In Error to the District Court of the United States for the Southern Division of the Southern District of California; Wm. P. James, Judge.

Action by the Slavick Jewelry Company against John P. Carter, formerly United States Collector of Internal Revenue of the Sixth District of California, and others. Judgment for plaintiff (21 F. [2d] 874), and both parties bring error. Reversed.

Shepard Mitchell, M. B. Silberberg, and Alex W. Davis, all of Los Angeles, Cal., for plaintiff.

Samuel W. McNabb, U. S. Atty., and Emmett E. Doherty, Asst. U. S. Atty., both of Los Angeles, Cal., for defendants.

fer of title from one person to another for a money consideration. But it is equally true that in private contracts and public laws it is not infrequently employed to characterize transactions which do not effect an absolute transfer. Illustrative are the following cases: Crall v. Commonwealth, 103 Va. 855, 49 S. E. 638, 640; Id., 103 Va. 862, 49 S. E. 1038; City of South Bend v. Martin, 142 Ind. 31, 41 N. E. 315, 29 L. R. A. 531; Watson v. Brooks (C. C.) 13 F. 540; Baton v. Richeri, 83 Cal. 185, 23 P. 286; Shainwald v. Cady, 92 Cal. 83, 28 P. 101; Pettenger v. Fast, 87 Cal. 461, 25 P. 680; Smith v. Mariner, 5 Wis. 551, 581, 68 Am. Dec. 73; Houston E. & W. Ry. Co. v. Keller, 90 Tex. 214, 37 S. W. 1062, 1063; Rice v.

DIETRICH, Circuit Judge. The Slavick Jewelry Company is engaged in selling jewelry at retail under a plan by which it delivers possession of the merchandise sold, but retains title until the full purchase price is paid. During the period from December, 1920, to December, 1924, it made approximately 700 of such sales, for the gross aggregate price of $72,746.80, and actually received on account thereof the aggregate sum of $49,115.55. In no case was the purchase price paid in full; in some instances the larger part remaining unpaid, and in some the balance being trifling, as, for example, $1 on a $60 or $75 sale, and $1.75 on an $85 transaction. At divers dates during the period mentioned the several balances, aggregating $23,631.25, were charged off to profit and loss, and the accounts closed, for what reason is not disclosed.

Section 905 of the Revenue Acts of 1918 and 1921 (40 Stat. 1124, and 42 Stat. 293 [Comp. St. § 6309/f]), provides for a tax upon jewelry "when sold by or for a dealer equivalent to five per centum of the price for which so sold," and acting thereunder the Commissioner of Internal Revenue assessed a tax of $3,637.34, which is at the rate of 5 per cent. computed upon the gross contract sales price. The jewelry company, having paid this under protest and failed in its efforts to obtain a refund, brought this suit for a recovery. Holding that the assessment was valid upon the moneys collected, but to that extent only, the lower court entered a judgment in its favor for $1,181.56, from which both parties appeal.

It is undoubtedly true, as the jewelry company contends, that in its primary meaning the term "sale" imports a consummated trans

Smith, 5 Ga. App. 340, 63 S. E. 248, 249; State v. Betz, 207 Mo. 589, 106 S. W. 64, 66.

Even in treatises on Sales the subject of so-called conditional sales is sometimes treated. See, for example, Mechem on Sales, § 558 et seq. Upon the street and in the commercial world, such is common usage. Indeed, we have no other single word descriptive of transactions such as are here involved. One who procures an automobile or a piece of furniture upon the installment plan, where, as here, the dealer retains title, is commonly thought and spoken of as a purchaser, and when the dealer so disposes of merchandise it is treated and regarded as a sale, and moneys received on account thereof as sales receipts. In the absence of something in the act to suggest that Congress intended the term to be understood in its restricted primary meaning, we must assume it was used in the broad sense in which it is commonly understood. Measurably in point is the case of Earl C. Anthony v. United States, 57 Ct. Cl. 259.

While there is no charge of a fraudulent scheme to evade the payment of taxes, in construing the statute we may properly consider the consequence of the interpretation for which the jewelry company contends, namely, that there is no "sale" until every cent of the stipulated purchase price is paid. In that view a transaction would not become taxable so long as there remained any amount, however trifling, of the purchase price; and it would be a severe strain to assume that a dealer would endeavor to collect the last dollar when such collection would operate to impose upon him the duty to pay $3 or $4 to the government. As above indicated, the record here exhibits specific instances of such trifling balances.

