which it shipped from Fairbanks, Alaska, consigned to the Crown Distilleries Company at San Francisco, Cal., which company had contracted to purchase it; the shipment being made by way of Chitina and Cordova, Alaska, and being carried from Chitina to Cordova by the Copper River & Northwestern Railroad, by which road it was to be delivered at Cordova to its connecting carrier for delivery at its final destination in San Francisco, Cal. The liquor was therefore interstate commerce, in the possession and control of interstate carriers, at the time of its seizure by the government officer, and the question for decision is whether the act of Congress of February 14, 1917, authorized the seizure and for the purpose stated.

As has been shown, by its first section it is expressly declared, among other things, that on and after the 1st day of January, 1918, it shall be unlawful for any person, company, or corporation, his, its, or their agents, etc., to have in his, its, or their possession in Alaska any intoxicating liquor, or to transport or otherwise dispose of the same, except under conditions not here applicable, and by section 14 that it shall be unlawful for any person to ship, transport, deliver, receive, or have in his possession any such liquor (with certain exceptions also inapplicable to the present case), with the further provision in section 23 that no property right of any kind shall exist in alcoholic liquors or beverages illegally received, possessed, or stored, as provided in and by that act, and that in all such cases such liquors are forfeited to the United States and subject to seizure and destruction.

In view of those clear and unmistakable provisions of the statute, we are unable to sustain the contention of the appellant that the court was in error in sustaining the demurrer to the complaint. We have not overlooked the decision of the Supreme Court in the recent case of United States of America, Plaintiff in Error, v. Homer Gudger (April 14, 1919) 249 U. S. 373, 39 Sup. Ct. 323, 63 L. Ed. 653. The indictment in that case was based upon that provision of the act of Congress of March 3, 1917 (39 Stats. 1058, c. 162), entitled "An act making appropriations for the service of the Post Office Department for the fiscal year ending June thirtieth, nineteen hundred and eighteen, and for other purposes," which reads:

"Whoever shall order, purchase, or cause intoxicating liquors to be transported in interstate commerce except for scientific, sacramental, medicinal, and mechanical purposes, into any state or territory the laws of which state or territory prohibit the manufacture or sale therein of intoxicating liquors for beverage purposes, shall be punished" as therein provided. Section 5 (Comp. St. 1918, § 8739a).

The facts there were that the defendant to the indictment was a passenger on a railroad train from Baltimore, Md., to Asheville, N. C., and had in his valise on board the car several bottles of whisky, which were found by an officer while the train was temporarily stopped at the railroad station in Lynchburg, Va., which state prohibits the manufacture or sale therein of intoxicating liquors for beverage purposes. The court, in effect held it to be clear that the law of Virginia, prohibiting the manufacture or sale therein of intoxicating liquors for beverage purposes, had no application to the movement of

such liquors in interstate commerce through such state. The statute which was the basis of that decision being wholly unlike the statute here involved, that decision has no bearing upon the present case. The judgment is affirmed.

(259 Fed. 518)

SPRINGSTEEN et al. v. LEWIS.

(Circuit Court of Appeals, Ninth Circuit. July 7, 1919.)

No. 3150.

1. PRINCIPAL AND AGENT 102(1)—POWER OF AGENT-EMPLOYING SUBAgent. Under a general power of attorney to conduct and prosecute all the principals' business and dispose of all their property, the agent can employ another to find a purchaser for real estate; the net price being fixed.

2. PRINCIPAL AND AGENT

171(1)—RATIFICATION OF AGENT'S ACT.

Agent's act in entering into an optional agreement is ratified by the principal accepting from the agent and retaining money with full knowledge that it had been received on such an agreement.

3. EVIDENCE 410-ORAL CONTRACT-SUBSEQUENT WRITING-EFFECT.

A writing to evidence defendants' oral employment of plaintiff to negotiate an optional sale, made long after such oral agreement, and after plaintiff had made a sale and money had been received thereunder, though using the word "sale" instead of optional agreement or optional sale, not being intended to control or supersede the original contract, did not have that effect, and did not estop plaintiff to show the real contract. 4. BROKERS 67(1)-COMMISSIONS FROM BOTH PARTIES.

Defendants' general agent S., being authorized by them to sell for $23,000 and retain as compensation any amount received in excess of $23,000, and he having employed plaintiff to find a customer, S., and plaintiff to divide any such excess, the fact that plaintiff was to receive a commission from G., obtained as a customer, for reducing the price to $30,000, a thing not affecting defendants, did not deprive him of right to recover his commission from them.

