purchased of a leading reputable dealer; that there had been no change in the kind of wire furnished plaintiff; that the wire was uniform, except that there might be a variation of one-half a gauge difference in size, although it was all supposed to be the same; that it was galvanized annealed wire. In view of all of the testimony relative to wire, we think that the allegations of the amended complaint that the wire was unsafe, and that there had been a change in the kind and character of the wire furnished to plaintiff, are without substantial support, and that the trial court might well have declined to submit these charges to the jury. But, even though it be conceded that there was negligence on the part of defendant in not furnishing a better platform, in not furnishing better light, in not furnishing wire of greater uniformity, still we think that there was a failure to show that such negligence was the proximate cause of plaintiff's injury. [2] The law relative to proximate cause has been so often examined and analyzed by this court that a very brief review will suffice at this time. There must be shown a causal connection between the breach of duty and the injury to plaintiff (Lang v. N. Y. C. R. Co., 255 U. S. 455, 459, 41 S. Ct. 381, 65 L. Ed. 729); and it must be further shown "that a like injury due to the alleged negligence could have been anticipated by a reasonably prudent person" (C. & N. W. Ry. Co. v. Payne [C. C. A.] 8 F. (2d) 332). In Cole v. German Sav. & Loan Soc., 124 F. 113, 115, this court, speaking by Circuit Judge Sanborn, said: : "An injury that is the natural and probable consequence of an act of negligence is actionable, and such an act is the proximate cause of the injury. But an injury which could not have been foreseen nor reasonably anticipated as the probable result of an act of negligence is not actionable, and such an act is either the remote cause, or no cause whatever, of the injury. An injury that results from an act of negligence, but that could not have been foreseen or reasonably anticipated as its probable consequence, and that would not have resulted from it, had not the interposition of some new and independent cause interrupted the natural sequence of events, turned aside their course, and produced it, is not actionable. Such an act of negligence is the remote, and the independent intervening cause is the proximate, cause of the injury. A natural consequence of an act is the consequence which ordinarily follows it--the result which may be reasonably anticipated from it. A probable consequence is one that is more likely to follow its supposed cause than it is to fail to follow it." In C., St. P., M. & O. Ry. Co. v. Elliott, 55 F. 949, 951, 952, 20 L. R. A. 582, this court, speaking by the same judge, said: "An injury that is the natural and probable consequence of an act of negligence is actionable. But an injury that could not have been foreseen or reasonably anticipated as the probable result of the negligence is not actionable, nor is an injury that is not the natural consequence of the negligence complained of, and would not have resulted from it, but for the interposition of some new, independent cause, that could not have been anticipated. Obviously, the relations of causes to their effects differ so widely, and are so various, that no fixed line can be drawn, that will in each case divide the proximate from the remote cause. The best that can be done is to carefully apply the rule of law to the circumstances of each case as it arises." See, also, American Bridge Co. v. Seeds (C. C. A.) 144 F. 605, 11 L. R. A. (N. S.) 1041; M. & St. P. R. Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256. In the recent case of Davis v. Schroeder, 291 F. 47, 50, 51, Judge Kenyon, of this court, after reviewing the foregoing cases and many others, said: "From these citations the clear rule is apparent that an injury that could not have been reasonably anticipated by a person of ordinary prudence and intelligence as the probable result of the act of negligence is not actionable; nor is such injury actionable if it would not have resulted from the alleged negligence, but for the interposition of some new and independent cause that could not have been reasonably anticipated." With these principles in mind, let us turn again to the case at bar. Counsel for plaintiff states his position as follows: "It might have been reasonably foreseen or anticipated that, in attempting to cut a piece of wire from the roll, on account of insufficiency of light and the shaky and insecure platform, the plaintiff would cut the second or third round of wire, and that, if he did so, the wire, being springy and reasonably likely to fly, might and could come in contact with some portion of his body and reasonably cause him injury. In this case there was no intervening agent which caused the plaintiff's injury. There was not an intervening or remote cause. The direct cause of his injury was the cutting of the second strand of wire. The cutting of the second strand of wire resulted directly from the absence of sufficient light and a tottery platform." 