Gratz v. McKee (9 F.2d 593, 1925)

VAN VALKENBURGH, Circuit Judge.

This ease has been twice before this court (258 F. 335, 169 C. C. A. 351; 270 F. 713, 23 A. L. R. 1393), and once before the Supreme Court (260 U. S. 127, 43 S. Ct. 16, 67 L. Ed. 167). The facts and issues appear largely in these'prior decisions, but will be briefly stated here for a better understanding of the issues in y the court, for various reasons. Blake had been on the stand and was not interrogated respecting it. It was therefore improper from the standpoint of impeachment. Furthermore, an agency of this nature cannot be established from the admissions of the agent himself. We think no error was thereby committed. Besides, as has been shown, the full capacity of Blake to bind defendants in error, in the situation presented, whether as agent or contractor, was properly submitted; therefore no prejudice could have resulted in any aspect of the case.

It appears in evidence that one James Warren was an agent of plaintiff’ in error for the purpose of kéeping squatters from the land, preventing theft of timber, and matters of that nature. Some time in 1912, Blake, desiring to get control of the banks of Little river, in order that he might prevent others, from using them to prepare the shells for shipment, says he asked Warren if he could get a lease of the river or of the banks for that purpose. Warren said he did not know; that he did not think the shells would amount to anything. Negotiations between Blake and Warren are thus epitomized by Blake: “I told him in my estimation that the shells in the river there would amount to as much as the timber on the bank, and he began to laugh at me, and finally he said he thought he -would be to the St. Louis Trast Company in a short time, and the next time I came to see him, he didn’t know just exactly when he would go-; he just, kept putting me off, and finally I asked him again, and he said it would be impossible to get control of the water.”

Counsel for plaintiff in error asked the court to charge that defendants in error were bound by the notice and charged with the knowledge acquired by Blake in 1912 of the failure of Warren then to obtain a lease for Blake from the landowners for the control of the business of digging shells; and error is assigned to the refusal of the court so to do. This position of counsel is untenable for many reasons. It is not shown that Warren submitted the proposition to plaintiff in error or his predecessors. Warren himself is not shown to have had much authority in the premises. If he had, and if he represented the owners in such capacity as to bind them, then his knowledge and acquiescence of itself would have been sufficient to establish the license in controversy. Warren himself evidently did not regard this musseling as constituting any invasion of the rights of the landowners. He considered it of little importance and even furnished teams with which some of the shells were hauled. Blake himself desired the lease, not as a grant of authority to dig the mussels, but as protection against competition from others engaged in the same pur-suit. Defendants in error seriously contended at the } trial that the knowledge and acquiescence of Warren should be imputed to plaintiff ■ in error and his predecessors, but the court refused to entertain that view and charged the jury, favorably to plaintiff in error, that Warren’s knowledge would not be .plaintiff’s knowledge unless Warren communicated -the facts to the plaintiff or his assignors, concerning which the record is silent. It is clear, therefore, that plaintiff in error was favored rather than prejudiced by, the court’s treatment of Warren’s connection with tbe transaction.

We have been sensible of the protracted pendency of this litigation and the earnestness and sincerity of counsel, and have made a painstaking examination of record, arguments and briefs. Other errors assigned are minor in their nature and generally foreclosed by prior rulings and by those made upon the substantive questions presented. We find in the entire record no reversible error. The ease was carefully and comprehensively submitted. The finding of the jury was for defendants in eiror upon all points, and the judgment accordingly must be

Affirmed.