grounds that it is contrary to what
the Court had just stated, and that this part of the
charge ignores the principle of the lex loci contractus.
07. To that part of the charge directing the jury to
disregard the laws of Costa Rica; upon the grounds
that the evidence showed that the contract for the goods
ordered March 30, 1898, to have been entirely entered
into in Costa Rica, and that therefore, the rule of lex
loci contractus applied. That, as to the order of Oc-
tober ] , 1898, the power of Lowe to bind the partnership
would be determined by the laws of the country in which
he performed his acts.
08. To the statement in the charge, to the effect ftiat
the testimony as to the laws of Costa Rica, regarding
the formation of partnerships had been withdrawn;
upon the ground that said evidence had not been so
withdrawn.
09. The refusal of the Court to designate the in-
structions requested by defendants which had been
given, and which had been refused, and which had been
modified, in such a manner that it would distinctly ap-
pear which had been so given in whole or in part, as
George Wostenholm <C- Son, Limited. 337
provided by section 609 of the Code of Civil Procedure
of the State of California.
70. The lack of any evidence to support the verdict,
in so far as it allows plaintiff for the shipment of No-
vember 1, 1898.
71. The lack of any evidence to support the verdict,
in so far as it allows plaintiff for the shipment of No-
vember 9, 1898.
72. The lack of any evidence to support the verdict,
in so far as it allows plaintiff for the shipment of No-
vember 18, 1898.
73. The lack of any evidence to support the verdict,
in so far as it allows plaintiff for the shipment of De-
cember 2, 18G8.
74. The lack of any evidence to support the verdict,
in so far as it allows plaintiff for the shipment of De-
cember 7, 1898.
75. The lack of any evidence to support the verdict,
in so far as it allows plaintiff for the shii)ment of De-
cember 16, 1898.
76. The lack of any evidence to support the verdict,
in so far as it depends upon the goods shipped under
the order of March 30, 1898, in this:
That it is not shown that by the laws of Costa Rica,
the defendants other than Luis Tx^on Lowe were liable
upon said contract.
77. The lack of any evidence to support the verdict,
in so far as it depends upon goods shipped under the
order of October 1st, 1898, in this:
338 Ansel M. Easton vs.
That it is not sliown that by the laws of Costa Rica,
where the acts of Lowe were performed, he had any
power to bind his copartners or anyone other than him-
self.
SPEOIFIOATIONS OF INSUFFICIENCY.
The evidence is insufficient to justifj^ the verdict of
the jury in this:
1. That it does not show that plaintiff ever acted as
the purchasing agent of Schwartz, Lowe & Co.
2. That it does not show that plaintiff ever pur-
chased anj' goods as purchasing agent of Schwartz,
Lowe & Co., or if they did what goods were so pur-
chased.
3. That it does not show what goods charged by
plaintiff were of its own manufacture, and which were
purchased by it from others, for delivery to Schwartz,
Lowe & Co.
4. That it does not sihow upon what goods it is
claimed commissions were earned by plaintiff.
5. It does not show that plaintiff used reasonable ex-
ertions to save itself from further loss, after receiving
the telegram of December 2d, 1898.
C. It does not show that plaintiff used reasonable ex-
ertions to save itself from further loss, after receiving
3Ir. Sargent's letter of December 1, 1898, upon Decem-
ber 17, 1898.
7. It appears that plaintiff voluntarily allowed goods
ord( red after dissolution and before it had notice of
Crorge Wnstenhobn rf »So/», Limited. 339
the dissolution of 8<liwartz, I»we & Co., to <i;o out of
its control after receiving such notice.
8. It appears that plaintiff did not use reasonable
efforts or any efforts to protect itself from loss after
it learned of the dissolution of ^hwartz, Lowe & Co., by
flie telejrram of December 2d. 1898.
9. It appears that plaintiff did not usf reasonable
efforts to protect itself from loss after it learned of the
dissolution of Schwartz, I^we & Co. by -Mr. Sarjjent's
letter of December 1, 1898, by the receipt thereof on De-
cember 17, 1898.
10. It does not show that the shipments of November
Is-t, November 9th, November ISth, December 2d, Decem-
ber 7th, ^nd December IG, 1898, all of which plaintiff vol-
untarily allowed to «:;o into the possession of L. Tieon
Lowe v.ere parted with by plaintiff in good faith and in
the belief that Ansel M. Easton, William Schwartz and
Samuel Schwartz were still members of said firm of
Schwartz, Lowe & Co.
11. It appears that plaintiff voluntarily accepted
Luis Leon Ivowe as its sole debtor, after knov»'ledge of
the dissolution of S<^-hwartz, Lowe & Co., and intention-
ally allowed the shipment of November 1, 1898, and all
subsequent shipments to go into the hands of said Luis
Leon Lowe. The plaintiff tlnreby made said transac-
tions a sale to I>owe himself.
12. Said evidence shows that plaintiff failed to avail
itself of its right of recission, upon learning of the fraud
340 Ansel M. Easton vs.
which had been perpetrated upon it, and affirmed said
sales as contracts of sale with said Lowe.
13. Said evidence shows that plaintiff did not avail
itself of its rij?ht of stoppage in transitu, but voluntarily
allowed the shipment of November 1, 1898, and all sub-
sequent shipments to go into the hands of said Lowe.
Said evidence is insufficient:
14. To show that the invoices, letters, and state-
ments of account attached to plaintiff's depositions were
properly addressed upon the exterior or that they were
ever mailed.
15. To show that any of the defendants ever re-
ceived any of the invoices, letters or statements of ac-
count alleged to have been mailed to Schwartz, Lowe &
Co. at San Francisco, after the dissolution of said firm.
IC. To show that defendants became indebted to
plaintiff for anj^ sum of money whatsoever.
17. To show that an account was stated as of De-
cember 31, 1807, between plaintiff and defendants, in
the sum of .f8,123.13, or any other siim.
18. To show that the laws of Costa Rica are the
same as those of California, with relation to the release
of joint debtors.
19. To show that the claim of plaintiff had not been
paid. /
20. To show that defendants or any of them con-
f^ented to the signing by plaintiff of the agreement be-
tween Luis Leon Lowe and his creditors.
George Wostenholm db Son, Limited. 341
21. To show the place a1 which the contracts of sale,
upon which this action is brought, were entered into,
whether it was in England or the State of California.
22. To show the place of performance of said con-
tracts of sale.
23. To charge defendant Samuel Schwartz with any
of the shipments forwarded on or after December 2d,
189S; in this, that he is not shown to have known of the
acts of William Schwartz after dissolution, as to whicli
said William Schwartz testified.
24. To show that the partnership of Schwartz, Lowe
& Co. was entered into in the State of California.
25. To show tliat the partners other than L. Leon
Lowe were liable upon the contract of sale of ^March
30, 1808, under the laws of Costa Rica; the same being
the place where the contract was entered into.
26. To show that the partners, other than Lowe,
were liable upon the contract of October 1, 1898, under
the laws of Costa Rica; said country being the one in
which the acts of Lowe were performed.
The foregoing is hereby presented as the bill of ex-
ceptions of tlie defendants Ansel M. Easton, William
Schwartz, and Samuel Schwartz, to be used on motion
for new trial herein, and upon writ of error from the
judgment tlierein, in case said writ shall be sued out.
It is hereby stipulated between the parties hereto
That any evidence admitted upon the trial and on file
lierein and which is not included in the bill of exception
herein, may by diminution of the record be brought up
342 Ansel M. Easton vs.
and referred to by either of the parties hereto both upou
the motion for a new trial and upon any appeal or writ
of error that may be taken by either party from the
judgment herein or from any reviewable order or or-
ders made upon said motion, and that this stipulation
sliall be included in the bill of exceptions herein.
GEO. C. SARGENT and
MORRISON & COPE,
Attorneys for Defendants.
The foregoing bill of exceptions is correct and may be
settled by the Judge of the above-entitled court.
TAGE, McOUTOHEN & KNIGHT,
Attorneys for Plaintiff.
The foregoing bill of exceptions is hereby approved
and settled, for use upon the motion for new trial here-
in, and upon writ of error from the judgment in said
action.
Dated this Sth day of January, 1904.
WM. W. MORROW,
Judge. '
[Endorsed] : Bill of Exceptions (settled and allowed).
Filed January 8, 1904. Stouthard Hoffman, Clerk. By
W. B. Beaizley, Deputy Clerk.
George Wofitcnhohn d Son, Limited. 343
In the Circuit Court of the Iniled titates, in and for the
Ninth Circuit, Northern District of California.
GEORdE WOSTENHOLM & SON,
LTD.,
Plaintiff,
vs.
ANSEL M. EASTON et al.,
Defendants.
Notice of Intention to Move for New Trial.
Messrs. Page, McCutelien & Knight, Attorneys for Plain-
tiff in Above-entitled Action:
You Avill please take notice that it is the intention
of the defendants Ansel M. Easton, William Schwartz
and Samuel Schwartz, to move for a new trial in tlie
above-entitled action.
Said motion will be made upon the grounds:
1. Of newly discovered evidence, material io said de-
fendants which could not, with reasonable dili[<ence,
have been discovered and produced at the trial.
2. liisufliciency of the evidence to justify the verdict.
3. That the verdict is against law.
4. Errors in law, occurring at the trial, and excepted
to by said defendants.
344 Ansel M. Easton vs.
Said motion will be made upon affidavits and a bill
cf exceptions to be hereafter prepared, served and filed.
Dated April 17, 1903.
' GEO. C. SARGENT and
MORRISON & COPE,
Attorneys for said Defendants.
[Endorsed] : BMled Apr. 18, 1903. Southard Hoffman,
Clerk. By W. B. Beaizley, Deputy Clerk.
At a stated term, to wit, the March term, A. D. 1004,
of the Circuit Court of the United States of Amer-
ica, of the Ninth Judicial Circuit, in and for the
Northern District of California, held at the court-
room in the city and county of San Francisco, on
Thursday, the 2d day of June, in the j^ear of our
Lord one thousand nine hundred and four. Pres-
ent: The Honorable WILLIAM W. MORROW, Cir-
cuit Judge.
(JEORGB WOSTENHOLM & SON,,
LTD., I
Plaintiff, (
No. 12,875.
ANSEL M. EASTON et al., \
Defendants. /
Order Denying Motion for a New Trial.
Defendants' motion for a new trial herein, heretofore
heard and submitted, having been fully considered, it
is by the Court now ordered that said motion for a new
trial be, and the same is hereby, is denied.
George Wostenholm c£- 8on, lAmiUiJ. 345
In the United States Circnit Conrt, in and for ilie Xinlli
Ninth Circuit, Northern District of California.
GEORGE WOSTENHOLM & SON,
LTD.,
Plaintiff,
vs. ) No. 12,875.
ANSEL "SI. EASTON et als.,
Defendants.
Certificate for Appeal to the Supreme Court of the United
States.
I, William W. :M()1T()w, Judge of the Circuit Court of
the United States in and for the Ninth Circuit, North-
ern District of California, do hereby certify that upon
the trial of the above-entitled action, comiuc; on regu-
larly during this term, to wit: March term for the year
1903, the following point as to the jurisdiction of the
court was raised by the defendants, in the manner here-
inafter stated and not otherwise.
The amended complaint is entitled George Wosten-
holm & Son, Ltd., a corporation, plaintiff, vs. Ansel M.
Easton, William Schwartz and Samuel Schwartz, in-
dividually, and formerly doing business with Luis Leon
Lowe, as copartners under the firm name and style of
Schwartz, Lowe & Company, defendants, and contains
five counts. It alleges at the outset: "Coqies now the
plaintiff in the above-entitled cause, and by leave (»f
346 Ansel M. Easton vs.
Court first had and obtained files this its amended com-
plaint herein and complaining of the defendants above
named, and of each of them, for cause of action alleges:
The first count is verbatim as follows:
That plaintiff is now and at all times herein men-
tioned hasi been a corporation dulv created, organized
and existing under and hj virtue of the laws of the Uni-
ted Kingdom of Great Britain and Ireland, and is a
citizen and resident of said Kingdom, having its office
and principal place of business at the city of Sheffield,
England; and the defendants are citizens and each of
them is a citizen of the United States and of the State
of California, residing in the city and county of San
Francisco, in said State and Northern District of Cali-
fornia. That from a time prior to the 20th day of Jan-
uary, 1897, and until and inclusive of the 21st day of
December, 1898, defendants, together with out Luis Leon
Ijowe, were engaged as copartners in the busiuess,
among other things, of buying and selling general mer-
chandise at San Jose de Costa Rica and elsewhere and
under the firm name of Schwartz, Lowe & Company.
That the said Luis Leon Lowe does not now I'eside and
has not at any time herein mentioned resided in and
is not and has not been an inhabitant of the State of
California, and has not been and is not a citizen thereof,
and cannot be found in said State nor in the North-
er Q District of California, but resides and at all said
times has resided at San Jose in the said Eepublic of
Costa Rica.
George Wostenhuhn <£ ^on, Limited. 347
11.
That within two ye.ar.s before the comraeucejnent of
rhif« action and on the 21st day of December, 189S, at
said city and county of San r>ancisco, within said State
and district, defendants above named, together with
said Luis Leon Lowe, and each of them, became and now
are and is indebted to plaintiff herein in the sum of
£3747, 3 shillings, 7 pence, English money, equivalent to
the sum of eighteen thousand one hundred seventy-
three and 82/100 (18,173.82) dollars. United States gold
coin, upon and for a balance of account for certain goods,
wares and merchandise, sold and delivered by plaintiff
lo and received by defendants and said Luis Leon Lowe
and each thereof, at the special instance and request of
said defendants and said Luis Leon Lowe and each of
fhem, and for commissions earned by plaintiff, and to
which it became entitled as buying agent in the pur-
chase of certain other goods, wares and merchandise foi
and on behalf of said defendants and said Luis Lcou
Lowe and each thereof, and which said commissions, de-
Tendauts and said Luis Leon Lowe and each of tluMii,
promised and agi'eed to ])ay, and for moneys laid out an<l
expended by plaintiff at the special int-tance and request,
and for the use and benefit of defendants and said Luis
Leon Lowe and of each thereof, in the payment for said
goods, wares and merchandise so purchased, and in the
l>ayment of freight, insurance and other charges and
expenses in connection with the transportation and
shipment of said goods, wares and merchandise from
348 Ansel M. Easton vs.
various places in Eiiglaud to San Jose de Costa Rica in
Central America, and otherwise, the reasonable price
and value of which said goods, wares and merchandise,
so sold to defendants and said Luis Leon I^)we and
each of them and so purchased for defendants and said
Luis Leon Lowe and each of them, and the reasonable
amount of which said commissions and advances as
aforesaid aggregated on the said 21st day of December,
1898, the sum aforesaid, including interest tiiereon as
hereinafter stated.
That the reasonable price and value of said goods,
wares and merchandise so sold and delivered by plaintiff
to defendants and said Luis Leon Lowe and each of them,
and the reasonable price and value of said goods, wares
and merchandise so purchased by plaintiff for defend-
ants! and said Luis Leon Lowe and each of them, and the
amount of commissions earned hj plaintiff in such pur-
chases (being the reasonable value of the services of
plaintiff as buying agent rendered to defendants and
said Luis Leon LoAve and each of them in making such
purchases), and the amount of said moneys so laid out
and expended by plaintiff on behalf of defendants and
said Luis Leon Lowe and of each of them in the pay-
ment of freight, insurance and other charges and ex-
penses in connection with the transportation of all said
goods, wares and merchandise as aforesaid (being the
reasonable value of such freight and insurance and a
I'easonable expenditure for such other charges), less
such payments as have been made, and including inter-
George Wosteiiliolni, d Son, Limited. 349
est as hereiuafler stated, all amounted on the said 21st
day of December, 1898, to the said sum of £3747, 3 shill-
inp;s, 7 pence, English money, equivalent to the said sum
of eighteen thousand one hundred seventy-three and
82/100 (18,173.82) dollars, United States gold coin.
III.
That it was expressly understood and agreed by and
between the defendants and said Luis Tx^on Lowe on the
one hand and plaintiff on the other, that plaintiff should
be allowed by and receive from defendants and said
Luis Ije.on Lowe and each thereof, interest at the rate
of five per cent per annum upon all amounts so due
and owing to it as aforesaid.
IV.
That although frequently requested, defendants have
not nor has snid Luis Leon Lowe, no:* has anj^ one of
them, nor has any one paid said sum of £3747, 3 sliill-
ings, 7 pence, or its equivalent in LTnited States gold
coin, nor any part thereof, and the whole thereof is
now due, unpaid and payable with interest thereon at
the rate aforesaid, from and after said 21st day of De-
cember, 1898.
Said complaint contain^-' in all five counts, all of wliich
contain .similar allegations regarding citizenship in
habitancy and the partnership relation.
The second count is on an account stated October
1st, 1898, as of June 30th, 1898, and for the reasonable
value <tf merchandise subsequently sold and commis-
350 Ansel M. Easton vs.
sioDS subsequently earned by plaintiff and moneys sub-
sequently laid out and expended.
The tbird count is on a contract for payment of money
October 1, 1898, with interest thereon and the reason-
able value of merchandise sold tliereafter, commis^'sions
thereafter earned and moneys thereafter laid out and
expended.
The fourth count was dismissed; and
The fifth count is upon a contract made January 28th,
1897, between plaintiff and defendants and said Lowe,
at Sheffield, England, for the purchase of certain goods,
commissions earned and for monej'S laid out and ex-
pended. This count also sets forth:
"That on or about the 10th day of August, 1899, at
said San Jose de Costa Rica, plaintiff executed Avith
ether creditors an a,2,Teement in Avritino; for the com-
position and liquidation of the debts of said Luis Leon
Lowe, as a bankrupt, who was then and after the said
21st day of December, 1898, engaged in business alone
at tlie place last named, under said firm name and style
of f^'chwartz, Lowe & Co., which said agTeement also
provided for the distribution among his creditors of his
estate, if any, in a certain manner, plaintiff thereby
releasing and discharging said Lowe from all claims
and demands then held or asserted by it against him;
but said agreement Avas executed by plaintiff with the
following express provision, to Avit: 'Without waiving or
in any manner affecting o\ir (plaintiff's) claims against
the other (said) members of the recent firm of Schwarts,
Lowe & Company, which it is not intended this agree-
George Wostenholm cG Son, Limited. 351
iiiont shall operate to discharge.' That at all the times
herein stated, the laws of said Kepublic of Costa Rica,
like those of said State of California in this respect,
l>rovided and now provide, among other things, that a
release of one of two or more joint debtors does not
extinguish the obligations of any of the others."
It was stipulated: "That tipon the trial hereof the
jtleadinigs of either party may be so further amended,
if counsel be so advised, as to make same conform to
the evidence admitted upon the trial hereof."
And said amended complaint was thereupon further
amentled in one or two respects so as to conform
thereto.
That the defendants Ansel M. Easton, Samfuel
Rchiwartz and William Schwartz appeared after ser-
vice of process upon them in said Northern District of
California. That said Luis Leon Lowe has never been
servtHl with process, nor has he ever appeared in siaid
action.
That upon the opening of the trial of said action be-
fore a jury and ibefore any evidence had been introduced,
Ihe defendants objected to the introduction of any evi-
dence under said amended complaint upon the follow-
ing grounds:
That the jurisdiction of the court depends upon, the
citizensliip of the parties, and, that in order to sustain
such jurisdiction, the plaintiff must be capable of suing
all (tf the defendants in the action. That partnerahip
litibility is joint, and that und^er the decisions of the
Supreme Court of California, by wliich this court is
352 Ansel M. Easton vs.
bound in actions of this character, all of the partners
must be made defendants. That it appeared from the
coimplaint that L. Leon Lowe was a partner, and was a
defendant although he is not so named in the caption,
and that a judgment against him upon the complaint as
it stands could be sustained, if the proper citizenship
existed. That it further appeared that said Lowe was
not a citizen of this district, or of the State of Cali-
fornia, and that therefore, it appeared that we have
one of the necessary parties defendant against whom
plaintiff could not bring an action in this court. The
Court has, therefore, no jurisdiction.
Said objection was overruled and defendants ex-
cepted, f
Thereafter defendants also requested a peremiptory
instruction to the jury, of which the following is a copy:
A. JURISDICTION OF COURT.
The Court instructs you that the jurisdiction of this
court in cases of the charaicter now before it, depends
upon the citizenship of the parties. In order to sus-
tain such jurisdiction, the plaintiff must be capable of
suing all of the parties named as defendants. Partner-
ship liability is a joint liability; therefore, under the
decisions of the Supreme Court of the State of Cali-
fornia, by which this Court is bound in an action of this
character, all of the partners must be made parties de-
fendant. It appearing by an insipection of the com-
plaint in this case that L. Leon Lowe is a party defend-
ant, although he iis not so named in the cajition and
George Wostetiholm d 8on^ Limited. 353
that a judgmenit against him upon the complaint as it
stands could Ibe sustained, if the proper citizenship ex-
isted; and it further appearing, upon such inspection,
that said Ix>we is not a citizen of this district; it resultsi
that we have one of the necessary parties defendant
against whom plaintiff could not bring an action in this
court. The Court has therefore, no jurisdiction of the
case. You will therefore find a verdict for defendants.
Said objection was ovei-ruled' and exception duly
taken, and said requested instruction was denied, to
which an exception was duly taken.
Thereupon said jury was alloAved to pass upon the
issues of said case, whereupon said jury brought in a
verdict for the plaintiff against defendant Ansel M.
Easton for f20,401.,%; against defendant William
Schwartz and Samuel Schwartz for $22,003.49, to which
verdict the defendants then and there duly excepted.
Now, therefore, it is ordered that the said question
whether this Court had or has jurisdiction of this ac-
tion by reason of said divers citizenship aforesaid, be
and the same is here<by certified to the end that it may
be passe<l upon by the Supreme Court of the United
States, and that the clerk of this Court transmit a copy
hiereof, under the seal of this Court, to the clerk of the
Supreme Court of the United States, in case a writ of
error or appeal to said Supreme Court shall be taken
direct. '
Dated this 11th day of July, 1903.
\ WM. W. MORROW,
Circuit Judge.
354 Ansel M. Easton vs.
[Endorsed]: Presented in open court and filed July
11, 1903. Southard Hoffman, Olerk. By W. B. Beaiz-
ley. Deputy Clerk.
Tn the Circuit Court of the United! States, in and for the
Ninth Circuity Northern District of California.
.}
GEORGE WOSTENHOLM & SON, \
LTD.,
Plaintiff,'
va \ No. 12,875.
ANSEL M. EASTON, et als.,
' Defendants.
Petition for Writ of Error.
Ansel M. Easton, one of the defendants in the above-
entitled action, feeling himself aggrieved by the verdict
of the jury, and the judgment entered in said action on
April 9, 1903, in pursuance of said verdict, whereby it
was ordered, adjudged and decreed, that plaintiff have
and recover of the defendant Eiaston, the sum of twenty
thousand four hundred and one and thirty-six one-hun-
dred ths (20,401.36) dollars, with costs, comes now, by
Geo. O. Sargent and Miorrison & Cope, his attorneys^ and
petitions said Court for an order allowing said defend-
ant Ansel M. Easton to prosecute a writ of error to: the
Honorable the United States Circuit Court of Appeals
for the Ninth Circxiit, in accordance with the laws of
the United States; and also, that an order be made,
fixing the amount of security which said defendant An-
George Wostenhohn & Son, Limited. 355
sel M. Baston shall give upon said writ of error, and
that upon the giviug of such siecurity, all further pro-
ceedings in this Court be suspended and stayed, until
the determination of said writ of error, by said United
States Circuit Court of Api)eals.
And your petitioner will ever pray.
Dated June 30t.h, 1904.
GEO. C. SARGENT,
MORRISON & COPE,
Attorneys for Defendant Ansel M. Easton.
[Endorsed] : Filed July 1, 1904. Southard Hoffman,
Clerk. By W. B. Beaizley, Deputy Clerk.
/// fhe I'niicd' States Cirriiit Court of Appenl>i, in and for the
Ninth Circuit, Northern Distrivt of California.
ANSEL M. EASTOX,
, Plaintiff in Error,
vs.
GEORGE WOSTENHOLM & SON,
LBrHTED. ■ j
Defendant in Error.*
Assignment of Errors.
Now comes Ansel M. Eaiston, defendant, the plaintiff
in erroo- herein, by Geo. C. Sairgent and ^Morrison &
Cope, his attorneys, and particularly specifies the fol-
lowing, as errors upon whicli he will rely, and wliich he
will urge in liis writ of eiTor in the ab(>v(>-entitled cause:
350 Ansel M. Easton vs.
'1st AssigTMnent. The denial of defendants' objection
to the introduction of evidence under any of the counts
of the amended complaint, except such as set up ac-
counts stated.
Being Sipecification of Error Number 1, of the bill of
exice^ptions.
2d Assignment. Overruling the objection of defend-
ants that the Court had no jurisdiction, because plain-
tiff and one of the defendants (Lowe) were not citizens
of Ithis State.
Being Specification of Error Number 2, of the bill of
excepftionis. ' ^
3d Assignment. Overruling defendant's objection to
amy evidence under any of the counts of the amended
complaint, except those upon account stated, upon the
ground that plaintiff had failed to furnish a bill of par-
ticulairs upon demand as required by section 454 of the
node of Civil Procedure of California.
Being Specification of Error Number 3, of the bill of
exceptions.
4th Assigniment. The admission of Exhibits 2 and 3
attaiched to plaintiff's depositions against defendants'
. objections that they were mere schedules, mere copies
of another record, not the best evidence, not made by
the witness. That all of the witnesses testified to the
siame memoramda. That they were not shown to have
been made at the time of the occurrences, and there-
fore, not admissible as memoranda. Thait they were
Incoimpetent, irrelevant and immaterial.