26 F.(2d) 204 [3] This statement of counsel fails to mention one all-important matter, which in our opinion was the real and proximate cause of the accident. We refer to the manner in which plaintiff undertook to cut off the piece of wire from the coil. Neither in the orig inal complaint, nor in the amended complaint, is there any allegation that plaintiff cut off a longer piece of wire than he intended. The fair inference, both from the original complaint and the amended complaint, is that he intended to cut off about 6 feet of wire. On the trial, however, which occurred about a year after the filing of the amended complaint, plaintiff testified that he did not intend to cut off a piece of wire 6 feet long, but of a considerably shorter length. Whatever the fact may be as to the length of the wire which plaintiff intended to cut off, his method of cutting it, as gathered from his testimony, and as demonstrated conclusively from what happened, was this: The coil of wire lay upon the platform. Plaintiff reached down, took hold of one end of the wire, and lifted it up away from the coil. He did not state, and we do not know, the distance to which the end was lifted. But, whatever the distance, when plaintiff cut the wire at a point down near the plane of the coil, the cut end of the piece he was holding naturally and inevitably sought the plane of the other end, which plaintiff had in his hand. The natural recoil of the wire would produce this action. That the wire had some recoil is demonstrated by the accident; that this quality existed in the wire would have been plainly apparent to any one immediately on lifting one end of the wire, as plaintiff did. Neither the imperfect light, nor the steam in the air, nor the unstable platform, nor all three combined, were the cause of the accident. Plaintiff himself caused the accident by holding up one end of the wire and then cutting the wire down near the coil. Whether, if plaintiff had cut off a somewhat shorter piece of wire, the recoil would have been sufficient to bring the cut end up to his eye, is a matter of speculation. It would depend somewhat upon the height at which he held the end in his hand, and upon the nearness of his eye to that particular height. It was the method adopted, and not the exact length of wire cut, which was the cause of the ac cident. The method adopted was a negligent one, and in our opinion was not one which defendant or an ordinarily prudent person might reasonably have anticipated would be adopted. Our conclusion is that the unstable platform, the imperfect light, and the particular kind of wire, whether taken singly or together, were not the proximate cause of the accident. [4] Ordinarily the question of proximate cause is one for the jury, but where, as here, there was no substantial evidence in the record upon which to base a finding upon this question in favor of plaintiff, the court should instruct a verdict for defendant. Goodlander Mill Co. v. Standard Oil Co. (С. C. A.) 63 F. 400, 27 L. R. A. 583; Brady v. Railway Co., 114 F. 100 (C. C. A. 8), 57 L. R. A. 712; Cole v. German Sav. & Loan Soc., supra; Teis v. Smuggler Mining Co., 158 F. 260 (C. C. A. 8), 15 L. R. A. (N. S.) 893; Davis v. Schroeder, supra. [5] There is another reason, in our opinion, why plaintiff, on the record presented, was not entitled to recover. He was guilty of contributory negligence which caused the accident. It was unnecessary for him to lift the end of the wire which he took in his hand to any substantial distance from the coil; or, if it was convenient to lift it, in order to measure with his eye the length to be cut, it was feasible for him then to slip his hand to the point where the wire was to be cut, and hold that end of the wire. There could have been then no recoil. We have here a case where there was a safe and an unsafe method of doing the work, both of them plainly apparent. Plaintiff chose the unsafe one. He, therefore, cannot recover. Morris v. Duluth, S. S. & A. Ry. Co., 108 F. 747 (C. C. A. 8); Dawson v. C., R. I. & P. Ry. Co., 114 F. 870, 872 (C. C. A. 8); Gilbert v. B., C. R. & Ν. R. Co., 128 F. 529, 534 (C. C. A. 8); American Linseed Co. v. Heins, 141 F. 45, 49 (С. C. A. 8); St. L., K. C. & C. R. Co. v. Conway, 156 F. 234, 240 (C. C. A. 8); H. D. Williams Cooperage Co. v. Headrick, 159 F. 680, 683 (C. C. A. 8); Powell v. Wis. Cent. R. Co., 159 F. 864, 867 (C. C. A. 8). Inasmuch as the foregoing considerations dispose of the case, we deem it unnecessary to discuss other questions raised by the assignment of errors. The judgment must be reversed, and a new trial granted. It is so ordered. PEOPLE'S NAT. BANK et al. v. PAYNE. No. 7842. 1. Banks and banking 580(1)-Claim against Insolvent bank for money collected on check deposited by agent for collection and credit held allowable as general claim. Claim of principal against insolvent bank for money received from collection check deposited by agent for collection and credit held allowable as a general claim for money had and received. 