Mr. Rogers: If your Honor is going to grant the motion for a direction of a verdict, I will take a formal objection to it, but my request is that if your Honor is going to find for the defendant, that it be a nonsuit to the plaintiff's cause of action. I think that is as far as your Honor can the defendants, and that those services ex-, Thereupon the following occurred-Mr. tended over a period from July, 1910, to Rogers representing the plaintiff: December, 1911. The plaintiff regarded the reasonable value of his services as worth from $8,000 to $10,000. On December 10, 1911, he was asked by the president of the Lake Shore Company whether he would be willing to bring suit against the defendants, [236] and that he replied that he would bring the suit, being satisfied that the company had a valid claim, and that it would cost from $8,000 to $10,000. He was informed by the president of the company that it had been losing money very heavily, and it was absolutely impossible for it to undertake any litigation of that kind. He was asked what the com pany already owed him, and replied, in the neighborhood of $9,000 or $10,000. He was told the company did not have the money and could not pay him, and thereupon he said that if the company would pay him $5,000 in cash, he would cancel the indebtedness. After some reflection the president, Mr. Mandelbaum, told him that the corporation would transfer to him all rights it had against the defendants if he would be willing to accept it as a satisfaction of the company's indebtedness to him. The plaintiff told him that he would think it over and give him an answer. After a few days' reflection the plaintiff expressed a willingness to accept the assignment, and was told that the board of directors wanted to know whether, if they made the assignment, the plaintiff would, as a part of the consideration, defend the company and its officers in case any suit was brought against them in matters growing out of their difficulties with the defendants. He agreed to do this, and the assignment was executed. "It appears, therefore, that the assignment originated not with the plaintiff, but with the Lake Shore Company, and that the consideration for the agreement involved the payment of a past indebtedness as well as for future services of a professional character. It is also to be noted that the invalidity of the assignment is set up not by the client, the assignor, who has at no time sought to repudiate it, but by third parties between whom and the plaintiff no fiduciary relations have existed." go. The court: You may be right, but the defendant has rested and moves for the direction of a verdict, and I am going to pass on that motion. Mr. Rogers: But, your Honor, I submit there aren't any questions of fact on which to go to the jury; I submit the matter is purely a matter of law for your Honor to determine, and I think the question whether the agreement is or is not champertous is one of law for the court. The court: Well, Mr. Rogers, you may either rest on the motion of the defense and take an exception to such ruling as I make, if it should be adverse, or you can ask to go to the jury. That is entirely for you to determine. Mr. Rogers: Well, if there are any questions of fact to be disposed of, your Honor, I ask to go to the jury upon the questions of fact. Mr. Seabury: I think he should specify, and not put a hypothetical motion. The court: I cannot have any "ifs." If you think, under § 973 of the Code, the court has no right to make a direction, and you are right about it, you will have a good exception; if, on the other hand, the court is right, your exception will be addressed not to [238] the question of practice, but to the substantive questions in the case. Mr. Rogers: Then, your Honor, may I state my position on the record? The court: Yes, certainly. Mr. Rogers: The defendant having moved for a direction, in order to preserve the plaintiff's rights, I beg leave to state mission of the court. my position on the record, with the per My understanding is that the question is one of law, to be passed upon by the court from the facts adduced. If, however, it is necessary, in order to preserve the plaintiff's rights, that I make a reAt the conclusion of the evidence the defendants asked a directed verdict "on the quest to go to the