George Wostenhohn d- ^on, Limited. 357
Also against the further objection that it had not
been shown that any of said comimunications had ever
been aictuaJly dejwsited in the postoffice, or postage
paid. Tliat, although plaintiff's vvitnesises had been
requested to state the address on each communication,
they had all failed to do so, and that, therefore, there
Avas no presumption of the receipt of such communica-
tion.
Aigainst the further objection that it had not ibeen
shown that the invoices att4iched to said dei>osit.ion
were true copies of those alleged to have been sent.
Being Spcifieation of Error Number 27, of the bill of
exceptions.
5th Assignment. Overruling the renew'etl objection
to the admission of Exhibit Number 3, upon the same
grounds and upon the further gi'ound that the question
ealleil for hearsay testimoiny. That no aict of the part-
ners after the dissolution could bind the other partners,
and that the evidence was incompetent, irrelevant an<l
immaterial.
Being Si)ecifi cation of Error Number 28, of the bill
of exceptions.
Gth Assignment. Overruling defendant's objection
to the testimony of William Schwartz, and denying the
motion to stnke it out upon the grounds that no act of
said William Schwartz subsequent to the dissolution of
the firm (June 20, 1898), could bind any of the former
partners, or be used as evidence of a joint obligation.
That it did not appear that any of said acts of William
Schwartz, ever came to the knowledge of plaintiff, and
358 Ansel M. Easton vs.
that, thiei'efore they had not relied upon such acts.
That it was the incompetent, irrelevant and immaterial.
Being Specification of Error Number 32, of the bill of
exceptions;.
"Q. (By Mr. KNIGHT.) I will ask you whether or
not after the 20th of June, 1898, you tranisacted any
business with Mr. Lowe under the firm name of
Schwartz, Lowe & Co., business which was not pendiufr
on the 20th of June, 1898. '
"Mr. OO'PEl — I object to the question as irrelevant,
incompetent, immaterial, and not within the issues in
tJiisi case. ' ;
"The objection was overruled and an exception taken.
"ilr. COPE. — We make the further oibjection that as
far as the defendant Easton is concerned and Samuel
Schwartz, there is no notice shown to have been brought
to tihejn of the transaction of any Ibusiness.
"Mr. SARGENT. — ^Will counsel siliow that any acts
were brought to the knowledge of Easton or Mr.
Schw;artz?
"Mr. KNIGHT. — There are three defendants in the
case. After we get the testimony in, it will be proper,
if it is to be restricted, to so restrict it by instructions.
"Mr. KNIGHT.— Q. Answer the question. Mi-.
Schwartz. A. I was acting here as agent for Mr.
Lowe, and held a power of attorney from Mr. Lowe to
trnmsact business here as Lowe & Co.
Qvoryc Wostnifmhii d »S'o//, lAmitrd. 359
"Mr. KNIGHT.— Wa« the business that you did with
"Slv. Lowe after the 20th of June, ISD'S, condui:ted at all
in the name of Schwartz, Lowe & Oo.?
"Mr. COPE. — ^We make the same objection.
"The cbjection was overruled and exception talcen.
^'■A. T erroneously sij^ned one paiper, either one or«
t/wo papers. I don't remember, 'Schwartz, Lowe & Co.'
"The witness further stated that since June 20, 1898,
the only business he did with Mr. Lowe under the firm
name of Schwartz, Lowe & Co. was the negotiating of
one or two drafts, which he signed eiToneously. A
draft was then exhibited to the witness.
"Mr. COPE.— It will be understood that all this te«ti-
mo'iiy goes in under the same objection.
"The COITRT.— Yes.
"Mr. KNIGHT.— Yes. With reference to the trans-
action oif business."
"A draft for £1000, dated San Jose de Costa llica,
August 2, 1898, payable at ninety days sight, to the
order of Schlwartz, Lowe & Co., signed Minor C. Keiitli,
was exhibited to the witness, and he read from the back
theerof, the following endorsement:
" 'Pay to the order of Lowe & (>)., Coffee Excli:vuge
liuilding, NeAv York, Sichwai-tz, Lowe & Co.' Tlieii
'Pay to the order of William Schwartz, T^we & Co. P(>t
John F. Baker, Atorney.' Then 'William Schwartz.
Pay to the order of the Anglo-Californian Bank,
Schwartz, Lowe & Oo.'
360 Ansel M. Easton vs.
"The witness stated that he wrote the words
'Schwartz, Lowe & Oo.,' last set fortih, and the name
' Williaani Schwartz.- That he could not recollect the ex-
aict date When he received it, because the draft was in so
many hands ibefore it came to him. That he negotiated
it, aindl that the draft was afteiiwards protested, but fi-
nally paid. That in the course of business dealings
with Mr. Lowe after the 20th of June, 18»8, he learned
that there was> a branch in New York under the name of
Lowe & Co. The draft was therenpou offered in evi-
dence by plainftiff.
"Mr. SARGENT.— Oibjected to on the ground that it
bias not been shown tliat the defendant E'aston or tlie
defendant Samuel Schwartz knew anything about this,
and, if they did not, it being after the dissolution, the}
could not be bound by it; further, it is not shown that
plaintiff knefw anything about this at the time it sup-
plied the goods; hence, were not misled in any way to
their prejudice.
"The olbjection was overruled, and an exception taken.
"The witness also stated that he had negotiated five
£200 drafts in the name of Schwartz, Lowe & Co., since
June 20, 1898, in San Francisico. That these drafts
w^^e not drawn at the siame time as the £1000 draft
above referred to. Thiat he did not know what date wa&
on them. That in the case of Keith vs. Easton, now
pending in the Superior Oonrt of tlie City and County
of San Framcisco, in wihich he is a defendant, he gave a
George WostenJiohn & f>o\\, Limited. 361
deposition, in whicli he was interrogate'd as to these
<lraft«.
"Kegarding whether or not one of those drafts was
dated the 21st of August, 1898, that it was hard to an-
swer. Would! not say that it was this draft exactly.
"Q. Just refresh your mind, if you can, in any way,
so asi to answer the question as to- the date.
"A. f think I have answered it that I did negotiate
some draft.
"Q. I want the date of those drafts?
"A. They can be produced.
"Kegarding whether or not Ije could give the dates
of the drafts negotiated by him since the 20th of June,
1898, he testified that his answer in that deposition had
been that he had negotiated, to the best of his recollec-
tion, five drafts of £200 each; in order to determine
when he had negotiated them he said that the drafts
must be shown.
"The COURT. — 'Q. Does your own testimony furnish
you information or suggestion as to what the dates
were?
"A. It was after the 21st of June.
"Q. You are presented with a copy of your own tes-
timony, where you have testified before. Does that
furnish you no suggestion as to the date?
"A. Yes, sir.
"Q. Then answer.
"A. I think they are.
"The witness later testified that all those drafts were
of date August 2l8t, 1898.
362 Ansel M. Easton vs.
"The witness also testified that he had transacted
no other business except the negotiation of the above
drafts in the name of Scliwartz, Lowe & Co. after June
20. 1898. That he was quite sure, he thought.
"Tlie witness was then shown his deposition in the
albove case Keith against Easton, and asked whetlier
it refreshed his memory; to which he replied that it did.
That he could give a negative answer to the question
whether he had transacted any of the business for this
reason: That he bought goods and paid for them
with funds which he had, and that they were not charged
all being cash transactions, so that he considered it
no business. That he did no business in the firm name
of Schwartz, Lowe & Oo., after June 20, 1898, other than,
the negotiation of the drafts. That he did not buy,
goods and tell them to charge them to Schwartz, Lowe.
& Oo. He also stated that his deposition was correct.
The answer of the witness was read from said deposi-
tion, in which he stated that perhaps he bought some
goods and had them charged up to them (Schwartz,
Lowe & Co.). That people knew him as representative,
of Schwartz, Lowe & Co. and asked no questions. That
he paid cash. The witness stated that he had so tes-
tified. That he did not remember making any protest
to Mr. Lowe or anyone representing him, against the
use of the name Schwartz, Lowe & Co.
Mr. Knight then read from the above deposition as,
follows:
"Q. Did you make any protest to Mr. Easton or Mr.
Lowe about endorsing that name on those bills? A.
George Wosteithobn tC Son, Liiiiilrd. 863
]S'o, sir. Mr. Easton didn't know anything about it.
I didn't mention any endorsement, because Mt. Meyer,
looked to me personally to pay those bills, in case of
protest."
"The witness also stated that Mr. Easton knew that
witness was transacting business with Mr. Lowe after
June 20, 1898. That he was not sure that Mr. Easton.
knew that these drafts were at the place of business;
on Market St. at the time they were received, or a lit-,
tie later on.
"Mr. Knight reading from the above deposition:
"Q. Did he know of it at the time they were dis
counted? A. I am not certain. Q. Did you show,
him the drafts? A. I don't think so. Q. Did you'
tell him then about them? A. I told him later on;;
in fact he knew all about my business with Lowe. He
knew I wasi his agent, and he knew I was doing busi-;
uess for Lowe. Q. When, to the best of your knowl-'
edge, did Mr. Easton obtain knowledge of the existencei
of these drafts, and the fact that ycm had discounted
them? A. Well, my letters were open; he had access^
to them; he could read them. Q. Did you show himj
these letters when you received them? A. Sometimes:
I did, and sometimes I didn't. If he happened to be
in when the mail arrived, I w^ould hand him the letters..
If he was not in town, I left them on my desk, and he,
could read them' if he wanted to."
"The witness stated that the above was correct."
"The foregoing being a x>ortian of the testimony of
William Schwartz.
364 Ansel M. Easton vs.
"Cross-examination of WILUIAM SCHWARTZ.
"The witness then identified, and there was receivedv
in evidence, a power of attorney signed *L. Leon Lowe,'
empowering witness to act for him. It was dated June
25th, 1898.
"The witness also testified, that prior to June 20,^
1898, the date of the dissolution, there was no such con-
cern as Lowe & Co. That it was first established af-
ter Mr. M. B. Kerr sold out the business to Mr. Lowe.
That Mr. Kerr was not a member of the firm.
Mr, Sargent then read from the above deposition of
witness in the case of Keith vs. Elaston, as follows:
"Q. To the best of your recollection did you tell Mr.
Easton of the existence of those bills (the drafts tes-.
tified to on direct examination), and of the fact that
they were negotiated by you within a day or two after*
it was done. A. I couldn't remember, because his pres-
ence was so uncertain, and these bills of exchange were
sent to me by Lowe to cash them immediately and send
the money immediately. Sometimes he would havei
me telegraph him the mioney. I couldn't have told himj
before it was done, because the mail always came in onl
Sunday; I would go the postoffice, and get the mail,
sometimes he would come in on M'onday and sometimeS(
he wouldn't, and if I had anything to do, I would stay
in the office, and sometimes Mr. Easton would come toi
town and I wouldn't see him.
"Q. When you informed him of the fact that you ne-
gotiated these bills which I have shown to you, what,
did he say? A. Nothing.
Groryc Wos(niJinh)i <C Son, Li)iiitc(J. 365
"Q. Did you state to him, Mr. Schwartz, that you had
endorsed them in the firm name, Schwartz Lowe & Ck).?
A. No.
".^Ir. SARGENT.— Til is all refers to Mr. Ea»ton
This is a portion that Mir. Knight did not read. 'Q.
Did he (Mr. Easton) see the bills? A. I don't think so.
I don't think he did. If I told him, I simply told him
I received some drafts from Mir. Lowe for negotiation
with instructions to send him the money, which I did.'
The witness' stated the above-quoted testimiony was
true.
"The witness further testified that he was acting-
purely as the agent of Mr. Low^e after June 20, 1898,,
and received a salary of |200, a month, which arrange-i
ment continued until about the beginning of 1899."
7th Assignment. Refusing defendants' requested in-,
struction A, to the effect that the Oouit had no juiits-
(liction, because the plaintiff aJid one of the defendants!
(Lowe) were both noncitizens of the State of California.
Being Specification of Error, Number 33, of the bill,
of exceptions.
A. JURISDICTION OF COURT.
The Court instructs you that the jurisdiction of this
Court in case«l of the character now before it, depends:
upon the citizenship of the parties. In order to sus-
tain such jurisdiction, the plaintiff must be capable>
of suing all of the parties named as defendants. Part-i
nership liability is a joint liability; therefore, under
the decisions of the Snpreme Court of the State of Cali-;
S66 Ansel M. Easton vs.
fornia, by which this Court is bound in an action of this
character, all of the defendants must be made parties
defendant. It appearing by an inspection of the com-
plaint in this case that L. Leon Lowe is a party defend--
ant, although he is not so named in the caption, and
that a judgment against him upon the complaint as it
stands could be sustained, if the proper citizenship ex-
isted; and it further appearing, upon such insi^ection,.
that said Lowe is not a citizen of this district; it results
that we have one of the necessary parties defendant
against whom plaintiff could not bring an action in
this court. The Court has, therefore, no jurisdiction
of the case. You will, therefore, find a verdict for de-
fendants.
8th Assignment. Refusing defendants' instructioui
I, defining the place of contract.
Being Specification of Error, Number 34, of the bill
of exceptions.
I. PLACE OF SALE.
A contract is considered as made in the counti*y in
which the parties perform the last act necessary to
complete the contract. A sale is a contract, and this
is, therefore, true of sales of goods made by plaintiff
to Schwartz, Lowe & Co. If, therefore, you believe,
that Mr. Thomas Wing, agent of the plaintiff, made to
L. L. Lowe (the latter acting on behalf of Schwartz,
Lowe & Co.,), at San Jose de Costa Rica, a proposition
for the sale of any goods, or that Mr. Lowe made to
Mr, Wing a proposition for such sale, and that that
Oeorge M^ofitenhohn cC- Son, Limited. 367
proposition was unconditionally accepted, then and,
tbere, then you must find that such sale was made in,
Costa Rica, and would be controlled as to the liabili-
ties of the parties, by the law of Costa Rica.
9th Assignment. Refusing defendants' Instruction.
II, defining partnership, and stating by what law thei
partnership contract was governed.
Being Specification of Error Number 35, of the bill of
exceptions.
II. PAT{T[?^ERSHIP DEFINED.
Partnership is a contract among two or more per-
sons, for the purpose of carrying on business together,
and dividin*!^ its profits between them. Like every otlier
contract, it is governed as to the method of entering
into it and the obligations of the parties thereunder,,
by the place where the partnership is formed. If..
therefore, you shall find that the partnership of
Schwartz, Lowe & Co. was entered into in Costii Rica,
then, the method of forming such partnership and the
liabilities of partners w^ould be governed by that law.
If, on the other hand, you shall find that the partner-
ship was entered into in California, then the law of
California would control.
10th Assignment. Refusing defendants' instruction
III, denning dissolution of partnership and the evidence
of such dissolution.
Being Specification of Error, Number 36, of the bill
of exceptions. [
3(68 Ansel M. Easton vs.
III. DISSOLUTION OP PARTNERSHIP.
A partnership which is not formed for any definite
lime may be dissolved at any time, by any of the part-i
uers, by merely expressing his wish that such dissolu-
tion take place. The consent of the other partners is
not necessary. This wish of the retiring partner may
be shown by his notice of withdraw^al. Dissolution,
may also be shown by any contracts entered into be-
tween the former partners, which are inconsistent with
the continued existence of the partnership. It may
also be shown by agreements between the partners so
changing their liabilities to each other or to third per-
sons, as to indicate that the intent is to sever the com-
munity of interest and liabilities among them.
11th Assignment. Refusing defendants' instruction
IV, defining the liabilities of partners after dissolution,
under Costa Rica law, and under California law.
Being Specification of Error, Number 37, of the bill
of exceptions.
IV. LIABILITY AFTER DISSOLUTIOiN.
If you shall have found that the partnership of
Schwartz, Lowe & Co., was entered into in Costa Rica,
then it is for you to determine what the liabilities of
the partners would be under Costa Rica law, both be-
fore and after dissolution. This, for the reason that
foreign laws are questions of fact to be determined by
the jury.
On the other hand if you find that the partnership of
Schwartz, Lowe & Co., was entered into in California,
George WostenJiohn <& ^^ou, TAmited. 369
then, I instruct you that the liability of each partner
for the acts of his copartners continues even after
dissolution, in favor of persons who have had dealings
with, and given credit to. the partnership during its
existence until they have had personal notice of the
dissolution to the extent to which such persons part
with value in good faith, and in the belief that sucli',
l)artuer is still a member of the firm.
13th Assignment. Refusing defendants' instruction
VI, to the effect that plaintiff had a right of rescission
upon learning of the fraud, which had been perpetrated
upon it, and defining its rights upon such rescission.
Being Specification of Eirror, Number 39, of the bill
of exceptions.
VI. RESCISSION OF CONTRACT.
Where two parties have entered into a contract of
sale and the purchaser has knowingly made a false rep-
resentation, material to the contract, upon which the
seller has relied, the seller has two options, which, how-
ever, he must exercise within a reasonable time;
1st. lie may either repudiate the contract, that Is,
res-ciind it as' soon as he learns of the falsity of the rep-
resentation; '
2. Or he may affirm the contract. If, however, he
affirms the contract, he affirms it as it was actually
made, and not as he supposed it to have been niad^.
An unreasonable delay in rescinding may be consid-
ered as evidence of an intention to affirm the contract
in connection with other evidence. In the case at bar^
370 Ansel M. Easton vs.
it appears that at the time the order of Oct. 1, 1898,
was received by the plaintiff, it believed the firm of
Schvk^artz, Lowe & Co., to consist of William Schwartz,
Samuel Schwartz, L. Leon Lowe and Ansel M. Easton.
In fact, however, the partnership had been dissolved
on June 20th, preceding, and the giving of that order
in the firm name by L. Leon Lowe was a material and
false representation. If, after learning the falsity of
that representation, the plaintiff affirmed it as a con-
tract, it afiirmied it as a contract between itself and
L. Leon Lowe, and not as between itself and the former
partnership.
Whether or not it did affirm the contract, it is for
you to judge,
14th Assignment. Refusing defendants' instruction
VII further defining plaintiff's rights upon such rescis-
sion.
Being Specification of Error, Number 40, of the bill
of exceptions.
VII. EEMEDY UPON RESCISSION.
In case a party rescinds a contract into which he has
been induced to enter by a false representation, such
as that above referred to, he has the right to recover
back immediately, by process of law, everything he has
parted with under the contract. This right he can as-
sert by an appropriate action at law, at any time within
a reasonable time, as long as the property can bie Uden-
tified, even though it may have passed into the actual
physical possession of the purchaser.
George Wofitenhnlm tC- Sov, Limited. 371
15th Assignment. Refusing defendants' instruction
VIII, defining plaintiff's duty to minimize its damage
^ upon learning of the dissolution of the partnership of
Schwartz, Lowe & Co. i
Being Specification of Error, Number 41, of the bill;
of exceptions.
VIII. DUTY TO ^llINflMIZE DAMAOE.
Where one party has suffered loss or damage of any
kind, by reason of the act of negligence of any other
party, the law casts ui>on him the duty of saving him-
self as much loss as is possible. In other words, it is
his duty to minimize his loss. He can charge the neg-
ligent party for only such portion of his loss as he could
not avoid, by the use of reasonable diligence to save
himself.
Therefore, if you believe that L. Leon I>owe falsely
represented to the plaintiiT that the firm of Schwartz,
Lowe & Co. was still in existence, and thereby induced
them to accept orders for goods and that after they
learned of the fraud they could have saved themselves
r. portion of the loss, which they claim to have sus-
tained, then, you must find against them for such por-
tion of that loss as you find they could have saved them-
selves.
Kith Assignment. Refusing defendants' instruc-
tion IX, to the effect that plaintiff had a right of stop-
page in transitu, and defining its riglits in such case.
Being Specification of Error Number 42, of the Bill
of Excei)tions.
3'T2 Ansel M. Easton vs.
IX. STOPPAGE IN TRANSITU.
Where one party sells goods to another, and before
the goods have reached the possession of the purchaser,
the seller learns that the purchaser is insolvent, the
seller has a right to stop the goods either in transit or
in warehouse, and to retake them.
17th Assignment. Refusing defendants' instruction
X, defining insolvency, in cases of stoppage in transitu.
Being Specification of Error Number 43, of the Bill
of Exceptions.
X. INSOLVENCY DEFINED.
A per.«n is insolvent who is unable to pay his debts
as they fall due in the usual course of business.
It is claimed that L. Leon Lowe, without tlie associa-
tion of the defendants Easton and William Schwartz
and Samuel Schwartz v»as insolvent, at the time when
it was in the power of plaintiff to retake a portion of
the goods sued for in this action. It is for you to de-
termine whether this was the fact. If he was so in-
solvent, then the right of stopjiage in transit on behalf
of plaintiffs existed as soon as such insolvency became
known to the plaintiff.
18th Assignment. Refusing that part of defendants'
instruction XVI, which states that for acts performed in
Costa Rica, a partnership under the laws of that coun-
try must be shown by plaintiff, and that for acts per-
formed in California, a partnership under the laws of
r\nlifornia must be shown.
George Wostenholm c6 Son, Limited. 373
Being Specification of Error Number 44, of the bill of
Exceptions.
XVI. BURDEN OF PROOF.
In this action the burden of proof, that is, the duty
of convincing you by preponderance of evidence, rests
u])<)n the party who has the affirmative of any issue pre-
sented for youi' decision. Tlie ])laiiitilT must show by
preponderance of evidence, the purchase and sale of
the goods sued for, and as it claims a liability against
defendants by reason of a partnership relation, the
burden of proof is on it to show tliat partnership. For
acts under the partnersliip claimed to have been done
in California, it must prove a partnership under the
laws of California. For acts claimed to have been done
in Costa Rica, it must prove a partnership under the
!nws of Costa Rica.
19th Assignment. Refusing defendants' instruction
XVIII, to the effect that invoices, statements of account
and letters received after dissolution by one partner,
could not give rise to any joint liability, and hence, de-
fendants' could not be charged upon any such invoices
;;iid letters received by one partner alone.
Being Spocificalion of Error Number 45, of the bill of
exceptions.
X^'III. INVOICES, STATEIMENTS AND LETTERS
DELIVERED TO A PARTY.
Evidence has been introduced, tending to show tliat
plaintiff mailed various statements of account, invoices,
iind letters addressed to Schwartz, Lowe i^- Co., 19 Bat-
374 Ansel M. Easton vs.
tery St., San Fraucisco, Cal. I instruct you that
no state.!)) ent received by any of tiie partners after tlie
dissolution of the firm, which was June 20, 1898, gave
rise to any joint obligation or anj^ obligation against
anyone, except the party actually receiving the same.
As this action is founded upon a joint liability, you can-
not charge the defendants by any of such invoices, or
statements or letters received by any partner, after the
above date.
20th Assignment. Refusing defendants' instruction
XIX, defining the rights of the plaintiff and defendants,
in case they were both found to be negligent.
Being Specification of Error Number 4G, of bill of
exceptions.
XIX. NEOLIGENrE AND KESPONSIRILITY
THEREFOR.
It is a maxiiu of law: "Yv'here one of two innocent per-
sons must suffer by the act of a third, he, by whose neg-
ligence it happened must be the sufferer."
It is also a maxim of law: "The law helps the vigilant,
and not those who sleep upon their rights."
Evidence has been introduced before you, to show
that the partners of the firm of Schwartz, Lowe & Oo.
were negligent in that they were dilatory about giving
notice of the dissolution of the firm to the plaintiff in
this action. On the other hand, evidence has been of-
fered, tending to show that the plaintiff, after it learned
of the dissolution could have saved itself a portion of
its loss, if it had acted with diligence, but that it neg-
George WosteiihoJm tC- Sou, Limited. 375
Iwted to take such uunisuio.s as it could have takeu, aud
alloAVf d a ])()rtion of tlie r^oods siued for hereiu to pass
into the possess' ou of L. Leon Lowe.
Under the niaxhus above quoted, you should find for
the plaintiff fo huch amount of its loss as was due to
the peglii.'rn<e of tl;e defendants in giving notice of the
dissoluti(m, but you should find against the plaintiff for
such portion of its loss as was due to its own negligence
in failing to avail itself of the opportunities to uiiuim-
ize its loss.
Vrhetiier or not the plaintiff made reasonable use of
its opportunities, you are the sole judge.
21st Assignment. Refusing defendants' instruction
XX, to tlie effect that no presumption of the receipt of
a letter arises until it is shown that it is properly di-
rected on tlie exterior.
Being Specification of Error Number 47, bill of ex-
ceptions.
XX. 1»IK)0F OF MAILING.
Evidence has been introduced before you tending to
I-rove (hat certain invoices, letters aud statements of
:ucount were mailed by the plaintiff both to Costa Kica
and to Sail Francisco.
A letter which is shown to have been duly directed
and deposited in the postofiice, is presumed to have
been received, unless proof to the contrary be produced.
It is open to the party addressed, for instance, to deny
that he received the letter or other paper mailed, which
would rebut the presumption.
376 Ansel M. Easton vs.
However, before the presumption arises, it must be
shown that the letter was duh- directed, that is truly
directed upon the exterior with the proper address.
You must not, therefore, indulge this presumption of the
receipt of the paper mailed, unless you are first con-
vinced by a preponderance of evidence that it was prop-
erly directed.
22d Assignment. Refusing defendants' instruction
XXI, defining the effect of letters and statements after
dissolution.
XXI. RECEIPT OF LETTERS.
Evidence has been introduced before you, tendino; lo
(>r!)ve the sending of certain invoices and statements of
account, and that some of them Avere directed to
Schvrartz, Lowe & Oo., San Francisco, and some to
Schwartz, Lowc' & Co., ID Rattery St., San Francisco.
I therefore instruct you that after the dissolution of
tho firm, tlie fact that such papers were mailed to th,-
firm name, doe.s not <;ive rise to any presumption tbrit
they were received by any particular one of the defend-
ants.
