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contract to enforce performance. In such a case performance means payment to the vendor's creditors pro rata. The transaction is inconsistent with any right of the vendor to claim the money under the exemption law adversely to creditors, because the statutory obligation of the vendee is necessarily incorporated into the contract, and the vendor must be deemed to have assented to the application of the purchase money, as the statute has prescribed. Such assent on his part waived any right which he might otherwise have asserted to select the purchase money in lieu of other property which would be exempt from attachment or execution for debt. The statute does not merely charge the purchase money with a trust in favor of creditors in substitution for their rights to enforce payment of debts due, by levying upon the goods in the hands of their debtor, but in unrestricted terms it imposes an absolute obligation upon the vendee to see to the application of the whole of the purchase money, if necessary to pay all the debts of the vendor. To hold otherwise, as the referee has held, would in effect change the law by judicial construction, and this court disclaims the right to amend an unambiguous statute by construction.

The contention that by instituting involuntary bankruptcy proceedings the creditors have waived rights, and that they are estopped to contest the claim to exemptions, appears to me to be insupportable. As stated, the argument is based upon a supposed requirement of the statute that they must, in order to claim its benefits, elect to accept the obligation of the vendee and surrender other legal modes of procedure against their debtor. I find no such requirement, express or implied, in the statute.

The order of the referee sustaining the demurrer will be set aside, and the exemptions claimed will be allowed with respect to household furniture, etc., valued at $150, and disallowed as to the money.

ANDERSON COUNTY V. KENTUCKY DISTILLERIES & WAREHOUSE CO.

(Circuit Court, E. D. Kentucky. February 28, 1906.) TAXATION-STATUTE TAXING WHISKY IN WAREHOUSE—CONSTITUTIONALITY.

Under the statutes of Kentucky, as construed by the state Court of Appeals, the proprietor of a warehouse in which bonded whisky is stored, on the removal of such whisky, is liable for the annual taxes levied thereon, with interest on each year's tax from December 1st of the year following that in which the assessment was made. Held, that such statute is not in violation of the Constitution of the United States, nor is it material, on such question, whether or not the proprietor of the warehouse is also the owner of the whisky. On Demurrer to Petition. John W. Ray, for plaintiff. Charles H. Stoll, for defendant.

COCHRAN, District Judge. The Court of Appeals of Kentucky, in the case of Commonwealth v. Rosenfield Bros. & Co., 80 S. W. 1178, held that, under the provisions of the Kentucky statutes in relation to taxation of whisky in bonded warehouses, the proprietor of the warehouse is bound to pay, when the whisky is withdrawn therefrom, not only the annual taxes levied thereon whilst it was in the warehouse, but interest on each year's tax at 6 per cent. from the 1st of December of the year following that as of the 15th of September in which it was assessed, and that he was not relieved from so doing by the fact that the collector of taxes had accepted from him the taxes only upon the idea that that was all that he was bound to pay. This decision seems to me to be correct in both particulars. Even if I had a doubt as to its correctness, I think I should follow it.

The question as to whether the act was constitutional under the federal Constitution was not raised or considered in that case. The question as to such constitutionality of a substantially similar statute was considered in the case of Carstairs v. Cochran, 193 U. S. 10, 24 Sup. Ct. 318, 48 L. Ed. 596, and it was held that it was constitutional. An attempt is made to distinguish that case from this, in that there the distiller was made bound for the tax, whereas here the owner or proprietor of the warehouse is made liable for the tax. I do not understand that the distiller and the owner or proprietor of the warehouse are separate personages.

The warehouseman and the distiller I understand to be the same personage. No point was made by the Supreme Court of the fact that the Maryland statute provided that the distiller should pay the tax. It treated it as if it had provided that the warehouseman should do so. Mr. Justice Brewer said:

“That under federal legislation distilled spirits may be left in a warehouse for several years, that there is no special provision in the statutes in question giving to the proprietor 'who pays the taxes a right to recover interest thereon, and that for spirits so in bond negotiable warehouse receipts have been issued, do not affect the question of the power of the state. The state is under no obligation to make its legislation conformable to the contracts which the proprietors of bonded warehouses may make with those who store spirits therein; but it is their business, if they wish further protection than the lien given by the statute, to make their contracts accordingly.”

The petition herein alleges that defendant was the owner or proprietor of the warehouse in question herein. On demurrer that allegation must be accepted as true. Even if the statements made in the reports as to the warehouses being occupied by Ripy should be construed to mean that Ripy, and not defendant, was the owner or proprietor of the warehouses, plaintiff has a right to show that it is not true.

The demurrer to the petition is overruled.

MATHER V. BARNES, KEIGHLEY & GREER.
(Circuit Court, W. D. Pennsylvania. August 9, 1906.)