jury, I ask to go to the ground that the plaintiff has [237] jury upon the question as to whether or not shown title to this cause of action, not the plaintiff took an assignment of the and it now affirmatively appears from cause of action for the intent and purpose the evidence that the agreement under to begin an action thereon, and whether which the plaintiff assumes to bring the assignment to him was bona fide for this suit is champertous and void." an antecedent indebtedness. The court: The court cannot take con-, ditional offers. Counsel is at liberty, if so advised, to request to go to the jury, and the court will rule. it sufficiently plain that while he sought an instructed verdict, he also requested to go to the jury if the court held a contrary view concerning the evidence. In Mr. Rogers: Then I move for a direc- the circumstances disclosed we think the tion, your Honor, for the plaintiff, upon request was adequate and timely under the issue framed under your Honor's or- former opinions of this court. Empire der, on the ground the defendant has State Cattle Co. v. Atchison, T. & S. F. R. failed to make out the defense set up in Co. 210 U. S. 1, 8, 52 L. ed. 931, 936, 28 the answer; to wit, that the plaintiff pur- Sup. Ct. Rep. 607, 15 Ann. Cas. 70; Sena chased this cause of action,-that is the v. American Turquois Co. 220 U. S. 497, defense that is set up, and I desire to 501, 55 L. ed. 559, 561, 31 Sup. Ct. Rep. call your Honor's attention particularly 488; Schmidt v. Bank of Commerce, 234 to the form of the defense as pleaded. The U. S. 64, 66, 58 L. ed. 1214, 1215, 34 Sup. defense that this plaintiff's title is void be- Ct. Rep. 730; Williams v. Vreeland, 250 cause he purchased this cause of action U. S. 295, 298, 63 L. ed. 989, 991, 3 with the intent to sue thereon. It now A.L.R. 1038, 39 Sup. Ct. Rep. 438. It appears uncontradicted, from the evi- should have been granted. Clearly some dence, that instead of having purchased substantial evidence strongly [240] this cause of action, it was assigned to him tended to show that the assignment under a bona fide assignment for an ante- was taken in extinguishment of an excedent indebtedness owing to him for serv-isting indebtedness, and not for mere ices which he had performed for the cor- speculation upon the outcome of intendporation. ed litigation. The court: Both sides having moved for a direction [239] of a verdict, I find as a fact that the plaintiff purchased this cause of action with intent to sue thereon. I find, as a fact, also, that the so-called assignment, plaintiff's exhibit No. 1, was executed by the Lake Shore Company, through its officers, pursuant to action at a special meeting of the board of directors. The judgment below must be reversed and the cause remanded to the District Court for further proceedings in conformity with this opinion. GREAT WESTERN SERUM COMPANY, V. UNITED STATES. (See 8. C. Reporter's ed. 240–242.) United States implied contracts payment for property seized and destroyed. No contractual obligation on the of the United States to pay for anti-hogpart cholera serum, anti-cholera virus, and serum blood, seized without agreement to pur. chase by agents of the Bureau of Animal Industry, and thereafter destroyed, can be implied from the provisions of the Act of March 4, 1915, that, in case of an emer A verdict for the defendants was directed and judgment entered thereon. The circuit court of appeals declared itself concluded by the trial court's finding "that the plaintiff purchased this cause of action with intent to sue thereon," and held: "We must dispose of this case upon the theory that the plaintiff did not in fact take this assignment to extinguish a precedent debt, but that he purchased it for the purpose of suing on it; that he, an attorney at law, purchased from his client for $5,000 a cause of action which he values at $750,000. The question wegency arising out of the existence of certain must answer, therefore, is whether the law sanctions such a transaction between parties standing in the confidential relation of attorney and client. We are satisfied that the common law does not sanction it." contagious or infectious diseases of animals, which, in the opinion of the Secretary of Agriculture, threatens the live-stock industry, he may expend a specified