It having been stipulated tiuit tlio defendant Easton
received none of the letters or invoices, and none of
file statemf.nts or account except tl'.e one of April 2(5,
1899, you cannot make the mailing of any of such state-
in ents or any of the invoices or letters tlie basis of a
verdict against him. So far as he is concerned, it is as if
the letters and invoices, and all of tlie statements, except
the one of April 26th, had not been sent, since none of
Ovorf/c Wostenholiii <C- >S'o//, lAtnitfd. 377
liis former partners after the (J'tHniHHlon of the linn
(•o\il<l bind \\'<.m by n'ceivinj; tlieni, nor can defendant
Ea.-tcu b;^ held negligent in failinjj; to reply or take
action upon them.
As to the effect of the mailing of the statement of
Anril 2ifi, 18W, the Tourt has elsewhere instructed you.
So far, therefore, as your verdict would be based upon
Mich letters and invoices, it would have to be in favor of
the defendant Easton.
You are at liberty, in case you believe from the evi-
dence, under the instructions which have been given
you, that the plaintiff is entitled to judgment against
one or more tif the defendants, but not against all, to
render a vei'dict in favor of such of the defendants as
you think should be charged, and if j'ou believe from the
evidence that the defendants should be charged in
different amounts you nia.y so find hy 3'^our verdict.
23d Assignment. Refusing defendants'' instruction
XXP,', upon the subject of plaintiff's duty to stop sliii»-
5>ing Huch goods under the order of October 1, 18})8, as
it could have withheld after receiving the telegram of
December 2d.
Being Specification of Error Number 48, of the bill
of exceptions.
XXIV. DUTY NOT TO SHIP.
In vi(Mv of the law that the retiring partners are
liable only for such goods as the creditor furnishes in
good faith, and in the belief that the partner continues
a member, the Court instructs 3'ou that all goods which
378 Ansel M. Edston- vs.
Ike pJaiutill' could have Vv-ithliGld after reteiving iiutice
that Ansel M. Eastoii was no longer a men>.ber of the
lirm, and which was supplied under the order of Oct.
1, 1898, cannot be recovered for in thi« action, if you
believe the telegram received Dec. 3, 1898, was sufii-
cientlj- definite as to cause a prudent man to inquire as
to the date of dissolution. If it was so definite, then
plaintiffs are bound to the same responsibility as if they
had made inquiry and had learned the f;;ct tliat the
dissolution took place before Oct. 1st, and are held with
responsibility for all the consequences, of such l:n«)v.l-
tdge.
24th Assignment. Kefusing defendants' in.struction
XXV, to the effect that as the consignee cannot get
goods without the production of a bill of lading, Ihe
sending of such bill of lading of the sliipnient of Decem-
ber 2d, after the plaintiff had received the telegram of
that date, put the shipments of December 2d, 7th and
lOth upon the same footing.
Being Specification of Error, Number 19, of the l>i]l
of exceptions.
XXV. SENDIXII BILI. Or' LADIN(3.
A bill of lading being ilie evidence of title to prop-
erty shipped by a common carrier, without which the
property cannot be obtained, the Oourt instructs you
that the sending of such bill of lading after the receipt
of the telegTam of Dec. 3d, would involve plaintiff in
the same consequences as if it liad shipped the goods
on that day. It is an evidence that the plaintiff sent
George Wostcnholm & i^on, Limited. 379
the bill of lading for the shipment of Dec. 2d to L. Leon
Lowe in the same letter in which it called his attention
to the fact of the receipt of the telegram of Dec. 3d.
The shipments, therefore, of Dec. 2d, 7th and 16th, would
stand upon the same basis so far as liability or duty
of the plaintiffs under the telegram of Dec. 3d is con-
cerned.
25th Assignment. Refusing defendants' instruction
XXVI, that as mailing of the invoices, statements of
account and letters attached to the depositions of plain-
tiff had not been proven, there was no presumption that
any of them were received, and that therefore, all evi-
dence of mailing them should be disregarded.
Being Specification of Error, Number 50, of the bill
of exceptions.
XXVI. MAILING NOT rKm'EI).
The Court instructs you that it not having been proved
that Uio invoices v.cre duly directed, no presumption of
tlu'iv recoipt arises, and you will therefore disregard all
sue): invoices and the evidence of the mailing of thein.
2(5th Assignment. Refusing defendants' instruction
(', to the effect that notice of the requirement of a
uartner is notice of dissolution so far as he is concerned.
Being Specification of Error Number 51, of the bill
of exceptions.
C.
Notice of retirement of a partner is notice of a dis-
solution so far as he is concerned.
380 Ansel M. Easton vs.
27th Assignment. To the statement by the Coui-t in
its charge to the jnrj of the provisions of the law of
California as to partnership; upon the ground that it
had been shown that the firm of Schwartz, Lowe & Co.
was formed in Costa Rica.
Being Specification of Error Number 52, of the bill
of exceptions.
The following is the part of the charge referred to:
"According to the law of this State, by the term
'general partner' is meant a member of any partnership
that is not formed in full compliance with the law con-
cerning special partnerships; one who, although not
actually a general ])artner, permits himself to be held
out as such partner is, in the eye of the law, a general
partner. When a person has been shown to be a part-
ner he is presumed to be a general partner until the
contrary is es^tablished.
"According to the laAV of this State, each and every
general partner is liable to third persons in full for all
debts and obligations of his firm without regard to tlie
proportion of his interest in the firm and irrespective of
the ability of his copartners to contribute.
28th Assignment. The statement in said charge, that
one who permits himself to be held out as partner iy a
general partner; upon the ground that there was no
evidence that either Easton or Samuel Schwartz per-
mitted himself to be held out as a partner after the
dissolution.
Being Specification of Error Number 53, of the bill of
exceptions.
Gcorgr Woateiilwhn tfc )S'o//, Liiiiilrd. 381
The i)ai-t excepted to, it; given above, iu Assignment
ilTth.
2f)th Assignment. To the statement in said chargT'
that each general partner is liable for the whole of
tlie debts of the firm in California; upon the ground
that none of the contracts sued upon were entered into
or were to be performed in California.
Being Specification of Error, Number 54, of the bill of
exceptions.
Tlie part excepted (o, is given above, in Assignment
27th. ;
30th Assignment. Stating in said charge that the
laws of the State of California as to partnership lia-
bilities controlled this case; upon the ground that it
is not shown that any of the contracts between the
plaintiff and Schwartz, Lowe & Co. were entered into
in California, or tliat any of its acts, so far as i>laiiilin"
is concerned, were performed therein.
Being Specification of Error, Number 50, of the bill
of exceptions.
The following is the part of the charge excepted to:
"Vou are further instructed, gentlemen, that the lia-
bility of the partners of a firm established and duly
domiciled, and having a place of business in California,
although transacting business in foreign places as well,
is governed by the laws of California in the absence of
any express provision to the contrary known to the
creditor of such firm. In the case at bar the contracts
for the merchandise in question with the payments of
382 Ansel M. Easton vs.
money in connpction therewith were all to be performed
in England, and are governed by the law of England as
to their interpretation and liability thereunder of the
persons entering into such contracts respectively; but
the liability of. the partners of the persons so respec-
tively entering such contract is governed, as I have just
stated, by the laws of this State. You should therefore
entirely ignore all testimony regarding the laws of
Costa Eica offered in evidence in this case.
"There has been some testimony concerning the law in
Costa Rica with respect to the formation of partnerships
and the liability of partners. All those questions that
were involved in that matter have withdrawn from your
consideration."
31st. Assignment. The statement in said charge that
it is necessary that a creditor should gain actual notice
of the termination of a partnership, upon the ground that
such instruction ignores constructive notice, and upon
the ground that it contradicts that part of the charge
Avhich dealsi with constructive notice.
Being Specification of Error Number 56, of the bill of
exceptions.
The following is the part of the charge excepted to :
"The liability of a general partner continues in favor
of third persons who have had previous dealings with
and given credit to the partnership during its exTsteuce
and before its dissolution or before the withdrawal there-
from of the partner or partners sought to be charged, un-
til such third persons have had personal notice of such
dissolution or withdrawal; and this isi not only the rule
George Wostcnholm tfc ^nn, Liuiitcd 383
as to obligations contracted by the partnership before
its dissolution but also as to those incurred after the dis-
solution or withdrawal of a partner sought to be charged
and before notice thereof.
"A JUROR. — May I ask what personaJ notice means
in that connection?
"The COURT. — 'Personal notice' would mean that the
person whose interests are involved has receivefl actual
notice of the fact contained in the notice.
"The liability of each partner for the acts of his copart-
ner continues even after dissolution, in favor of persons
who have had dealings with, and given credit to the part-
nei'ship during its existence, until they have had per-
sonal notice of the dissolution to the extent to which such
persons part with value in good faith and in the belief
Ihat such partner is still a member of the fimi."
32(1 Assignment. To the statement in said charge
that if plaintiff bought the goods as purdiasing agent of
Schwartz, Lowe & Co., they became the property of that
firm, and that the defendant Easton is liable Oiereon,
even though plaintiff shipped such goods after infornm-
tion that Easton was no longer connected with the firm ;
upon the ground that there was no evidence of such
agency, and that, even, if such agency existed, plaintiff
would have the same right to protect itself as if said
goods had been of its own manufacture or purchased by
plaintiff for itself williout reference to Schwartz, Lowe &
Co.
Being Specification of Eri-or, Number Gl, of the bill of
exceptions.
384 Ansel M. Easton vs.
The following is the part of the charge excepted to :
"As to defendant Easton, if jon believe that plaintiff,
acting as a purchasing agent of the flr.ni of Schwartz,
Lowe & Co., 'bought the goods of which these consign-
ments consisted, before receiving information concerning
Mr. Easton's retirement from the firm, then, subject to
a lien which plaintiff might have for their price, these
goods became the property of said firm of Schwartz, Lowe
& Co., and defendant Easton is liable therefor, although
the shipment of the goods to Costa Kica was made subse-
quent to the receipt of the information that Mr, Easton
was no longer connected with the firm of Schwartz, Lowe
& Co."
33d Assignment. To the statement in said charge that
the title of the goods passed as soon as they were deliv-
ered to the carrier, regardless of the time when the bill
of lading Avas mailed ; upon the ground that there was no
evidence as to any fact upon which any statement as to
the passing of the title could be predicated, and that the
bill of lading being the evidence of title, without which
possession of the goods could not be obtained, said title
could not be said to pass as long as the consignor held
the same; that even if the title had passed, it was within
the power of plaintiff to retake said shipment of Decem-
ber 2, 1898, by reason of its possession of said bill of lad-
ing, and therefore the sending of such bill of lading was
equivalent to a voluntary parting with the goods. That
it is contradictory to what the Court had already said
to the effect that if the jury considered that it would
have been a proper exercise of business prudence for
George Wostenholm tC- ^nu, Limited. 385
plaintiff to have prevented the shipments from being for-
warded until such time as it could have made inquiries it
should have done so.
Being Specification of Error, Number 62, of the bill of
exceptions.
The following is the part of the charge excepted to :
"Under the circumstances of this case, I instruct you
further that the title to the goods, wares and merchan-
dise sold by the plaintiff and consigned to the firm of
Scliwartz, Lowe & Co., passed to the latter as soon as such
merchandise was delivered to the common carrier in
England for transportation, regardless of the time when
the bill of lading therefor was mailed to Costa Rica."
The part of the charge which contradicts the part last
referred to is as follows :
"In view of the law that the retiring partners are
liable only for such goods as the creditor furnishes in
good faith, and in the belief that the partner continues
a member, I instruct you that all goods which the plain-
tiff could, by the exercise of ordinary diligence, have
withheld after receiving notice that Ansel M. Easton
was no longer a member of the firm, and which were
supplied under the order of October 1, 1898, cannot be
recovered for in this action, if you believe the telegram
received December 3, 1898, was sufficiently definite as
to cause a prudent man to inquire as to the date of dis-
solution. If it was so definite, then plaintiff is bound
to the same responsibility as if it had made inquiry
and had learned the fact that the dissolution took place
before Octolxr 1st, and is held with responsibility for all
386 Ansel M. Easton vs.
the consequences of such knowledge. But, on the other
hand, if this telegram was not sufficiently definite to
put a business man upon inquiry, then he is not held to
responsibility for the consequences of such lack of
knowledge.
"It appears from the evidence in this case that the
plaintiff made three of the shipments sued for in this
action upon the following dates: December 2d, Decem-
ber 7th, and December 16th, 1898.
"It further appears that the bill of lading for the ship-
ment on December 2d was not sent to Costa Eica until
after the cablegram from the Crocker-Woolworth Na-
tional Bank was received by the plaintiff on Decem-
ber 3, 1898. If, therefore, you consider that, under all
the circumstances of this case, it would have been a
proi>er exercise of ordinary care for the plaintiff, as a
prudent business concern, to have prevented those ship-
ments from being forwarded until such time as it could
have learned by reasonable investigation that defend-
ant Ansel Easton was not a member of the firm,
Schwartz, Lowe & Co., at the time the said shipments
were ordered, then I charge you that the plaintiff can-
not recover from the said defendant Easton for such
shipments."
34th Assignment. To the statement in said charge to
the effect that plaintiff was under no duty to retake
goods shipped before learning of the dissolution; upon
the ground that as soon as plaintiff learned actually or
by constructive notice of the dissolution, it became sub-
ject to an active duty to protect itself, as far as it could
George Wostenholm & f^ou, Limited. 387
do so, by reasonable exertions. That at the very least
defendants had a right to have submitted to the jury,
the question whether by the exercise of such reasonable
exertion, plaintiff could have retaken any of said gootls
so shipped before learning of the dissolution.
Being Specification of Error, Knmber 63, of the bill
of exceptions.
The following is the part of the charge excepted to:
"I further charge you, gentlemen, that plaintiff was
under no legal liability to endeavor to retake or re-
cover possession of any of the gocxls, wares or merchan-
dise mentioned in the complaint which it sold and
shipped to Costa Rica before learning of the dissolution
of the firm of Schwartz, Lowe & Co."
35th Assignment. To the statement in said charge, to
the effect that a California partnership is governed by
the laws of California, in the absence of an expre.ssed
provision to the contrary known to the creditor; upon
the ground that the laws of California have no extra
territorial force. That this part of the said charge ig-
nores the principle of the lex loci contractus, and the
law of the place of performance.
Being Specification of Error, Numl>er 04, of the bill
of exceptions.
The part of the charge exceptwl to, is given in As-
signment 30th.
36th Assignment. To the statement in said charge to
the effect that all the contracts were, to be performed
in England, and are governed by the laws of England
as to their interpretation; and that the liability there-
388 Ansel M. Easton vs.
under is governed by the laws of England; upon the
grounds that it was contrary to what the Court had
stated immediately preceding, and that the interpreta-
tion and liability of the parties is governed by the lex
loci contractus. That there was no evidence that said
contracts were to be performed in England. That it
appeared that said contracts were to be partly performed
in England, and partly in Costa Rica.
Being Specification of Error, Number 05, of the bill
of exceptions.
The part of the charge excepted to, is given in As-
signment 30th.
37th Assignment. To the statement in said charge to
the effect that the liability of the partners is governed
by the laws of California; upon the grounds that it is
contrary to what the Court had just stated, and that
this part of the charge ignoresi the principle of the lex
loci contractus.
Being Specification of Error, Number 06, of the bill
of exceptions.
The part of the charge excepted to, is given in As-
signment 30th.
38th Assignment. To that part of the charge direct-
ing the jury to disregard the laws of Costa Rica; upon
the grounds that the evidence showed that the contract
for the goods orderetl March 30, 1898, to have been en-
tirely entered into in Costa Rica, and that, therefore,
the rule of lex loci contractus applied. That, as to the
order of October 1, 1898, the power of Lowe to bind the
George Wostenholm d Son, Limited. 389
pai'tnership would be determined by the laws of the
couutrj' in which he performed his acts.
Being Specification of Error, Number 07, of the bill
of exceptions.
The part of the charge excepted to, is given in As-
signment 30th.
39th Assignment. To tlie statement in said charge,
to the effect that the testimony as to the laws of Costa
Rica, regarding tlie ftjrmation of partnerships had been
withdrawn; upon the ground tl»at said evidence had not
been so withdrawn. '
Being Specification of Error, Numl)er G8, of tlie bill
of exceptions.
The part of the charge excepted to, is given in As-
signment 30th. I
40th Assignment. The charge of the Court is incon-
sistent and contradicts itself. The ccmtradictory por-
tions are set forth in paralld columns, as follows:
390 Ansel M. Easton vs.
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306 Ansel M. Easton vs.
41st Assignment. The lack of any evidence to support
the verdict, in so far as it allows plaintiff for the ship-
ment of November 1, 1808.
Being Specification of Error, Number 70, of the bill
of exceptions.
42d Assignment. The lack of anj^ evidence to sup-
port the verdict, in so far as it alloAVs plaintiff for the
shipment of November 9, 1898.
Being Specification of Error, Number 71, of the bill
of exceptions.
43d Assignment. The lack of any evidence to sup-
port the verdict, in so far as it allows plaiutiff for the
shipment of November 18, 1898.
Being Specification of Error, Number 72, of the bill
of exceptions.
44th Assignment. The lack of any evidence to sup-
port the verdict, in so far as it allows plaintiff for Ihe
shipment of December 2, 1898.
Being Specification of Error, Number 73, of the bill
of exceptions.
45th Assignment. The lack of any evidence to .sup-
port the verdict, in so far as it allows plaintiff for the
shipment of December 7, 1898.
Being Specification of Error, Number 74, of the bill
of exceptions.
46th Assignment. The lack of any evidence to .sup-
port the verdict, in so far as it allows plaintiff for the
shipment of December 16, 1898.
Being Specification of Error, Number 75, of the bill
of exceptions.
George Wostcnholm tC- /S'o», Liinitvd. 397
47th Assicnment. The Lit-k of any evidence to sup-
port the verdict, in sso far as it depends upon the goods
shipped under the order of March 30, 1898, in this:
That it is not shown that by the laws of Costa Rica,
the defendants other than Luis I^eon Lowe were liable
upon said contract. ' .
Being Specification of Error, Number 70, of the bill
of exceptions. ' '
48th Assignment. The lack of any evidence to sup-
port the verdict, in so far as it depends upon goods
shipped under the order of October list, 1898, in this:
That it is not shown that by the laws of Costa Kica,
where the acts of Lowe were performed, he had any
power to bind his copartners or anyone other than him-
self.
Being Specification of Error, Number 77, of the bill
of exceptions.
Wherefore, the said Ansel M. Easton, plaintiff in er-
ror, prays that the judgment of the Circuit Court of the
United States, in and for the Ninth Circuit, Northern
District of California, be reversed, and that said Circuit
Court be directed to grant a new trial herein.
Dated June 30th, 1904.
GEO. C. SARGENT, and
\ ^rORRISON & COPE.
Attorneys for Plaintiff in Error, Defendant in the Lower
Court. ' I
[Endorsed] : Filed July 1, 1904. Southard Hoffman,
Clerk. By W. B. Beaizley, Deputy Clerk.
3198 Amel M. Easton vs.
In the Circuit Court of the United States, in and for the
Ninth Circuit, Northern District of California.
GEORGE WOSTE^HOLM & SON,\
LTD., J
Plaintiff,!
vs. \ No. 12,8T5.
ANSEL M. EASTON et al.,
Defendants.
Order Allowing Writ of Error.
Ansel M. Easton, one of the defendants in the above-
entitled action, having filed in the Circuit Court of
the United States, in and for the Ninth Circuit, North-
ern District of California, his petition for a writ of
error from the judgment entered therein, on April 9,
1903, pursuant to the verdict of the jury therein ren-
dered; and said Ansel M. Easton having filed with the
clerk of this court with his petition for said writ of
error, an assignment of errors, in accordance with the
rules of this Court, and of the Circuit Court of Appeals
of this Circuit:
Now, therefore, it is ordered, that said writ of error
do issue in the form of law, according to the statutes
in such cases made and provided. And further or-
dered, in accordance with the stipulation of the parties
George Wofttenholm dc Son, Limited. 399
filed herein that the plaintiflf iu error be not reijuircl
to file any bond for costs on such writ of error.
Dated July 1st, 1904.
JOHN J. DE HAVEN,
Judge.
[Endorsed]: Filed July 1, 1904. Southard Hoffman,
Clerk. By W. B. Beaizley, Deputy Olerk.
In ilie Circuit Court of the United! States, in and for the
Ninth Circuit, Northern District of California.
CEO'RGE WOSTEN'HOLM & SON,
LTD.,
Plaintiff, |
TS. / No. 12,875.
ANSEL M. EASTON et al.,
Defendants.
Stipulation Waiving Bond.
It is hereby stipulated between the parties to thci
above-entitled action, that no supersedeas bond or other
bond, upon writ of error, need be given in the matter
of the writ of error about to be sued out in the above-
entitled action and that said writ of error shall be in
all respects effectual as to plaintiff in error, without
any bond of any character, except, however, as herein-
after provided.
It is further stipulated, that, in case the defendant
in error shall hereafter desire a bond, as security for
its judgment or costs upon writ of error, it may give
400 Ansel M. Easton vs.
ten (10) days' written notice therefor to the attorneys
for plaintiff in error, whereupon a bond shall be filed
in such amount and with such sureties as shall be de-
termined by the Judge of the Circuit Court, aforesaid.
Should such bond not be filed in manner aforesaid at
the expiration of said period of ten days, execution
may be forthwith issued and levied upon said judgment.
PAGE, McOUTOHEN & KNiIGHT,
Attys. for Geo. Westenholm & Son, Ld.
GEO. C. SAROE^T and
MOBiRISON & COPE,
I Attys. for Ansel M. Easton.
[Endorsed]: Filed July 1, 1904. Southard Hoffman,
aerk. By W. B. Beaizley, Deputy Clerk.
In the United States Circuit Court of Appeals, in and for
the Ninth Circiiif, 'Northern District of California.
ANSEL M.
EASTON,
Plaintiff
in
Error,
VS'.
GEORGE
WOSITENHOLM
&
SON,
LTD.,
Defendant in Error.
Stipulation as to Record.
It is hereby stipulated that the transcript of the rec-
ord upon the writ of error lately sued out in the above-
entitled action, shall consist of the following papers:
George Wostenholm db Son, Limited. 401
The amended complaint.
Demurrer to amended complaint.
Order overruling demurrer to amended complaint.
Answer to amended complaint.
Amendment to answer to amended complaint.
Amendment to amended complaint.
The verdict of the jury.
The judgment.
The bill of e'xceptions.
The notice of intention to move for new trial.
The order denying new trial.
The certificate for appeal to the Supreme Court, filed
July 11, 1903.
The petition for a writ of error.
The assignment of errors.
The order allow'ing the writ of error.
The stipulation waiving bond.
Dated July 2, 1904.
PAGE, McOUTCHEN & KMGHT,
Attorneys for Geo. Westenholm & Sou, Ltd.
GEO. 0. SARGENT aud
MORRISON & OOPE,
Attorneys for Ansel M. Eastou.
[Endorsed]: Filed July 0, 1904. Southard noffman,
derk. By W. B. Beaizley, Deputy Clerk.
402 Ansel M. Easton vs.
In the Circuit Court of the United' States, Ninth Judicial
Circuit, Northern District of California.
GEORGE WOSTEiNHOLM & SON, ,
LIMITED,
Plaintiff,
vs. j No. 12,875.
ANSEL M. EASTON et als., ]
Defendants. /
Clerk's Certificate to Record on Writ of Error.
I, Southard Hoffman, clerk of the Circuit Court of the
United States of America, of the Ninth Judicial Cir-
cuit, in and for the Northern District of California, do
hereby certify the foregoing three hundred and sixty-
eight (3681) pages, numbered from 1 to 368, inclusive, to
be full, true and correct copies of the amended com-
plaint; demurrer to amended complaint^ order overrul-
ing demurrer to amended complaint; answer to amended
complaint; amendment to answer to amended com-
plaint; amendment to amended complaint; verdict of
the jury; judgment; bill of exceptions notice of inten-
tion to move for new trial order denying motion for new
trial; certificate for appeal to the Supreme Court of
the United States, filed July 11, 1903; petition for a
writ of error; assignment of errors; order allowing writ
of error; stipulation waiving bond and stipulation as to
record on writ of error, filed in the above and therein
Ocorgc Wostcuhalm <C ^on, Limited. 403
entitled cause, as the same remain of record and on file
in the office of the clerk of said court and that the same
in accordance with the stipulation filed July G, 1904, con-
stitute the return to the annexed writ of error.
I further certify that the cost of the foregoing return
to writ of error is .f2l2:5.50, that said amount was paid
by the defendant Ansel M. Easton, and that the original
writ of error and original citation issued herein are
hereto annexed.
In testimony whereof, I have hereunto set my hand
and affixed the seal of said Circuit Court, this 12th day
of August, A. D. 1904.
[Seal] SOUTHARD HOFFMAN,
Clerk of the United States Circuit Court, Ninth Judicial
Circuit, Northern District of California.
Writ of Error.
UNITED STATES OF AMERICA— ss.
The President of the United States, to the Honorable,
the Judge of the Circuit Court of the United States
for the Northern District of California, Greeting:
Because in the record and proceedings, as also in the
rendition of the judgment of a plea which is in the said
Circuit Court, before you, or some of you, between Ansel
M. Easton, plaintiff in error, and Geo. Wostenholm &
Son, Limited, defendant in error, a manifest error hath
happened, to the great damage of the said Ansel M.
Easton, plaintiff in error, as by his complaint appears.
404 Ansel M. Eastnn m.
W« , being willing that error, if any hatli been, should
be diUy corrected, and full and speedy justice done to
the parties aforesaid in this behalf, do command you, if
judgment be therein given, that then under your seal,
distinctly and openly, you send the record and proceed-
ings aforesaid, with all things concerning the same to
the United States Circuit Court of Appeals for the Ninth
Circuit, together with this writ, so that you have the
same at the City of San Francisco in the State of Califor-
nia, on the 30th of day of July, next, in the said Circuit
Court of Appeals, to be then and there held, that the rec-
ord and proceedings aforesaid being inspected, the said
Circuit Court of Appeals may cause further to be done
therein to correct that error, what of right, and accord-
ing to the laws and customs of the United States, should
be done.