No. 10. 1. VENDOR AND PURCHASER-FRAUDULENT MISREPRESENTATIONS-RESCISSION.

A misrepresentation with regard to material facts, by which a purchase of property is intentionally induced, amounts to a fraud, which vitiates the transaction and entities the purchaser to be relieved.

[Ed. Note.For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, $$ 38–60.]

2. SAME-MEANS OF KNOWLEDGE-DUTY OF PURCHASER.

Where, however, the means of knowledge are at hand, and are equally open to both parties, if the purchaser does not avail himself of them, he will not be heard to say that he has been deceived by the misrepresentations of the vendor, being charged with a knowledge of all that could have been so readily ascertained.

[Ed. Note. For cases in point, see vol. 48, Cent. Dig. Vendor and Pur

chaser, $$ 38–60 ; vol. 23, Cent. Dig. Fraud, $$ 19, 20.] 8. SAME-INDEPENDENT INVESTIGATION BY PURCHASER.

And the same rule obtains where, not resting on the statements of the vendor, he undertakes to make and does make an independent investigation and verification of his own.

[Ed. Note.-For cases in point, see vol. 48, Cent. Dig. Vendor and Pur

chaser, $$ 38-60; vol. 23, Cent. Dig. Fraud, § 18.] 4. SAME-FRAUD PRACTICED IN COURSE OF INVESTIGATION.

In order, however, to have this effect, the examination must be an untrammeled one; and this is not the case where fraud or concealment is practiced in the course of it, or misrepresentations made which would theinselves afford occasion for relief. An examination perverted in this way by the act of the vendor is the same as no examination at all.

[Ed. Note.-For cases in point, see vol. 48, Cent. Dig. Vendor and Pur

chaser, $8 38-60; vol. 23, Cent. Dig. Fraud, $$ 17-22.] 5. SAME-VALUE OF BARGAIN IN MATERIAL.

Neither does it matter, if misconduct be proved, that the bargain, even so, was a good one, from which the purchaser is likely to sustain no loss. He is entitled to the bargain which he supposed and was led to believe that he was getting, and is not to be put off with any other, however good.

[Ed. Note.For cases in point, see vol. 48, Cent. Dig. Vendor and Pur

chaser, $$ 38-60; vol. 23, Cent. Dig. Fraud, $ 24.] 6. SAME - SALE OF MINERAL LAND - QUALIFIED REPRESENTATIONS - "TRADE TALK."

Where, as a part of the negotiations for the sale of coal lands, it was represented by the defendants that the land was underlaid throughout its entire extent with a particular vein of coking coal, for which the plaintiffs were seeking and on which the land was sold, but it was also stated as a qualification that they had not themselves been over the property and were not much acquainted with it, their representations are to be taken as nothing more than the usual commendatory expressions, which, as "trade talk," are accustomed to pass at such a time, and by which, however positive, no one is expected to be bound.

[Ed. Note.-For cases in point, see vol. 48, Cent. Dig. Vendor and Pur

chaser, $$ 40, 50, 52, 53; vol. 23, Cent. Dig. Fraud, $$ 12–14.] 7. PRINCIPAL AND A GENT-ACTS AND STATEMENTS OF ACCREDITED AGENT,

But the acts of an accredited agent within the apparent scope of his authority are the acts of the principal. Where, therefore, prospective purchasers of coal lands were referred by those who had them for sale to a party employed by them to show the property as one who was thoroughly acquainted with it and as their representative on the ground, and such party, in the course of an examination of it by experts, made statements with regard to it which he knew to be untrue, and also concealed and deceived them with regard to certain important tests and indications which would be damaging, the territory being wild and mountainous, and requiring some one to guide such experts over it, and the coal indications being obscure to a casual observer, the vendors were responsible for such misconduct, and, a purchase having been induced thereby, the purchasers were entitled to be relieved.

[Ed. Note.-For cases in point, see vol. 40, Cent. Dig. Principal and Agent, $8 583, 719.]

8. VENDOR AND PURCHASER-RESCISSION-STATUS QUO.

While rescission will not be ordered, where the status quo has been so changed that it cannot be restored, a substantial restoration is all that is required; and it is satisfied, as a rule, where the party against whom the rescission is asked gets back what he parted with, and the other party gives up what he got, unchanged.

[Ed. Note.-For cases in point, see vol. 48, Cent. Dig. Vendor and Pur

chaser, $8 205, 208, 209.] 9. SAME-LAND OPTIONS.

Plaintiffs by fraudulent misrepresentations were induced to purchase a body of coal lands on which at the time the defendants had some 60 ditferent options or rights to purchase at a certain price per acre, on which price a considerable advance was to be paid by the plaintiffs. In order to get title and complete the sale, with the acquiescence of all parties, the original owners were paid the portion coming to them, upon executing the proper conveyance to the plaintiffs, and the defendants were paid the rest. Held, that it was no objection to ordering a rescission on the ground, as contended, that the status quo could not be restored, that the defendants would be compelled to take back the lands in place of the options which they had originally held, which imposed no personal obligation, and also pay over, not only the money which they themselves got, but also that which had gone to the original owners.

