defendants executed a written appraisement valuing the property at such sum, though it was not worth more than a third thereof, with intent to deceive and defraud plaintiff, and that representations of the owner as to a reason for selling were substantiated, defendants, ostensibly acting as plaintiff's agents, intending to induce plaintiff not to make an investigation of the value of the property, by reason whereof, plaintiff exchanged the stock for the property without such examination; and that the owner's agent received 600 shares thereof as his share of the profits of such conspiracy. Held, that the complaint was not demurrable, as against any of the defendants, on the ground that the fraud alleged was a mere expression of opinion as to value.

At Law.

Arthur L. Shipman and G. Edward Mills, for plaintiff.
Henry G. Newton and A. D. Penney, for defendants.

PLATT, District Judge. This is an action in tort, demanding damages resulting from a conspiracy on the part of the defendants to cheat and defraud the plaintiff by certain alleged false and fraudulent acts respecting certain real estate situated in New Haven. The alleged wrongdoing may be summarized as follows: Plaintiff is a New York corporation, dealing in bonds, stocks, securities, etc. Defendants are citizens and residents of New Haven, in the state of Connecticut. About January 1, 1902, said Donnelly owned certain real estate in New Haven. Crofutt, Church, and Calhoun were agents of the plaintiff. Scoville was a real estate agent, doing business as an appraiser. Phelps was a builder. Moorhead was a real estate agent. About January 6th they conspired and agreed together to cheat and defraud the plaintiff out of certain stocks in the manner hereinafter set forth. Crofutt, Church, and Calhoun, acting ostensibly for the plaintiff, but in fact for Moorhead and Donnelly, told the plaintiff that the real estate was worth $48,800; that it ought to rent for $4,000 per year, and that the reason why it was not so rented was that the former owner was an old lady, who objected to all tenants but those of a certain character; that the property was increasing in value, and had been doing so for some years, and would command a ready sale in the market. All this was false, and known to the five defendants mentioned last to be false, and was told to the plaintiff to obtain from it 3,000 shares of a certain stock in return for the property. The stock was worth $5 per share, and more. To further the scheme, said five defendants procured Phelps and Scoville to appraise the property at $48,800, and told the plaintiff that Phelps and Scoville were conservative appraisers in the city of New Haven, and in no way interested in the transaction, which the five knew to be false. On or about January 7, 1902, Scoville and Phelps signed an appraisal to the effect that the property was worth $48,800, and said appraisal was delivered to the plaintiff by the five defendants. The appraisal was fraudulent and excessive, and put the value about three times too high, and was done by "defendants for the purpose of deceiving, cheating, and defrauding the plaintiff out of the ownership and possession of said. shares of stock." To further carry out the scheme, Donnelly told the plaintiff that the property was easily worth the $48,800, and that his reason for sacrificing it was that he was a contractor, and needed ready

money. Crofutt, Church, and Calhoun backed him up in his statements, all the time pretending to be acting for the plaintiff, thereby preventing the plaintiff, and intending to prevent the plaintiff, from making an intended investigation regarding the value. Plaintiff relied upon the false representations of the defendants, and turned over the stock for the property. The property was never worth $48,800, and is now worthless. Moorhead got 600 shares of the stock "in consideration of his share of the profits, of and in pursuance of said conspiracy between the remaining defendants to defraud plaintiff." On discovering the fraud, the plaintiff, on April 14, 1902, demanded the stock, and tendered Donnelly a deed of the land, Donnelly and Moorhead refused to give back the stock, and Donnelly refused to accept the deed. Plaintiff claims $17,000 damages.

Each defendant has demurred on the ground that the only act charged against him is that he expressed an opinion as to the value of the real estate which gave an excessive valuation. Gustafson v. Rustemeyer, 70 Conn. 132, 39 Atl. 104, 39 L. R. A. 644, 66 Am. St. Rep. 92, is cordially accepted as containing a very clear and comprehensive statement of the true rule, and exceptions thereto, as to the importance in evidence of estimated values of real estate. casual reading of the complaint, however, settles the demurrer in the negative as to every defendant except Scoville and Phelps, and it is surely unnecessary to specify the reasons for reaching such a conclusion. Giving Scoville and Phelps the benefit of every doubt, it is clear that the plaintiff says that they, having been held out to the plaintiff as conservative real estate appraisers, signed a false and excessive appraisal, and that the appraisal was obtained by the other defendants for the purpose of carrying out their fraud, and was used for that purpose. If Scoville and Phelps signed a false and excessive appraisal, how can it benefit them to ask the court to imagine that they did not know what use was to be made of the evidence furnished by their deliberate action? Their profession, advantages, and capacity entitled their judgment to far greater weight than that of the ordinary citizen. They were peculiarly well fitted by training and experience to express opinions upon values of real estate. They were neither vendors nor vendees. Their signatures, appended to a document containing excessive valuations, which was put under the control of the other defendants, gave the others an added opportunity to work great harm. Such a document could be used effectively to deceive a distant plaintiff, who was led into a position of fancied, but false, security by the connivance of the others, several of whom were in a position which naturally evoked special trust and confidence.