Witness the, Honorable MELVILLE! W. FULLER,
Chief Justice of the Supreme Court of the United States,
the 1st day of July, in the year of our Lord one thou-
sand eight hundred and ninety-four,
[Seal] SOUTHARD HOFFMAN,
Clerk of the United States lOircuit Court for the North-
ern District of California.
Allowed by:
JOHN J. DE HAVEN,
Judge.
The answer to the Judges of the Circuit Court of the
United States of the Ninth Judicial Circuit, in and for
the Northern District of California.
George ^yostcllh(lIln tC- Sou, Limited. 403
The record and all proceedings of the plaint whereof
mention is within made, with all things touching the
same, we certify under the seal of our said Court, to the
United States Circuit Court of Appeals for the Ninth
Circuit, within mentioned at tlie day and place within
contained, in a certain schedule to this writ annexed as
within we are commanded.
By the Court.
SOUTHARD HOFFMAN,
Clerk.
Due service of within admitted this 1st day of July,
]9(M.
PAGE, McCUTOHEN & KNIGHT,
Attys. for Def. in Error.
[Endorsed]: United States Circuit Court of Appeals
for the Ninth Circuit. Ansel M. Easton, Plaintiff in
Error, vs. Geo. Wostenholm, Defendant in Error. Writ
of Error. Filed July 1, 1904. Southard Hoffman, Clerk
U. S. Circuit Court, Northern District of California. By
W. B. iBeaizley, Deputy Clerk.
Citation.
ITNITED STATES OF AM'ERICA— ss.
The President of the United States, to Geo. Wostenholm
& Son, Limited (a Corporation), Greeting;
You are hereby cited and admonished to be and ap-
pear at a United States Circuit Court of Appeals, for
the Ninth Circuit, to be holden at the city of San Fran-
406 Ansel M. Euston vs.
Cisco, in the State of California, on the 30th day of July,
J 904, pursuant to a writ of error duly issued and now
on file in the clerk's office of the Circuit Court of the
United States, for the Northern District of California,
v/herein Ansel M. Easton is plaintiff in error, and you
are defendant in error, to show cause, if any there be,
why the judgment rendered against the said plaintiff in
error, as in the said writ of error mentioned, should not
be corrected, and why speedy justice should not be done
to the parties in that behalf.
Witness, the Honorable JOHN J. DE HAVEN, Dis-
trict Judge of the United States, for the Northern Dis-
trict of California, this 1st day of July, 1904.
JOHN J. DE HAVEN,
U. S. District Judge, Northern District of California.
Due service of within admitted this 1st day of July,
1904.
PAGE, McCUTCHEON & KNIGHT,
Attys. for Def. in Error.
[Endorsed]: Original. U. S. Circuit Court of Ap-
- peals, for the Ninth Circuit. Ansel M. Easton, Plain-
tiff in Eirror, vs. Geo. Wostenholm & Son, Ltd, Cita-
tion. Filed July 1, 1904. Southard Hoffman, Clerk U
S. Circuit Court, Northern District of California. P.y
W. P. Beaizley, Deputy Oerk.
Gcoryc Wostcnhtthn <t- Son, Liniitcd. 407
[Endorsed]: No. HQS. United States Circuit Court
of Appeals for the Ninth Circuit. Atasel M. Baston,
Plaintiff in Error, vs. George Wostenholm & Son, Lim-
ited, Defendant in Error. Transcript of Record. Upon
Writ of Error to the United States Circuit Court for
the Northern District of California.
Filed August 15, 1904.
F. D. MONCKTON,
Clerk.
No. 11 05.
IN THE
United States Circuit Court of Appeals
FOR THE NINTH CIRCUIT.
ANSEL M. EASTON,
Plaintiff in Error,
vs.
FlLEi
GEO. WOSTENHOLM & SON, Ltd.,
OCl 17 IS
Defendant in Error.
Brief of Plaintiff in Error.
GEO. C. SARGENT, and
MORRISON & COPE,
Attorneys for Plaintiff in Error.
PAGE, McCUTCHEN & KNIGHT,
Attorneys for Defendant in Error.
IN THE
United States Circuit Court of Jlppeals
FOR THE NINTH CIRCUIT.
ANSEL M. EASTON,
Plaintiff in Error.
vs.
GEORGE WOSTENHOLM & SON, LTD.,
Defendant in Error.
Brief for Plaintiff in Error.
statement of Facts.
This is an action to recover for goods sold and deliv-
ered to the firm of Schwartz, Lowe & Co., of Plaintiff's
own manufacture, amounting to £130, and goods bought
for them amounting to £4738. It was brought in the
Circuit Court of the Ninth Circuit, Northern District of
California, by George Wostenholm & Son, Ltd., an Eng-
lish corporation doing business in Sheffield, England,
against Ansel M. Easton, William Schwartz and Samuel
Schwartz, who, together with one L. Leon Lowe, com-
posed the firm of Schwartz, Lowe & Co., up to June 20,
1898. Their principal place of business was San Jose de
Costa Rica, but thej' had a branch at San Francisco.
The origin of the business between Wostenholm & Sou
2 Ansel M. Easton vs.
«
and Schwartz, Lowe & Co. originated in a visit of William
Schwartz to England, when he met the officers of Wosten-
holm & Son and arranged a basis for future business.
One or more orders may have been given by William
Schwartz, but at all the times embraced in this action the
business was transacted exclusively with Lowe, using the
firm name, at San Jose de Costa Rica. The goods or-
dered were partly those manufactured by Wostenholm &
Son and partly such as required to be purchased by them
to fill the orders.
Two orders are involved in this action:
First: One dated March 30, 1898, given by Lowe in
Costa Rica to Thomas Wing, the accredited agent of Wos-
tenholm & Son, who was then traveling in Costa Rica,
and who negotiated and closed with Lowe an order for
a large amount of goods to be supplied in monthly ship-
ments. Then came the dissolution of the firm, which it
is stipulated (rec. p, 278) took place on June 20, 1898,
but Plaintiff was not notified at once.
The second order was on October 1, 1898. On that day
Lowe, at San Jose de Costa Rica, addressed a letter to
Wostenholm & Son, in the first person plural, and signed
"Schwartz, Lowe & Co. (Lowe)," with a personal post-
script signed "L. Leon Lowe," and giving them a further
order for about |15,000 worth of goods. The letter reads
and was evidently intended to read throughout like a
letter from the old firm. This also called for monthly
shipments; among others each month, for six months, 100
cases Gilbey's Sherry Castle, No. 1, and certain goods
called Morton's goods.
George Wostenholm & Son, Limited. 3
Lowe continued after the dissolution to correspond with
Plaintiff, using the firm name, and with no suggestion
of any dissolution having taken place, negotiating with
them about purchases of cedar logs, shipments of coffee,
and other matters, just as if the partnership still con-
tinued, until on November 18 he, in the firm name, cabled
Wostenholm & Son: "May we draw on you, at three
months' sight, against shipments coffee January, Febru-
ary shipments; we are quite sure six thousand bags; to
what amount may we draw?" From this telegram arose
negotiations, conducted by Lowe in the old firm name,
looking to the advance by Plaintiff on coffee shipments of
about £15,000 ($75,000).
At this juncture, on November 28, 1898, Plaintiff cabled
the Crocker- Woolworth National Bank of San Francisco
(which William Schwartz had given as a reference) to
know whether Schwartz, Lowe & Co. were good for an
advance of £15,000. To this the bank replied on Decem-
ber 2, 1898, that it did not know, and later, on the same
day, at the re<iuest of Easton, it cabled that he was no
longer a member of the firm. On the same day Mr. Easton
caused Geo. C. Sargent to send them the notice given at
page 186 of the record. It states the date of dissolution,
and was received on December 17, 1898.
The first telegram was the first intimation to Easton
that the firm name had been used since the dissolution.
The above telegram was sent at Easton's request (rec.
p. 268) and was received on December 3, 1898.
Plaintiff's witness, Thomas Wing, says (rec. p. 123)
Plaintiff did not fill the order of October 1, 1898; but
4 Ansel M. Easton vs.
the record shows (p. 189) that the shipment of Decem-
ber 2 contained coffee bags called for by this order, and
that of December 7, sherry, gin and whisky (rec. p. 98),
and that of December 16, Patna rice (rec. p. 98), also
called for by that order. Plaintiff's witness, J. C. Wing,
practically admits this, on page 115.
At the time of the receipt of Mr. Easton's telegram
they held the bill of lading for the shipment of December
2, 1898. This shipment left their works at Sheffield on
the day last mentioned. It is invoiced at £519.
On December 3, 1898, Plaintiff wrote William Schwartz
(rec. p. 187) personally at San Francisco, referring to
the Easton telegram, stating that they had no doubt he
had gathered from the invoices they had been sending that
they were doing a good sized business ''with your esteemed
house," but that, for the satisfaction of the board of direc-
tors, he had telegraphed the bank as to their standing,
and had received, first, a reply, "Without any particulars ;
do not know," and later a telegram stating that Mr. Easton
was no longer a partner. "As you know, I do not doubt
for one instant that you will order anything you can not
pay for; still, as the directors wished, we had to tele-
graph, and as I had, of course, told them about Easton
being with you and his capital, they wonder now if this
will affect you at all."
On the same day (December 3, 1898) Plaintiff wrote
to Schwartz, Lowe & Co. at San Jose de Costa Rica (rec.
p. 189), enclosing the bill of lading of the £519 shipment
of December 2, 1898; also stating that they would make
another shipment the next week of a lot of Gilbey's goods,
George Wostenholm & Son, Liitnited. 5
making a report upon the coffee market and the pros-
pects for procuring a sailing ship to get cedar, and re-
ferring to the receipt of the telegram sent at the request
of Mr. East(m, saying:
"This, of course, does not give us any information, and
we await your advices,"
On the same day (December 3, 1898) Plaintiff addressed
a letter to Schwartz, Lowe & Co., at San Francisco, en-
closing copy of the invoice and bill of lading of the ship-
ment of December 2.
On the same day ( December 3, 1898, rec. p. 192 ) Plain-
tiff sent a letter to the Crocker- Woolworth National Bank
of San Francisco, referring to the telegram stating that
^Ir. Easton was no longer a partner and thanking the
bank, and saying: "We presume Mr. Easton desired you
to inform us that he is no longer connected with the com-
pany."
They did not inform Mr. Easton that they had sent off
a £519 shipment the day before they received the telegram
or communicate with him in any way.
On December 7, 1898, Plaintiff wrote Schwartz, Lowe
& Co., of San Jose, enclosing copy of the invoice of goods
shipped on December 2, and stating that they had made
a shipment that day by the Essequibo, and would forward
the documents by Saturday's mail.
On December 13, 1898 (rec. p. 198) Plaintiff wrote
Schwartz, Lowe & Co., at San Jose, enclosing the bill of
lading for the shipment by the Esseqilibo,
Upon the same date they sent Schwartz, Lowe & Co.,
6 Ansel M. Easton vs.
at San Francisco, a copy of the invoice and document "for
account of your San Jose house."
On December 17, 1898 (rec. p. 199) PlaintifiP wrote to
Schwartz, Lowe & Co., at San Jose, stating that they had
a high respect for the house; believed it perfectly sound;
that they had given proof of this by large credit extended,
and which they were increasing by monthly shipments,
but saying that the matter of the £15,000 advance must
be submitted to the directors. They then refer to the
letter of December 1 (rec. p. 186) from Geo. C. Sargent,
formally notifying them of the dissolution and its date,
and saying that they did not know the bearing of the
latter statement, and should have been glad to have been
informed at the time. "Awaiting your further favors,
with our kindest regards, we remain, dear sirs, yours very
truly."
On December 17, 1898 (rec. p. 201) Plaintifie wrote
Schwartz, Lowe & Co^, of San Jose, enclosing invoice,
consular invoice and full documents for 151 packages,
shipped by the steamship Georgic.
On December 21, 1898 (rec. p. 202) Plaintiff wrote
Schwartz, Lowe & Co., of San Jose, reminding them that
their account was now £4000, "for which we have no se-
curity, except our confidence in the standing of your house.
Against this, we have the advice we mentioned from San
Francisco that your firm has been reconstituted, and we
are in ignorance of its present composition."
Plaintifif never m^de any inquiries of Easton or any
one else after they received the telegram of December 2,
1898 (rec. p. 117).
George Wostenholm & Son, Limited. 7
On January 7, 1899 (rec. p. 212) Plaintiff wrote
fcJchwartz, Lowe & Co., San Jose, enclosing invoice, con-
sular invoice and account for 59 packages Gilbey's goods
(under the order of October 1, 1898) per steamship Dee,
from London, "on your account."
It is stipulated (rec. p. 276) that Plaintiff made no
further efforts to retake any goods shipped by them to
Louis Leon Lowe than are stated in the depositions on
file in the action. There is nothing in the depositions
to show that they made any such efforts, except such as
may be inferred from the statement of the witness J. C.
Wing (rec. p. 115), that as soon as he learned the partner-
ship was dissolved all orders in hand were suspended, "ex-
cept such as were in such a position that dispatch could
not well be avoided, and Plaintiff paid a considerable sum
to cancel contracts entered into on Defendants' account.
I understood that all goods dispatched after that date
could not be charged to the firm as originally constituted,
and no claim for them is made in the present action."
Shipments were made by Plaintiff to Schwartz, Low^e
& Co. as follows : The first date given is that upon which
the goods left their works at Sheffield. (See rec. p. 267.)
November 1, 1898, £519, arrived at Custom House at
Port Limon, Costa Rica, November 25, 1898; delivered
out of Custom House to Lowe December 15, 1898.
November 9, 1898, £243, arrived at Custom House at
Port Limon Decemlwr 7, 1898; delivered to Lowe out of
Custom House February 9, 1899.
November 18, 1898, £310, arrived at Custom House, Port
8 Ansel M. Easton vs.
Limon, December 17, 1898 ; delivered out of Custom House
to Lowe May 29, 1899.
December 2, 1898, £363, arrived at Custom House, Port
Limon, December 31, 1898 ; delivered Lowe out of Custom
House part January 13, 1899 ; part May 29, 1899.
December 7, 1898, £147, arrived at Custom House, Port
Limon, January 4, 1899 ; delivered to Lowe out of Custom
House part February 14, 1899; part May 27, 1899; part
June 15, 1899 ; balance July 13, 1899.
December 16, 1898, £270, arrived at Custom House, Port
Limon, January 16, 1899; delivered out of Custom House
to Lowe or his assignee subsequent to July 13, 1899.
Plaintiff was to pay freight through to San Jose. ( Rec.
p. 116 and 120.)
The record shows that there is a cable connection be-
tween England and Costa Rica. The Court takes judicial
notice that there is a British Consul in every port and a
British Consul General at the capital of every country.
San Jose is the capital of Costa Rica.
In August, 1898, the business which Lowe was conduct-
ing under the name of Schwartz, Lowe & Co., at San Jose,
was behind in its payments as they fell due.
On August 26, 1898 (rec. p. 163), Lowe wrote a per-
sonal letter to Thomas Wing, one of Plaintiff's officers,
enclosing £500, stating that it was not much, but that it
was impossible to do better. That he had plenty of Costa
Rica money, but that foreign exchange could not be bought,
and asking Thomas Wing to explain the situation to his
father, who was another of the officers of Plaintiff. On
December 24, 1898, Plaintiff informed Lowe that one of
George Wostenholm & Son, Limited. 9
these drafts (£350) had been dishonored. (Rec. p. 204.)
In the letter enclosing the order of October 1, 1898 ( rec.
p. 166) Lowe, using the name of Schwartz, Lowe & Co.,
wrote Thomas Wing personally, asking whether Plaintiff
was satisfied with the small remittance that had been
made.
Thomas Wing testified (rec. p. 122) that Plaintiff made
many applications for payment, but received no money.
This witness was also questioned as to the person upon
whom Plaintiff relied in its dealings with Schwartz, Lowe
& Co., and replied that it was Ansel M. Easton. That
he had always understood from both William Schwartz
and Lowe that Easton was a wealthy man, and good for
any debts he might contract. That the firm was intro-
duced to Plaintiff' by Morris Goldtree, who said that Eas-
ton was worth a quarter of a million sterling, and a very
straight and upright man, and that, on these recommen-
dations, Plaintiff" gave the credit asked for. (Rec. p. 121.)
It has been stated above that the order of March 30,
1898, was taken by Thomas Wing in Costa Rica. That
the execution of the contract was completed there. The
laws of Costa Rica relative to the liability of partners
were offered and received in evidence, but the jury was
directed to disregard them on the ground that, as the
partnership was domiciled in San Francisco, the laws of
Costa Rica had nothing to do with the case, in the ab-
sence of an express provision to the contrary, known to the
creditors (rec. p. 323). These laws are given hereafter
under the discussion of the fourth error claimed.
10 Ansel M. Easton vs.
The action was tried before a jury, which found for
Plaintiff as follows :
Against Ansel M. Easton for |20,401.36.
Against the Schwartzes for |22,003.49.
Thereafter Defendants moved for a new trial, which,
being denied, this writ of error is prosecuted by Ansel M.
Easton alone.
Specifications of Error.
First Error. The following portion of the charge of the
Court :
NO DUTY TO MINIMIZE DAMAGE.
I further charge you, gentlemen, that Plaintiff was un-
der no legal liability to endeavor to retake or recover pos-
session of any of the goods, wares or merchandise men-
tioned in the complaint which it sold and shipped to Costa
Kica before learning of the dissolution of the firm of
Schwartz, Lowe & Co.
Being assignment 34, page 386, of the record.
Defendants had previously requested the Court to in-
struct as follows :
VIII. DUTY TO MINIMIZE DAMAGE.
Where one party has suffered loss or damage of any
kind, by reason of the act of negligence of any other party,
the law casts upon him the duty of saving himself as
much loss as is possible. In other words, it is his duty to
minimize his loss. He can charge the negligent party
for only such portion of his loss as he could not avoid, by
the use of reasonable diligence to save himself.
Therefore, if you believe that L. Leon Lowe falsely rep-
George Wostenholm & Son, Limited. 11
resented to the Plaintiff that the firm of Schwartz, Lowe
& Co. was still in existence, and thereby induced thera
to accept orders for goods, and that after they learned
of the fraud they could have saved themselves a portion
of the loss which they claim to have sustained, then you
must find against them for such portion of that loss as
you find they could have saved themselves.
IX. STOPPAGE IN TRANSITU.
Where one party sells goods to another, and before the
goods have reached the possession of the purchaser, the
seller learns that the purchaser is insolvent, the seller has
a right to stop the goods either in transit or in warehouse,
and to retake them.
X. INSOLVENCY DEFINED.
A person is insolvent who is unable to pay his debts as
they fall due in the usual course of business.
It is claimed that L. Leon Lowe, without the association
of the Defendants Easton and William Schwartz and
Samuel Schwartz, was insolvent at the time when it was
in the power of Plaintiff to retake a portion of the goods
sued for in this action. It is for you to determine whether
this was the fact. If he was so insolvent, then the right
of stoppage in transit on behalf of Plaintiffs existed as
soon as such insolvency became known to the Plaintiff.
XIX. NEGLIGENCE AND RESPONSIBILITY
THEREFOR.
It is a maxim of law : "Where one of two innocent per-
sons must suffer by the act of a third, he by whose negli-
gence it happened must be the sufferer."
12 Ansel M. Easton vs.
It is also a maxim of law : "The law helps the vigilant,
and not those who sleep upon their rights."
Evidence has been introduced before you to show that
the partners of the firm of Schwartz, Lowe & Co. were
negligent in that they were dilatory about giving notice
of the dissolution of the firm to the Plaintiff in this ac-
tion. On the other hand, evidence has been offered tend-
ing to show that the Plaintiff, after it learned of the dis-
solution, could have saved itself a portion of its loss if
it had acted with diligence, but that it neglected to take
such measures as it could have taken, and allowed a por-
tion of the goods sued for herein to pass into the posses-
sion of L. Leon Lowe.
Under the maxims above quoted you should find for
the Plaintiff for such amount of its loss as was due to
the negligence of the Defendants in giving notice of the
dissolution, but you should find against the Plaintiff for
such portion of its loss as was due to its own negligence
in failing to avail itself of the opportunities to minimize
its loss.
Whether or not the Plaintiff made reasonable use of
its opportunities, you are the sole judge.
Being assignments Nos. 15, page 371 ; 16, page 371, and
20, page 374.
Second Error. The portion of the charge following the
Third Error, which states that where goods are purchased
by a purchasing agent the title passes to the one employ-
ing him as soon as the purchasing agent buys the goods,
regardless of the time when the purchasing agent ships
George Wostenholm <fc Son, Ldmited.
13
them to his employer. In this case Plaintiff used its own
funds.
Third Erkou. The following portion of the charge, which
states that the title to goods sold by Plaintiff, as vendor,
to Defendants, passed as soon as the goods were deliv-
ered to the carrier regardless of the time when the bill of
lading was mailed to Defendants.
Charge as to Agency, Title and Diligence.
(The Matter in Both Columns Was Qiven.)
As to defendant Easton, if
you believe that plaintiff, act-
ing as a purchasing agent of
the firm of Schwartz, Lowe &
Co., bought the goods of which
these consignments consisted,
be/ore receiving information
concerning Mr. Easton' s retire-
ment from the firm, then, sub-
ject to a lien which plaintiff
might have for their price,
these goods became the prop-
erty of said firm of Schwartz,
Lowe & Co., and defendant
Easton is liable therefor, al-
though the shipment of the
goods to Costa Rica was made
subsequent to the receipt of
the information that Mr. Eas-
ton was no longer connected
with the firm of Schwartz,
Lowe & Co.
Under the circumstances of
this case, I instruct you far-
In view of the law that the
retiring partners are liable only
for such goods as the creditor
furnishes in good faith and in
the belief that the partner con-
tinues a member, I instruct
you that all goods which the
plaintiff could, by the exercise
of ordinary diligence, have
withheld after receiving notice
that Ansel M. Easton was no
longer a member of the firm,
and which were supplied under
the order of October i, 1898,
cannot be recovered for in this
action, if you believe the tele-
gram received December 3,
1898, was sufficiently definite
as to cause a prudent man to
inquire as to the date of disso-
lution. If it was so definite,
then plaintiff is bound to the
same responsibility as if it had
made inquiry and had learned
14
Ansel M. Easton vs.
ther that the title to the goods,
wares and merchandise sold by
the plaintiflF and consigned to
the firm of Schwartz, I^owe &
Co. passed to the latter as
soon as such merchandise was
delivered to the common car-
rier in England for transporta-
tion, regardless of the time
when the bill of lading there-
for was mailed to Costa Rica.
I further charge you, gentle-
men, that plaintiff was under
no legal liability to endeavor
to retake or recover possession
of any of the goods, wares or
merchandise mentioned in the
complaint which it sold and
shipped to Costa Rica before
learning of the dissolution of
the firm of Schwartz, I,owe &
Co.
the fact that the dissolution
took place before October ist,
and is held with responsibility
for all the consequences of
such knowledge. But, on the
other hand, if this telegram
was not sufficiently definite to
put a business man upon in-
quiry, then he is not held to
responsibility for the conse-
quences of such lack of knowl-
edge.
It appears from the evidence
in this case that the plaintiff
made three of the shipments
sued for in this action upon
the following dates : Decem-
ber 2nd, December 7th, and
December i6th, 1898.
It further appears that the
bill of lading for the shipment
of December 2nd was not sent
to Costa Rica until after the
cablegram from the Crocker-
Woolworth National Bank was
received by the plaintiff on
December 3, 1898. If, there-
fore, you consider that, under
all the circumstances of this
case, it would have been a
proper exercise of ordinary
care for the plaintiff, as a pru-
dent business concern, to have
prevented those shipments
from being forwarded until
George Wostenholm & Son, Limited. 15
such time as it could have
learned by reasonable investi-
gation that defendant Ansel
Easton was not a member of
the firm Schwartz, Lowe &
Co. at the time the said ship-
ments were ordered, then I
charge you that the plaintiflF
cannot recover from the said
defendant Easton for such
shipments.
Defendants had requested the Court to instruct as fol-
lows:
XXV. SENDING BILL OF LADING.
A bill of lading being the evidence of title to property
shipped by a common carrier, without which the prop-
erty can not be obtained, the Court instructs you that
the sending of such bill of lading after the receipt of the
telegram of December 3 would involve Plaintiff in the
same consequences as if it had shipped the goods on that
day. It is in evidence that the Plaintiff sent the bill
of lading for the shipment of December 2 to L. Leon Lowe
in the same letter in which it called his attention to the
fact of the receipt of the telegram of December 3. The
shipments, therefore, of December 2, 7 and 16 would stand
upon the same basis so far as liability or duty of the
Plaintiffs under the telegram of December 3 is concerned.
Being assignment No. 24, page 378.
Fourth Error. The following portion of the charge,
which states that a contract (the order of March 30, 1898)
taken, and the contract completed by offer and acceptance
16
Ansel M. Easton vs.
in Costa Rica by Thomas Wing, the accredited agent of
Plaintiff, on the one hand, and Lowe on the other, which
is not shown to have required approval by Plaintiff, is
governed by the laws of California, where none of the
acts were performed, or to be performed, in the absence
of an express provision to the contrary known to Plaintiff.
Being assignment 30, pagi; 381 of the record.
(The matter in both columns was given.)
Charge as to Costa Rica Laws.
You are further instructed,
gentlemen, that the liability of
the partners of a firm, estab-
lished and duly domiciled and
having a place of business in
California, although transact-
ing business in foreign places
as well, is governed by the law
of California, in the absence of
an express provision to the
contrary known to the creditor
of such firm.