To conclude, it is our view that Congress intended no distinction between an absolute sale and a conditional sale, and that in either case the transaction is assessable when it is entered into. If it be suggested that under that construction the jewelry company here would be required to pay a tax upon a part of the sale price it has not received, the answer is that with equal force the same plea could be made upon behalf of the dealer who sells outright upon credit.

Our attention is drawn to a pertinent administrative regulation, article 4 of Regulation 48 (Revised), as follows: "The tax attaches when the article is sold; that is to say, when the title to it passes from the vendor to the purchaser. When title passes is a question of fact, dependent upon the intention of the parties as gathered from the contract of sale and the attendant circumstances. Where goods are segregated from other goods owned by the vendor, and it is the intention of both the vendor and the purchaser, at the time the goods are segregated, that they shall then belong to the purchaser, the title will be presumed to pass at such time. In the absence of any intention to the contrary, the title is presumed to pass upon de livery of the article to the purchaser or to a carrier for the purchaser. In the case of a conditional sale, where the title is reserved until payment of the purchase price in full, the tax attaches (a) upon such payment; or (b) when title passes, if before completion of the payments; or (c) when, before completion of the payments, the dealer disposes of the sale by charging off, by any method of accounting he may adopt, the unpaid portion of the contract price; or (d) when the vendor discounts the notes of the purchaser for cash or otherwise; or (e) when the vendor transfers his title in the article sold to another."

If, under the rule that in case of a doubtful statute the courts will give weight to an administrative construction thereof, the meaning thus put upon the term "sale" be adopted, the result here is manifestly the same, unless, as the jewelry company urges, we yield to one part of the regulation and ignore another, namely, subdivision (c). But such a course, if adopted, would have highly unreasonable results. Merchants doing a credit business upon the plan of the jewelry company here could collect the major part of the sales price, and by charging off the residue escape the sales tax entirely, and at the same time utilize the charge-off as a credit against gross income, and thus escape a ratable portion of that tax also; whereas, a merchant engaged in the same business,

who extends credit without the protection afforded by conditional sale contracts, is required to pay the sales tax upon the entire price, whether collected or not.

We cannot believe that Congress contemplated such an unreasonable and discriminatory result. It follows that the judgment must be reversed, and such will be the order.

GILBERT, Circuit Judge (dissenting). I think that the judgment of the court below should be affirmed. Confessedly the contracts by which the plaintiff parted with the possession of its jewelry were not sales, within the accepted meaning of that term. But it seems reasonable to hold, as did the court below, that for the purpose of taxation they should be deemed to be sales from the time when the plaintiff abandoned further efforts to collect installments, as it did on December 31, 1923, and wrote them off as uncollectible. The Revenue Acts applicable to the case are those of 1918 and 1921. Under the authority of those acts the Treasury Department issued its Regulation 48, governing the enforcement of the acts as they related to the tax on the sale of jewelry. In the regulations promulgated under both acts it was provided: "The tax attaches when the article is sold; that is to say, when the title to it passes from the vendor to the purchaser. When title passes is a question of fact, dependent upon the intention of the parties as gathered from the contract of sale and the attendant circumstances. In the case of a conditional sale, where the title is reserved until payment of the purchase price in full, the tax attaches (a) upon such payment; or (b) when title passes, if before completion of the payments; or (c) when, before completion of the payments, the dealer disposes of the sale by charging off, by any method of accounting he may adopt, the unpaid portion of the contract price."

Under the regulations, therefore, title is presumed to have passed to the purchasers in the present case at the moment when the plaintiff charged off the unpaid portions of the contract price. From the premise that the title passes at the time when the unpaid portion of the price is charged off, it seems logically to follow that the price for which the goods were sold, and upon which the plaintiff should be taxed, was the price which it realized, and not the price which the purchasers promised to pay, and which the plaintiff never expected to receive. Obviously, the regulations were framed with a special view to the known nature of the business of selling jewelry on conditional sales. In thus carrying on that business, and retaining, until paid for, the title to the thing sold, the plaintiff was not doing business upon credit; it was not relying upon the financial standing of the purchasers, but upon the security which it had, in reserving title in the goods so contracted to be sold. I think it would be an unjust conclusion to hold that it must pay a tax upon a price which it never expected to realize, and which, in the very nature of the business in which it was engaged, it never could realize. In Gould v. Gould, 245 U. S. 151, 153, 38 S. Ct. 53, 62 L. Ed. 211, it was held that in cases of doubt statutes referring to taxes "are construed most strongly against the government, and in favor of the citizen."sonal injuries sustained as the result of an explosion while working as an employee of the plaintiff in error, in what was alleged to be hazardous work in using blasting powder and dynamite in the construction of a tunnel. The defense relied upon by the defendant in its answer was that the plaintiff was not its employee, but was a subcontractor, and that the explosion was the result of his own negligence. The jury returned a verdict for the plaintiff in error, and judgment was rendered thereon.