[Ed. Note.--For cases in point, see vol. 48, Cent. Dig. Vendor and Pur

chaser, $$ 205, 208, 209.] 10. MINES AND MINERALS-RESCISSION OF SALE-COMPENSATION TO BE ORDERED ON RECONVEYANCE.

In a suit to rescind a purchase of coal land for fraud, which is sustained, the plaintiffs upon a reconveyance are entitled to have restored them the purchase money paid, with interest, the expenses incurred in having the titles searched and deeds made and recorded, and the taxes; but they are not entitled to expenditures for having the property examined and tested by experts, nor for the making of surveys, looking to the construction of a coke plant and the building of a branch railroad, nor for the organization of a corporation under which to operate, nor the issuing of bonds to finance the transaction; neither of these being of direct benefit to the property.

Hermon A. Kelley and Horace Andrews (of Hoyt, Dustin & Kelley), for plaintiffs.

A. Leo Weil and D. M. Hertzog, for defendants.

ARCHBALD, District Judge. This is a bill to set aside a purchase of coal lands, on the ground of misrepresentation and fraud. In the spring of 1902 the plaintiffs, who were extensively engaged in the manufacture of iron at Cleveland and Youngstown, Ohio, were on the lookout for a body of coal lands on which they could erect a plant for the making of coke on a large scale. This was mentioned by Murray, one of their number, to R. M. Haseltine, an experienced coal man, at one time state inspector of mines in Ohio, who was commissioned to look over the different bituminous fields; and not long after, being at Uniontown, Pa., he brought up the subject in turn to Barnes and to Keighley, with whom he was acquainted, and was told by them that they had about what he wanted in the neighborhood of Masontown, Va. At that time the defendants held a large number of options, which they had taken up on lands in that vicinity, amounting, in conjunction with a tract of 1,800 acres, known as the "Falls Tract”—which they had in prospect, and which they secured in the course of the summer—to some 5,800 acres; all, as it was asserted, being underlaid with the Upper Freeport vein, a recognized coal of the highest coking qualities. Having gone to Masontown shortly afterwards with Barnes and Keighley, and examined two or three openings about there, and being satisfied from this and the representations which were made with regard to the character of the property, Haseltine, on June 23, 1902, took an option in writing, in his own name, at $25 an acre; $10 to be paid down, and the balance in three equal annual payments, an advance of $13 on the amount which the defendants were themselves to pay. This action was communicated to the plaintiffs, but, owing to the absence of certain of their number in Europe, was not able to be considered by them until September; the option being twice renewed to meet that emergency. It was not, therefore, until September 9th, two weeks before the last extension would expire, that Murray, on behalf of the plaintiffs, was able to go and look at the property. He was favorably impressed with it, and so expressed himself to Barnes and Keighley, and on September 29th he visited it again, in company with Campbell and Wheeler, two other of the plaintiffs; the three being shown certain parts of the property by the defendant Barnes. The extent of the field, the coking qualities of the coal, and the required railroad facilities, were discussed on this visit, it being asserted by Barnes with respect to the former that the Upper Freeport vein underlaid the whole property, making a continuous body of coal of about 6,000 acres, and that there was also an under vein, the Kittanning, which would be thrown in. Meantime a more extended and critical examination had been insisted upon by Murray, and steps were accordingly taken to have it made. A map was necessary, and McMillan, the county surveyor, who was engaged in surveying the property for the defendants, was directed by them to prepare it; and, not being able to complete his survey until the latter part of September, the option was extended another 15 days. George W. Shaffer, a resident of the neighborhood, who represented the defendants locally, and had assisted in getting together the options which they held, was introduced as one who was thoroughly acquainted with the property, and would show it to the parties who were to be sent to look at it, and it was under his guidance that the examination by experts which followed was made. Their reports were favorable, and on the strength of them the plaintiffs closed the bargain and took the property, paying some $139,000 for it. Upon putting on a corps of engineers, however, to trace the outcrop and plan for its development, it was discovered that the Upper Freeport vein, on the strength of which it had been taken, underlaid but about one-third of the field, and, in addition, by reason of being cut into by deep ravines and gulleys, it was left in such a detached, irregular, and strung-out condition as to make the profitable mining of it a question. Feeling that they had been imposed upon, the plaintiffs, after some further investigation, took steps to rescind the purchase, tendering a reconveyance with reasonable promptness, and demanding back their money, and finally filing the present bill. This is the case in

1 Specially assigned.

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