In the case at bar, the con-
tracts for the merchandise in
question, with the payments of
money in connection therewith,
were all to be performed in
England, and are governed by
the law of England as to their
interpretation and liability
thereunder of the persons en-
tering into such contracts re-
spectively ;
George Wostenholm & Son, Limited. 17
but the liability of the part-
ners, of the persons so respec-
tively entering into such con-
tract, is governed, as I have
just stated, by the laws of this
State. You should therefore
entirely ignore all testimony
regarding the laws of Costa
Rica oflFered in evidence in this
case.
There has been some testi-
mony concerning the law of
Costa Rica with respect to the
formation of partnerships, and
the liability of partners. All
those questions that were in-
volved in that matter have
been withdrawn from your
consideration.
Defendants had requested the Court to instruct as fol-
lows :
I. PLACE OF SALE.
A contract is considered as made in the country in which
the parties perform the last act necessary to complete the
contract. A sale is a contract, and this is, therefore, true
of sales of goods made by Plaintiff to Schwartz, Lowe &
Co. If, therefore, you believe that Mr. Thomas Wing,
agent of the PlaintitT, made to L. L. Lowe (the latter
acting on behalf of Schwartz, Lowe & Co.), at San Jose
de Costa Rica, a proposition for the sale of any gowis,
or that Mr. Lowe made to Mr. Wing a proposition for
such sale, and that that proposition was unconditionally
accepted then and there, then you must find that such sale
18 Ansel M. Easton vs.
was made in Costa Rica, and would be controlled as to
the liabilities of the parties by the law of Costa Rica.
II. PARTNERSHIP DEFINED.
Partnership is a contract among two or more persons
for the purpose of carrying on business together, and di-
viding its profits between them. Like every other con-
tract, it is governed as to the method of entering into it
and the obligations of the parties thereunder by the place
where the partnership is formed. If, therefore, you shall
find that the partnership of Schwartz, Lowe & Co. was
entered into in Costa Rica, then the method of forming
such partnership and the liabilities of partners would be
governed by that law. If, on the other hand, you shall
find that the partnership was entered into in California,
then the law of California would control.
IV. LIABILITY AFTER DISSOLUTION.
If you shall have found that the partnership of Schwartz,
Lowe & Co. was entered into in Costa Rica, then it is
for you to determine what the liabilities of the partners
would be under Costa Rica law, both before and after
dissolution. This for the reason that foreign laws are
questions of fact to be determined by the jury.
On the other hand, if you find that the partnership of
Schwartz, Lowe & Co. was entered into in California, then
I instruct you that the liability of each partner for the
acts of his co-partners continues even after dissolution
in favor of persons who have had dealings with and given
credit to the partnership during its existence until they
have had personal notice of the dissolution to the extent
George Wostenholm & Son, Ldmited. 19
to which such persons part with value in good faith, and
in the belief that such partner is still a member of the firm.
XVI. BURDEN OF PROOF.
In this action the burden of proof, that is, the duty of
convincing you by preponderance of evidence, rests upon
the party who has the affirmative of any issue presented
for your decision. The Plaintiff must show by prepon-
derance of evidence the purchase and sale of the goods
sued for, and as it claims a liability against defendants
by reason of a partnership relation, the burden of proof
is on it to show that partnership. For acts under the
partnership claimed to have been done in California it
must prove a partnership under the laws of California.
For acts claimed to have been done in Costa Rica it must
prove a partnership under the laws of Costa Rica.
Being assignments Nos. 8, page 366; 9, page 367; 11,
page 368, and 18, page 372.
Fji-th Ebeor. Refusal to charge in accordance with the
following instructions (VI and VII) of Defendants, which
state that Plaintiff had a right to rescind upon discover-
ing the fraud perpetrated upon it by Lowe (by giving
the order of October 1, 1898, after dissolution), and that
by furnishing goods under that order after such knowl-
edge Plaintiff" affirmed the contract; and affirmed it as
one between it and Lowe alone, and not as one between
it and the four partners, as it had theretofore supposed
it to be.
Being assignments 13 and 14, pages 369 and 370 of the
record.
20 Ansel M. Easton vs.
The defendants had requested the Court to instruct as
follows:
VI. RESCISSION OF CONTRACT.
Where two parties have entered into a contract of sale
and the purchaser has knowingly made a false represen-
tation, material to the contract, upon which the seller
has relied, the seller has two options, which, however, he
must exercise within a reasonable time.
First — He may either repudiate the contract; that is,
rescind it as soon as he learns of the falsity of the repre-
sentation.
Second — Or he may affirm the contract. If, however,
he affirms the contract he affirms it as it was actually
made, and not as he supposed it to have been made. An
unreasonable delay in rescinding may be considered as
evidence of an intention to affirm the contract in con-
nection with other evidence. In the case at bar it ap-
pears that at the time the order of October 1, 1898, was
received by the Plaintiff it believed the firm of Schwartz,
Lowe & Co. to consist of William Schwartz, Samuel
Schwartz, L. Leon Lowe and Ansel M. Easton. In fact,
however, the partnership had been dissolved on June 20
preceding, and the giving of that order in the firm name
by L. Leon Lowe was a material and false representation.
If, after learning the falsity of that representation, the
Plaintiff affirmed it as a contract it affirmed it as a con-
tract between itself and L. Leon Lowe, and not as be-
tween itself and the former partnership.
Whether or not it did affirm the contract it is for you,
to judge.
George Wostenholm & Son, Limited. 21
VII. REMEDY UPON RESCISSION.
In case a party rescinds a contract into which he has
been induced to enter by a false representation, such as
that above referred to, he has the right to recover back
immediately, by process of law, everything he has parted
with under the contract. This right he can assert by an
appropriate action at law at any time within a reason-
able time, as long as the property can be identified, even
though it may have passed into the actual physical posses-
sion of the purchaser.
Sixth Ereoe. The portion of the charge headed, "Charge
as to Agency, Title and Diligence," is self-contradictory.
See third error.
Seventh Error. The following portion of the charge is
self-contradictory. (The matter in both columns was
given) :
Charge as to Partnership Liability.
The liability of a general Bearing upon the question
partner continues in favor of of personal notice of dissolu-
third persons who have had tion just referred to, there is a
previous dealings with and further principle of law known
given credit to the partnership as constructive notice. By
during its existence and before this principle every person
its dissolution or before the who has actual notice of cir-
withdrawal therefrom of the cumstances suflScient to put a
partner or partners sought to prudent man upon inquiry as
be charged, until such third to a particular fact, has con-
persons have had personal no- structive notice of the fact it-
tice of such dissolution or self, in all cases in which, by
withdrawal. prosecuting such inquiry, he
A Juror. May I ask what might have learned such fact.
22
Ansel M. Easton vs.
"personal notice" means in
that connection ?
TAe Court. " Personal no-
tice " would mean that the
person whose interests are in-
volved has received actual no-
tice of the fact contained in the
notice.
The personal notice neces-
sary to be given creditors who
have had previous dealings
with the partnership need not
necessarily be given by the
partners ; but it is essential
that in some manner the cred-
itor should have gained actual
knowledge of the termination
of the partnership with which
he had been dealing, or the
retirement therefrom of the
partner who is sought to be
charged. Whether or not
in this case such notice, if
given, was in fact sufl&cient to
bring home to the mind of the
creditor an actual knowledge of
the termination of the partner-
ship with which he had been
dealing, or withdrawal there-
from of the partner sought to
be charged, or at least was
such as reasonably to put the
creditor upon his inquiry, is
for you to determine as a ques-
tion of fact.
Constructive notice is the
notice which the law conclu-
sively presumes a man to have
because, under the circum-
stances, it is his duty to have
it. This duty arises where
the circumstances are such as
would cause a prudent man to
inquire. Under such circum-
stances the law casts the duty
upon the party to inquire, and
will not permit him to say that
he has not made the inquiry.
Under such circumstances, the
party is conclusively presumed
to know everything which he
would have learned if he dili-
gently prosecuted the inquiry.
Where the situation natural-
ly and reasonably suggests that
some inquiry or investigation
should be made, and none is
made, the person failing to
make it will be deemed in law
to be possessed of such facts
as the inquiry would have dis-
closed.
George Wostenholm & Son, Limited.
23
The notice received by
plaintiff by the cable sent by
the Crocker- Woolworth Bank
of this city, December 2, 1898,
must have been sufficient to
put plaintiff, as an ordinarily
prudent business concern, upon
inquiry in order to charge the
latter with knowledge of what-
ever facts concerning the dis-
solution of the firm of Schwartz ,
Lowe &-Co., or the retire-
ment therefrom of defendant
Easton as one of its members,
a reasonable investigation
would have disclosed. It is
not claimed, gentlemen, that
plaintiff knew or had any rea-
son to believe, before Decem-
ber 17, 1898, that the defend-
ants William and Samuel
Schwartz retired from the firm
of Schwartz, Lowe & Co., and
it is for you to determine
whether or not, under all the
circumstances of this case, the
cablegram received from the
Crocker- Woolworth Bank just
prior to that time was suffi-
cient to charge plaintiff with
knowledge then that defend-
ant Easton had retired from
the firm.
Eighth Error. The admission of exhibits 2 and 3 at-
tached to Plaintiff's disposition against the objection that
The information which the
plaintiff thus received concern-
ing the change in this part-
nership required that, as pru-
dent business men, inquiry
should be made concerning
the retirement from the part-
nership of Mr. Easton, when
it took place, wAai arrange-
ments were made between the
parties upon such retirement
of Mr. Easton, as far as means
were at hand for the obtain-
ing of such knowledge, and
that they were bound to ob-
tain this knowledge as prompt-
ly as the means at hand
permitted.
24 Ansel M. Easton vs.
they were mere schedules, mere copies of another record,
not the best evidence, not shown to have been made by
the witness, not shown to have been made at the time of
the occurrences; therefore, not admissible as memoranda,
and incompetent, irrelevant and immaterial. Also that
it is not shown that any of the communications had been
actually deposited in the postofiSce or postage prepaid.
That although the witnesses had been requested to state
the address on each communication, they had failed to do
so, and that, therefore, there was no presumption of the
receipt of such communications.
Being assignment No. 4, page 356.
The Defendants had requested the Court to instruct as
follows :
XX. PKOOF OF MAILING.
Evidence has been introduced before you tending to
prove that certain invoices, letters and statements of ac-
count were mailed by the Plaintiff both to Costa Rica
and to San Francisco.
A letter which is shown to have been duly directed and
deposited in the postoflfice is presumed to have been re-
ceived, unless proof to the contrary be produced. It is
open to the party addressed, for instance, to deny that he
received the letter or other paper mailed, which would
rebut the presumption.
However, before the presumption arises it must be
shown that the letter was duly directed, that is, truly
directed upon the exterior with the proper address. You
must not, therefore, indulge this presumption of the re-
ceipt of the paper mailed, unless you are first convinced
George Wostenholm & Son, Limited. 25
by a preponderance of evidence that it was properly di-
rected.
XXI. RECEIPT OF LETTERS.
Evidence has been introduced before you tending to
prove the sending of certain invoices and statements of
account, and that some of them were directed to Schwartz,
Lowe & Co., San Francisco, and some to Schwartz, Lowe
& Co., 19 Battery street, San Francisco. I therefore in-
struct you tliat after the dissolution of the firm the fact
that such papers were mailed to the firm name does not
give rise to any presumption that they were received by
any particular one of the Defendants.
It having been stipulated that the defendant Easton
received none of the letters or invoices, and none of the
statements or account except the one of April 26, 1899,
you can not make the mailing of any of such statements
or any of the invoices or letters the basis of a verdict
against him. So far as he is concerned, it is as if the
letters and invoices and all of the statements, except the
one of April 26, had not been sent, since none of his for-
mer partners after the discussion of the firm could bind
him by receiving them, nor can Defendant Easton be held
negligent in failing to reply or take action upon them.
As to the effect of the mailing of the statement of April
26, 1899, the Court has elsewhere instructed you.
So far, therefore, as your verdict would be based upon
such letters and invoices, it would have to be in favor of
the defendant Easton.
Being assignments Nos. 21 and 22, pages 375 and 376.
It had previously been stipulated that none of the state-
26 Ansel M. Easton vs.
ments of account or invoices alleged to have been mailed
by Plaintiff subsequent to June 20, 1898, were received
by Defendant Ansel M. Easton. (Rec. p. 77.)
Ninth Error. Being assignment No. 6, page 375. Over-
ruling Defendants' objection to the testimony of William
Schwartz, denying the motion to strike it out, upon the
grounds that no act of William Schwartz subsequent to
the dissolution of the firm on June 20, 1898, could bind
any of the former partners, or be used as evidence of a
joint obligation. That it did not appear that any of said
acts of William Schwartz ever came to the knowledge of
Plaintiff. That they, therefore, had not relied upon such
acts. That neither Defendant Easton nor Samuel
Schwartz had any notice of the transaction of any such
business, and that the matters, being after the dissolution,
they could not be bound by it.
The objection, being overruled, the witness testified in
substance that after June 20, 1898, he had erroneously
signed one or two papers "Schwartz, Lowe & Co." That
he had negotiated one or two drafts which he signed that
way erroneously. One was for £1000, dated August 28,
1898, payable to the order of Schwartz, Lowe & Co., which
he endorsed with the old firm name to the Anglo-Califor-
nian Bank. That he negotiated it. The draft was after-
wards protested, but finally paid.
The witness also stated that he had negotiated five £200
drafts in the name of Schwartz, Lowe & Co., since the
above date. That they were dated August 21, 1898, pay-
able to Schwartz, Lowe & Co. That he endorsed them in
George Wostenholm & Son, Limited. 27
that name. That he may perhaps have bought some goods
and had them charged up to Schwartz, Lowe & Co. after
that date. That people knew him as the representative of
Schwartz, Lowe & Co., and asked no questions. That he
paid cash.
Upon being asked whether he protested to Mr. Easton
or Mr. Lowe about endorsing the firm name on the bills,
he stated that he did not; that Mr. Easton did not know
anything about it.
Tenth Error. Being assignment No. 28, page 380. The ^'^ Argument
p. 92
statement in the charge of the Court that one who per-
mits himself to be held out as a partner is a general
partner, upon the ground that there was no evidence that
either Easton or Samuel Schwartz permitted himself to
be held out as a partner after the dissolution.
Eleventh Error. The lack of any evidence to support
the verdict in so far as it depends upon goods shipped
under the order of March 30, 1898, in that it is not shown
by the laws of Costa Rica that the Defendants, other than
L. Leon Lowe, were liable; and as to the order of October
1, 1898, that it is not shown by such laws that Lowe had
any power to bind his co-partners, or any one other than
himself.
Being assignments Nos. 47 and 48, page 397.
28 Ansel M. Easton vs.
Argument.
DUTY TO MINIMIZE DAMAGES.
First Error. Was Plaintiff under any legal obligation
to use reasonable efforts to minimize its damages? The
Court says it was not. (Rec. p. 323.)
The proposition of Plaintiff's counsel in the lower court
was: That while Plaintiff could not do anything to ag-
gravate its damages, it need not perform any affirmative
act which would minimize them.
The facts of the case show that a large shipment (that
of December 2, 1898, for £519) had left their works the
day before the telegram of that date was received (on De-
cember 3), and that Plaintiff still had possession of the
bill of lading, without which Plaintiff's manager knew
Lowe could not get the goods. (Rec. p. 115.) The ship-
ments of December 7 for £147, of the 16th for £270, were
sent after that. These goods were all in Plaintiff's i)ower
to hold, or stop, if it had desired to do anything. They
were all still afloat, or still in England (that of December
16, 1898) when they received the notice by letter, on
December 17, 1898, stating the fact of dissolution, when
it took place, and showing that Lowe was engaged in a
scheme to perpetrate a fraud.
Plaintiff is claiming largely under the order of October
1, 1898. As the partnership was dissolved on June 20,
1898, the order was void.
PLAINTIFF'S CLAIM IS UPON ESTOPPEL.
The general law is correctly stated in the Civil Code
of California as to the effect of a dissolution upon future
George Wostenholm & Son, Limited. 29
contracts in the firm name, and as to the rights of a person
liaviug no notice thereof.
The powers of partners after dissolution are strictly
limited. ( Civil Code, 2458. ) '
Each partner is entitled to act in liquidation. The
power of each in liquidation is given in :
Section 2462. "A partner authorized to act in liquida-
tion may endorse in the firm name promissory notes, or
other obligations held by the partnership, for the purpose
of collecting the same, but he can not create any new obli-
gation in its name." * * *
(The italics are ours.)
The order of October 1, 1898, was then, in fact, void.
That being so. Plaintiff's rights are correctly stated in the
Civil Code of California in:
Section 2453. "The liability of a general partner for the
acts of his co-partners continues even after a dissolution
of the co-partnership in favor of persons who have had
dealings with and given credit to the partnership during
its existence, until they have had personal notice of the
dissolution * * * to the extent, in either case, to
which such persons part with value, in good faith, and in
the belief that such partner is still a member of the firm."
(The italics are ours.)
So, although the contract was void, the Defendants
could not set this up to the extent that Plaintiff had parted
with value; had been damaged. That is, they were estop-
ped to that extent.
The portion of the charge complained of eliminated this
principle of law.
30 Ansel M. Easton vs.
Plaintiff actually parted with the shipments of Decem-
ber 2, 7 and 16, after receiving the telegram, because, as
to the former, they parted with the evidence of title, with-
out which Lowe could not get the goods, as they knew
(rec. p. 115) ; and because they delivered the other two
shipments to the carrier after receiving such notice. This
certainly could not be called parting with the property
in good faith. They constructively kncAv by the telegram
that the dissolution had taken place, and its date, since
they could have learned it from inquiry. They actually
knew that a dissolution had taken place. This is shown
in their letter of December 3, 1898, to William Schwartz
(rec. p. 188). They say: "The directors wonder now if
this (the retirement of Easton) will affect you at all."
That shows they understood clearly enough the meaning
of the telegram. J. C. Wing also testified in answer to a
question, when he first learned of the dissolution, that it
was by this telegram. (Rec. p. 111.) It was not an act of
good faith to push out these goods as rapidly as possible
before their "wonder" had been satisfied.
Again, a person must part with the goods, and, assum-
ing that they could have wafted till the postman pounded
at their door and thrust in the formal notice of Decem-
ber 1 (received on December 17, 1898), it can not be said
that a party has parted with goods, as long as he can by
reasonable efforts retake them.
The meaniug of the above code sections is really that
new contracts made in the firm name by a partner after
dissolution are not binding as firm obligations, but that
they are binding upon the retiring partners by way of
George Wostenholm & Son, Limited. 31
estoppel to the extent to which an innocent creditor is
damaged.
In other words, the question is, How much was Plain-
tiff damaged? and the rules as to the mitigation of dam-
age, and the duty to exercise all reasonable efforts to
mitigate it, applies with full force. The effect of the
opposite rule is to punish a party who has been negligent,
but not criminal, and confer a benefit upon one who has
been negligent in protecting himself, almost to the point of
criminality.
DUTY TO MINIMIZE DIS(^USSED.
We contend that as Plaintiff's claim is upon an estop-
pel, and as that estoppel is limited to the amount of their
damage, the general rules as to mitigation and their duty
to use reasonable efforts to save themselves apply, we think
the charge that they were under no legal liability to do so
is shown to be wrong by the following citations :
I Sedg. Dam. §201, 205, 221, 223.
I Suth. Dam. §90.
Miller cs. Mariners' Chucrh, 7 Me,. 51; 20 Am. Dec.
341, 344,
Is a leading case, and goes right to the question whether
Plaintiff" was bound to do anything affirmative to mini-
mize its loss.
The Plaintiff", as Warden of the State Prison, had en-
tered into a contract to deliver hammered stone to de-
fendant for the construction of a church. The stone was
not delivered in time, and the question was what dam-
ages defendant could set off" against the claim of plaintiff.
The Court, in discussing this, says:
32 Ansel M. Easton vs.
"And if the party injured has it in his power to take
measures by which his loss may be less aggravated, this
will be expected of him.
"If the party entitled to the benefit of a contract can
protect himself from a loss arising from a breach at a
trifling expense, or with reasonable exertions, he fails in
social duty if he omits to do so, regardless of the increased
amount of damages for which he may intend to hold the
other contracting party liable. Qui non prohibet cum
prohihere possit jubet. And he who has it in his power
to prevent an injury to his neighbor, and does not exer-
cise it, is often in a moral, if not in a legal point of view,
accountable for it. The law will not permit him to throw
a loss resulting from a damage to himself upon another
arising from causes for which the latter may be respon-
sible, which the party sustaining the damage might, by
common prudence, have prevented. * ♦ * The party,
who is not chargeable with a violation of his contract,
should do the best he can in such cases; and for any un-
avoidable loss occasioned by the failure of the other he is
justly entitled to a liberal and complete indemnity."
(The italics are ours.)
See also
Wicker vs. Hoppock, 6 Wall, 94, 99, in which Miller
vs. Mariners' Church (supra) is cited with ap-
proval. Also Baird vs. United States, 131 U. S.
CVI. Also Warren vs. Stoddart, 105 U. S.
224, 229.
There the plaintiff in error had entered into a contract
to sell books for defendant in error by subscription, and
George Wostenholm & Son, Limited. 33
had taken a large number of orders. It was claimed that
he was to receive consignments of books for delivery upon
credit, although this is uncertain. After a time he en-
tered into business relations with a rival firm of publish-
ers of the same work, whereupon defendant in error re-
fused to deliver the books, except for cash. The Court
"The rule is that where a party is entitled to the benefit
of a contract and can save himself from a loss arising
from a breach of it, at a trifling expense or with reason-
able en-ertioufi, it is his duty to do it, and he can charge
the delinquent with such damages only as with reason-
able endeavors and expense he could not prevent.
Wicker vs. HoppocJc, 6 Wall. 94;
Miller vs. Mariner's Church, 7 Me. 51 ;
Russell vs. Buttcrfield, 21 Wend. 300;
United States vs. Burnham, 1 Mason 57;
Taylor vs. Read, 4 Paige 561.
The law required him to take that course by which he
could secure himself with the least damage to the Defend-
ant in error." (The italics are ours.) Also
Laurence vs. Porter, 63 Fed. 62, 65. (C. C. A.
Mich.)
where the Court after citing Sedf/. Darn. (8th edition. Sec.
741 ) ; Marsh vs. McPherson, 105 U. S. 709 ; Warren vs.
Stoddart. Id, 224, says: "It is the well settled duty of the
buyer, when the seller refuses to deliver the goods con-
tracted for, to do nothing to aggravate his injury. Indeed,
he iiiii.st do (ill thai he rcasoiiahli/ can to mitif/ate the loss.
* * * lie will not be suffered to recompense himself
34 Ansel M. Easton vs.
for such special damage, for the reason, that to that ex-
tent, he has needlessly aggravated the loss." (Italics are
ours.) See also
Burdon &c. Co. vs. Ferris &c. Co., 78 Fed. 417, 427 ;
Dillon vs. Anderson, 43 N. Y. 231, 237 ;
Talley vs. Counter, 93 Mich, 473 ; 53 N. W. 621.
In the case last cited the Court says (p. 474) :
"A party against whom a trespass is committed, has
no right, by his own action or by neglecting the ohvious
and ordinary means of preventing or lessening the dam-
ages, to make them more than they otherwise would have
been, and this rule is simply one of good faith and fair
dealing." (Italics are ours.)
See also
Worth vs. Edmonds, 52 Barb. 40, 42.
In Johnson vs. Meeker, 96 N. Y. 93, 97,
The court says : "The rule is well settled that the party
who is injured by breach of an agreement, is bound to do
what lies in his power to render the damages as light as
possible (citing cases). * * * The Plaintiff merely
acted in the line of their duty in thus seeking to reduce the
amount of damage sustained by the Defendant's abandon-
ment of the contract."
Plaintiff would have been entitled to reasonable ex-
penses incurred iu efforts to protect itself.
1 Sedg. Dam.. Sec. 203, 215, 216, 437 and 438.
What were reasonable expenses would be a question for
the jiiry.
/ Nedy. Dam., Sec. 228.
The charge of the Court (rec. p. 323), that Plaintiff" was
George Wostenholm & Son, Limited. 35
under no legal liability to endeavor to retake any of its
goods already shipped was, in effect, a peremptory charge
in favor of Plaintiff. Being a specific charge, the judg-
ment must be reversed if it cannot be sustained.
Estate of Calcf, 139 Cal. 673.
It was improper if, upon the evidence, the jury might
have found that Plaintiff had been negligent in protecting
itself. We believe the foregoing citations sustain the prop-
osition that the party must be reasonably diligent — not
negligent. What is reasonable diligence is a question for
the jury.
McLanahan vs. Insurance Co., 1 Pet. 170, 186.
Hampton vs. 0. & 0. S. S. Co., 139 Cal. 706, 710.
Merrifield vs. Maryland, etc., 76 Pac. Rep. 710, 712,
first column.
Before the Court can instruct that one party is entitled
to recover, it must be satisfied that there is nothing in the
evidence which could prevent a recovery,
Ewing vs. Burnett, 11 Pet. 50;
Richardson vs. Boston, 19 How. 268 ;
Texas &c. Co.- vs. Cox, 145 U. S. 606;
Bamberger vs. Schoolfield, 160 U. S. 157,
That the Court at one time thought the matter not free
from doubt is shown by the fact that in another part of
the charge (rec. p. 321), it told the jury that if after the
telegram of December 2d, 1898, was received, it would
have been a proper exercise of ordinary care to have pre-
vented the shipment of that date from being forwarded —
the plaintiff could not recover for it. Yet this shipment
36 Ansel M. Easton vs.
had been delivered to the carrier before the telegram was
received.
The question is whether two persons could reasonably
differ as to whether Plaintiff had used proper diligence.
