Becker v. Miller

• Decision Date: 20 March 1925
• Docket Number: No. 267.,267.
• Citation: 7 F.2d 293
• Parties: BECKER v. MILLER et al.
• Court: U.S. Court of Appeals — Second Circuit

7 F.2d 293 (1925)

BECKER v. MILLER et al.

No. 267.

Circuit Court of Appeals, Second Circuit.

March 20, 1925.

Townsend & Kindleberger, of New York City (E. Crosby Kindleberger and James C. Higgins, both of New York City, of counsel), for appellant.

William Hayward, U. S. Atty., of New York City, and Adna R. Johnson, Jr., and Dean Hill Stanley, Special Asst. Attys. Gen., for appellees.

Before HOUGH, MANTON and HAND, Circuit Judges.

HOUGH, Circuit Judge (after stating the facts as above).

We first inquire whether plaintiff, after having made the report he did, can maintain this action.

The mere making of a report is in itself nothing; it is the language thereof that counts. Schall v. Miller (C. C. A.) 287 F. 502. The report in the case cited was drawn with more care than the one at bar; for, if the report in this case be taken as a voluntary performance on the part of the plaintiff, the result he then admitted is in the teeth of the facts he now alleges. On this point it is to be remembered that plaintiff and Peters were practically called to the Custodian's office in New York and ordered to sign this report; we are satisfied by the evidence that it was extorted from them. To be sure, Peters did not sign; but, as he gave up his share of the "savings" by handing it back (or "loaning" it, as he says) to plaintiff, all necessity for signature on his part was gone.

This occurred in 1918 when war was flagrant. Peters was a German subject and an alien enemy. Becker was, to be sure, a naturalized citizen, but there are no signs that his naturalization had "taken" very thoroughly. The evidence convinces us that they were badly frightened by the Custodian's agent, who indulged in threats that if Becker did not sign means would be found of sending him to Oglethorpe.

We hold that the statement relied on by the Custodian, to the effect that the money was held for the benefit of the German brother or his company, was not voluntary, and plaintiff is not estopped from alleging and pleading the contrary.

Thus is reached the second inquiry, which is but a question of fact, viz.: Was the "savings" fund the property of plaintiff? Undoubtedly suspicion is at once aroused; the very unanimity of the stories now told by Adolf and Reinhold Becker to the effect that there was an agreement made in the early summer of 1916 that whatever was saved out of the $140,000 should belong to Adolf is not attractive. It does not seem good business. Yet it must be remembered that the purchase was at best a sort of gamble. If tungsten could be gotten into Germany, the gain would be...