It is alleged that the property was only worth one-third of the appraised value. It is hardly reasonable that experienced appraisers, acting with honest purpose, should fall so far short of the actual worth. When local controversies arise, and when any one of numberless motives impel, it is easy to find witnesses who will swear up values, and others equally worthy who will swear the same values down, and the greater the local agitation, and the more important the matter at stake, the greater the diversity; but looking at the allegations of the complaint in the case at bar, if there be eliminated from the face of the

papers a purpose to join in a conspiracy to overreach and injure the confiding absentee, no sound reason can be advanced to account for such a glaring discrepancy. It would seem that it is plainly the duty of Phelps and Scoville, as well as the other defendants, to make full and complete answer to the charges preferred against them. It is inconceivable that they can seriously expect to be released from all the consequences of their action before the disputed facts have been thoroughly presented and duly weighed in the balances. Each demurrer is overruled, with costs.

THE JOSEPH M. CLARK.

(District Court, E. D. Virginia. November 26, 1902.)

1. COLLISION-STEAM VESSELS CROSSING-LEAVING WHARF WHEN ANOTHER VESSEL IS APPROACHING.

The steamer Belle Horton and the tug Joseph M. Clark were both making regular passenger trips, from a wharf, across Hampton Roads. In the evening, at a time when the Horton was due, and was in fact approaching the wharf, fully lighted up, and only 400 or 500 feet distant, the Clark cast off and started on the return trip, attempting to pass across the bows of the Horton, which, being to the starboard of the Clark, was the privileged vessel, under the navigation rules. A collision resulted, in which the Horton was damaged. Held, that the Clark was in fault, both for leaving the wharf at the time and under the circumstances, and for violation of the rules thereafter; the danger of collision being such as to impose upon her the duty of exercising the greatest care and skill from the time of leaving. Also held, under the evidence, that the Horton was not in fault.

In Admiralty. Suit for collision.

H. L. Lowenberg and H. H. Rumble, for libelant.
Hughes & Little, for respondent.

WADDILL, District Judge. The libel in this case is filed to recover damages sustained in a collision between the Belle Horton, a passenger steamer owned by the libelant, the Norfolk & Atlantic Terminal Company, and the Joseph M. Clark. The collision occurred about 9 o'clock on the night of the 12th of August, 1901, a short distance southwest of the pier owned by the Norfolk & Atlantic Terminal Company, at the terminus of its street car line, at Norfolk on the Roads, on the eastern side of Hampton Roads. At the time of the collision the steamer Belle Horton was owned and used by the Norfolk & Atlantic Terminal Company in the transportation of passengers between Norfolk and Newport News, from the terminus. of its street car line, across Hampton Roads, to and from Newport News; and the Joseph M. Clark was temporarily chartered for the same service, for the carrying of passengers between Norfolk on the Roads and Old Point Comfort, Va. The steamer and the tug thus engaged made hourly trips between the said places, connecting with the Norfolk & Atlantic Terminal Company's street car lines for Norfolk. On the night in question the Joseph M. Clark reached. the pier in advance of the Belle Horton, and selected her berth upon.

the western end of the pier; and the Belle Horton attempted to land upon the southwestern angle of said pier, that being the proper berth, in the then condition of wind and tide. As the Belle Horton was making in to her berth, the Joseph M. Clark cast off and proceeded on the return trip to Old Point Comfort, and the two vessels came together; the starboard quarter of the steam tug raking the stem and bow of the Belle Horton, knocking off the stem and carrying away about four feet of the bow of the Belle Horton. The faults assigned against the Joseph M. Clark are: (1) Casting off in the existing conditions of wind and tide, when the Belle Horton was so near her pier; (2) not maintaining a proper lookout; (3) failing to keep out of the way of the Belle Horton; (4) attempting to cross her bow; (5) failing to stop and reverse its engines; and (6) increasing her speed. The faults charged against the Belle Horton are: (1) That she approached the pier at too high a rate of speed, at a time when it was known, or should have been known, that the tug was about to leave; (2) failing to have a proper lookout; (3) failing to keep out of the way the tug; (4) failing to obey the signal of two blasts from the tug, and the giving to the tug a cross-signal in reply thereto; (5) failing to slacken speed, stop, or reverse in time to prevent a collision; and (6) failing to starboard at the time of the collision.