Let us see: The shipments whose dates of leaving the
possession of Plaintiff, and delivery to Lowe are given in
the Statement of Facts herein, page 7 (see also rec. p.
267 and 275). They dotted the land and sea, or were in
the custom-house in Costa Rica. Of the last three (Dec.
2nd, 7th and 16th), the first was in England when the
Plaintiff saw the flash of light thrown upon Lowe's vil-
lainy by the telegram of December 2nd. The Court cor-
rectly charged that they were bound to investigate upon
receipt of this news (rec. p. 319, line 11). This was the
more true because the telegram revealed a state of facts
exactly contrary to what they had supposed to exist. They
considered Easton the real backing of the firm (rec. p.
121 ) , and knew he could be held after dissolution for only
such goods as they supplied (forwarded) in the belief that
he was still a partner ( Civ. Code CaL, Sec. 2453 ) . If he was
a partner when the order of October 1st, 1898, was given,
he was absolutely liable (at common law). Hence, every-
thing pointed to instant inquiry before their position
changed to the detriment of themselves and that of Mr.
Easton. Now what did they do? They did nothing at all.
All the evidence as to their acts is in the record, p. 276 and
277. It is zero. Not only that, but they pushed the goods
out as fast as they could. They could have stopped the
shipment of December 2, 1898, which was still in England.
That date fell upon Friday. The White Star steamers
George Wostenholm & Son, Limited. 37
sailed, at that time, on Wednesdays of each week (rec. p.
285). Sheffield is not more than twelve hours' travel from
Liverpool, so that they could have overtaken the goods by
messeuger, ignoring the question of telegraphic stoppage.
Instead of that, they still further increased Lowe's jjower
to do evil and assisted in running up their damage by
sending him the bill of lading of that shipment the same
day (and after) they had received the telegram (rec. p.
189 and 190). This they did when they knew he could
not get the goods without it (rec. p. 115, answer to ques-
tion 18). They could have sent the bill of lading to a
bank with draft attached. They did nothing of the kind.
Not ony that, but they delivered to the carrier two more
shipments aggregating £417 after the telegram was re-
ceived— those of December 7th and 16th.
On December 17th, 1898, Plaintiff received the formal
announcement of the dissolution, giving its date. Still
they did not even try to reclaim the shipment of £270,
which had left their Sheffield works only the day before
(rec. p. 275).
Upon this state of facts the Court charged that Plaintiff
was under no legal liability to endeavor to retake any
goods shipped before learning of the dissolution. Not the
retirement of Mr. Easton, it will be observed. This was
a peremptory charge to find for Plaintiff for all it de-
manded. It might be reasonably claimed that Plaintiff
should not only have held on to the bill of lading of the
shipment of December 2nd and not shipped those of the
7th and Ifith, but that they slumld also have ascertained
through the British ccmsular officers whether the ship-
38 Ansel M. Easton vs.
ments of November 1st, for £519; of November 9th for
£243; and of November 18th for £310, had been delivered
out of the custom house to Lowe; and if not should have
seized them under proper proceedings. The first stipula-
tion ( rec. p. 267), and the second stipulation (rec. p. 275),
show what they would have learned and that all of these
shipments could have been retaken and Plaintiff's claim
reduced to the extent of about |8,000.
If the jury had been permitted to take these matters
into consideration, it is not too much to say they might
have held that Plaintiff had been negligent in protecting
itself. If two juries might have found differently, the
question was one which should have been submitted to
them.
PLAINTIFF HAD TWO REMEDIES.
The Plaintiff was unusually well provided with rem-
edies. It could:
FIRST, have rescinded for fraud as to all goods em-
braced in the order of October 1st, 1898; or
SECOND, have exercised the right of stoppage in
transitu, as to all goods shipped under that order, and
possibly that of March 30th, 1898. Defendants requested
full instructions upon these points, but they were refused.
(Rec. pp. 299, 301. Assignments No. 13, page 369, and
No. 16, page 371). The Civil Code of California only
expresses the general law when it provides in :
Sec. 3076. "A sellor or consignor of property, whose
claim for its price or proceeds has not been extinguished,
may, upon the insolvency of the buyer or consignee be-
coming known to him, after parting with the property,
George Wostenholm & Son, Limited. 39
stop it while on its transit to tlie buyer or consignee, and
resume possession thereof.
See. 3078. "The transit of the property is at an end
when it cames into the possession of the consignee. * * *"
Sec. 3077. "A person is insolvent within the meaning of
^Section 3076' when he ceases to pay his debts in the
manner usual with persons in his business. * * *"
Lowe had been begging for time, in the firm name, for
a long time. Had not paid bills with the promptness usual
with merchants (rec. p. 122). Plaintiff would not have
extended any such credit, if Easton had not been a member
of the firm. Thomas Wing saj'^s so (rec. p. 121). The
telegram of December 2nd, 1898, taken in connection with
the facts they constructively knew, revealed a case of
actual insolvency of the -firm. The backing was gone. It
showed why Lowe was behind to the extent of £4,000 (rec.
p. 202).
At least as early as December 24th, 1898, £350 of the
only payment (two drafts aggregating £500) since the
dissolution went to protest (rec. p. 205). Here was a case
clearly entitling Plaintiff to stop these goods in tramitu,
if it had wanted to do anything to protect itself.
PLAINTIFF WAS CLEARLY NEGLIGENT.
Goods are shipped when they are delivered to the car-
rier, and if the rule stated in the charge be true, a shipper
whose office was opposite the freight depot could hold in
his hands the proof of a fraud and see the goods upon the
railroad ])latform, for days, perhaps, and with perfect
indifterciioe to <lie party most injured, see them taken
and carried to the hands of the wron":doer.
40 Ansel M. Easton vs.
If Plaintiff had (not had such a magnificent opportunity
to protect itself; if a shipment had not left its works the
day before it received the formal announcement (on De-
cember 17th), and also one the day before it received the
telegram, there might be some claim that they did not know
what to do, but the propriety of stopping the goods in
England was palpable to the grossest sense; and this
would lead, necessarily, to an inquiry how many goods
were then upon the sea and in the custom house at Costa
Rica. They must have known the shipment of November
18th, 1898, was then on the sea (rec. p. 267). They had
frequently cabled to Costa Rica and the use of that means
would have suggested itself to them. The British Con-
sular officers were at their service. The record discloses
that they not only did nothing, but they did not want to
do anything. That it was either a cold-blooded indiffer-
ence to the amount of loss that Mr. Easton might suffer,
or a resolution to go on trading with Lowe in spite of the
disolution and recognize him as the sole debtor.
PLAINTIFF IS IN THE POSITION OF ONE CLAIM-
ING TO BE A BONA FIDE PURCHASER.
Plaintiff was really in the same situation as a person
claiming to be a bona fide purchaser. In fact, the terms
of Section 2153 (supra) are strikingly similar to those of
another Section of that Code. It is Section 1214:
"Every conveyance of real property * * * is void as
against any subsequent purchaser * * * in good faith
and for a valuable consideration, * * * ^g"
What is good faith? The claimant must have parted
George Wostenholm & Son, Limited. 41
with the consideration. When the purchaser has parted
^^ 'th the consideration is shown by the following and
many other cases :
Boone vs. Chiles, 10 Pet. 177, 211;
Wormley vs. Wormley, 8 WTieat. 421, 449;
Foivler vs. Merrill, 11 How. 375, 395.
The last case holds that the purchaser must allege want
of notice up to the time of actual payment. A want of
notice merely extending to the time of making the pur-
chase is not enough. Payment might have been refused,
and then he would not have been injured.
Just so Plaintiff might have withheld the goods.
"To bring the defense within it (bona fide purchaser)
it must be averred in the plea or answer and proved, that
the conveyance was by deed, and that the vendor was
seized of the legal title; that all ths purchase money was
paid, and paid before notice. There must not only be
a distinct denial of notice before the purchase, but a denial
of notice before payment. Even if the purchase money
has been secured to be paid, yet if it be not, in fact, paid
before notice, the plea of purchase for a valuable con-
sideration will be over-ruled." (Italics are ours.)
Smith vs. Orton, 131 U. S. LXXV, LXXVIII, per
Nelson Justice, 1866.
"It is not sufficient to sustain the plea of a bona fide pur-
chaser to prove that he promised or gave a guaranty of
payment ; only actual payment of the money prior to notice
of the existing lien, or of an equitable title, will entitle
him to hold the property adversely to the owner of such
lien or equitable title."
42 Ansel M. Easton vs.
Balfour vs. Parkinson, 84 Fed. Rep. 855, 860. 1898.
Per Hanford District Judge.
The result of these, and many other cases, is that the
party must prove lack of notice down to the very time he
parted with the consideration. Until then, in the lan-
guage of Lord Hardwicke, he is not hurt.
Was Mr. Easton negligent? So is every man who fails
to record his deed. But the law does not outlaw him for
that reason. It protects him as far as is consistent with
justice to the other party; but the latter is held to dili-
gence.
Suppose a purchaser of land delivered his coin to an
express company on the second of the month, to deliver
in a distant place in payment for a deed; that he learned
facts strongly pointing to the existence of a prior deed on
the next day ; that he not only did not try to stop the coin,
but sent further payments; that two weeks after the first
clear hint, and the day after he had expressed a payment,
he received a specific commjinication of the facts showing
the equity ; that with all this, he did nothing. Would this
man be allowed to hold the legal title to his realty in
peace? He would be confronted and condemned by the
foregoing decisions. Yet, this is just what Plaintiff did.
There is no reason why the holder of the prior conveyance
should be protected any more than Mr. Easton.
From all the foregoing, it seems clear that Plaintiff did
not part with the shipments of December 2nd, 7th and
16th, 1898, in good faith, and that the verdict should have
been for Defendant Easton as to them; that as to the
others on the water and in the custom house on December
George Wostenholm & Son, Limited. 43
3rd, the question of good faith and diligence should have
been submitted to the jury.
The charge assumes that the mere shipment deprives
the consignor of all power to protect himself. That such
is not tlie law is shown by the case of
Masters vs. Barreda, 18 How. 489, 496.
Defendants in error had sold to Plaintiff in error a
number of cargoes of guano, upon running account, with
tlie agreement that the balance against the purchaser
should never exceed |40,000. The bills of lading had been
endorsed and delivered to the purchaser, and the cargoes
were in process of being unloaded from the ships, when
the seller called attention to the fact that the balence ex-
ceeded the stipulated amount, and demanded payment of
the excess. Upon this being refused, the sellers stopped
the delivery of the balance of the cargoes. The Court says :
(Page 496. ) "They failed to make the payment, and con-
tinuing to refuse to do so, we are of the opinion that the
Barredas had a right t(> arrest the delivery of the cargoes of
the Beatrice and the Ailsa, notwithstanding the endorse-
ment and delivery of the bills of lading to Masters & Son,
and that their refusal to deliver the same, as stated in the
testimony, is no breach of the contract, and is not a bar
to the recovery in this action of the amount due for the
guano actually received by Masters & Son." In such a
case "the seller may arrest the further delivery of any
cargo or cargoes though the same is in the course of being
delivered to the buyer, upon the seller's endorsement of
the invoices and bills of lading of such cargoes."
44 Ansel M. Easton vs.
PURCHASE BY AGENT.
Second Error. The Court charged that, if Plaintiff,
acting as purchasing agent of Schwartz, Lowe & Co.,
ho II gilt the goods before receiving notice of Mr. Easton's
retirement, the title passed to Schwartz, Lowe & Co., and
he was liable even though they were shipped after notice
of his retirement (rec. p. 321, 322, Assignment No. 32,
rec. p. 383).
This erroneous instruction is prejudicial because £4738
out of the total of £4868 demanded by defendant in error
are for goods purchased for Schwartz, Lowe & Co. (Rec.
p. 82).
The evidence shows that Plaintiff bought ivith its own
moneij, all goods not manufactured by itself, and charged
the price to Schwartz, Lowe & Co., plus a commission (rec.
p. 88, 110). No money of Schwartz, Lowe & Co. was ever
sent plaintiff with which to make purchases. Under such
circumstances, to say that the title vested in Schwartz,
Lowe & Co., as soon as Plaintiff bought goods to send to
them, is plainly wrong. Under such circumstances they
stood in the position of vendors.
Mechem on Afjeneij, Sees. 687 and 689.
The title was in them and they could have taken a bill
of lading in their own name; or sent one in favor of the
firm with a draft attached; or diverted the goods to an-
other customer.
We do uot intend to discuss this question at length,
partly because this brief is quite long and also because the
Supreme Court of the United States has directly decided
the point. In
George Wostenholm & Son, Limited. 45
Dous vs. National Exchange Bank, 91 V. S. 618,
629.
McLaren & Co. were the agents in Milwaukee, of Smith
& Co., of Oswego, New York. They received an order from
Smith & Co. for the purchase of a large amount of wheat,
which they bought, and paid for with their own money,
rendering bills for the same, with a statement of account
for disbursements and commissions. To re-imburse them-
selves, McLaren & Co. drew drafts upon Smith & Co., at-
tached them to the bills of lading, which described Mc-
Laren & Co. as the shipper and W. G. Fitch, Cashier, as
consignee. Fitch was made the consignee at the special
request of Smith & Co., (page 634). McLaren & Co. dis-
counted the drafts with the National Exchange Bank. The
latter sent the drafts and bills of lading to the Merchants'
Exchange Bank at Watertown, New York, with directions
to store the wheat, and hold it for the National Exchange
Bank until the drafts should have been paid, and there-
upon, to deliver the wheat to Smith & Co. The Merchants'
Bank delivered the bills of lading to the Corn Exchange
elevator, which was owned by Smith & Co., with proper
instructions, but the latter, without the knowledge of the
Merchants' Bank, reshipped the greater part of the wheat
direct from the boats in which it arrived into canal boats,
sent it to Dows & Co., and delivered to them the bills of
lading, with drafts attached, which drafts were paid.
Dows & Co. were innocent purchasers.
It w ill thus l)e seen, that, if the title to the wheat vested
in Smith & Co. the instant it was purchased by McLaren
& Co. (which is the doctrine of the instruction under dis-
46 Ansel M. Easton vs.
cussion), the sale to Dows & Co. was valid. If, however,
McLaren & Co. held the title, and had the rights of a ven-
dor, the title to the wheat remained in the National Ex-
change Bank. So the lower Court held, in fact, and
rendered a judgment against Dows and Co., for |31,111.51.
The Court says, per Justice Strong, that the only ques-
tion in the case was, whether the ownership of the Plain-
tiffs ( the National Exchange Bank ) , had been divested be-
fore the conversion by Dows & Co. "It is not open to
question that McLaren & Co. having purchased it (the
wheat) at Milwaukee, and paid for it with their own
money, hecaitie its owners. Though they had received
orders from Smith & Co. to buy all wheat for them, and
to ship it, they had not been supplied with funds for the
purpose nor had they assumed to contract with those
from whom they purchased, on behalf of their correspond-
ents. They were under no obligations to give up their
title, or the possession on any terms, other than such as
they might distate. If, after their purchase, they had sold
the wheat to any person living in Milwaukee, or elsewhere,
other than Smith & Co., no doubt their vendee would have
succeeded to the ownership. Nothing in any agency for
Smith & Co. would have prevented it. This we do not
understand to be contraverted." (Italics are ours. )
There is much more to the same effect, but we forebear
further quotation.
We will cite only one more case :
The Merrimack, 8 Cranch. 317.
Goods were laden upon a vessel in England, after the
George Wostenholm & Son, Limited. 47
declaration of war in 1812, for various consignees in the
United States.
"These goods were purchased by Baily, Eaton & Brown,
merchants of Sheffield, in pursuance of orders from the
claimants." This is the statement as to the goods of one
of the claimants, and, it appears as to all of them, that the
purchases were made by English agents for American
merchants in the United States, the English merchants
paying their own money for the goods, to the persons from
whom they purchased them.
The vessel and cargo were captured, and condemnation
sought as prize. The whole case turns upon the question,
whether the title to the goods had vested in the persons
for whom they had been purchased. It was held as to
three of the claimants, that the title had vested, and there-
fore they were not prize, but, as to one, the title had
not vested, and the goods were properly condemned.
Chief Justice Marshall delivered the opinion of the
Court, as to most of the cases, and bases his decision en-
tirely upon the (juestion whether the acts of the parties
showed that it was intended that title should vest in the
consignees. He treats the case exactly like one between
vendor and vendee. (See page 327).
As to one of the claimants, whose goods were held not
to be prize, Justice Story dissented, and speaking of the
agents in England, says:
"It is true that the go(Kls were purchased pursuant to
the orders of Messrs. Wilkins ; but I do not think that the
property by the mere purchase, became vested in them;
and the usage and course of trade is generally otherwise.
48 Ansel M. Easton vs.
The purchase was made with the money of the shipper;
and until a delivery, actual or constructive to the Messrs.
Wilkins, the propriety thereof remained completely in the
shipper."
These cases leave little to be said.
The consequences of the doctrine of the charge also con-
demn it. Plaintiff could abandon its possession and lien,
and send the goods to the wrong-doer after knowledge of
the fraud to the detriment of Mr. Easton, who was merelj-
negligent, presumably through ignorance of law, and mis-
placed trust in a formed partner.
There is nothing to commend such a rule. Its injus-
tice is such a case, and its injustice in the case at bar
alike condemn it.
TITLE PASSED BY MERE SHIPMENT.
Third Error. The Court charged the jury (rec. p. 322,
Assignment No. 33, rec. p. 384), that the title to the goods
sold by Plaintiff to Schwartz, Lowe & Co. passed to the
latter as soon as such merchandise was delivered to the
common carrier for transportation, regardless of the time
when the bill of lading therefor was mailed.
This instruction was levelled at the shipment of Decem-
ber 2nd, 1898, which was sent off the day before the letter
of December 3rd, from Plaintiff to Schwartz, Lowe & Co.,
San Jose de Costa Rica was sent. In the latter letter.
Plaintiff refers to the receipt of the telegram announc-
ing the withdrawal of Mr. Easton, and in the same
George Wostenholm & Son, Limited. 49
letter encloses the bill of lading. It is also levelled at the
shipments prior to December 2nd, 1898, and which were
on the way when they received the telegram.
It will be observed, as to the shipment last mentioned,
that Plaintiff still had the bill of lading in its possession.
The doctrine announced is directly contrary to the case of
Minturn vs. Alexandre, 5 Fed. Rep. 117 (Choate
D. J.)
There the libellants sued for damages to sugar, by col-
lision on board a vessel. The sugar had been shipped from
Havana, to be carried to New York, and there delivered to
libellants and "bills of lading tlierofor duly signed by the
master of said bark, naming the libellants as consignees of
said sugar" were alleged to be in the possession of the
libellants.
An exception was filed by respondent, because the libel
did not sliow "what if any right, title or interest the said
libellants, as consignees, had in said sugars at the times
in the libel mentioned."
(Page 117). "This exception must clearly be sustained,
because the libel contains no averment whatever of the de-
livery of the bill of lading to the libellants, or to any one
for their use; or, by other proper averment shows in any
way that they consented to or became parties to the con-
signment.
"A bill of lading may be made cmt naming a person as
consignee, but something more is necessary to make the
person so named a consignee. That relation to property
cannof be established without such person's consent or
against his will ; and a delivery of a bill of lading or some
50 Ansel M. Easton vs.
agreement in relation to the shipment', between the shipper
and the person named as consignee, is just as necessary
as the delivery of a promissory note is necessary to make
it anything but a piece of paper with scratches on
it. * * *
"It is true that the possession of a bill of lading by
the consignee named therein, or by the indorsee thereof,
is prima facie evidence of ownership of the goods, just as
possession of the goods themselves would be, and that the
possession of such bill of lading is also prinia facie evi-
dence of the transfer to the consignee, or indorsee of the
bill, of the title or interest which the shipper had at the
time of shipment, whatever that may be."
We would suggest, that the title does not pass as long as
anything remains to be done to give the vendee complete
dominion over the goods. The delivery of the bill of
lading, without which Lowe could not get the goods, as
Plaintiff well knew (rec. p. 115), is a very important
step in that direction.
The doctrine of the charge is also contrary to the ratio
decidendi in
EUmer vs. HiUs, 138 Cal. 134.
We believe these cases settle the proposition that the
instruction was erroneous as to the shipment of December
2ud, 1898, and that as to that, the Plaintiff still retained
full power over the goods and over the title to them.
As to the other shipments, we concede the general rule
(ignoring the bill of lading) to be, when goods are de-
liver<Hl to the carrier, in fulfillment of a contract of sale.
George Wostenholvi & Son, Limited. 51
and nothing more is to be done by the vendor, in other
words, as the final act in the execution of the contract
b.y the vendor; that the title will pass when the goods are
delivered to the carrier. In such cases, the latter is the
agent of the vendee. The facts are different here. These
goods were ordered by Schwartz, Lowe & Co., with express
directions to Plaintiff to pay the freight through to San
Jose. Plaintiff's witnesses emphasize this (rec. p. 116,
120, 121 and 124). Schwartz, Lowe & Co. were to have no
relations with the carrier; it was an express direction for
the Plaintiff to lay the goods down in San Jose.
The following citations sustain the proposition that if any-
thing remains to be done by the carrier, such as the seg-
regation of the articles to be sent, or if he is to transport
them to a particular place, the title does not pass to the
vendee until that shall have been done.
Second Benjamin on Sales, Section 925, where it
said:
"If, however, the vendor should sell goods, undertaking
to make the delivery himself at a distant place, thus assum-
ing the risks of carriage, the carrier is the vendor's agent."
The same proposition is sustained in
Magnidcf cs. iiacjv, 33 ^Id. 344; 3 Am. Rep. 177,
182.
Magruder, in Annapolis, wrote to Gage & Co., in Boston,
asking how much they would charge tor a cargo of ice.
Gage & Co. replied that the price would be $5.00 a ton,
and we "will get freight as low as possible." The order
was sent, authorizing Gage & Co. "to get freight as low
as possible." The bill of lading seems to have been in the
52 Ansel M. Easton vs.
name of Magruder. The ice was damaged in transit, and
the question was, who should stand the loss. It does not
appear who was to pay the freight.
(P. 180) "The question as to what acts are necessary
to be performed by a vendor under an executory agree-
ment for the sale of unspecified goods, in order to transfer
the title to the vendee and subject him to the risk of the
carriage, depends entirely upon the agreement, either ex-
press or implied, between the parties. If the vendor under-
takes to make the delivery himself at a distant place, thus
assuming the risk in the carriage, the carrier becomes the
agent of the vendor, and the property will not pass until
the delivery is actually made.
(P. 181) "If, therefore, in this case, the appellants
directed the appellees to send them a cargo of ice, and they
delivered it to a common carrier to be freighted for and
on account of the appellants and there was no other agree-
ment in regard to the sale and delivery of the same, the
Court was right in saying to the jury that the title passed
to the appellants' and that the appellees were entitled
to recover.
"The question, as to whether there was any other agree-
ment between the appellants and appellees in regard to
the sale and delivery of the ice than that to be found in the
correspondence and bill of lading, was fairly submitted
to the jury, and the Plaintiff's right to recover, upon the
finding of the facts set forth in the prayer, was based upon
the express pro\'iso that there \\'as no other agreement in
regard to the delivery of the ice."
George Wostenholm & Son, Limited. 53
See also
Orocc vs. Brien, 8 How. 429, 438.
where the Court says:
"If the soods are shipped at the risk of the consignor,
though the freight is paj-able by the consignee, the prop-
erty (title), remains in the former."
These citations show that it is not a foregone conclusion
that drlii-crij alone to the carrier vests title in the con-
signee.
See also
McNeal vs. Braim, 53 N. J. L., 617 ; 2fi Am. St. Rep.,
441, 443.
Braun doing business in Philadelphia, agreed with Mc-
Neal at that place, to sell McNeal ninety-eight tons of
coal, to be delivered at Burlington, New Jersey. It was
shipped on board a barge, selected by Braun, with the bill
of lading running to McNeal, "he or they to pay the
freight," the amount, however, to be deducted from the
price. The coal arrived at the consignees wharf, and was
lost there. The Court says :
(Page 443). "It is sometimes stated as a general rule
that delivery to the carrier is delivery to the consignee,
and that the goods are to be carried to their destination at
his risk. But an examination of the decisions to that effect
will show that this doctrine prevails only where the con-
tract of sale, as between the consignor and the consignee,
was concluded at the place of shipment, and the under-
taking to ship ivas collateral to the contract of sale, as in
Tregclles vs. Setrell, 7 Hurl. & N. 573. It will also be
f(mnd that the rule uniformly adopted in the line of de-
54 Ansel M. Easton vs.
cisions is, that the risk of loss in transportation depends
upon the nature of the transaction, the terms of the con-
tract, and the intention of the parties. In Dunlop vs.
Lamhert, 6 Clark & F., 600, 619-621, Lord Cottenham said :
'When the party undertaking to consign undertakes to de-
liver at a particular place, the property, till it reaches that
place and is delivered according to the terms of the con-
tract, is at the risk of the consignor.' In Calcutta Co. vs.
De Mattos, 32 L. J. Q. B. 332; 33 L. J. Q. B. 214, Mr. Jus-
tice Blackburn said : 'There is no rule of law to prevent
the parties from making whatever bargain they please.
If they use words in the contract showing that they intend
that the goods shall be shipped by the person who is to
supply them, on terms that when shipped they shall be the
consignee's property and at his risk, so that the vendor
shall be paid for them whether they are delivered at the
port of destination or not, this intention is effectual. * *
* * If the parties intend that the vendor shall not only
deliver them to the carrier, but also undertake that they
shall actually be delivered at their destination, and ex-
press such intention, this is also effectual. In such a case,
if the goods perish in the hands of the carrier, the vendor
is not only not entitled to the price, but he is liable for
whatever damage may have been sustained by the pur-
chaser in consequence of the breach of the vendor's con-
tract to deliver at the place of destination.' "
(Page 445). "Under a contract of this sort, delivery of
the coal on board the barge was delivery to the master as
the Plaintiff's bailee or agent to perform for him the act of
delivery in execution of his contract : 1 Corbin's Benjamin
George Wostenholm & Son, Limited. 55
on Sales, Sec. 566. Meanwhile, and until delivery was con-
summated in snth a manner as to be effectual as between
vendor and purchaser, the coal was at the plaintiff's risk."
