*1 634 Board, Compensation on the ment cur tax payments a result brief, appellees. pursuant for made allegedly to the invalid agreement Secretary between the and the Joseph A. Messrs. and John Notes Unemployment Compensation District ap- Weil, C., Washington, D. also entered Board. The District Court dismissed the pearances appellees Mc- E. Robert complaint. Laughlin, al., Dis- et as Members Unemployment Although appellees trict Columbia Com- have advanced a pensation arguments Board. number of to sustain the judgment below, we need consider Miller, Before K. Bazelon Wilbur one dispositive threshold issue Judges. Washington, Circuit case, namely, suit this time premature. is is not at all certain PER CURIAM. tax will ever be assessed brought This suit was in District appellants. be, And if it ade- should employers Court various within quate remedy at law will then avail- be (1) District in- Columbia to declare standing able to those who have to in- agreement valid an made between the See, g., voke it. Peoples e. Eecles v. Unemployment District of Columbia Bank, 333 U.S. 68 92 S.Ct. Secretary Compensation Board and the L.Ed. State of Lati- California v. pursuant Temporary of Labor to the mer, 1938, U.S. S.Ct.

Unemployment Compensation Act of L.Ed. 159. 1958,1 (2) enjoin Unemploy- to Affirmed. Compensation ment Board receiv- from ing moneys from the Federal Govern- unemploy- paying ment, out and from benefits, compensation accord-

ment in agreement. Tempo- ance with that

rary Act, Unemployment Compensation substance, authorized the Federal Gov- states, ernment to advance funds in- cluding Columbia, District which LAZARUS, David Appellant, agreed provide additional un- certain employment benefits for workers who MANUFACTURERS CASUALTY INSUR- unemployment have exhausted all com- COMPANY, Body ANCE Cor- pensation rights and who remain or be- porate, Appellee. unemployed period come between No. 14513. days April 1, enactment fifteen after Appeals United States Court of Congress required that the funds District of Columbia Circuit. repaid to the Federal Government Argued provided that, Nov. if the are not other- funds prior 1963, they wise returned will be April Decided imposition recouped of additional Rehearing Petition for Denied Unemployment upon Federal Taxes em- May 13, 1959. ployers participating Con-' states.2 recognized gress repayment prior - effected 1963 could be the states ways, including the transfer various Treasury of funds in states’ un- employment trust funds. grievance employers’ central commencing they may, in- (1958), 3301-08,

1. 72 Stat. 171 U.S.C.A. 2. Int.Rev.Code of § §§ seq. §§ et U.S.C.A. 3301-3308. *2 Danaher, Judge, dissented. Circuit