sum, which sum is thereby appropriated, or so much thereof as he deems to be necessary, in the arrest and eradication of any such Among other things, counsel for plain-growing out of past and future purchases disease, including the payment of claims tiff in error now insist that "if there were and destruction, in co-operation with the any questions of fact to be decided or states, of animals affected by, or exposed divergent inferences of fact to be made to, or of materials contaminated by or exthe district court erred in not submitting posed to, any such disease. them to the jury." The point is well taken. Statements by plaintiff's counsel made For other cases, see United States, VI. e, in Digest Sup. Ct. 1908.] [No. 90.] Argued November 12, 1920. cember 6, 1920. A Decided De-, v. Buffalo Pitts Co. 114 C. C. A. 119, PPEAL from the Court of Claims to review a judgment in favor of the United States in a suit to recover the value of anti-hog-cholera serum, anticholera virus, and serum blood, seized by government agents and thereafter destroyed. Affirmed. The facts are stated in the opinion. V. Assistant Attorney General Davis ar Mr. Edwin H. Cassels argued the gued the cause, and, with Special As cause, and, with Messrs. James H. Wilkerson and Edward F. Colladay, filed a brief for appellant: The fact that there was no appraisal and written agreement, as provided by the regulations of the Bureau of Animal Industry, does not affect the validity of appellant's claim, or in any way operate to defeat its right to recover. Campbell v. United States, 107 U. S. 407, 27 L. ed. 592, 2 Sup. Ct. Rep. 579; United States v. Flanders, 112 U. S. 88, 28 L. ed. 630, 5 Sup. Ct. Rep. 67; United States v. Reed, 9 C. C. A. 563, 20 U. S. App. 595, 61 Fed. 414; United States v. Reed, 167 U. S. 664, 42 L. ed. 317, 17 Sup. Ct. Rep. 919; Crozier v. Fried. Krupp Aktiengesellschaft, 224 U. S. 290, 56 L. ed. 771, 32 Sup. Ct. Rep. 488; United States v. Great Falls Mfg. Co. 112 U. S. 645, 28 L. ed. 846, 5 Sup. Ct. Rep. 306; United States v. Lynah, 188 U. S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep. 349; United States v. Buffalo Pitts Co. 114 C. C. A. 119, 193 Fed. 905. The findings of the court of claims establish an implied contract on the part of the United States to purchase and pay for appellant's property. sistant to the Attorney General Bradley, filed a brief for appellee: There being no authority for the action of its agents, no contract can be implied upon the part of the United States to compensate appellant for the materials destroyed. Gibbons v. United States, 8 Wall. 269, 274, 19 L. ed. 453, 454; Stansbury v. United States, 8 Wall. 33, 19 L. ed. 315; Hume v. United States, 132 U. S. 406, 33 L. ed. 394, 10 Sup. Ct. Rep. 134; United States v. Barlow, 132.U. S. 271, 33 L. ed. 346, 10 Sup. Ct. Rep. 77; Whiteside v. United States, 93 U. S. 247, 257, 23 L. ed. 882, 885; Hill v. United States, 149 U. S. 593, 598, 37 L. ed. 862, 864, 13 Sup. Ct. Rep. 1011. If the agents of the United States were authorized in their action in destroying appellant's materials, the latter would still not be entitled to compensation. ouleau, 121 La. 890, 18 L.R.A.(N.S.) 368, 126 Am. St. Rep. 332, 45 So. 911, 15 Ann. Cas. 46. The Act of March 4, 1915, left the disbursement of the money thereby appropriated to the discretion of the Secretary of Agriculture, and his action in rejecting plaintiff's claim is not subject to review. Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616; Freund, Pol. Power, § 5111; Mugler v. Kansas, 123 U. S. 623, 669, 31 L. ed. 205, 213, 8 Sup. Ct. Rep. 273; Newark & S. O. Horse Car R. Co. v. Hunt, 50 N. J. L. 398, 12 Atl. 697; Houston v. State, 98 Wis. 481, 42 L.R.A. Ogden v. Saunders, 12 Wheat. 213, 639, 74 N. W. 111; New Orleans v. CharL. ed. 606; United States v. Russell, 13 Wall. 623; Salomon v. United States, 19 Wall. 17, 22 L. ed. 46; United States v. Palmer, 128 U. S. 262, 32 L. ed. 442, 9 Sup. Ct. Rep. 104; United States v. Great Falls Mfg. Co. 112 U. S. 645, 28 L. ed. 846, 5 Sup. Ct. Rep. 306; United States v. Lynah, 188 U. S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep. 349; Tempel v. United States, 248 U. S. 121, 63 L. ed. 162, 39 Sup. Ct. Rep. 56; United States v. Berdan Firearms Mfg. Co. 156 U. S. 552, 39 L. ed. 539, 15 Sup. Ct. Rep. 420; Crozier v. Fried. Krupp Aktiengesellschaft, 224 U. S. 290, 56 L. ed. 771, 32 Sup. Ct. Rep. 488; William Cramp & Sons Ship & Engine Bldg. Co. v. Inter. national Curtis Marine Turbine Co. 246 U. S. 28, 62 L. ed. 560, 38 Sup. Ct. Rep. 271; United States v. Purcell Envelope Co. 249 U. S. 313, 319, 63 L. ed. 620, 624, 39 Sup. Ct. Rep. 300; United States Decatur v. Paulding, 14 Pet. 497, 515, 10 L. ed. 559, 568; Martin v. Mott, 12 Wheat. 