(Italics are ours.)
If the title had passed upon delivery to the carrier, the
loss would have fallen upon the consignee in the above
case.
A very instructive case is that of
Buckingham vs. Dake, 112 Fed. Rep. 258, 264.
On November 1st, 1898, Buckingham went to look at five
hundred steers upon the place of Gillett at Woodbine,
near Herington, Kaui^as. Ou November lith, without
further inspection at Kansas City, Buckingham bought
the steers and six hundred and fifty others, on feed else-
where. Gillett agreed to ship the cattle from Woodbine to
Alma, where Buckingham lived.
On November 17th, Gillett bought from Trowers' Sons
three hundred and eleven steers, and on November 18th
gave them a chattel mortgage upou them, to secure the
payment of the price.
They were described as being on his feed lots at Hering-
ton, Kansas. The cattle purchased from Trowers' Sons
arrived at Woodbine on the morning of November 18th.
On the 17th (page 268) Gillett directed his foreman to
ship the cattle to Buckingham at Alma, where they arrived
at 4 p. M. on the 18th, and were taken possession of by
Buckingham's foreman at that time. Gillett did not ship
the oflicr two liundred steers from Woodbine, but pur-
chased them elsewhere to make up the number which
Buckingham supposed were to come from Woodbine.
56 Ansel M. Easton vs.
(Page 2G9). "The general rule goveruing contracts of
was not recorded until November 19tli, so that Bucking-
ham was not affected with constructive notice.
It was claimed by Buckingham that the title to the
cattle vested in him, when on the evening of November
17th, Gillett directed his foreman to ship the cattle to
Buckingham. That this was a specific appropriation of
the cattle to the fulfillment of Gillett's contract of sale of
November 14th.
The Court says:
(P. 268). "The determination of this case, therefore,
rests upon, first, the correctness of the proposition stated
by the trial court — that if the cattle in question were not
the ones which Buckingham thought he was purchasing,
namely, those in the cattle pens at Woodbine belonging to
Gillett, then no title attached in favor of Buckingham to
the cattle until the delivery of the same at Alma. By re-
calling the evidence already detailed, it will be found that
the cattle were delivered to Buckingham's agent at Alma
at 4 o'clock in the afternoon of November 18th, and that
the money was paid by Buckingham to Gillett in the night
of November 18th, while they were on their way from Kan-
sas City to Alma on the train, so that no money was paid
on account of the sale until after the actual delivery at
Alma. It also clearly appear's from the evidence that
Gillett was to deliver the cattle at Alma, paying all freight,
including that from Herington to Alma."
(Page 269). The general rule governing contracts of
sale of personal property is that, if a delivery is to be made
at a certain place, the vendor's title is not divested until
George Wostenholvi & Son, Limited. 57
delivery is made at that place, and until delivery is so
made the vendee has acquired no title. The contract of
sale may be complete before then, but the sale is not com-
plete until delivery is made according to the terms of the
contract. Association vs. Nipp, 6 Kan. App. 730-736, 50
Pac. 956. When the vendor by the terms of the contract
is to pay the freight to the place of delivery, the place of
delivery becomei;! the place of sale, and title is not divested
until the transportation is at an end.
Taylor vs. Cole, 111 Mass, 363;
Brewing Co. vs. De France, 91 Iowa, 108 ; 58 N. W.
1087; 28 L. R. A. 386; 51 Am. St. Rep. 329;
Association vs. Nipp, supra."
This question of the vesting of the title frequently arises
in cases of conflicting liquor laws of the various States of
the Union. Such a one was
Brewing Association vs. Nipp, 6 Kans. App. 730;
50 Pac. Rep. 956, 957.
Plaintiff, at St. Louis, and one Saunders, entered into
an agreement by which Plaintiff should sell Saunders
beer to be delivered free on board at Wichita, Kansas. All
freight was to be paid by the vendee, but charged to the
vendor, in case it did not exceed a certain rate. All above
that rate was to be paid by the vendee.
( Page 958 ) . The Court says : "The contract of sale is,
therefore, complete when Saunders mails a letter or sends
a telegram ordering a car load of liquors. The contract of
sale is complete, but the sale is not. Something more must
be done. The liquors must be separated and delivered to
Saunders before the sale is completed. It is clear that the
58 Ansel M. Easton vs.
separation took place in St. Louis. The delivery is or-
dinarily made to the purchaser by a delivery to the carrier.
Where the purchaser is to pay the freight, the carrier is
his agent. 'The illegality of the sale of intoxicating liquors
frequently depends upon the place where the sale is made.
This is governed by the place where the sale is completed
by delivery. Where the vendor is to, and does, pay the
freight to the place of delivery, the place of delivery be-
comes the place of sale.' 11 Am. & Eng. Enc. of Law, 742.
See also, cases there cited. *If, by the terms of the con-
tract the seller is required to send or forward the goods to
the buyer, the title and risk remain in the seller until the
transportation is at an end, after which time the title is
vested in the buyer. Bloi/d vs. Pollock, 27 W. Va. 75,' "
* * * and other cases. (Italics are ours.)
In Bloyd vs. Pollock, 27 W. Va. 75, 78, the question
arose in such a manner that the Court was necessarily
forced to decide whether title vested in the purchaser at
the instant of delivery to the carrier, or not. The Court
(Page 129). "If M. & J. Pollock had bought this car
load of wheat of Bloyd, and nothing had been said about
the delivery, the moment the car load of wheat was shipped
at Glen Easton (Bloyd's place of business), on the Bal-
timore & Ohio Railroad to M. & J. Pollock, at Wheeling, it
would have been the property of M. & J. Pollock, and if it
had been lost before it reached AVheeling it would have
been their loss. * * *
(Page 131). The Court then quotes from Story, as fol-
lows:
George Wostenholvi & Son, Limited. 59
''The first rule of law applicable to delivery, and to
which all other rules are subordinate, is that no sale is com-
pleted so as to vest an immediate right of property in the
buyer, so long as anything remains to be done between the
buj^er and seller."
( Page 134 ) . "As the wheat on the principles laid down
in this case must be regarded as delivered upon its arrival
at the depot in Wheeling — the place designated for the
deliver}' — and that, too, though no notice of such arrival
was given the vendee, the contract of the vendor was per-
formed on the arrival of the wheat at the depot in Wheel-
ing; and the Baltimore & Ohio Railroad Co. then became
the agents of the vendees, holding the wheat for them."
The whole reasoning of this case is inconsistent with
the idea that deliver fj alone to the carrier vests title in the
consignee.
In order to illustrate the situation, let us suppose that
in spite of these letters ordering the goods, and directing
Plaintiff to pay the freight through to San Jose, it had
merely delivered them to the carrier with directions to
collect from the consignee ; that the goods arrived safely at
the custom house in San Jose, but upon demand by the
carrier, Lowe had refused to pay the freight, and had
cabled or written calling Plaintiff's attention to the speci-
fic directions in the letter, which were a part of the con-
tract. Suppose, while discussion was going on, the goods
had been destroyed by fire. Upon whom would the loss
linve fallen? It seems clear the loss would not have fallen
upon the vendee, because he was called upon to do some-
60 Ansel M. Easton vs.
thing which the other party had undertaken to do by ac-
cepting the order. In other words, the Plaintiff would not
have fully performed its contract, which was not only to
send these goods, but to pay the freight clear through.
This seems decisive as to the question of vesting of title.
The effect of this charge was to relieve Plaintiff of the
obligation of re-taking its goods, when it discovered the
fraud perpetrated by Lowe in giving the order in the
old firm name. The assumption was, evidently, that if the
goods were not the property of Plaintiff, it could not or
was not obliged to re-take them. The strong inference fol-
lows that if they remained its property, they were under
such obligation. In other words, that it had not parted
then with the property, and that to allow it to slip from its
possession, to allow the title to pass from it thereafter,
would not be a parting with the property in good faith,
upon the continued belief that Mr. Easton was still a part-
ner. That is the measure of Plaintiff's rights under the
Civil Code of California, Section 2453.
COSTA RICA LAWS.
Fourth Error. Instructing the jury that where a part-
nership is domiciled in California, the liability of the
partners is controlled by the laws of California in the ab-
sence of an express provision to the contrary known to the
creditors of such firm, even though such firm does business
in foreign places. Also directing the jury to disregard the
Costa Rica laws which were in evidence. (Assignment
George Wostenholm & Son, Limited. 61
Nos. 35 to 39, rec. p. 387 ) . The argument under this head
is addressed princii)all3' to the order of March 30th, 1898,
(rec. p. 119), taken before dissolution.
The facts are: At the inception of business relations,
William Schwartz went to England and arranged a basis
upon which future business should be done. This was
embodied in a letter of Thomas Wing to William Schwartz,
dated January 28th, 1897 (rec. p. 81). Thomas Wing
went to Costa Rica as the accredited traveler of Plaintiff,
authorized to take orders, receive payments and make any
needful business arrangements (rec. p. 118). While there,
he took the order of March 30th, 1898 (rec. p. 118 and
124). Neither the San Francisco partners, nor Plaintiff's
officers in England had anything to do with the making of
the contract. It was to be performed by shipments made
by Plaintiff (from where is not stated), to San Jose de
Costa Rica, the Plaintiff to pay the freight to that point,
and charge it to Schwartz, LoAve & Co. (rec. p. 124). The
domicile of tlie firm, if a partnership can have one, was
at its principal place of business, San Jose de Costa Rica,
as provided in the articles of co-partnership (rec. p. 280).
The charge of the Court, therefore, starts with a mis-
take of fact. The partnership was not domiciled in Cali-
fornia. The predicate being gone, the instruction must
fall. If it be true as stated, that the law of the domicile
of the purchaser controls then as the tirm was domiciled
in Costa Rica, its laws control, and their exclusion was
error.
According tit this charge, ji contract made by Schwartz.
Lowe & Co. with Plaintiff in France, to be performed in
62 Ansel M. Easton vs.
Germany, would be controlled by the laws of California.
But the principle announced is not correct.
The true rule is that contracts are governed as to the
manner of their execution, the capacity of the parties to
contract and the liability of the parties upon the contract
when made, by the law of the place where the contract is
entered into; that the method of performance is governed
by the law of the place of performance.
We may ignore the arrangement with William Schwartz
( rec. p. 81 ) . It was not a contract. It was mereh' a basis
for future contracts.
Gipps Brewing Co. vs. De France, 91 Iowa, 108 ; 51
Am. St. Rep. 329;
Bretcing Assn. vs. Nipp, 6 Kan. 730, 736;
The following citations sustain the above statement :
Scudder vs. Union National Bank, 91 U. S. 406,
Hunt, J. (1875).
Ames & Co. were in business in St. Louis, and Leland
& Harbach, in Chicago, had from time to time bought pork
for Ames & Co. upon commission.
Scudder, a member of Ames & Co., came to Chicago at
the request of Leland & Harbach, who were embarrassed.
Leland & Harbach bought for Ames & Co., five hundred
barrels of pork. In payment Leland & Harback gave a
check on the Plaintiff bank. A bill of exchange was drawn
upon Ames & Co. by direction of Scudder, verbally given.
It was offered for discount to Plaintiff, but declined.
Thereupon Defendant allowed a message to be sent to the
bank, to the effect that the bill had been drawn upon
Ames & Co. by its authority. The bank then discounted the
George Wostenholm & Son, Limited. 63
draft. By the law of Missouri, an acceptance of a draft
must be in writing, but not so by the law of Illinois.
The Court states the rule thus:
The execution, interpretation and validity are deter-
mined by the law of the place where the contract is made.
Matters connected with its performance are regulated by
the la\\' prevailing at the place of performance.
"A careful examination of the well considered decisions
of this country and of England will sustain these posi-
tions."
The validity of this contract of March 30th, 1898, i. e.,
whether it was a firm contract, binding Easton and the
others, is to be decided by the law of the place where it was
made.
See also
Morgan vs. N. 0. M. <& T. II. (Jo., 2 Woods, 244; 17
F. O. No. 9804. Bradley, J. (1876).
Hoicncstrin vs. Barnes, 5 Dill. 482, 12 F. C. No.
6786. (1879). Miller Circuit Judge and Foster
District Judge. Opinion by Foster, D. J.
In the latter case Defendants made two promissory notes
and delivered them in Kansas. They were made payable
in Missouri. Each note contained a provision for attor-
ney's fees, in case of suit.
The Supreme Court of Kansas had decided such notes
to be negotiable, and that of Missouri, that they were not
negotiable.
The Defendants insisted that as the contracts were to
be performed in Missouri, the parties must be presumed
64 Ansel M. Easton vs.
to have contracted witli reference to the law, as declared
by the Supreme Court of that State. The Court says :
"From the authorities which I have been able to ex-
amine, the true rule of construction is this: any interpre-
tation or construction applicable or incidental to the per-
formance should be governed by the laws of the place of
performance, and such matters of construction or inter-
pretation as go to the execution and validity of the con-
tract are determined by the laws of the place where the
contract was made. This is the rule established by the
Supreme Court in the case of Scudder vs. Union National
Bank, 91 U. S. 406. Now, if this case is such a one as calls
for the application of this rule of construction, 1 should
say, the laws of Kansas control, because the question is
simply this: Are these writings promissory notes? * *
* * They were made in Kansas, and the laws of that
State must determine their legal effect. It is a question
touching their validity, and goes back to the execution of
the papers."
The matter was exhaustively considered in
Liverpool Steam Co. vs. Phoenix Ins. Co., 129 U. S.
397, 435, Gray, J.
This was a libel in personam in the United States Dis-
triet Court of New York, against the Defendant, otherwise
known as the Guion line.
The owner of certain goods shipped them by the Defend-
ant line under a bill of lading issued in New York, which
contained a clause exempting the Defendant from liability
for loss in certain contingencies. Plaintiff insured the
goods which were lost. The question decided was whether
George Wostenholm & Son, Limited. 65
the clause of the bill of lading exempting the Defendant
from liability was valid or not. If governed by the law
of England, as claimed by the Defendant, it was valid; if
governed by that of New York, it was not.
(Page 447). The Court said the general rule as stated
by Lord Mansfield, is that the place where the contract is
made, and not where the action is brought, is to be con-
sidered in expounding and enforcing the contract, but that
this rule admits of an exception when the parties, at the
time of making the contract, had a view to a different
kingdom.
( Page 448 ) . The Court then cites a number of English
cases. The first is
Peninsula & Oriental Co. vs. Shamed, 3 Moore P. C.
(N. S.), 272, 290,
where the Privy Council says :
"The general rule is that the law of the country where
a contract is made governs as to the nature, the obligation
and the intei'pretation of it. The parties to a contract are
either the subjects of the power there ruling, or as to tem-
porary residents, owe it a temporary allegiance ; in either
case equally they must be understood to submit to the law
there prevailing, and to agree to its action upon their con-
tract. It is, of course, immaterial that such agreement is
not expressed in terms; it is equally an agreement in fact
presumed da jure, and a foreign court interpreting or en-
forcing it or any contrary rule, defeats the intention of the
parties as well as neglects to observe the recognized comity
of nations."
66 Ansel M. Easton vs.
(Page 450). In deciding the case of Lloyd vs. Guihert,
supra, Justice Willes says : "It is generally agreed that the
law of the place where the contract is made is prima facie
that which the parties intended or ought to be presumed
to have adopted as the footing upon which they dealt, and
that such law ought therefore to prevail in the absence of
circumstances indicating a different intention, as, for in-
stance, that the contract is to be entirely performed else-
where. * * *"
(Page 452). " 'But the intention of the parties was ad-
mitted to be the crucial test ; and the law of the ship's flag
was considered as the law intended by the parties to gov-
ern their contract.' "
(Page 452.) It quotes from
Jacobs vs. Credit Lyonnais, 12 Q. B. D. 589.
(Page 453.). Where Denman J., in deciding the case,
says, "The general rule is that where a contract is made in
England between merchants carrying on business here, as
this is, but; to be performed elsewhere, the construction of
the contract, and all its incidents, are to be governed by the
law of the country where the contract is made, unless there
is something to show that the intention of the parties was
that the law of the country where the contract is to be per-
formed should prevail. * * * The broad rule is that
the law of the country where a contract is made, presum-
ably governs the nature, the obligation, and the interpreta-
tion of it, unless the contrary appears to be the express in-
tention of the parties." 12 Q. B. D., 596, 597, 600.
George Wostenholm & Son, Limited. 67
(Page 453.) The Supreme Court then says it has not
had occasion to consider how a contract like that before it
should be expounded, but it has acted upon the general
principle "that contracts are to be governed as to their
nature, their validity and their interpretation by the law
of the place where they ^^'ere made, unless the contracting
parties clearly appear to have had some other law in view."
(Page 457.) It also cites:
McDaniels vs. Chicago, etc., Railicay, 24 O. 412, 417,
which was a contract made in Iowa to transport cattle
from that State to Illinois, under a contract containing
exemptions from liability. Justice Dillon decided that the
case was governed by the law of Iowa, which permitted
no exemption. The contract, being entire and indivisible,
made in Iowa, and to be partly performed here, it must, as
to its validity, nature, obligation, and interpretation, be
governed by our law."
(Page 458). The Court then says : "This review of the
principal cases demonstrates that, acording to the great
preponderance, if not the uniform concurrence of author-
ity, the general rule that the nature, the obligation and the
interpretation of a contract are to be governed by the law
of the place where it is made, unless the parties at the time
of making it have some other law in view," required the
contract under construction to be held an American con-
tract.
(Italics throughout are ours.)
68 Ansel M. Easton vs.
The «]|ueHtion before the Court was the obligation of this
contract. Was Easton obligated? i. e., bound? This ques-
tion the Court took from the jury.
Further citation is unnecessary. Prima facie the laws of
Costa Rica, the place where the contract of March 30, 1898,
was made by Thomas Wing and Lowe, were adopted by the
parties (Liverpool, etc., vs. Phoenix, p. 450j, and this pre-
sumption controls because there was no evidence of an
''express intention of the parties" to the contrary. (Id.
p. 453.)
Foreign laws are matters of fact.
Talhot vs. Seeman, 1 Cranch 38.
Hanley vs. Donoghue, 116 U. S. 4.
Liverpool etc., vs. Phoenix, etc., 129 U. S., 397, 445.
This would apply to statutory law even if there were no
dispute as to translations. But as in this case Miss Diggs
testified for defendants and Charles F. Gompertz some-
Avhat differently for Plaintiff (for instance at rec. p. 253),
the whole matter should have been submitted to the jury in
any event.
It will be seen that these laws provide an elaborate
scheme, differing in a marked degree from ours.
Thus, the Costa Rica Civil Code provides that part-
ners, with respect to their obligations to third per-
sons are considered as if there were no partner-
ship. (Art. 1232, rec. p. 252) ; the partners are bound only
for a proportional liability (art. 1235a, rec. p. 252) ; these
and other provisions apply to commercial partnerships
George Wostenholm & Son, Limited. 69
when not opp<)se<l to the laws and usages of commerce
(art. 1206, reo. p. 251). This reference to the laws and
usages of commerce is repeated in Art. 211 of the Commer-
cial Code, so it must mean something besides that code in
both cases. That is also a question upon which the jury
should have passed. The Commercial Code provides for a
mercantile register in the capital of each province (art. 22,
rec.-p. 254), in which all articles of partnership must be
recorded (Id. art. 25.) Several kinds of partnership are
provided for (art. 212,, rec. p. 256) and all must be entered
into at first by a private writ'uKj (art. 231 and 232, rec. p.
257), which writing obligates them to enter into a formal
document. This formal document must contain ten differ-
ent matters (art. 233, rec. p. 257), and an abstract of it
must be recorded in the public registry (art. 237, rec. p.
258). These provisions make the formation of a partner-
ship substantially like the launching of a corporation in
California.
But the Commercial Code also provides that merchants
need not enter into this formal partnership if they do not
wish to . (Art. 301, rec. p. 259). These are partnerships
(rec. p. 259, art. 302), and are called "accounts in partici-
pation," and may be by private contract, either in writing
or orally (Id. art. 302), the only disadvantage being that
none but the partner who conducted the negotiations can
sue upon the contract ; and, on the other hand, the creditor
can sue only the one in whose name the business is carried
on. (Rec. p. 260, art. 304). Ansel M. Easton's name did not
appear in the finn name of Schwartz, Lowe & Co. The firm
was originally composed of five partners (rec. p. 283),
70 Ansel M. Eastori, vs.
Speyer and the defendants and Lowe. They executed writ-
ten articles, which were never recorded. (Eec. p. 277, 278
and 279). In 1895, William Schwartz went to Costa Rica
and there bought out Speyer, and the business continued
by tacit understanding, without any new articles. That is,
the original firm was dissolved, and by oral understanding
a new one was created. Just the case provided for by art.
301-305 of the Commercial Code. ( Rec. p. 259 and 260. )
From this, it will be seen that defendants had a right
to have the jury say whether this was not an "account in
participation," by which Mr. Easton was not liable to
plaintiff, and whether in any event he was liable for more
than his proportion. AVe have not gone into a full dis-
cussion of Costa Rica laws, because they were excluded.
We have shown only enough to make it clear that the ex-
clusion of these laws was prejudicial error.
PLAINTIFF AFFIRMED THE CONTRACT.
Fifth Error. We complain of the refusal to charge
that when Plaintiff discovered the fraud perpetrated upon
it by Lowe in giving the order of October 1st, 1898 in
the name of the old firm it had a right to rescind; but
that by continuing to supply goods called for by that
order after full knowledge, it affirmed the entire contract
as one between it and Lowe alone, and not with the four
partners as it had at first supposed it to be. (See rec. p.
299, 300.)
The facts are briefly these:
After the dissolution (June 20th, 1898), Lowe, in the
old firm name, continued to correspond with Plaintiff, and
George Wostenholm & Son, Limited. 71
on October 1st, 1898, sent a letter referring to the firm
as if still existing, signed Schwartz, Lowe & Co., and as if
to emphasize the fact that no change had taken place,
added a personal postscript signed "L. Leon Lowe." In
this letter he enclosed an order for about $15,000 worth
of goods (rec. p. 125), composed largely of Morton's goods
(rec. bottom p. 126). In the letter enclosing the order
he also sent for Corbett's Worcestershire Salt Bread, also
for each month for six months 100 cases of <Tilbey's Sherry
Castle No. 1, Gilbey's Old Tom Gin 10 cases each month,
Scotch Whisky 5 cases each month and 100 to 150 bags
Patna rice each month (rec. p. 167).
There is no hint in this letter of any retirement of
Mr. Easton or any other change, and there never was any
such hint in any of his letters. Plaintiff was ignorant of
the change till it received the telegram on December 3rd,
1898. This stopped the perpetration of a further fraud
and also put Plaintiff upon inquiry. Then, and still more
clearly by the formal notification received on December
17th, 1898, Plaintiff learned that Lowe had been doing
business on his own account and had fraudulently used
the firm name in giving the order of October 1st, 1898.
They then had ///// knoirledye and could act intelligently.
That Lowe's suppression of the important fact that three
out of four of the partners had retired, was a fraud upon
Plaintiff scarcely needs authority; but we cite Civil Code
of Cal., 1565, 1567, 1568, 1572, sub. 1, 3 and 5. Also
Schiffcr vs. Dietz, 83 N. Y. 300, 307.
Plaintiff sued to rescind a purchase of real estate, on
the ground of the fraud of Defendant, in failing to dis-
72 Ansel M. Easton vs.
close to him that he was married, whereby a claim for
dower existed in his wife. Plaintiff had known Defendant
for some time, and knew of the death of his first wife. De-
fendant had frequently si)oken to Plaintiff about being
lonely. Thereafter Defendant was secretly married, and
later entered into the contract of sale, without disclosing
the second marriage to Plaintiff.
The Court says:
"The trial Judge found as a fact that the Defendant
knew that the Plaintiff believed him to be unmarried, and
that in suppressing the fact of his marriage he was guilty
of a wilful fraud. * * * We concur in the conclusion
of the trial court that this did not justify the Defendant
in omitting to disclose to the Plaintiff that a marriage
in form had been consumated, or relieve him from the
charge of fraud. He knew that the Plaintiff was dealing
with him upon the assumption that he was unmarried.
Even if the second marriage was void, or might for any
reason have been annulled, he was in duty bound to dis-
close to the Plaintiff the circumstances of the situa-
tion." ♦ * ♦
Although silence as to a material fact is not necessarily,
as a matter of law, equivalent to a false representation,
yet concealment or suppression by either party to a con-
tract of sale, with intent to deceive, of a material fact
which he is in good faith bound to disclose, is evidence of
and equivalent to a false representation.
Stewart vs. Wyoming Ranch Co., 128 U. S. 383, 388.
Now as to the remedy, the California Civil Code pro-
vides :
George Wostenholm & Son, Limited. 73
Sec. 1689. "A party to a contract may rescind the same
in the following cases only:
"1. If the consent of the party rescinding, or of any
party jointly contracting with him, was given by mistake,
or obtained through duress, menace, fraud or undue influ-
ence, exercised by or with the connivance of the party as to
whom he rescinds, or of any other party to the contract
jointly interested with such party." * * »
It is believed that a sound argument could be made upon
the basis of the telegram of December 2nd, 1898, from the
Crocker, Wool worth National Bank to Plaintiff (rec. p.
268 and 269), and the shipments of December 7th and
16th, 1898 ; but in order to avoid all question we select the
formal notification received December 17th, 1898, and the
shipment referred to in Plaintiff's letter of January 7th,
1899 ( rec. p. 212), in which they address Schwartz, Lowe
& Co., at San Jose de Costa Rica, although they then knew
it was Lowe alone, and send invoice and consular invoice
for fifty-seven packages of Gilbey's goods, all of which are
ordered in the letter of October 1st, 1898) rec. p. 166).