qualified word ‘Insured’ wherever used includes not the named Insured but any partner thereof, also if the named * * *3 partnership Insured is a partnership pay Rubinstein used funds to part premium such as was then- paid. May 3, 1949, On Garland Hudson seriously injured by was run down and operated by an employee automobile an of the service Subsequently station. Hud brought against son Lazarus, suit his judgment estate was awarded damages.1 trial, At the the insurance company (the present appellee) refused ground Lazarus, to defend on the Washington, Smith, D. Mr. David F. by was not present policy. covered This Offutt, , Dorsey appellant. C. for Mr. K. by suit an action Lazarus- Washington, C., ap- D. also entered garage liability policy com to pearance appellant. for pel company pay insurance to Washington, Graham, Mr. Denver H. judgments, plus attorney Lazarus’ fees Brault, C.,D. with whom Albert E. Mr. previous suit.2 Washington, C., brief, for D. was on the The District Court ruled as a matter appellee. special part- law that because Washington Before and nership Edgerton, by clause Lazarus was covered Judges. Danaher, Circuit policy only on date of issue. The dispute was whether Lazarus continued WASHINGTON, Judge. Circuit policy May 3, to be covered on conflicting 1949. There was evidence scope as This case concerns the cover- to whether age garage liability was still aof insurance effect on that date. person There some was issued to a who was in fact documentary indicating evidence partner that the unknown another —a fact Lazarus-Rubinstein company had been the insurance at the time is- April 1949, dissolved the end of suance. May 1, that on Lazarus had formed a new August 23, 1948, On David Lazarus oper- with one Sorrentino to partner- and ship Rubinstein formed Arthur Transport ate the Amoco Service. operate Transport Amoco arus insisted on the witness stand that gasoline Service, a service leased station original partnership was still ex- to them the American Oil May 3, istence on and introduced into evi- September 1, 1948, On Rubinstein took agreement dence a May dissolution dated garage liability policy year for out a one 17, 1949, signed by him and Rubinstein’s Rubinstein, name of “Arthur T/A agent. Transport Service,” Amoco as jury District Court instructed the “named insured.” The contained following part- that the sole issue was whether the clause: “Insured: The un- loss, 1. Hudson prop- Lazarus, 4832-50, actual Lazarus is a Civil No. party plaintiff. D.D.C., part er See Michel v. Ameri- affirmed in and remanded in Casualty can Fire part, U.S.App.D.C. 16, Cir., & 217 F.2d Surety Rubinstein, F.2d cf. American who Co. v. was named as co- Franciscus, defendant, 1942, 127 F.2d was found not liable. Compare 45 C.J.S. Insurance § was one 2. Since the (1946) with 45 § id. 931. See also note indemnity rather than insurance one for 12, infra, and connected text. any partner,” held also insured but on nersliip in existence named insured and cover both the in favor a verdict returned The Lazarus, partners. policy in the individual entered court but virtually present the same case com- contains insurance defendant for the n. o. v. extending poli clause, ground was no there pany, on cy also to the named insured but show that evidence substantial including any defined, insured as in existence partnership was partner if is in fact the named insured appeal followed. 1949. This ambiguity partnership. there Such in incurred The risk may inbe clause must be resolved company con sort surance *4 language against the insurer.6 But the injury policy: to templated the nearly unequiv clause to us seems negligence by caused Hudson was Knowledge partnership or ocal. of the in the employee station of the service identity part partners on the Moreover, the na his duties.3 course of prerequisite- is the insurer coverage. made a not clear, and the was ture of the business Nor should be when the it plainly was the business tradename contemplated risk com the insurance policy “decla correctly stated in pany nothing has or do little to with the Arthur Insured [is] “Name of ration”: insured, personal qualities as Transport Amoco Serv Rubinstein T/A might example be the case—for —with intent, think, primary we ice.” malpractice Here, medical insurance. business, particular and not a insure the ultimate benefit of the insurance ac naming specific particular person. The injured public, crues anto member of the policy decla of Arthur such,7 rather than to the insured as opposite require in not does ration courts should bear that fact in mind.8 limits, a ference, broad because within company If the insurance had desired to may name it choose only restrict the insurance those partn wishes, individual even of an partnerships knowledge, of which it had er.4 easily provided. it could have Under so Furthermore, is established it circumstances, therefore, we think liability policy of a will law that holding the District Court correct only insured, named extend not as a matter of law that Lazarus was cov persons persons all or classes of but to issue, ered on the date of policy’s specifically omnibus listed company whether or not the insurance Casualty Lloyds In Thus in clause.5 part then knew that the was a business 1950, 172, McCrary, 149 Tex. v. surer nership, partner. or that Lazarus was a casualty 605, 607, policy is 229 S.W.2d question other the- —whether Butane to “Ed Grimes dba Crockett sued partnership of Lazarus and Rubinstein Service,” which the clause contained Gas prior May 3, dissolved unqualified 1949—is ‘insured’ where- “the word includes not the named not decisive. Such dissolution ever used would 1938, company 627, 3. The insurance in fact defended rari denied 305 59 S.Ct U.S. brought 89, Hud- L.Ed. in the suit 83 401. Rubinstein son, negligence. employee’s on based Indemnity g., 6. E. Hartford Accident & supra. 