21 F.(2d) 999 impliedly overruled by the later cases of National Bank v. Ins. Co., 104 U. S. 54, 26 L. Ed. 693 and Union Stockyards Nat. Bank v. Gillespie, 137 U. S. 411, 11 S. Ct. 118, 34 L. Ed. 724, in each of which the bank was held liable on the ground that it had notice of the beneficial ownership of funds on deposit. The second Bank of the Metropolis Case lays down three rules as to the liability of banks to beneficial owners of funds on deposit. Under the first rule, notice to the bank of the trust character of the funds is sufficient to defeat its claim of lien. Under the second rule, if without such notice the bank has changed its position to its injury after the making of the deposit, it is entitled to assert its lien. Under the third rule, if the bank has no such notice, and has not changed its position, it is not entitled to assert its lien. It is only in the absence of notice that the bank can rely upon either the second or the third rule. Under either of these three rules it becomes necessary to determine whether or not there was notice to the bank. If there was, that ends the inquiry, and there is no necessity to go further and determine whether or not the bank has changed its position to its injury. We are therefore unable to agree to the argument that the Bank of the Metropolis Case has been impliedly overruled by the later decisions of the Supreme Court relied on by appellant. In each of those later cases, it having been decided that the bank had notice, the effect of lack of notice did not arise and was not considered. The judgment is affirmed. Bankruptcy 20 (2)-Refusal to require state court receiver to surrender to bankruptcy trustee property covered by liens to its full value held proper. Where the only assets of value in voluntary bankrupt's estate were contracts for purchase of building lots, to which vendors retained title to secure purchase price and advances for buildings constructed thereon by bankrupt, and sale value of property did not exceed secured debts, including purchase price, advances, and mechanics' liens, and materialmen sued in state court, alleging that sale of lots to bankrupt was fraudulent scheme to have purchase-money claims and advances declared superior to materialman's liens, held, that bankruptcy court prop erly refused to require state court's receiver to turn property over to trustee, leaving mechanics' lienors and vendors, who were real parties in interest, to contest validity and priority of liens in state court. Appeals from the District Court of the United States for the Northern District of Georgia; Samuel H. Sibley, Judge. In the matter of the bankruptcy of E. R. Gallimore; Clarence H. Calhoun, trustee. From an order sustaining the opposition of the Deckner-Willingham Lumber Company and others to an application by the trustee for an order requiring a state court receiver to turn over certain property (16 F.[2d] 800), the trustee appeals. This appeal was consolidated with an appeal taken by the Atlanta Flour & Grain Company and others in an equity action by them against the Deckner-Willingham Lumber Company and others. Affirmed. William J. Davis, Jr., and A. S. Grove, both of Atlanta, Ga., for appellants. Pearce Matthews, Grover Middlebrooks, Augustine Sams, and Geo. B. Rush, all of Atlanta, Ga. (Geo. M. Wilson and Bryan & Middlebrooks, all of Atlanta, Ga., on the brief), for appellees. Before WALKER, BRYAN, and FOSTER, Circuit Judges. BRYAN, Circuit Judge. Several lots of improved real estate are claimed adversely by the trustee in bankruptcy of the estate of E. R. Gallimore, bankrupt, and by a receiver of a state court. The District Judge refused to interfere with the possession claimed by the receiver, and this appeal is taken by the trustee and some of the secured creditors. During the year 1926 Gallimore entered into a contract to purchase the lots in question from the owners, H. H. Turner and L. L. Jones. When the contracts were entered into the lots were unimproved, and Turner and Jones agreed to advance $2,500 for the purpose of building a house on each lot. GalliTurner and Jones retained title to secure the more paid no part of the purchase price, and purchase price and the amounts advanced for improvements. These contracts were not executed, so as to be admissible to record, and were not recorded. Under them Gallimore became indebted to Turner and Jones in the sum of approximately $85,000, none of which was paid. In his building operations he purchased lumber and other material, and became indebted to materialmen in the further sum of approximately $42,000, thus mak ing a total indebtedness