The exact date of the shipment is not given ; but an exam-
ination of previous letters discloses that it was usually
about a week before the invoices were sent, so that it is
clear that this large shipment was made t,fter December
17th, 1898, when the formal notice was received showing
that Lowe had acted alone, under the old name.
Now, what Plaintiff's rights and duties were, are shown
by the above code section and the following decisions:
Mudsill Mining Co. vs. Watrous, 61 F. R. 163, 186.
This was a case of an action by the vendee to rescind
74 Ansel M. Easton vs.
a contract of sale of a mine, on the ground of fraudulent
representations. The Court says :
"When a purchaser acquires knowledge that he has been
defrauded, he has an election of legal remedies. He may
keep the property and sue for damages, or repudiate the
contract and demand recission. These remedies are not
concurrent, but inconsistent, and the adoption of one of
necessity excludes the other. The rule is well settled in
equity that after knowledge of the fraud the party
must, within reasonable time, make an election as to
whether he will affirm the trade, notwithstanding the
fraud or offer to restore the property and demand the
return of his purchase mone^'. If, after the knowledge
of the facts which entitle him to rescind, he deals with the
property as owner, it is evidence of acquiescence and an
affirmance of the contract." Citing cases. The same rule
applies to a seller, and is the same at law as in equity. In
Cohb vs. Hatt field, 46 N. Y. 533, 536,
it is said : "He cannot be allowed to deal with the subject
matter of the contract, and afterwards disaffirm it. The
election is with the party defrauded to affirm or disaffirm
the contract, but he cannot do both." * * *
In
Schiffer vs. Diets, 83 N. Y. 300, 307 (supra),
the Court says :
"But a party entitled to rescind a contract for fraud
may deprive himself of this remedy by acquiescence; or
where the transaction is a sale of property, by his dealing
with the property as owner after the discovery of the
fraud. A party claiming to rescind a contract for fraud
George Wostenholm & Son, Limited. 75
must act promptly on discovery of the fraud, and restore,
or offer to restore, to the other party what he has received
under it. He cannot thereafter deal with the other party
on the fooiiny of an eivisting contract, or with the property
acquired under it as his own. He has an election of legal
remedies; to sue for damages, or to be reinstated in the
position in which he was before the contract was con-
summated. The remedies are not, however, concurrent,
but are inconsistent, and the adoption of one necessarily
excludes the other. So when he has made an election, he
must abide by it." (The italics are ours).
See also
Westerfeld vs. New York Life Ins. Co., 129 Cal.
68, and
Negley vs. Lindsay, 67 Pa. St. 217 ; 5 Am. Rep. 427,
431, Sharswood, J.
This is an action of debt against Negley, arising on a
purchase of land by Defendant from Plaintiff. The de-
fense was fraud and misrepresentation. The Court says :
(Page 431). "It is there said, that he who knowingly
* * * docs any positive act forgiving the fraud, or un-
duly delays claiming back his property, or giving up what
he received, aflfrms the validity of the contract; and de-
cisions in the courts of our sister States are cited in sup-
port of these instances. * « »
" 'Ratification,' says Chief Justice Lowrie, 'is, in gen-
eral, the adoption of a previously formed contract, not-
withstanding a view tbat rendered it relatively void; and
by the very nature of the act of ratification, confirmation,
or affirmance (all these terms are in use to express the
76 Ansel M. Easlon vs.
same thing), the party confirming becomes a party to the
contract, he that was not bound becomes bound by it, and
entitled to all the proper benefits of it ; he accepts the con-
sideration of the contract as a sufficient consideration for
adopting it, and usually this is quite enough to support
the ratification.' * « • B^t if it be merely against
conscience, then, if the party, being fully informed of all
the circumstances of it, and of the objections to it, in his
own words 'with his eyes open,' voluntarily confirms it,
he thereby bars himself of that relief which he might other-
Avise have had in equity."
The foregoing citations fully sustain the proposition
that when Plaintiff learned definitely on December 17th,
1898, of the fraud of Lowe in using the former firm name
for his own benefit, learned the true nature of the offer
to contract contained in the letter of October 1st, which
they had accepted under the false impression that the
name Schwartz, Lowe & Co., used by him meant tlie four
old partners ; they had a right.
First, to repudiate the contract, rescind it, demand the
return of the goods they had then supplied under the
order of October 1st, 1898, and hold all four partners for
what they could not get, or
Second, stand by the contract and affirm it; but neces-
sarily, as they were then acting with full knowledge that
Lowe had acted alone, and without the authority of his
former partners (C. C, 2462, supra), they affirmed it as
a contract with him alone. They were not bound, when
they learned the facts, to go on; but they could be bound
George Wostenhoim & Son, Limited. 77
by subsequent affirmance. Continued performance is the
strongest evidence of affirmance.
But Plaintiff could not do both. That is what it did.
It continued performance after full knowledge. It sent
the fifty-seven packages of Gilbey's goods, called for in
the fraudulent order. Then, after Lowe went to pieces,
it tried to go back to where it was on December 17th, 1898,
and hold all four of the partners, just as if it had stopped
short then and rescinded as soon as it learned the facts.
That it cannot do this is shown by the following de-
cisions :
^Columhia Mfg. Co. vs. Hastings, 121 Fed. Rep.
328, 331, C. C. A.
The manufacturing company sold some tubing for
handle bars of bicycles through an agent, who was also in-
terested in the business of the purchasers.
The lower Court instructed the jurj-, that if the manu-
facturing company did not know the connection between
the agent and the purchaser, when the orders were ac-
cepted, it could rescind the contract upon discovering that
fact, unless it subsequently ratified it, but, that upon dis-
covery, it became the duty of the manufacturing company
to rescind within a reasonable time. That, if after know-
ing the connection between the agent and the purchaser,
the defendant recognized the contract as binding and
acted upon it, it waived any objections thereto, and the
jury should find the contract good. This was a case in
which ratification added a party to the contract; this in-
struction was obviously correct. The Court says :
78 Ansel M. Easton vs.
"The evidence showed that after know ledge of Hastings
& Co.'s relations to the parties, tJie Defendant went on fil-
ling orders, and nowhere made any sign of a wish to
rescind or abandon the contract." * * * (Italics are
ours ) .
The only difference between that case and ours, is that
in our case the ratification left Mr. Easton, et als. out.
Katification under such circumstances is in effect the
making of a neir contract. It accepts the part perform-
ance of the fraudulent contract; accepts the parties as
then known, and directs the continued execution of the
contract on that basis.
Another instructive case is
Sanitary District vs. Richer, 91 Fed. Rep. 833, 844,
0. C. A.
Simon vs. Goodyear, etc. Co., 105 Fed. Eep. 573,
579.
Plaintiff, Simon, was a junk dealer, and had been in the
habit of selling waste rubber to various companies engaged
in the manufacture of rubber over-shoes. Rodenbach,
agent of Defendant, same to Simon and told him the rival
company was going out of business, that the price of rub-
ber would go down, but that he wanted to give him a
chance to make some money. He thereby induced Simon
to take a large contract for the delivery of waste rubber.
As a matter of fact, the other companies were not going
out of business, the representation was false; the price of
waste rubber rose, so that Simon lost money instead of
making it.
George Wostenholm & Son, Limited. 79
Simon made one small delivery (page 577), and, before
he had made any more, learned the falsity of the repre-
sentation. He sought,, by negotiations to secure a modifi-
cation of his contract, which was refused, and finally gave
notice that he would perform his contract and hold tlie
Defendants for damages for the deceit.
The Court says:
(Page 579) * * * -if oue, after full knowledge
of the fraud and deceit by which he has been
induced to malie a sale of property, goes forward
and executes it notwithstanding such fraud, the damage
which he thereby sustains is voluntarily incurred. * *
* * If the fraud be discovered while the contract is
wholly executory, the party defrauded has the option of
going on with it or not, as he chooses. If he executes it,
the loss happens from such voluntary execution, and he
cannot recover for a loss which he deliberately elected to
incur. Kingman vs. Stoddard, 29 C. C. A. 413; 85 Fed.
740, and other cases. * * ♦ The Plaintiff was under
no legal compulsion to go on. What he subsequently did
was in execution of the contract. The deliberate execu-
tion of it was an adoption of it with knowledge of the
deceit, and in contradiction of his purpose to sue for de-
ceit practiced in its procurement. He cannot save his
right to sue for the fraud by notice that he will do so and
performs and exact performance with full knowledge of
the fraud which rendered performance non-obligaiory.
Neither can the action he saved, after such voluntary per-
formance, to the extent of the damage sustained hy partial
performance before full knowledge of the deceit. His duty
80 Ansel M. Easton vs.
w&s 'to stop short or go on with it,' to use the expression
of Judge Bronson in Railroad Co. vs. Row, 24 Wend. 74.
The execution of the contract, so far as it was executory
after full knowledge of the fraud, is equivalent to an adop-
tion of the contract with knowledge of all the facts."
(Italics are ours).
Here Simon was held to the price as fixed, because he
ratified, because he continued performance after knowl-
edge.
Kingman vs. Stoddard, 85 Fed. Rep. 740, 745, C.
C. A.
Plaintiff entered into a contract with the Defendants to
purchase stock in a third corporation, to take up some of
its notes, and in return to have the exclusive sale of de-
fendants' goods. While the contract was still executory,
except for the transfer of the stock and payment of a
small part of the consideration. Plaintiff discovered that
the assets of the corporation had been greatly over-stated
in the negotiations, but thereafter continued in possession,
made further payments and took up the notes of Defend-
ants, without claiming fraud. It also performed other
acts under the contract.
Judgment went for Defendants in the lower court, and
Plaintiff appealed. Judge Jenkins delivered the opinion
of the Court. On page 745 he says:
"But we also understand the rule to be that if he be-
come advised of the fraud perpetrated upon him in season
to recede from his engagement, and yet, with knowledge of
the falsity of the representations which had induced the
George Wostenholm & Son^ Limited. 81
contract, elects to perform, and clearly manifests his in-
tention to abide by the contract, he condones the fraud
and is without remedy. The contract, being against con-
science because of the fraud, is not obligatory upon him,
if he shall so elect; but if, when fully informed of the
fraud, he voluntarily confirms, ratifies and performs and
exacts performance of the contract, he condones the fraud,
and such ratification, like the ratification of the un-
authorized act of an agent, relates to the time of the con-
tract, confirming it from its date and purging it of fraud.
With respect to an executory contract, one may not, after
knowledge of the fraud, continue to carry it out, exacting
performance from the other party to it, receive its benefits,
and still pursue an action for deceit; and this because con-
tinued execution with knowledge of the fraud signifies the
ratification of a contract voidable for fraud, and condones
the fraud. * * • with respect to an executory con-
tract voidable by reason of fraud, the defrauded party,
with knowledge of the deceit practiced upon him, may not
play fast and loose. He cannot approbate and reprobate.
He must deal with the contract and with the wrong-doer
at arm's length. He may not, with knowledge of the
fraud, speculate upon the advantages or disadvantages of
the contract, receiving its benefits, and at the same time
repudiate its obligations. * * * A subsequent prom-
ise {or ratification), with full knowledge of the facts, is
certainly equivalent to an original promise made under
similar circumstances, and no one acting uifh full knowl-
edge can justly say that he has been deceived by false re-
presentations. 'Volenti non fit injuria.' " • • »
82 Ansel M. Easton vs.
(Page 749). "The thought is well expressed in Sclway
vs. Fogg, 5 Mees. & W. 83-85, where Lord Abinger, C. B.,
said: 'Secondly, it was clear upon the evidence that the
PlaintijEf had full knowledge of all that constituted the
fraud in this case either before or during the work, and
as soon as he knew it, he should have discontinued the
work and repudiated the contract, or he must be bound
hy its terms.' And Parke, B., said: 'I also think that
upon discovering the fraud (unless he meant to proceed
according to the terms of the contract), the plaintiff should
immediately have declared off, and sought compensation
for the by-gone time in an action for deceit. Not doing this,
but continuing the work, as he has done, he is bound by
the express terms of the contract, and if he fail to recover
on that, he cannot recover at all.' And why not? Fraud
is indeed odious, and should be condemned; but why
should the defrauded party, with knowledge of the wrong
perpetrated upon him, be permitted to speculate upon the
wrong, enhancing the injury if the speculation prove dis-
astrous?" (Italics are ours).
The party ratifying is then bound by the express terms
of the contract. One of the terms as known to Plaintiff
after December 17th, 1898, was that Lowe acted alone in
giving the order of October 1st, 1898. Their ratification,
therefore, accepted him as the sole contracting party.
See also
Hargadine, etc. Co. vs. Swofford, etc. Co., 63 Pac.
281, 284, 1st column (Kansas), and
George Wostenholm & Son, Limited. 83
Stephenson vs. Allison, 26 South. 290, 292, 1st
column,
wlu're the Court says:
"No proposition is better settled than if the party de-
frauded would disaflSrm the contract, he must do so at
the earliest practical moment after discovery of the cheat.
That is the time to make his election, and it must be done
promptly and unreservedly. He must not hesitate; nor
can he be allowed to deal with the subject matter of the
contract and afterwards rescind. The election is with
him. He may aflSrm or disaffirm the contract, but he can-
not do both ; and, if he concludes to abide by it, as upon the
whole advantageous, he shall not afterwards be permitted
to question its validity."
See also
Evans vs. Duke, 140 Cal. 22, 26.
The party must act promptly. Promptness is a relative
term. If there is no likelihood of a change for the worse
in the situation of third parties, the time may be long;
but when others are likelj' to be affected, the decision must
be quickly made.
Plaintiff knew that goods dotted England and the sea.
The promptness with which Mr. Easton had the bank tele-
graph Plaintiff showed them that he was ignorant of the
state of affairs. They knew that any goods going into
the hands of Lowe were lost. These facts called for quick
action, if they wished to rescind. In
Pence vs. Langdon^ 99 U. S. 578, 581,
84 Ansel M. Easton vs.
The Court says :
"Acquiescence and waiver are always questions of fact.
* * * He may not willfully shut his eyes to what he
might readily and ought to have known. When fully ad-
vised, he must decide and act with reasonable dispatch.
He cannot rest until the rights of third persons are
changed."
As a matter of fact they never did express any desire
to rescind, even to Lowe, or even inform Mr. Easton that
any such fraud had been committed, or give him any
chance to protect himself.
Partners are really nothing more than general agents
for each other. The same rules as to liability to third
persons govern in both cases.
Suppose Lowe had been the agent instead of the partner
of Mr. Easton, and had been in the habit of signing "Ansel
M. Easton, by L. L. Lowe, agent." Suppose the agency
had been revoked on June 20th, 1898, and that on October
1st, 1898, Lowe used the name of his principal in giving
a new order. Suppose, after the Plaintiff discovered that
the authority had been revoked, it continued to deliver
to the agent the goods called for by the order. Surely
Plaintiff would be held to have ratified the contract as
one with the agent alone.
George Wostenholm & Son, Limited. 86
A glimpse at what we believe to be the real facts will
show why Plaintiff did not rescind. J. C. Wing was a
managing director of Plaintiff in 1898 and 1899 (rec. p.
78) ; and Thomas Wing, aged about thirty, was his son,
and the accredited traveler of Plaintiff, authorized to take
orders, receive payments, and malce any needful business
arrangements (rec. p. 118).
Young Wing went to Costa Rica, and while there took
the order of March 30th, 1898. He was given a glorious
time by Lowe. He ran out of money, and Lowe lent him
more (£57., rec. p. 112). He was so delighted with Lowe
that he wrote an enthusiastic letter about him to William
Schwartz on June 22nd, 1898, after his return home (rec.
p. 159). An inspection of the letters from page 159 to
page 212 of the record will show that the transaction of
the business with Schwartz, Lowe & Co. was mostly in
the hands of the young man. It was he who sent the
bill of lading in the letter of December 3rd, 1898, which
informed Lowe of the receipt of the telegram sent at the
request of Mr. Easton. He sent the consular and ordinary
invoices in the letter of January 7th, 1899 (rec. p. 212).
His father was probably influenced by the son's strong
predilection for Lowe. Hence the expressions of regard
for Lowe and desire to continue business, even after re-
ceipt of the telegram (rec. p. 188), and the notification
received on December 17th, 1898 (rec. p. 199), where the
father says he has a high "respect for your house and
believe you to be perfectly sound," etc., in a letter which
informs Lowe of the notification.
So Plaintiff was allowed to go on and knowingly con-
86 Ansel M. Easton vs.
tinue relations Avith Lowe alone. This because 3t)ung Wing
believed in Lowe, and his father took his word for it.
They did not bother their heads about Mr. Easton until
April 26th, 1899, when Lowe was getting shaky. Then
they made a formal demand on him and the two Schwartzes
(rec. p. 219 and 224).
The bubble burst in April, 1899. Lowe failed badly.
Young Wing's judgment, and that of his father was dis-
credited. And now. Wing senior is a gentleman of leisure
(rec. p. 78), and his son is a wood turner (rec. p. 120).
Then came the attempt to hold Mr. Easton for the con-
sequences of their misplaced confidence in Lowe.
To Summarize. Continued performance after knowl-
edge on December 17th, ratified the contract. Kingman
vs. Stoddard, 85 Fed. 740, 745 [supra). Such ratification
accepted "the consideration of the contract as a sufficient
consideration." Negley vs. Lindsay, 67 Pa. St. 217 ; 5 Am.
Rep. 427,431 (supra).
The consideration moving toward Plaintiff upon the
contract of October 1st, 1898, was the promise of the pur-
chaser to pay. That purchaser as they then knew was
Lowe alone.
Hence the ratification was of a contract with Lowe as
sole debtor. Plaintiff having so ratified that contract
"must be bound by its terms," Kingman vs. Stoddard,
(supra), page 749.
One of its then known terms was that Lowe was sole
debtor (Id).
George Wostenholm & Son, Limited. 87
Being so "bound by the express terms of the contract,"
if they "fail to recover on that he (they) cannot recover
at all," Id.
Obviously Plaintiff cannot recover against Easton on
the ratified contract, because he is not a party to it.
We think these facts show a clear intention, with full
knowledge of the facts to affirm the contract of October
1st, 1898, and take Lowe as the sole debtor as to that and
all future business.
Contradictory Instructions.
Sixth, Seventh and Eighth Errors. The portions of
the Charge of the Court which are contradictory to each
other are given in the foregoing part of this brief, and are
also found in the Assignment of Errors, at pages 390 to
395 of the record. All of the matter in both columns was
given hy the Court.
The Sixth Error refers to the charge as to diligence,
commencing at page 390 of the record, which perusal by
the Court will demonstrate, is entirely contradictory. If
one of the propositions be correct, the other must be wrong.
For instance, the jury are told (p. 390, right-hand
column), that if the cablegram of December 2nd was
sufficiently definite to put the Plaintiff upon inquiry, that
it was deemed to know the date of the dissolution, and
that such goods as could have been withheld by reasonable
diligence, cannot be recovered for in this action. They
are specifically referred to shipments of December 2nd,
7th and 16th, 1898.
88 Ansel M. Easton vs.
On the same page, left-hand column, they are told to
find whether Plaintiff acted as purchasing agent, and
that if they so find, to further find whether they actually
purchased the goods themselves, before the learning of
the retirement of Mr. Easton. That if they find these two
things, then Mr. Easton is liable, irrespective of the time
when the goods were shipped.
Here, then, are two antagonistic sets of facts. Under
a certain state of facts, the Plaintiflf cannot recover; un-
der the other state of facts, it must recover, and that
whether the goods could have been withheld by diligence,
or not.
Again, we have the foregoing instruction as to diligence,
by which the jury are asked whether it would have been
an act of reasonable diligence to have caused the deten-
tion of these goods pending inquiry, and the shipment of
December 2nd, 1898, is singled out and submitted to them.
A little further on (rec. p. 391), left-hand column,
second paragraph), they are told that the title passed
immediately upon the shipment of the goods, irrespective
of the time the bill of lading was sent off — the plain in-
ference being that Easton was liable.
There is no contention that the shipment of December
2nd was not sent off before the cable was received; hence,
this was a peremptory instruction that the plaintiff must
recover as to that shipment, the very shipment as to which
the Court had asked the opinion of the jury, whether
Plaintiff should have endeavored to re-take such goods as
it could re-take.
Again we have this same instruction before the jury,
George Wostenholm & Son, Limited. 89
asking them whether the Plaintiff had used ordinary dili-
gence in protecting itself; as against which is the per-
emptory charge on page 391 of the record, left-hand
column, that it was under no legal liability to endeavor
to re-take any of the goods sold and shipped before learn-
ing of the dissolution.
The Court had before referred to the retirement of Mr.
Easton, so that nothing else can be referred to by this lan-
guage, except actual notice of the dissolution of the en-
tire partnership, which was received on December 17th,
1898. It was, therefore, a peremptory instruction that
Plaintiff was under no legal obligation to endeavor to re-
take any goods which had left its possession prior to
December 17th, 1898. It eliminated all questions of
reasonable diligence, all questions of the Plaintiff's duty
to minimize its damages, and was a flat instruction to find
in favor of Plaintiff for its entire demand, which the
jury did in fact except as to some item, which they de-
ducted. Which one it is impossible to say.
It ought not to be necessary to cite cases to the effect
that a party is entitled to have the instructions to the
jury clear and consistent with themselves. If authority be
needed upon this point, we refer to the cases of
McCreey vs. Everding, 44 Cal. 246, 250 ;
Estate Cunningham, 52 Cal. 465;
Harrison vs. S. V. & G. M. Co., 65 Cal. 376;
Sappenficld vs. R. R., 91 Cal. 48, 54 ;
People vs. Marshall, 112 Cal. 422;
Livingston vs. Ins. Co., 7 Cranch, 506, 544;
Bank vs. Bank, 6 How. 212, 226.
90 Ansel M. Easton vs.
The Seventh Error relates to the charge as to notice
of dissolution (rec. p. 392). It contains a confusion of
ideas as to
Constructive notice,
Personal notice,
Actual notice, and
Actual knowledge.
It ctofuses the last two. In fact makes them synony-
mous. It states that the creditor must have actual knowl-
edge (rec. p. 393, line 9, left-hand column), of dissolution.
If so, Plaintiff has not yet been notified. Actual knowl-
edge is, those things which transpire in one's own pres-
ence. Code Civil Proc. Cal., § 1845.
We believe the»judgment should be reversed, and have
set forth our reasons at length. In fact, this brief has
grown to be so long that we forbear to discuss the other
assignments of error, except to say that they were all
made in good faith and in the belief that they were well
taken.
We refer especially to
Eighth Error, Assignment No. 4, p. 356, No. 21, p. 375
and No. 22, p. 376.
We think the objection to the admission of these exhibits
should have been sustained, and, as it was not, that the
instruction should have been given. The presumption of
the receipt of a letter does not arise until it shall have
George Wostenholm & Son, Limited. 91
been shown that it was properly directed, and deposited iUi
the postoflSce.
The cross-examination upon this subject was very ke^n.
(See cross-examination of J. C. Wing and Thomas Wing,
pages 113 and 114, and 123 of the record. No register of
letters or copy was attached to the depositions [rec. p.
132] ). This clearly does not show mailing, and does not
come up to Code Civil Procedure, CaL, Sec. 1963, sub. 24,
which merely states the general rule.
Had the witnesses not had a full opportunity to give
the testimony, there might have been some reason for
leniency, biit, as they had, and did not produce it, the
strict rule should be applied.
ACTS OF WILLIAM SCHWARTZ AFTER
DISSOLUTION.
Ninth Error,, Assignment No. 6, p. 375. Clearly, the
acts of William Schwartz, after dissolution, which were
not brought to the knowledge of either Mr. Easton or
Plaintiff were irrelevant, and the admission of the evi-
dence prejudical. This is especially true, as it was stipu-
lated, that the firm was dissolved on June 20th, 1898,
(rec. p. 278).
It was specifically objected, that it was not shown,
that these acts were brought to the knowledge of Plaintiff,
and that it therefore had not relied upon them, hence, it
cannot be seen what purpose this evidence could have,
other than to prejudice the jury against Defendants. It
could not be used to prove a continuance of partnership,
92 Ansel M. Easton vs.
because of the stipulation to the contrary. It was evi-
dently done secretly, as the evidence shows, and as it was
not brought to the knowledge of Plaintiff, they were not
prejudiced or misled.
No act of any of the partners, after dissolution, can
operate to the prejudice of any of the others.
Tenth Error, Assignment No. 28, p. 380. As if to em-
phasize the error in admitting the evidence of William
Schwartz, as to acts after dissolution, the Court charged,
as to the liability of one permitting himself to be held out
as a partner. There was no evidence that either Mr.
Easton or Mr. Samuel Schwartz had done this. The
partnership was conceded to be an actual one up to June
20th, 1898. It was stipulated, that it was dissolved upon
that date. There being an absence as to any evidence of
such acts after that date, that portion of the charge is
manifestly erroneous.
Eleventh Error. The laws of Costa Eica were ex-
cluded from consideration. As all the acts involved in
this action were performed in Costa Rica, by L. Leon
Lowe, and not by the San Francisco partners, there was
a total lack of evidence, upon the question as to what
power Lowe had to bind anyone, except himself. The laws
of a country are the frame-work upon Avhich every con-
tract is built, and without which, it is meaningless. As
Lowe was acting for others, these laws were his power of
attorney, so to speak — a link in the chain is therefore
missing.
George Wostenholm & Son, Limited. 93
We understand, that the total lack of evidence on a par-
ticular point may be assigned as error.
For all of the above errors, it is urged that the judgment
should be reversed.
Respectfully submitted,
Geo. C. Saegent and
Morrison & Cope,
Attorneys for Ansel M. Easton,
Plaintiff in error.
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