The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919. Page: 73
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IN RE F. & D. CO.
court in the charge to the jury called attention to this receipt and
"It is for you to properly construe, together with the whole testimony, the
meaning of that receipt. If you believe it was a receipt in full for all com-
missions up to date, then, unless there was a mistake, a mutual mistake, in
the execution of it, it would be conclusive on the plaintiff that he was getting
all he was entitled to get at that time, all that was due him at that time."
The defendant took no exception to this part of the charge, and
made no request with respect to it. In the absence of an exception,
the defendant cannot raise the question in this court on writ of error.
Moreover, there is no reference to the matter in the assignment of
HOUGH, Circuit Judge (dissenting). When a plaintiff pleads on
oath a contract obviously obnoxious to the statute of frauds, brings
his case to trial on the eve of the running of the statute of limitations,
swears to an entirely different agreement, which it is hoped escapes
the statute, and then before the jury seeks to plead his newly sworn-
to contract by way of amendment, the motion should be denied. To
grant it is, in my opinion, abusing discretion. Nor is the contract as
last stated within the rule thought to be discoverable in Blake v.
For these reasons I dissent.
In re F. & D. CO.
Petition of HAGAR.
(Circuit Court of Appeals, Second Circuit. January 15, 1919.)
1. CHATTEL MORTGAGES &5--Co CORPORATE MIORTGAGES AGAINST REAL AND PER-
SONAL PROPERTY-FILING AS CHATTEL MORTGAGE.
Lien Law N. Y., 231, providing that "mortgages creating a lien on
real and personal property executed by a corporation as security for the
payment of bonds issued by such corporation" need not be filed as a chat-
tel mortgage, applies to such a mortgage executed by a corporation to se-
cure a single bond.
2. COURTS 6366(1)-FEDERAL COURTS-FoLLOWING STATE DECIIONs.
While a federal court will follow a settled construction of a state statute
by its highest court, it is not bound to follow a single decision of a trial
court of the state.
3. CONFUSION OF GOODS e=9-SALE OF PROPERTY BY TRUSTEE-MINGLING OF
MORTGAGED AND UNMORTGAGED GOODS.
Where a trustee sells for a lump sum goods of the bankrupt, some of
which are within a mortgage, although some, not identified, may not be,
by the law of New York the mortgagee is entitled to the entire proceeds,
on the principle of confusion of goods.
Petition to Revise Order of the District Court of the United States
for the Southern District of New York.
4;For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
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The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919., legislative document, 1919; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38827/m1/87/: accessed April 27, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.