19, 6 L. ed. 537; United States L. ed. 354, 9 Sup. Ct. Rep. 12; United ex rel. Dunlap v. Black, 128 U. S. 40, 32 States ex rel. Boynton v. Blaine, 139 U. S. 306, 35 L. ed. 183, 11 Sup. Ct. Rep. 607; United States ex rel. Redfield v. Windom, 137 U. S. 636, 34 L. ed. 811, 11 Sup. Ct. Rep. 197; Keim v. United States, 177 U. S. 290, 44 L. ed. 774, 20 Sup. Ct. Rep. 574; Bates & G. Co. v. Payne, 194 U. S. 106, 48 L. ed. 894, 24 This statute limited the disbursements which could be made by the Secretary of Agriculture in the payment of claims to those claimants whose property had been purchased by the United States before it was destroyed. United States v. Eaton, 144 U. S. 677, 36 L. ed. 591, 12 Sup. Ct. Rep. 764; Reid v. Colorado, 187 U. S. 137, 148, 47 L. ed. 108, 114, 23 Sup. Ct. Rep. 92, 12 Am. Crim. Rep. 506. Mr. Justice McReynolds delivered the opinion of the court: For other cases, see Admiralty, I. 1, 3, in Digest Sup. Ct. 1908.] [No. 97.] A contract to furnish the materials, vessel, made after such vessel was launched, work, and labor for the completion of a but while not yet sufficiently advanced to The Serum Company sued to recover discharge the functions for which she was the value of anti-hog-cholera serum, anti-intended, is not within the admiralty and cholera virus, and serum blood, seized maritime jurisdiction. without agreement to purchase by agents of the Bureau of Animal Industry in November, 1914, and 1914, and thereafter destroyed. Judgment went for the defendant and we are asked to reverse it upon Argued November 18, 1920. the ground that, "as a conclusion of law, the court should have found that the Act of Congress of March 4, 1915, created an obligation to pay for the appellant's materials, and that the facts show an implied contract to purchase and to pay for such materials." The act provides: “In case of an emergency arising out of the existence of foot-and-mouth disease, rinderpest, contagious pleuropneumonia, or other contagious or infectious disease of animals, which in the opinion of the Secretary of Agriculture threatens the live-stock industry of the country, he may expend in the city of Washington or elsewhere, out of any money in the treasury not otherwise appropriated, the sum of $2,500,000, which sum is hereby appropriated, or so much thereof as he determines to be necessary, in the arrest and eradication of any such disease, including the payment of claims growing out of past and future purchases and destruction, in co-operation with the states, of animals affected by or exposed to, or of materials contaminated by or exposed to, any such disease, wherever found and irrespective of ownership, under like or substantially similar circumstances, when such owner has complied with all quarantine regulations, and said sum shall be immediately available for the purposes specified." 38 Stat. at L. 1115, chap. 144. cember 6, 1920. Decided De PPEAL from the District Court of A Affirmed. The facts are stated in the opinion. Mr. Samuel Park argued the cause, and, with Mr. Henry E. Mattison, filed a brief for appellant. Mr. Mark Ash argued the cause, and, with Mr. Peter Alexander, filed a brief for appellee. Contentions of counsel sufficiently appear in the opinion. Mr. Justice McReynolds delivered the opinion of the court: The libel was dismissed for want of jurisdiction and the cause is here on that question only. [243] Seeking to recover for sup plies furnished and repairs made to the schooner Francis McDonald, appellant libeled the vessel in United States dis Note. As to admiralty jurisdiction. of contracts-see note to Baltimore Steam Packet Co. v. Patterson, 66 L.R.A. 193. trict court, southern district of New, posed by many of no less authority. TuckYork. er v. Alexandroff must be read in the light Under a definite contract the Palmer of the particular matter under consideraShipbuilding Company began construction,-detention