5. BROKERS 42-NECESSITY OF LICENSE.

Relative to right of plaintiff employed by defendants to find a purchaser for their real estate to recover a commission, he was not a "broker," required by Comp. Laws Alaska 1913, § 2569, to take out a license, being a merchant, and never having attempted any other real estate sale.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Broker.]

6. CONTINUANCE ~14(2)—Amendment of COMPLAINT-MATERIALITY AS TO ADVERSE PARTY.

As defendants, according to their contention, knew nothing of any contract between their agent and plaintiff, suing for commission for obtaining a customer pursuant to contract with said agent, there was no error in denying a continuance when plaintiff was allowed to amend his complaint by inserting the word "optional" before the word "sale" wherever appearing in the complaint.

Ross, Circuit Judge, dissenting.

In Error to the District Court of the United States for the Second Division of the District of Alaska; J. R. Tucker, Judge.

Action by S. L. Lewis against W. L. Springsteen and another.. Judgment for plaintiff, and defendants bring error. Affirmed.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

The defendant in error was the plaintiff in the court below, and the parties here will be designated as in that court. The defendants were the owners of mining property in Alaska. They had given a general power of attorney to H. H. Springsteen, in which was included the power to purchase lands, and to lease, let, demise, bargain, sell, release, convey, mortgage and hypothecate lands and tenements and hereditaments upon such terms and conditions and under such conveyances as he shall think fit, and to make, do, and transact all and every kind of business of what nature and kind soever, and further power to execute all such instruments as may be necessary and proper in the premises.

The complaint alleges that on or about September 28, 1912, the defendants, through their said agent, orally agreed with the plaintiff that he should negotiate for them an optional sale of three mining claims owned by them in Alaska upon terms that would net to the defendants $23,000, and that any sum realized over and above said amount should be paid the plaintiff as his compensation, and that he should be paid out of the first payments, and that, if all payments were not made, then the amounts received should be divided until he received his full compensation; that thereafter on October 29, 1912, the plaintiff secured one H. Greenberg to take a written option of purchase of said claims in the name of H. Robinson, his partner, for the sum of $30,000, payable in installments, and on January 11, 1913, Greenberg paid under the option $5,000, to the defendants; that in June, 1913, in an attempt to confirm and to evidence the terms of the prior oral agreement between the defendants and the plaintiff a written memorandum of agreement was made between the plaintiff and the agent; that Robinson defaulted in further payments; that the defendants refused to pay the plaintiff his one-half of the amount which they received. The plaintiff demanded judgment for $2,500.

The defendants in their answer alleged that the said acts of their agent were without authority, that the agreement which the agent made with the plaintiff was made with intent to defraud the defendants, and that the plaintiff on January 7, 1913, entered into a collusive agreement with Greenberg for a commission from him, which agreement was inconsistent with his duties towards the defendants. They admitted the receipt of the $5,000 payment, but denied that the same was paid by reason of any act or thing done by the plaintiff. The jury found for the plaintiff, and judgment was rendered thereon against the defendants in the sum of $2,500.

O. D. Cochran and G. J. Lomen, both of Nome, Alaska, and Griffin & Griffin, of Seattle, Wash., for plaintiffs in error.

William A. Gilmore, of Seattle, Wash., and T. M. Reed, of Nome, Alaska, for defendant in error.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT, Circuit Judge (after stating the facts as above). [1, 2] The defendants contend that the power of attorney was not sufficiently broad in its scope to authorize their agent to employ the plaintiff, and they cite authorities to the doctrine that a broker with special authority to sell real estate has no implied power to delegate his authority to another or to employ a subagent. Here there was no delegation of authority other than the employment of a subagent to do a certain designated act, and under a general power of attorney such. as that here involved, which was a power to conduct and prosecute all of the principals' business and to dispose of all their property, it is well settled that the agent has power to employ another to find a purchaser for the principals' real estate. "An agent authorized by the owners to sell lands may, having exercised his own discretion as to price and terms, after an examination of the property, delegate to

his subagent authority to find a purchaser." 2 C. J. 689; Renwick v. Bancroft, 56 Iowa, 527, 9 N. W. 367; Gold v. Serrell, 6 Misc. Rep. 124, 26 N. Y. Supp. 5. At the time of the contract between the plaintiff and the defendants through the latter's agent, the defendants were outside of Alaska, and so remained for a considerable period of time. When the $5,000 was paid to the agent, he turned it over to the defendants. He had already notified them of the option to Greenberg, and he testified that in 1913 he sent them a copy of the option. By accepting and retaining the $5,000 with full knowledge that the same had been received upon an optional agreement, the defendants ratified the act of their agent in entering into that agreement. Senger v. Malloy, 153 Wis. 245, 141 N. W. 6; Johnson v. Ogren, 102 Minn. 8, 112 N. W. 894.

