94 F. 1022 -

1022

:PER J}oW:JIlresented, it is'co:Qceded, are concluded ,1lPona priot writ of error in the case. i :: See 60 U. S. hy the A,pp. 288,,93 Fed.:l48. !.I-'l)ejudgmentis, therefore affirmed. ,The clerk Is directed to withhold mandate until the further, order of ,the, court.

I(NOWLES LOOM 'WORKS v. RYLE. (Circuit Court, E. D. Pennsylvania. · July 10, 1899.) Motion by Defendant for Judgment Notwithstanding the Verdict. J. Martin Rommel and J. G, Johnson; f{)r plaintiff. Hampton I·. Carson and Shiland & Honeyman, for defendant. McPHERSON, District,.'f,qdge. T"'911lJestioliS are raised, by this motion: I., the defendant a bonl!- lidepurchaSer Jor the, silk company's bonds, so that he is at libertr to questioilthe legal validity of the so-called "lease" made by the plaiiltiff' to the silk company? There is no dispute upon this point. The question must be answered in the affirmative. ' 2. Was the contract between the plaJiltiff and the silk company a bailment or a conditional sale? To this question r think the anllwermust be that the contract was a conditional sale; the consequence being that it cannot be enforced against the defendant. 'It is unnecessary to discuss the testimony upon this point. I have read tbe notes of both trials, and see nOessentlal difference between what appeared then and what appears now. There was a larger volume of testimony upon the second trial, but there is nothing to take the case out of the decision' of the circuit court of appeals. 31 C. C. A. 340, 87 Fed. 976. letter· of Mar,ch 16th sUl;nmed up the preliminary negotiations between the pafties, and constituted, as the court of appeals has said, "t,lle original contract relatiI/g to this machinery." The parties may now insist that the contract was verbal, but, in view of the uncontradicted testimony, I am of a different opinion. With respect to the paper signed upon July 12, 1895, I do not think that the testimony taken upon the second trial in any degree changes the situation as it was presented to the court of appeals. It is still necessary to say, as the court then said: "Regarding the two instruments of March 16th and July 12th as partsot one and the same transaction,-which is the most favorable view that cap. be,taken for the Knowles Looni'Works;-the conclusion is irresistible, that the transaction is not, a bailment, but a I'llleof the ,machinery, with the lease as security for the price." Of cOllrse, if the above, conclusions are correct, the plaintiff's argument that the lo<)ms were not tl.'xtllres, because the partiest()the'eontract did not intend them to be fixtures, neeq.not be If the loPtAs were ,sold, leased, the,plaintiff had' no further interest in them, anq.'has no standing to .insist now that they did not become fixtures. We direct'judgment be ,entered for the reserved point notwithstanding the verdict., Excepti0p: to the plaintitr.

to

MORGAN et aI. v. RUBBER MFG. CO. (Circuit Court, S. D. New York. June 26, 1899.) Motion to Punish for Contempt. D. W. Cooper, for the motion. Edward P. Lyon, opposed. -, LACOMBE, Circuit Judge. Neither the decree nor the injunction contain any reservation' 'to defendant of the right to 'sen any of the old stock on hand. Upon the record, then;' defendant is guilty of contempt. It is contel'lded in its behalf that ,there was at the tilDe of the entry of the bOllie verbal agreement to allow It to dispose of the few infringing articles It then possessed; This contention is disputed, but apparently defendant's officers believed such agreement was made. A nominal fine of $25 seems sufficient penalty, under these circumstances, for disobedience of the injunction.

THE PAVONIA. GEORGE et al. v. CUNARD S. S. CO. (Circuit Court of Appeals, First Circuit. June 13, 1899.) No. 106. Appeal from the District Court of the United States for the District of Massachusetts. Charles T. Rus-

MEMORANDUM DECISIONS.

1023

sell, William E. Russell, and Arthur H. Russell, for appellants. George Putnam and Thomas Russell, for appellee. Dismissed, without costs, pursuant to stipulation of parties. PATCH MFG. CO. v. et al. (Circuit Court, E. D. Pennsylvania. June 30, 1899.) Motion for New 'l'rial. Candor & Munson, for plaintiff. James M. Beck, for defendant. McPHERSON, District Judge. I have considered all the reasons for a new trial that were pressed upon the argument of this motion, but they do not convince me that another trial should be had. With reference to my apparent failure to say to the jury that the foundations were to be put up according to the plaintiff's plans, I think I need only say that the point does not seem of great importance; but, if it is thought worthy of serious attention, it is enough to add that the jury had just heard the defendants' argument, in which this matter was urged upon them, and that the contract was taken out by the jury, and was, no doubt, read and considered. I have a distinct recollection, also, of having mentioned this fact to the jury, although the stenographer's notes do not show it. Moreover, the amount of the verdict shows conclusively that the machinery had been accepted by the defendants, and therefore it is less important to weigh scrupulously other matters complained of. There was posi· tive evidence upon both sides of this question, and the verdict has abundant support. A new trial is refused, and judgment is directed upon the verdict.

SARRAZIN v. PRESTON et al. (Circuit Court of Appeals, Fifth Circuit. June 1, 1899.)
TRADE-MARKS-TRANSFER-EFFECT OF ASSIGNMENT IN INSOLVENCY.

In Error to the Circuit Court of the United States for the Eastern District of Louisiana. Before PARDEE, McCORMICK, and SHELBY, Circuit Judges. PER For the reasons given in Sarrazin v. Tobacco Co. (recently decided) 93 Fed. 624, the judgment of the circuiil court is affirmed.

SAVINGS BANK OF EAST SAGINAW v. HOWRY et al. (Circuit Court of Appeals, First Circuit. June 7, 1899.) No. 274. Appeal from the District Court of the United States for the District of Massachusetts. Charles P. Searle, for appellant. William C. Wait, for appellees. Dismissed for failure to print record. UNITED STATES v. PING YIK. (District Court, N. D. New York. June 14, 1899.) Wesley C. Dudley, Asst. U. S. Atty. Richard Crowley, for defendCOXE, District Judge. Although there is a difference in some particulars between this and the preceding case (94 Fed. 824), the facts are so nearly similar that I think an order of discharge should be entered.
END OF CASES IN VOL.

ant.

94.