pany, for which the notes herein sued upon were given in payment, had to be, and were as a matter of fact, submitted to the Monongahela Coal Company and its executive officers for acceptance or rejection; and that said submission of L. E. Jung of the tentative offer of A. V. Robertson for the purchase of two boat loads of coal from the Monongahela Coal Company was as a matter of fact, and as appears by the records and minute entries of the directors of the Monongahela Coal Company, submitted by L. E. Jung to the officers of said Monongahela Coal Company in the state of West Virginia, and was then after corporate action by said Monongahela Coal Company in the state of West Virginia an offer made and accepted between the Monongahela Coal Company and A. V. Robertson; and that when said offer was so made and accepted, and the said A. V. Robertson was notified thereof, and the delivery was made to him of the two boat loads of coal purchased as aforesaid, the said coal having been intrusted to L. E. Jung for delivery to A. V. Robertson, and which boat loads were described as '2 boats of coal O'Neil 329 containing 10,321 barrels, O'Neil 312 containing 10,194, or an aggregate of 20,515 barrels at 26 cents per barrel $5,436.48,' the said A. V. Robertson, in payment of the purchase price thereof, under the circumstances hereinbefore recited, executed and delivered his obligations payable to the Monongahela Coal Company of West Virginia, and which obligations are described in the petition herein sued upon, and contain the clause, 'being for the price of coal purchased for Grand Bay Plantation, in the parish of Pointe Coupee,' and payable in the city of New Orleans; that upon the two notes herein sued upon $1,000 was paid. leaving a balance due on said obligations of A. V. Robertson to the Monongahela Coal Company of West Virginia of the sum of $4,436.48.

"The two boat loads of coal were delivered at Robertson's plantation in the latter part of June, 1898. The acceptance of the Monongahela Coal Company of Robertson's proposition for the purchase of the two boat loads of coal aforesaid was made in Pennsylvania on March 11, 1898. qualified by the condition, 'deliveries to be subject to water.' There is neither indication nor proof that the coal delivered to Robertson was in the state of Louisiana on March 7, 1898, when the proposition to purchase was made, nor on March 11, 1898, when the Monongahela Coal Company accepted Robertson's proposition and sold him the two boat loads of coal hereinbefore referred to. From the. condition embodied in the acceptance of the proposition that the delivery of the two boat loads of coal was to be 'subject to water,' I infer that the coal sold and intrusted to L. E. Jung for delivery to A. V. Robertson was not in the state of Louisiana at the time of either the proposition to purchase or the acceptance thereof by the Monongahela Coal Company.

"The record does not disclose where the coal contained in the two boats was measured, and there is no proof in the record that the coal was measured in the state of Louisiana, either upon its arrival in this state, or upon its delivery to A. V. Robertson. It may be well, in the absence of proof to the contrary, the coal was measured at the point of shipment. It was understood, however, that the coal was to be delivered to Robertson by the Monongahela Coal Company in the state of Louisiana, and it was so delivered by L. E. Jung, who was intrusted with it by the Monongahela Coal Company to make delivery.

"The coal, the purchase price of which is represented by the obligations herein sued upon, was used by A. V. Robertson on his plantation to manufacture a crop of sugar for the season of 1898, and upon which crop of sugar so manufactured the said Monongahela Coal Company in these proceedings asserts a privilege under the laws of Louisiana as a furnisher of supplies. It nowhere appears in the record that in the submission of A. V. Robertson's proposition to the Monongahela Coal Company, and the action of the Monongahela Coal Company in accepting said proposition, that they were advised or informed that A. V. Robertson was conducting a sugar plantation in this state, or that they had any information or knowledge that said coal sold to A. V. Robertson was to be used to manufacture sugar upon the plantation of which A. V. Robertson was the proprietor and operator; but Jung knew Robertson was a sugar planter, though it is not shown that he communicated this knowledge to the Monongahela Coal Company.

"(c) That the present suit of the Monongahela Coal Company against A. V.