of about $127,000. These contracts constitute the entire bankrupt estate which is of any value. Gallimore's other debts amounted to $657, of which $500 was secured; so that he owed only $157 of unsecured debts. With his affairs in this condition, on August 10, 1926, Gallimore filed his voluntary petition in bankruptcy, and was adjudged a bankrupt on the following day. A trustee was not elected until October, but in the meantime the materialmen had filed suits in a state court to enforce their liens, and charged that Gallimore was nothing more than the agent of Turner and Jones, and was only in possession for them in pursuance of a fraudulent scheme to have the claims for purchase money and advances for improvements declared to be superior to the liens of the materialmen. It was in these suits that the state court appointed a receiver, who had taken possession at the time the trustee in bankruptcy was appointed. Evidence was taken by the District Judge sitting in bankruptcy, from which it appears that the lots in their improved condition are not worth more than the amounts owing on purchase price, advances for improvements, and materials. The District Judge held that, although exclusive jurisdiction of the bankruptcy court prevailed over the jurisdiction of the state court, there was in reality no benefit to be derived by taking possession of the lots away from the receiver of the state court. We are of opinion that the learned district judge was right in this conclusion. The contest is really between Turner and Jones, on the one hand, and the materialmen, on the other. The bankrupt has no interest in the outcome of that contest. If he was only the agent of Turner and Jones, he does not owe anything on the lots or for material. If the contracts are valid, the property he purchased is not worth more than the secured debts against it, and will be taken from him to satisfy the liens. In either event the trustee, as representative of the small claims of unsecured creditors, could not acquire anything of value for the bankrupt estate. The District Judge was justified in refusing to take jurisdiction, because the lots were so burdened that there would be no net value left after the liens were paid off. There being only $157 at best for distribution among the unsecured creditors, the court in its discretion was not obliged to involve the trustee in the payment or assumption of liens amounting to $127,000. 2 Collier on Bankruptcy (13th Ed.) 1738. There being noth ing of value to the bankrupt estate on the showing made before the District Judge, it was not error to leave the real parties at interest to contest the validity and priority of their liens before the state court. The decree is affirmed. AKIN v. CHICAGO & N. W. RY. CO. Circuit Court of Appeals, Eighth Circuit. October 17, 1927. 1. Carriers No. 7506. 290(1)-Railroad held, as matter of law, not liable for passenger's injury, due to ice and wire on platform of coach, where no lack of care was shown. for personal injury of passenger, due to ice Railroad held, as matter of law, not liable and wire on platform of passenger coach, where there was no proof that ice or wire came there through lack of due care of railroad, or was allowed to remain through lack of such care. 2. Carriers 290(1)-Injured passenger, suing railroad, must show railroad's knowledge of dangerous condition of coach platform for sufficient time to remove it. Passenger of railroad train, injured in fall caused by ice on platform of passenger coach, in order to recover from railroad, must show that condition of platform was known, or should, in exercise of reasonable care, have been known, to defendant for sufficient length of time before accident to enable it, in exercise of reasonable care, to remove it. In Error to the District Court of the Unit ed States for the District of Minnesota; John B. Sanborn, Judge. Action by Charles D. Akin against the Chicago & Northwestern Railway Company. Judgment for defendant on directed verdict, and plaintiff brings error. Affirmed. F. D. Larrabee, of Minneapolis, Minn. (Tautges & Wilder, of Minneapolis, Minn., on the brief), for plaintiff in error. Leslie L. Brown, of Winona, Minn. (Stephen H. Somsen and Abbott W. Sawyer, both of Winona, Minn., on the brief), for defendant in error. Before STONE and VAN VALKENBURGH, Circuit Judges, and POLLOCK, District Judge. STONE, Circuit Judge. From a verdict directed against the plaintiff in a personal injury action, this writ of error is prosecuted. This accident is alleged, in the amended petition, to have resulted from a fall caused by ice and a piece of wire upon the platform of one of defendant's passenger cars. The 21 F.