of a foreign seaman,— tion of the schooner at Groton, Connecti and the conclusion announced that after cut, and launched the hull. That com the vessel was launched "she was a ship pany found itself unable to proceed fur- within the meaning of the treaty." The ther, thereupon appellant agreed with the court had no immediate concern with conowner to complete the work, and for such tracts for ship construction, and there was purpose the hull was towed to its yard at no purpose to lay down any definite rule New London. While lying there in the applicable to them. On the other side, the stream the materials, work, and labor for following cases are cited, and they are enwhich recovery is now sought were fur- titled to the greater weight: The Isosco, nished. Later the vessel, so advanced, 1 Brown, Adm. 495, Fed. Cas. No. 7,060; was towed to Hoboken and finished by a The Pacific, 5 Hughes, 257, 9 Fed. 120; third company. When received by appel- The Count de Lesseps, 17 Fed. 460; The lant the schooner was manifestly incom- Glenmont, 32 Fed. 703 and 34 Fed. 403; plete, her masts were not in, the bolts The Paradox, 61 Fed. 860; McMaster v. and beams and gaff were lying on deck, One Dredge, 95 Fed. 832; The United the forward house was not built, and she Shores, 193 Fed. 552; The Dredge A, 217 was not "in condition to carry on any serv- Fed. 617; The Winnebago, 205 U. S. 354, ice." Appellant worked on her for six 363, 51 L. ed. 836, 841, 27 Sup. Ct. Rep. weeks, and thirty or forty more days were 509; North Pacific S. S. Co. v. Hall Bros. required to finish her. Marine R. & Shipbuilding Co. 249 U. S. 119, 125, 63 L. ed. 510, 512, 39 Sup. Ct. Rep. 221. Is appellant's contract to furnish the materials, work and labor for her completion, made after the schooner was launched, but while yet not sufficiently advanced to discharge the functions for which intended, within the admiralty and maritime jurisdiction? The district court thought not and so do we. Under decisions of this court the settled rule is that a contract for the complete construction of a ship, or supplying materials therefor, is nonmaritime, and not within the admiralty jurisdiction. People's Ferry Co. v. Beers, 20 How. 393, 15 L. ed. 961; Roach v. Chapman, 22 How. 129, 16 L. ed. 294; Edwards v. Elliott, 21 Wall. 532, 22 L. ed. 487; The Winnebago, 205 U. S. 354, 363, 51 L. ed. 836, 841, 27 Sup. Ct. Rep. 509; North Pacific S. S. Co. v. Hall Bros. Marine R. & Shipbuilding Co. 249 U. S. 119, 125, 63 L. ed. 510, 512, 39 Sup. Ct. Rep. 221. But counsel for appellant insist that there is a broad distinction between such a contract and one for work and [244] material to finish a vessel after she has been launched and is water-borne. In support of this position they rely upon The Eliza Ladd (1875) 3 Sawy. 519, Fed. Cas. No. 4,364; The Revenue Cutter (1877) 4 Sawy. 143, Fed. Cas. No. 11,714,-both by Judge Deady, in the United States district court for Oregon; The Manhattan, district court for Washington (1891) 46 Fed. 797, which followed the district court for Oregon; and Tucker v. Alexandroff, 183 U. S. 424, 438, 46 L. ed. 264, 270, 22 Sup. Ct. Rep. 195. The first three cases are directly in point, but are op Notwithstanding possible and once not inappropriate criticism, the doctrine is now firmly established that contracts to construct entirely new ships are nonmaritime because not nearly enough related to any rights and duties pertaining to commerce and navigation. It is said that in no proper sense can they be regarded as directly and immediately connected with navigation or commerce by water. Edwards v. Elliott, 21 Wall. 532, 554, 555, 22 L. ed. 487, 491, 492; The William Windom, 73 Fed. 496; Pacific Surety Co. v. Leatham & S. Towing & Wrecking Co. 80 C. C. A. 670, 151 Fed. 440. And [245] we think the same reasons which exclude such contracts from admiralty jurisdiction likewise apply to agreements made after the hull is in the water, for the work and material necessary to consummate a partial construction and bring the vessel into condition to function as intended. The judgment of the court below is affirmed. ANA MARIA SUGAR COMPANY, Inc., V. THOMAS QUINONES. (See S. C. Reporter's ed. 245-251.) Appeal errors by intermediate appellate court - necessity of bill of exceptions. 1. The rule that errors in rulings of |