Robertson was filed in the United States Circuit Court on January 7, 1899. That at the time the notes sued upon were executed, to wit, July 14, 1898, the acts of pledge from Arthur V. Robertson to the Iberville Planting & Manufacturing Company for advances to cultivate the crop on Nina and Grand Bay Plantations for the year 1898, which acts of pledge were given under the factor's act, No. 66, p. 114, of 1874, were of record in the clerk's office of the district court of Pointe Coupee parish. The said two acts, bearing dates respectively of February 15, 1898, and May 11, 1898, are made part of this finding. That on the day the suit was filed, to wit, January 7, 1899, L. E. Jung, describing himself as the representative of the Monongahela Coal Company of West Virginia, caused to be placed of record in the clerk's office of the district court of the parish of Pointe Coupee his affidavit, in which he describes the two notes here sued upon, and asserts on behalf of the Monongahela Coal Company a lien and privilege upon the crops manufactured upon said Nina and Grand Bay Plantations for the seasons of 1898 and 1899.

"(d) That there was no proof made, nor is there any evidence in the record, that L. E. Jung, the soliciting agent of the Monongahela Coal Company, was authorized, empowered, or directed on behalf of said Monongahela Coal Company to assert or claim any right, privilege, or lien for or on behalf of said company, or to assert or claim on its behalf a lien and privilege upon the crop manufactured on said Nina and Grand Bay Plantations, as furnishers of supplies. Nor is there any evidence in the record that the action of L. E. Jung has ever been approved by the Monongahela Coal Company in the assertion by L. E. Jung without prior authority of a lien and privilege on their behalf, and that the affidavit of January 7, 1899, in which the said L. E. Jung asserted on behalf of said Monongahela Coal Company a lien and privilege upon the crops manufactured, was made without the knowledge or subsequent ratification of the Monongahela Coal Company, except that said company and its liquidators have prosecuted this suit after being informed thereof by Mr. Benedict, its counsel.

"2. (a) The planting partnership of Robertson & Eiseman entered into a contract with the Iberville Planting & Manufacturing Company on the 15th day of February, 1898 (which contract was under the factor's act of 1874), by which the Iberville Planting & Manufacturing Company agreed to and did advance them, for the purposes recited in said act, the sum of $15,000, and they secured to the Iberville Planting & Manufacturing Company, under the act aforesaid, a crop lien. The act referred to is made part of this finding as though set out in extenso. It was promptly recorded in the clerk's office of the district court in the parish of Pointe Coupee, where the plantations operated by Eiseman & Robertson were situated.

"(b) On the 11th of May, 1898, Robertson & Eiseman, finding it necessary to have additional funds for the purpose of cultivating and operating said plantations, obtained additional advances from the Iberville Planting & Manufacturing Company and secured the additional advance, to wit, the sum of $4,000, by an act which was duly passed and recorded on the 11th day of May, 1898. The funds so advanced were also secured by a crop lien under the factor's act of 1874. This act is made part of the findings herein.

"(c) In both the acts referred to in the foregoing findings, the following declaration is made and was of record from the date of the recordations respectively of both acts:

"It is finally agreed that said Arthur V. Robertson and Cassius M. Eise man shall enter into no other contract or agreement which would operate a lien or privilege on or pledge and pawn of said crops in favor of any other person or persons on said crops for the year 1898, or the proceeds thereof.'

"There has been no evidence produced, nor has the fact been established. that the condition above recited was at any time waived by the Iberville Planting & Manufacturing Company, or that the said company at any time expressly authorized or consented to the purchase by Robertson & Eiseman, or either of them, of any supplies for the cultivation or operation of said plantations, and which could in any manner affect their privilege as factors, whether under the act of 1874 or the general law in such cases made and provided. I find that said clause applied only to the securing of the sums

advanced under said contracts, which sums are paid in full under the judgment.

"(d) In addition to the $19,000 advanced by the Iberville Planting & Manufacturing Company to Eiseman & Robertson under the contracts referred to in findings (a) and (b), and this exclusive of interest on said sum of $19,000, the Iberville Planting & Manufacturing Company advanced from time to time for the cultivation, harvesting, manufacturing, and marketing of the crop raised by Robertson & Eiseman on Nina and Grand Bay Plantations the gross sum of $38,635.29; that of the sum so advanced and paid out by the Iberville Planting & Manufacturing Company for the cultivation, harvesting, manufacturing, and marketing of the crop, and to protect the same against privileges of a higher order in rank than that of furnisher of supplies or factor's privilege, there was paid by the Iberville Planting & Manufacturing Company to Robertson & Eiseman the following sums of money, and they used the money advanced to them to pay the claims of the persons hereinafter named, and for the amounts which were justly due and owing, to wit:

"(1) F. O. Lieux, the lessor of Grand Bay Plantation, for the year 1898, received from the Iberville Planting & Manufacturing Company, rent of said plantation to Eiseman & Robertson, the sum of $2,000.