(2d) 1001 controlling question on this review is whether the evidence was sufficient to carry the case to the jury. If it was, the trial court erred in directing a verdict for defendant. All But, even though it had been there some time, there is no proof that it was discoverable by defendant in the exercise of due care. witnesses who saw this ice agree that it was covered by a slight layer of fine snow which had sifted into the vestibule and that it was visible only where uncovered by footsteps which had disturbed the snow. It was necessary for plaintiff to show that such condition was known or should, in the exercise of reasonable care, have been known to defendant for a sufficient length of time before the accident to enable it, in the exercise of reasonable care, to remove it. Not only has plaintiff failed to show this latter fact, but all of the evidence, including his own, is strongly to the effect that the presence of the ice was so concealed by a thin coating of snow, that it was not observable. Plaintiff testifies that he had boarded the train at the last stop before the one where the accident happened; had passed over this very spot without observing the ice; that others had preceded him when he boarded the train and when he left it at the time of the accident and, apparently, no one had been conscious of the ice being there. There is no reason to suppose that the trainmen were apprised of the existence of the ice and there is no presumption that they should have been and their testimony is that there was no ice. The view of the testimony most favorable to plaintiff may be summarized as follows: At about 9 o'clock on a bright, cold morning in January, plaintiff boarded one of defendant's trains at Waseca, Minnesota, to go to the next station, Janesville, which was about 12 miles distant. There had been a light snow the preceding night. Plaintiff went up the front steps on the north side of the day coach and crossed through the closed vestibule into the smoking car just ahead. He did this without hesitation and noticed nothing out of the ordinary. There was a "little snow" on the steps and platform. "I suppose it was sucked up in there." At Janesville, he retraced his steps to leave the train by the same steps he had used on entrance. Several other passengers preceded him in entire safety. Just as he was passing through the vestibule between the smoker and the day ear and when he had reached the front edge of the day coach platform one of his feet slipped suddenly a few inches into a piece of wire lying there, resulting in an entanglement of his feet and his being heavily thrown with consequent injury. Until he slipped, he had noticed nothing out of the ordinary about the platform floor. When he slipped he looked down instinctively and saw what looked like slippery ice and snow where he had slipped. This slippery surface had been concealed by the light covering of snow which he had before noticed. Right after the accident, a passenger who was boarding the same train platform, saw ice on the floor UNITED STATES v. BEAVER IRR. LAND of the vestibule where footsteps had passed through the thin coating of snow. Also, a piece of wire was found on the platform after the accident. [1, 2] The theory of plaintiff's case is that the ice caused his foot to slip into the wire and both feet to become abruptly tangled therein, thus causing his fall. The above evidence would sustain this theory. But before defendant can be held liable for negligence there must be proof that the ice or the wire came there through lack of due care of defendant or that either was allowed to remain there through lack of such care. As to the wire, there is little room for such contention. As to how or when the wire got there or how long it had been there, the evidence is entirely silent. The same situation is true as to the ice except for the natural inference that it had not formed instantaneously but must have been there for some period of time We think the failure of proof in this respect justified the court in directing the verdict and that the judgment should be and, therefore, is affirmed. & POWER CO. Circuit Court of Appeals, Eighth Circuit. 