[3] At the close of the testimony the defendants moved for an instructed verdict in their favor on the ground that the plaintiff had failed to make out a case. They contend that under the agreement between the agent and the plaintiff there can be no recovery, and they say that the agreement clearly contemplated a sale and not an option. The plaintiff's evidence was in substance that the agreement was oral, and that he induced Greenberg to take on October 29, 1912, an option. on the mining claims under the agreement as alleged in the complaint, and that on January 11, the $5,000 was paid; that he demanded of the agent his proportion of that payment, and the agent made excuses for delay, and asked the plaintiff to wait until the defendants came to Alaska in June. He further testified that, for the purpose of putting his oral agreement into a written form, the plaintiff, in June, 1913, induced the agent to execute the written agreement which was antedated as of September 28, 1912, the date of the oral agreement. Now, the written agreement adopts the word "sale" instead of optional agreement or optional sale, and it does not in fact exhibit the actual oral agreement between the plaintiff and the agent, as so testified to by the plaintiff, and it was not intended and it should not be held as a matter of law to control or supersede the original contract under which the plaintiff acted and under which the $5,000 payment had been made. The written agreement was made long after the date of the oral agreement, and long after the optional agreement was obtained, and payment was made thereunder, and it does not have the effect to estop the plaintiff to state the truth of the matter. The court below fairly instructed the jury on this feature of the case and charged. them that the plaintiff could recover only in case they found that the defendants through their agent authorized him to enter into or negotiate an optional contract, and that he was instrumental in securing Greenberg to enter into the same. But the court also charged the jury that if they found that the written agreement duly evidenced the agreement between the parties, and the defendants, their verdict must be for the defendants.

[4] There was evidence to show that the plaintiff expected a commission, not only from the defendants, but from Greenberg. For that reason the defendants contend that the plaintiff cannot recover. The court properly, we think, instructed the jury to the effect that a gen

eral agent cannot act as such for both parties to the same transaction in matters which involve the exercise of discretion where the interests of the parties are conflicting, and that, if he does, he cannot recover any commission from either unless he does so with the knowledge and consent of both, and that, if a broker merely brings together the parties to a sale and they themselves settle the terms or complete the deal, he acts as a middleman and may accordingly recover commission from each party if each has promised it. The evidence was that the defendants before leaving Alaska had fixed for the mining claims a price which they communicated to their agent. That price was $23,000. The agent informed the plaintiff that the sale must net $23,000 to the defendants. What contract, if any, the defendants had with their agent as to commissions or compensations, is not shown. The agent acted upon the theory that he was entitled to receive as his commission all that was realized over and above the net price so fixed. There is no evidence that he was not authorized to do this. He and the plaintiff intended to divide commissions. The first price mentioned to Greenberg was $35,000. He offered to pay the plaintiff $2,500 if the price fixed in the option could be reduced to $30,000. The plaintiff testified that he communicated this offer to the agent, and that agent consented to reduce the price to $30,000. Now, if it was true, as the evidence indicates, that the agent was authorized to retain as his commission all that he could obtain for the property over and above $23,000, he and the plaintiff in reducing the price in the option were dealing with a matter which pertained to themselves only, and did not affect the defendants, and in entertaining the offer of Greenberg to pay him $2,500 the plaintiff was not acting in hostility to the defendants' interests. In view of all the evidence, we are not convinced that the court erroneously instructed the jury on this branch of the case, or that recovery should be denied the plaintiff on the ground that he acted in a double capacity in the transaction.

[5] We find no merit in the contention that the plaintiff is not entitled to recover a commission for the reason that he had no license as a broker under section 2569, Compiled Laws of Alaska. The plaintiff was not engaged in the business of a broker. He was a mercliant, and there is no evidence that he ever attempted to make a sale of real estate other than that which is here involved. In 9 C. J. 513, it is said:

"One who, while engaged in other business, makes a single or occasional sale, or other transaction for another, under a special contract, is not a broker, and is not required to take out a license as such." Smith v. Sharpe, 162 Ala. 433, 50 South. 381, 136 Am. St. Rep. 52: O'Neill v. Sinclair, 153 Ill. 525, 39 N. E. 124; Pope v. Beals, 108 Mass. 561; Woods v. Heron, 229 Pa. 625, 78 Atl. 1128; Johnson v. Williams, 8 Ind. App. 677, 36 N. E. 167.

[6] Also without merit is the contention that it was error to deny the defendants' motion for a continuance when on the trial the court permitted the plaintiff to amend his complaint and insert the word "optional" before the word "sale" wherever the word "sale" appeared. The original complaint is not before us, and we have no information of its contents. It appears from the motion for a new trial that the

171 C.C.A.-2