I am unable to see that the decision in Anthony v. United States, 57 Ct. Cl. 259, adds light to the present discussion. That was a case of taxation upon automobiles "held and intended for sale by any person." The decision was that, after the vendor had parted with possession of automobiles under conditional sales contracts, those automobiles were no longer " held and intended for sale by the vendor." Obviously, when a vendor has parted with the possession of automobiles under conditional contracts of sale, it cannot be said that he still holds and intends to sell them.

materiality, irrelevancy, or incompetency is clearly manifest, and it has no effect to present a ground of objection not discernible, in the absence of a specification of its precise nature.

3. Witnesses 392(1)-Reports in witness' handwriting held admissible to impeach his testimony that plaintiff was not defendant's employee but subcontractor, against objeotion papers were not originals.

Where defendant's superintendent of construction testified that plaintiff, suing for personal injuries, was not an employee of defendant, but a subcontractor, copies of reports to liability insurer designating plaintiff as employee, being in witness' handwriting, held admissible to impeach his testimony, as against objection that papers were not original documents and that no effort had been made to obtain the originals.

4. Evidence382-Sufficiency of proof to authorize admission of instruments, reciting that plaintiff was subcontractor, not employee, held addressed to trial court's sound discretion.

In action for personal injuries sustained while working as employee of defendant, in which defendant's answer alleged plaintiff was not its employee but a subcontractor, sufficiency of proof to authorize admission of receipt purporting to have been signed by plaintiff, and statement of account containing recitals that plaintiff was contractor and not employee, was addressed to trial court's sound discretion. 5. Appeal and error 221-Objection that verdict was excessive held not available, where raised for first time in reviewing court without showing it violated local Liability Act (Civ. Code Ariz. 1913, pars. 3153-3162).

Assignment of error that trial court erred in accepting verdict of $12,500 for injuries because it was excessive under the evidence held not available to defendant in reviewing court, where no objection was presented in trial court against its acceptance or entry of judgment thereon, and it was not shown that it was contrary to Employers' Liability Act Ariz. (Civ. Code 1913, pars. 3153-3162) on which recovery was based.

[1] Error is assigned to the admission in evidence of copies of two reports made by the defendant's superintendent of construction, offered in evidence by the plaintiff, and received over the defendant's objection on the ground that they were incompetent, irrelevant, and immaterial, and not shown to be correct copies of the originals. Each report was addressed to the Maryland Casualty Company, and was entitled, "Report of Accident to an employee," one of them referring to the plaintiff and the other referring to a workman who was assisting him, and each report had been copied by the said superintendent, as he said, from a copy of the original. Before they were admitted in evidence, a strip of paper was pasted over the words "Maryland Casualty Company," which was sufficient to render them invisible, except that, when held up to a light, they could be seen through the superimposed paper.

The objection now urged to the ruling of the court below is that the reports addressed, as they were, to the casualty company tended to show that the defendant was insured against liability for injuries sustained by its employees. But the reports contained distinct statements that the plaintiff and his assistant were employees, and indicated that the plaintiff was not working as a contractor. If they were admissible upon an issue, which, as we have seen, was material, they were not subject to exclusion on the ground that they might tend to prove a fact which the plaintiff was not permitted to prove.. Southern Pac. Co. v. Schoer (C. C. A.) 114 F. 466, 57 L. R. A. 707.

[2,3] Another ground for sustaining the trial court's ruling is that the attention of the court was at no time directed to the fact that the jury might discover from an inspection of the reports that they were addressed to a casualty company. A general objection that a paper offered in evidence is incompetent, irrelevant, and immaterial is not ground for its exclusion unless the materiality, irrelevancy, etc., is clearly manifest, and it has no effect to present a ground of objec