32-Forfeiture Waters and water courses Under Act March 3, 1891, §§ 17-21 (26 Stat. 1101, 1102), forfeiture of lands granted for irrigation purposes may be decreed for failure to construct canal as agreed within five years after location without necessity of act of Congress, declaring forfeiture or directing Attorney General to proceed to forfeiture. Appeal from the District Court of the United States for the District of Utah; Tillman D. Johnson, Judge. Suit by the United States against the Beaver Irrigation Land & Power Company. Decree of dismissal, and plaintiff appeals. be taken by an act of Congress declaring forReversed, with directions. Charles M. Morris, U. S. Atty., and Edward M. Morrissey, and Jesse K. Smith, Asst. U. S. Attys., all of Salt Lake City, Utah. Before STONE and VAN VALKENBURGH, Circuit Judges, and POLLOCK,. District Judge. STONE, Circuit Judge. This is an appeal from a dismissal of a bill filed by the United States to declare a forfeiture of lands granted for irrigation purposes under sections 17 to 21, inclusive, of the Act of March 3, 1891 (26 Stat. 1095, 1101). There was no service, answer nor appearance of defendant, in the trial court nor here, and the matter is submitted on the brief of the government. The trial court filed a statement that its judgment was based upon reasons appearing in an opinion prepared by it in a similar case, United States v. Parsons. The opinion in the Parsons Case is to the effect that the above statute gave no equitable jurisdiction to declare forfeiture upon the failure to construct the irrigation works, but that such failure was a condition which would justify forfeiture by act of Congress. The above act provides (section 18 [43 USCA 946; Comp. St. § 4934]) that a right of way may be granted through the public lands to any canal or ditch company formed for the purpose of irrigation. Appellee proceeded, in accordance with the act, and secured a grant for its reservoir and ditch lines on certain portions of the public domain within the state of Utah. This grant was perfected July 15, 1907. Section 20 of the act (43 USCA § 948; Comp. St. § 4936) provides "that if any section of said canal, or ditch, shall not be completed within five years after the location of said section, the rights therein granted shall be forfeited as to any uncompleted section of said canal, ditch, or reservoir, to the extent that the same is not completed at the date of the forfeiture." The bill alleges that appellee has "failed and neglected to construct said canal as hereinbefore mentioned and described, or any part thereof, within five years after the location thereof, or otherwise, or at all." The prayer of the bill is for a forfeiture and that the land may be adjudged in appellant with an injunction against appellee from setting up any claim thereto on account of said grant and for gen eral relief, As stated above, the view of the trial court seems to have been that it had no jurisdiction to enter a forfeiture but that such action must feiture or directing the attorney general to proceed to forfeiture. In this view, we think the trial court was mistaken. The above act is of a general and permanent character (United States v. Whitney [C. C.] 176 F. 593, 598) and it would be a strange interpretation that where the act itself declares that certain conditions shall work a forfeiture that the government would be powerless to enforce such forfeiture without further action of Congress (Union Land & Stock Co. v. United States, 257 F. 635 [C. C. A. 9]). We think this question has been recently ruled in this court in United States v. Bighorn Land & Cattle Co., 17 F. (2d) 357, where exactly the same character of action to declare a forfeiture of a grant under the above act was sustained. Also, see United States v. Denver & Rio Grande Western Railroad Company, 16 F. (2d) 374, this court. We think the decree should be reversed, with instructions to set aside the dismissal of the bill and to enter a decree in accordance with the prayer of the bill; and it is so or dered. NEW AMSTERDAM CASUALTY CO. v. W. No. 5019. Highways 113(5)-Plaintiff contractor could recover from subcontractor's surety "interest" on amount used in completing contract over amounts plaintiff received in current pay. ments. Plaintiff contractor could recover, from surety on subcontractor's bond, "interest" on amount plaintiff was required to use in completion of contract over and above amounts received in current payments, since, if condition of bond had not been broken, plaintiff would have had use of money; "interest" being compensation allowed by law or fixed by parties for use or detention of money. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Interest (on Money).] In Error to the District Court of the United States for the Northern District of Alabama; William I. Grubb, Judge. Action by the W. T. Taylor Construction Company against the New Amsterdam Casualty Company. Judgment for plaintiff, and defendant brings error. Affirmed. Borden Burr and Percy, Benners & Burr, all of Birmingham, Ala. (Lloyd Bowers, of 21 F.