"(2) Taxes paid by the Iberville Planting & Manufacturing Company on said plantation, and insurance premiums paid on the sugar house of said plantation, which under the terms of the contract of lease were to be paid as part of the rental of said plantation, the sum of $713.83.

"(3) The Iberville Planting & Manufacturing Company paid to the sheriff of the parish of Pointe Coupee the sum of $277.45, being the tax levied by the state and known as the produce tax, for the year 1898-99, $277.45.

"(4) The Iberville Planting & Manufacturing Company paid to Gremillion & Co. the sum of $2,119, being the purchase price of the raw cane which was subsequently manufactured into sugar by Robertson & Eiseman, and for the payment of which purchase price of cane Gremillion & Co. had a privilege superior in rank to that of the factor or furnisher of supplies, $2,119.

"(5) The sugar sequestered under the writ of the Monongahela Coal Company owed to the laborers on the plantation the sum of $5,922.95, a claim superior in rank to that of the factor's lien and the furnisher of supplies. The laborers threatened the seizure of the sugars, and were asserting their superior privilege thereon for the payment of the debt which was due them. The Iberville Planting & Manufacturing Company, in order to protect their privilege as factors, directed their agent, F. O. Lieux, to draw upon it for the amount of said claims, so as to relieve said sugars from the threatened seizure, and the claims aggregating the amount aforesaid, to wit, $5,922.95, were paid by the Iberville Planting & Manufacturing Company as against the consignment of said sugars to it, and the amounts so paid were charged on the books of the Iberville Planting & Manufacturing Company to Robertson & Eiseman on the crop cultivated, manufactured, and shipped for the year 1898, $5,922.95.

"The aggregate of items 1 to 5, inclusive, represents eleven thousand and thirty-three and 23/100 dollars ($11,033.23).

"The privilege accorded by law to each of the above-enumerated items is superior in rank to the factor's privilege or that of the furnisher of supplies. "I find as a matter of law that the advance by the Iberville Planting & Manufacturing Company of the amounts aforesaid, did not operate a legal subrogation of the privilege accorded by law to the respective claims. I find as a matter of law that the advance of money which was used to pay said claims by the Iberville Planting & Manufacturing Company had the effect of reducing the privilege securing said claims from its superior rank to that enjoyed by the factor or furnisher of supplies, who advanced the funds to pay the same, and that, there being no conventional transfer of the debt by those whom the money was paid and no conventional subrogation to the privilege, their superior rank in the order of payment was lost, and the Iberville Planting & Manufacturing Company can only claim as against the crop proceeds the reimbursement of the sum so advanced, and for the sum advanced are only entitled to the privilege of factors or furnishers of supplies.

"I find that the entire proceeds realized from the sale of the crop of Nina' and Grand Bay Plantations for the years 1898 and 1899 was $52,863.85. "From the gross proceeds realized from the sale of the crop there is to be primarily deducted the advances made by the Iberville Planting & Manufacturing Company of the sum of $19,000, to which is to be added $1,133.21, the accumulated interest under the contracts referred to in these findings. The sum of $20,133.21 deducted from $52,863.85, the gross proceeds of the crop, leaves a balance of $32,730.64, to be held subject to special and general privileges.

"If the item referred to in finding (d) secures recognition as privileged debts superior in rank to the factor or furnisher of supplies, and that resulting from the payment by the Iberville Planting & Manufacturing Company there was a legal subrogation not only to the debt, but to the privilege, then the net amount realized from the crop for distribution between the Iberville Planting & Manufacturing Company and the Monongahela Coal Company, as factors and furnishers of supplies, would be $21,697.41.

"If, on the other hand, it should be held that there was no legal subrogation of the privilege, and the debts aforesaid were only entitled to the privilege of factors and furnishers of supplies, then there would be for distribution between the Iberville Planting & Manufacturing Company and the Monongahela Coal Company the sum of $32,730.64. I find that the moneys advanced by the Iberville Planting & Manufacturing Company were used in the cultivation, harvesting, manufacturing, and marketing of the crop of Nina and Grand Bay Plantations for the year 1898-99.

"I find that the coal purchased by A. V. Robertson from the Monongahela Coal Company on March 11, 1898, was wholly used to manufacture in part the crop of Eiseman & Robertson on Grand Bay Plantation for the year 1898 "I further find that the respective debit and credit of the Weis and Uniou Bank transaction is compensated and offset and in no manner affects the factor's account between the Iberville Planting & Manufacturing Company and Robertson & Eiseman, and may be entirely disregarded in ascertaining and determining the moneys advanced by the Iberville Planting & Manufacturing Company for the crop of 1898 and the proceeds realized from the sale of said crop.