The evidence was taken orally before the court, and a large nuraber of witnesses examined, consisting, among others, of the officers and crews of the respective vessels; and, as to many of the material questions involved, the conflict is irreconcilable. It is not deemed necessary to enter into a lengthy discussion of the evidence, further than to say that it has been considered, and the conclusion reached is that the collision must be attributed to the fault of the steam tug Joseph M. Clark in negligently leaving her pier, without taking the precaution to observe the approaching steamer, and its negligent navigation after so leaving the pier. While the evidence of those navigating the two vessels is utterly irreconcilable as to just how the accident did happen, the account given by the libelant's witnesses is far more reasonable, in the essential particulars, than that of the respondent's; and, indeed, in the light of the undisputed evidence, and the indisputable physical facts surrounding the collision, it does not seem possible that it could have occurred as claimed by the respondent. It is quite apparent from the respondent's own evidence that no account was taken by those in charge of the Joseph M. Clark of the incoming steamer until after she had cast off and gotten under way, and not then until the lookout had taken time to coil the rope after casting off, that being also a part of his business. This of itself was gross negligence. It was known at the time, or should have been known, that the Belle Horton was then due at the pier, and that, under the then existing conditions of wind and tide, she would have to pass across the bow of the Joseph M. Clark in making her landing; and it is admitted that she was not more than four or five hundred feet from the pier at the time. The Joseph M. Clark's effort to leave the pier at all, under these circumstances, except by backing out, can only be attributed to the fact of its neg

lect to observe the incoming steamer; and, for her failure in this respect, she, and not the incoming steamer, is responsible.

The faults assigned against the Joseph M. Clark in the matter of her navigation at the time of collision seem also to be established by the evidence. The two vessels were evidently approaching each other, from the moment the Joseph M. Clark cast off, in such manner as to involve risk of collision; and the Belle Horton was to the starboard side of the Joseph M. Clark, which imposed upon the Joseph M. Clark the duty of keeping out of the way of the Belle Horton, and required the latter vessel to keep her course and speed. Article 19, Act Cong. June 7, 1897 (30 Stat. 101 [U. S. Comp. St. 1901, p. 2883]). Under these circumstances, it was not only the duty of the Joseph M. Clark to keep out of the way of the Belle Horton, but, if the circumstances admitted, to avoid crossing ahead of her, and upon approaching the Belle Horton, if necessary, to slacken her speed. or stop or reverse. Articles 22, 23, Act supra. Notwithstanding these plain provisions of law, the Joseph M. Clark confessedly increased her speed, and attempted to cross ahead of the Belle Horton, and, as a consequence, the collision occurred. In the court's view, the danger of collision in the position in which the two vessels were after the Joseph M. Clark had cast off, and when those navigating her observed the Belle Horton, was imminent, and certainly such as to have called for the exercise of the greatest possible care and skill on the part of those navigating the Clark, and no further risk of collision should have been taken by the Joseph M. Clark. The presence of danger, or anticipated danger, was enough to admonish her of the necessity of complying with the rules of navigation. The Carroll, 8 Wall. 302, 19 L. Ed. 392; The New York, 175 U. S. 187, 270, 20 Sup. Ct. 67, 44 L. Ed. 126; Steamship Co. v. Low, 50 C. C. A. 473, 112 Fed. 161, 166, 172; The Richmond (D. C.) 114 Fed. 208.

The Belle Horton being the favored vessel on the occasion of the accident, should ordinarily have kept her course and speed; but if to do so would have involved absolute danger, or there was a failure on the part of her navigators to understand, from any cause, the course or intention of those navigating the Joseph M. Clark, it was her duty to immediately signify the same, by giving several short and rapid blasts, not less than four, and to have slowed down, as prescribed by rule 3 of article 18 of the inland rules, or article 28. This the Belle Horton did, and, indeed, she seems to have done everything in her power, under the circumstances in which she was placed, to avert the collision.

In what has been said, sight has not been lost of the fact that the collision in question occurred in the vicinity of a wharf where the steamers should have been managed with great caution, sounding their whistles as was necessary, to guard against collision or other accident. This, however, imposed an equal burden on each vessel; and, conceding that the Belle Horton should have given greater warning of her approach, still she had the right to suppose, on a dark night, with nothing to interrupt the view, and at a time when her arrival should have been anticipated, that those navigating the