2. Banks and banking 80(2)-Insolvent bank, after proof of its possession of money collected on check deposited for collection and credit, had burden of showing disposal. Where principal had proved that money received on check deposited by agent for collection and credit had come into possession of insolvent bank, burden rested on bank to show how it had disposed of it. 3. Banks and banking 80(1)-Proof of agent's indebtedness to insolvent bank held no defense to principal's claim for proceeds of check deposited by agent. Proof that agent was indebted to an insolvent bank in an amount greater than amount of check belonging to principal and deposited for collection and credit is not of itself a sufficient defense to principal's claim against bank for money had and received. 4. Banks and banking80(3)-Interest on claim against insolvent bank held erroneously allowed from date of deposit to date of decree. Interest on claim allowed as general claim against insolvent bank held improperly allow ed from date of deposit to the date of decree instead of to date of closing of bank. an amount owing to another creditor, gave Appeal from the District Court of the only real question in the case. United States for the District. of South Suit by E. Louise E. Payne against the E. B. Adams, of Hot Springs, S. D., for appellants. E. W. Martin, of Hot Springs, S. D. (Martin & Martin, of Hot Springs, S. D., on the brief), for appellee. Before WALTER H. SANBORN, and BOOTH, Circuit Judges, and MUNGER, District Judge. MUNGER, District Judge. This is an appeal from the allowance of a general claim against a national bank and its receiver. The plaintiff below was the owner of a note and a mortgage securing its payment. She sent it to her agent for collection. The debtor, in payment of it and in payment of no proof of any facts tending to show an debted to the bank when it closed, to an amount greater than the amount of the deposit, that fact alone would not be a sufficient defense to the plaintiff's claim as it was pleaded and proved. The principles which control the decision in a case of this kind are illustrated and applied in Wilson & Co. v. Smith, 3 How. 763, 11 L. Ed. 820. In that case the plaintiffs had sent a draft to their agent for collection, and this agent sent the draft for collection to its sub-agent. The sub-agent collected the draft and credited the amount to an indebtedness of the agent, in ignorance of the true ownership of the draft. The plaintiffs were held to be entitled to recover from the subagent. The court said: "Upon this part of the case, as well as 26 F.(2d) 209 Bank, 34 So. Dak. 109, 147 N. W. 288, L. (4) There was no proof that the defendant upon the question certified, we think the case In the case of Bank of the Metropolis v. New England Bank, 1 How. 234, 11 L. Ed. 115, again decided in 6 How. 212, 12 L. Ed. 409, the rule was stated that a bank receiving paper for collection from another bank without notice that the paper was not owned by the transmitting bank, was not entitled to hold the proceeds of the paper collected, as against the real owner, unless credit was given to the transmitting bank or balances were allowed to remain in its hands, to be met by negotiable paper transmitted or expected to be transmitted, in the usual course of business between the banks. See, also, United States v. State Bank, 96 U. S. 30, 35 (24 L. Ed. 647); Beaver Boards Cos. v. Imbrie & Co. (D. C.) 287 F. 158; George D. Harter Bank v. Inglis (C. C. A.) 6 F. (2d) 841; Shotwell v. Sioux Falls Savings 26 F. (2d)-14 TOWLE v. MAXWELL MOTOR SALES Circuit Court of Appeals, Eighth Circuit. No. 7835. 58(1)-Evidence held not to show alleged misrepresentations by agent of automobile manufacturer inducing plaintiff to guarantee debts of dealer. In action for damages because of alleged false representations made by agent of defendant automobile manufacturer, alleged to have induced plaintiff to guarantee debts and running expenses of dealer in defendant's automobiles, resulting in plaintiff being compelled to pay losses of such agency, evidence held not to show alleged misrepresentations by defendant's agent. 2. Fraud 11(1)12-Statements of opinion, prediction, or promise held not grounds for recovery of damages for false representations. Statements by defendant's agent, giving his opinion, prediction, or promise as to future course of business, but which were not representations of fact, are not grounds for recovery of damages for alleged false representations. 3. Fraud 59(3) - Measure of damages for purchase induced by fraudulent representations is difference between value of property received and value of what purchaser parted with, plus legitimate outlays. When a purchase is induced by fraudulent representations of the seller, purchaser's measure of damages is difference between real value of property received under contract at date of sale and actual value of what purchaser parted with for its purchase, plus outlays as are legitimately attributable to the representations. 