"In my written opinion I have fully stated the facts and the legal propositions considered and decided, and I refer to and adopt said opinion as a statement of the facts and legal questions involved in this case. The foregoing statement of facts is also correct in all particulars where not inconsistent with the statements contained in my opinion.

"[Signed] "July 24, 1907."

Eugene D. Saunders, Judge.

B. F. Jonas and Henry L. Lazarus, for plaintiff in error. W. S. Benedict, Jessy Benedict Gessner, J. D. Rouse, Wm. Grant, and Wm. B. Grant, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PARDEE, Circuit Judge (after stating the facts as above). This is a suit involving the recognition and marshaling of privileges, and should have been prosecuted on the equity side of the court and for review brought here by appeal instead of writ of error; but as the parties made no objection in the court below and make none here, and as procedure in the case was made possible by waiver of the jury, we will pass upon the case as made by the parties in the court below. But see Gravenberg v. Laws, 100 Fed. 1, 40 C. C. A. 240.

We have deemed it advisable to give the full finding of facts by the trial judge to show the pertinency of our remarks and conclusions. As the finding seems to be complete and in no wise inconsistent with the written opinion referred to in the last paragraph thereof, and as

168 F.-2

no objection is made by either party, the last paragraph may be treated as surplusage.

The first contention of the plaintiff in error is that the Monongahela Coal Company has no privilege as a furnisher of supplies, because the contract of purchase for the coal is a Pennsylvania contract, and the coal itself was sold by the coal company to Robertson without reference to the Louisiana law with regard to privileges, and even without reference to its use on Robertson's plantation. The original contract for the sale of the coal bears many of the earmarks of a Pennsylvania contract, but the subsequent facts in the case show that the written contracts upon which suit is brought, to wit, the notes, were made in Louisiana, and said notes specified that the coal was purchased for Grand Bay Plantation in the parish of Pointe Coupee, and the coal was actually furnished to said plantation and was used thereon for the harvesting of the crop in 1898. Under these circumstances, we think it clear that the furnisher of the coal is within the Revised Civil Code of Louisiana, art. 3217, giving the furnisher of supplies to any farm or plantation a privilege on the crop of the year. See London Assurance v. Companhia De Moagens, 167 U. S. 160, 17 Sup. Ct. 785, 42 L. Ed. 113, and Pullis Bros. Iron Co. v. Parish of Natchitoches, 51 La. Ann. 1377, 26 South. 402. While the last case cited deals with mechanics' liens, the reasoning and conclusions are applicable to the case in hand. The furnisher's lien under Rev. Civ. Code, art. 3217, is a statutory lien depending on the destination and use of the supply. Where the preliminary contracts looking to such use are made is apparently immaterial.

The next contention is that the Iberville Planting & Manufacturing Company, having contracted with the owners under Act No. 66, p. 114, Laws La. 1874, to furnish supplies for the Nina and Grand Bay Plantations for planting, cultivating, and harvesting crops grown thereon, and covenanted for a privilege and pledge and pawn of said crops to cover all advances, and the same having been recorded according to law, the said Iberville Planting & Manufacturing Company has a superior lien over other furnishers of supplies for the full amount advanced in the planting, cultivating, harvesting, and marketing of crops on said plantations, although the same exceeds the amounts stipulated in their said contracts as the maximum sum to be advanced; and, as against other furnishers of supplies, reliance is had on the clauses:

"The said Iberville Planting and Manufacturing Company, Limited, shall have the exclusive right to apply the net proceeds of the sale of all of the crop shipped, and all payments of money made to it, to the payment of any indebtedness secured or unsecured which may be due now, or which may hereafter become due to it, by the said Robertson and the said Eiseman, upon open account or otherwise, or to the debt secured and intended to be secured by these presents, according to its view of the exigencies of the case; and that such application may be made at such time and in such manner as said company may elect, and that no application of such proceeds of sale or money to the payment of any debt or open account which may at any time be due to the said company by the said Robertson and Eiseman shall impair, lessen or prejudice the debt secured or intended to be secured by these presents or the security herein and hereby provided for."

"Robertson and Eiseman shall enter into no other contract or agreement which would operate a lien or privilege on or pledge and pawn of said crops