(2d) 1003 Birmingham, Ala., and W. T. Donaldson, of Baltimore, Md., on the brief), for plaintiff in error. Jelks H. Cabaniss, of Birmingham, Ala. (Cabaniss, Johnston, Cocke & Cabaniss, of Birmingham, Ala., on the brief), for defendant in error. Before WALKER, BRYAN, and FOSTER, Circuit Judges. BRYAN, Circuit Judge. On a former writ of error it was decided that the defendant casualty company was liable to the plaintiff construction company on a bond in the sum of $40,000 to secure the faithful performance by one Mansberger of the main contract with plaintiff to do the base course work on a state highway in Alabama, but that defendant was not liable to plaintiff for the faithful performance by Mansberger of a supplemental contract with plaintiff to construct guard rails, cables, etc. The judgment there under review did not show separately the losses sustained under the two contracts, and it was reversed because there was included in it the amount of plaintiff's loss in completing the supplemental contract. 12 F. (2d) 972. On this writ of error the judgment purports to cover only plaintiff's loss on the main contract, and therefore is in accordance with our previous decision. The argument is made now, as it was before, that there never was any liability on the bond, but we are still of the opinion that liability exists for any loss plaintiff sustained by reason of Mansberger's default on the main contract. The only new question presented is whether the verdict, on which judgment was entered, is excessive. An auditor for defendant made a thorough examination of plaintiff's books, and testified that the maximum amount of liability shown thereby was the sum of $27,626.49. There were disputed items not shown, or imperfectly shown, on the books amounting to $2,236.90. The District Judge authorized the jury to allow interest on the amount plaintiff was required to use in the completion of the contract over and above the amounts it received in current payments. This item of interest at the legal rate amounted to $4,486.08. If the disputed items and this amount of interest be added to the maximum amount estimated by the auditor, the total would be greater than the verdict. But it is apparent that plaintiff recovered something on the disputed items, as the verdict is in excess by $660 of the aggregate of these amounts. It cannot therefore be said that the verdict is excessive, unless plaintiff was not entitled to recover interest on its invested capital. Clearly, we think, interest should have been allowed. If the condition of the bond had not been broken, plaintiff would have had the use of its money. Interest is the compensation allowed by law, or fixed by the parties, for the use or detention of money. Kishi v. Humble Oil Co. (C. C. A.) 10 F. (2d) 356. The judgment is affirmed. BECKER v. UNITED STATES. Circuit Court of Appeals, Fifth Circuit. October 28, 1927. No. 5153. Internal revenue 25-Assessment to determine income and profits of business concern held properly made on accrual basis, where method followed failed to disclose income (Revenue Act 1918, § 212 [b], being Comp. St. 6336sf). Under Revenue Act 1918, § 212(b), being Comp. St. § 6336f, Commissioner of Internal Revenue was authorized to make assessment for purpose of determining income and excess profits of business concern on an accrual basis, where the company's method failed to disclose its income, although books were kept on basis of cash received and disbursed. Appeal from the District Court of the United States for the Middle District of Georgia; William J. Tilson, Judge. Suit by the United States against S. L. Becker. Judgment for the United States, and defendant appeals. Affirmed. Roland Ellis and Frank Reagan, both of Macon, Ga., for appellant. Scott Russell, Asst. U. S. Atty., of Macon, Ga. Before WALKER, BRYAN, and FOSTER, Circuit Judges. BRYAN, Circuit Judge. This is a suit by the United States to collect a tax from the income and excess profits of the Union Furniture Company for that part of the year ending September 30, 1918. On or about that date the company was dissolved, and appellant, who was the sole stockholder, sold all its assets and received more than is sought to be recovered. The following facts were either agreed to by stipulation or appear by uncontradicted evidence: The books of the company were kept on the basis of cash received and disbursed, but they did not correctly reflect the income. The assessment of the Commissioner of Internal Revenue was made on the accrual basis, |