tion not discernible, in the absence of a specification of its precise nature. Morgan v. United States (C. C. A.) 169 F. 242; Guarantee Co. of North America v. Phenix Ins. Co. (C. C. A.) 124 F. 170; Electric Co. v. Blair (C. C. A.) 79 F. 896. The objection that the papers produced were not original documents, and that no effort had been made to obtain the originals, was not ground for their exclusion. They were admitted to be in the handwriting of the witness, and, in any view, they were admissible to impeach his statement that the plaintiff was not an employee of the defendant, but a contractor. [4] Error is assigned to the exclusion of two instruments offered by the defendant, one a receipt, the other a statement of account, both dated shortly after the accident. Both instruments contained words which expressed the defendant's view that the plaintiff was a contractor and not an employee. The receipt purported to bear the signature of the plaintiff, and was signed "Lloyd L. Crawford." It was excluded for want of sufficient proof of the plaintiff's signature. The statement of account was excluded for want of proof that it had ever been exhibited to the plaintiff. The defendant's superintendent, in offering the receipt, testified that he had no knowledge that the plaintiff signed it, and he admitted that it might have been signed by another. The plaintiff denied that he signed. it, and he testified that he always wrote his name "Loyd," instead of "Lloyd." No expert witness was adduced to show that the signature was in the plaintiff's handwriting, and it is inferable that the court below, in excluding the receipt, compared the signature which it bore with the plaintiff's admitted signature indorsed on checks which were before the court. The question of the sufficiency of the proof to authorize the admission of the papers in evidence was addressed to the sound discretion of the trial court, and we are not convinced that discretion was abused. 22 C. J. 967; Beach Front Hotel Co. v. Sooy (C. C. A.) 210 F. 265; Gorton v. Hadsell, 9 Cush. (Mass.) 508; Koeler v. Abey, 168 Mich. 113, 133 N. W. 933. [5] The assignment that the court erred in accepting the verdict of the jury and entering judgment thereon, notwithstanding that the evidence was insufficient to justify a verdict of such magnitude, cannot avail to bring any question before this court for review. The verdict was for $12,500. No objection was presented against its acceptance or the entry of judgment thereon. It was not shown that it was contrary to any provision of the Arizona Employers' Liability Act,

Civ. Code 1913, pars. 3153-3162. The Arizona Employers' Liability Law of 1913, the provisions of which would control decision in the present case, contain no inhibition of the entry of such a judgment as was rendered; and, while it is true that the statute of 1925 limits the amount recoverable in case

of total disability to the sum of $6,500, and may be adverted to as indicating what the lawmakers of that state deemed a reasonable allowance, it furnishes this court no authority to reduce the amount of the judgment in the present case.

The judgment is affirmed.

6. Injunction 57-Specific performance 73-Equity will not directly enforce contract to render personal services by decree for specific performance, nor indirectly enforce contract by injunction restraining violation.

A court of equity will not directly enforce a contract to render personal services by decree for specific performance, and it will not indirectly or negatively enforce such contract by injunction restraining the violation thereof.

7. Injunction57-Specific performance -Remedies of specific performance and injunction against breach of contract rest in sound discretion of court.

Remedies of specific performance and injunction against breach of a contract are not matters of right, but rest in the sound discretion of court, to be exercised, not arbitrarily, but according to settled principles of equity, and with reference to circumstances of individual

case.

8. Injunction 57-Trial court properly dismissed bill to enjoin breach of contract for joint adventure requiring supervision for period of years of matters involving exercise of skill, discretion, and judgment.

Trial held to have properly dismissed bill to enjoin interference with prosecution of joint adventure for feeding hogs on island with garbage secured from city, pursuant to contract for its disposition, requiring protracted supervision and direction as to duties to be performed by parties extending over a period of years, and involving exercise of skill, discretion, and judgment, particularly where specific performance of contract on part of plaintiff could not be enforced, so that mutuality of remedy was wanting.

Appeal from the District Court of the United States for the Eastern District of Missouri; Charles B. Faris, Judge.

Suit by Harold E. Engemoen against Charles L. Rea and others. Decree of dismissal, and plaintiff appeals. Affirmed.

Glendy B. Arnold, of St. Louis, Mo., for appellant.

Xenophon P. Wilfley, of St. Louis, Mo. (Fred L. Williams and Earl F. Nelson, both of St. Louis, Mo., on the brief), for appellees.

Before STONE and VAN VALKEN

BURGH, Circuit Judges, and PHILLIPS, District Judge.

PHILLIPS, District Judge. This is an appeal from a decree sustaining a motion to dismiss, denying a temporary injunction, and dismissing the bill at plaintiff's costs, in a suit in equity brought by Harold E. Engemoen against Charles L. Rea, New St. Louis & Calhoun Packet Corporation, Stanley Rea,