4. Fraud 64(1)-Directed verdict for defendant, in action for false representations inducing entry into guaranty contract, held proper, in absence of evidence whereby damages could be ascertained. In action for damages because of alleged false representations made by agent of defend ant automobile manufacturer, inducing plaintiff to guarantee debts of dealer in defendant's automobiles, directed verdict for defendant held proper, in view of lack of evidence whereby plaintiff's damages could be ascertained, in that prices at which dealer received automobiles and prices at which they were sold was not shown, nor was expense of dealer in conducting sale of defendant's automobiles shown in proportion to entire expense. In Error to the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge. Action by John W. Towle against the Maxwell Motor Sales Corporation. Judgment for defendant on a directed verdict, and plaintiff brings error. Affirmed. Glenn N. Venrick, of Omaha, Neb. (Francis H. Mayo, of Omaha, Neb., on the brief), for plaintiff in error. Harold R. Smith, of Detroit, Mich. (David A. Fitch, of Omaha, Neb., and Harry C. Bulkley, of Detroit, Mich., on the brief), for defendant in error. Before WALTER H. SANBORN and BOOTH, Circuit Judges, and MUNGER, District Judge. month. The tenants learned that they might secure an agency for the sale of Maxwell and Chalmers automobiles, if they could furnish acceptable guarantors for their purchases. After a conversation with Mr. Page, an agent of the defendant, the plaintiff agreed to furnish the money and credit needed to conduct the agency. For that purpose he signed a continuing guaranty of any debts that the agents should incur. One of the terms of the guaranty contract was that the guarantor could at any time terminate his liability for obligations of the partnership executed thereafter, by giving notice. The two tenants and a third person thereupon entered into a partnership to conduct the agency, and made a contract with the defendant, dated July 12, 1922, by which it acquired a right to sell at Omaha, Neb., and adjacent territory such Maxwell automobiles as it should order until July 1, 1923. A rate of discount from current list prices was agreed upon. This contract provided that either party could cancel it upon 15 days' notice. At the same time the partnership entered into a similar contract with the Chalmers Motor Car Company for the sale of Chalmers automobiles. The partnership bought and sold a number of these automobiles, and furnished repairs and mechanical services. It continued business until December 15, 1922. One of the partners then withdrew from the firm, and a new partner was added. The loss from the conduct of the business to that time was $2,036.37. The plaintiff, on December 16, 1922, signed an agreement guaranteeing the obligations of the new partnership on the same terms as in the former guaranty. The new partnership leased additional room, and it added an agency for the sale of the Jordan automobile, which continued until July, 1923. The new partnership continued to lose money, but on July 3, 1923, it renewed the contracts with the defendant and with the Chalmers Motor Corporation, whereby it continued its agency for another year. The losses continued and increased each month. On July 1, 1924, a corporation was formed to succeed to the partnership, and it took an assignment from the partnership of the agency contracts. The plaintiff gave promissory notes for the amount of the partnership debts to that time. The corporation continued the business at a loss, and in August, 1924, it made a new contract with the defendant to continue to sell the automobiles made by it. Some time later the agency was discontinued. MUNGER, District Judge. The plaintiff in error brought suit to recover damages because of alleged false representations made by the agent of defendant in error. The case was tried to a jury, but at the close of the plaintiff's evidence the court directed a verdict in favor of the defendant. The correctness of that ruling is the only question presented by this record. Briefly stated, the plaintiff claimed that he was induced to guarantee the debts and running expenses of a firm (and its successor) which dealt in automobiles, because he believed the statements made by the defendant's agent, and, as the result of a long conduct of this business, the plaintiff was compelled to pay the losses of these dealers. The plaintiff, an experienced business man, was one of the owners of a business building in Omaha, Neb. This building was occupied by two tenants who were engaged in the sale of automobiles. For some time they had been in arrears in the payment of rents for the building. The plaintiff was desirous of a continued occupancy of the building by tenants who would In the trial of this case, it was the theagree to pay the current rental of $1,200 per ory of the plaintiff that the defendant was |