1, note See Collins, supra page note 5 at 84 Co. v. F.2d; Employers’ Liability Fox 97 v. g., See, 4. Rubber Co. e. Firestone Tire & App.Div. Corp., 671, 673, 239 268 Assur. Webb, 1944, 822, 820, 182 v. 207 Ark. 536, (1934). 1 N.Y.S. See also 941, 943; v. First Hutchison S.W.2d (1929, Couch, Insurance §§ 188-88b Tex.Civ.App.1933, Bank, S. National Supp. 1958), and cases cited therein. W.2d Michigan Hospital Service, 7. Cf. Moore v. See, g., Mu v. Farm Bureau e. Chatfield 353 Mich. 91 N.W.2d 301. Cir., Ins. tual Auto. F. Indemnity Indemnity 2d Hartford Accident & See Hartford Accident & Co. supra Collins, Collins, 5 F.2d certio- note v. Co. necessarily liable, not Lazarus’ cov Rubinstein found the not terminate os. latter having ground policy’s erage, ex term not he was that on pired. dropping partnership, of an not a “The mere partner out member of this But, poli judicata. makes insured cy.” does vitiate the the issue res we not as Fredenburgh Benjamin, pointed out, 2 have is- we consider that the membership As 430.9 sue of A.D.2d long 156 N.Y.S.2d Rubinstein’s on remaining partner controlling or date as here. —alone un with the business others—continues by appellee There claim is one of error name, place, der same the same basis, which stands on a different how- change, without substantial $1,250 ever. relates to the item That held in full force.10 must be to remain attorney which the allowed fees. Here, business still continued plaintiff-appel While we think “Transport If the name AmocoService.” attorney lant is entitled to fees incurred original partner that the it assumed prior litigation, present verdict dissolved, Lazarus, ship had been regard with thereto cannot stand. Plain original running partner, was still complaint $2,500 tiff asked in his *5 station, proprietor or as either as a sole score, jury this and the sowas informed partner of Lazarus Since Sorrentino. charge. appears in the court’s that It orig was insured of the terms the jury after the had its verdict rendered during policy, inal he insured remained on case, the of merits the it dis the continued the business.11 time he charged. separated. The members No ignore Furthermore, we the fact cannot tice was then taken no of the fact that policy premium paid for out ques verdict had been on rendered presuma of funds attorney tion of fees. The court ordered bly policy remained of the an asset jury purpose that the be recalled for the firm. passing question. of on the omitted conclude, therefore, We that the jury day, When the assembled the next judgment defendant-ap n. o. v. for the interrogated, the foreman was and stated pellee question must be The reversed. jury that the had considered the matter presents jury’s then itself attorney whether fees, of but had reached no con plaintiff-appellant verdict for should be objection clusion about it. Over the considering this, In reinstated. we have company, counsel for the insurance reviewed the claims fendant-appellee error which de jury court directed retire con urged upon the District sider the matter. re-sworn. not alternative for a its motion new Later, Court the foreman returned stated (presented judg trial with motion for its jury they some of said that had v.), urged again ment n. o. in its heard the claim for fees mentioned brief judge’s charge. in this court. These claims judge in the recharged The then error, however, largely are directed to them. Under these circum irrelevant, stances, are jury’s matters which under our we think the ultimate ver applicable example, subject view of For attorney law. dict fees urges appellee jury stand, that because should not in the face of the challenge (renewed court) Hudson Lazarus and suit in this of the g., Fidelity See, Diego e. United States & v. Industrial Accident Commis Booth, 1932, Guaranty sion, Co. v. 164 Tenn. 213 Cal. 2 P.2d 78 1075; Fidelity S.W.2d Union A.L.R. 1324. Casualty Tex.Civ.App. Hammock, Co. v. need not decide We whether Sorren 5 S.W.2d policy, tino was also insured under Triangle Angelo & Brush Broom for it is Lazarus with whom we are App.Div. 927; 278 N.Y.S. concerned. In Zimmerman v. Industrial Goldstein, 1935, App. Commission, 1931, Cal.App. Goldstein Accident 277 N.Y.S. cf. First Na Div. P.2d court held new Savings partner & Bank of tional Trust San be not to insured. parties. Surely parties they cannot for the make new defendant-appellee. If the amount, I agree the District law. dissent. suitable on a appropriate take should remand Court on steps matter, empanelling to settle ex- necessary. theWith another if parties The contract were this original jury’s item, the ception of this Company. Arthur Rubinstein and the reinstated. verdict should “Declarations” recited “Name appropriate also take court should Insured Arthur Rubinstein [is] T/A Transport inures Rubinstein’s steps Amoco Service.” to assure of Garland broker, the estate Wool, to the benefit of Hudson, insurance asked that Max thereof, as or the beneficiaries Thus the Com- be so written.1 may appear.12 agent Un pany’s or their interests its issued to Rubin- case, Company it we take paid the view stein’s der broker who remaining con unnecessary premium required. review Max Wool was never parties. agent tentions time, ordered. To So Lazarus be covered at surely protection must have derived his Judge (dissent- as an DANAHER, additional insured because was Circuit my partner view, if ing). In Rubinstein. terminated, di- judge have should I think the trial nothing arus took under the contract. the defendant Com- rected verdict prin- pany well known with in accordance Company no undertook *6 Judge by Soper, dis- ciples summarized which contract within its came unless it senting New York Central in Snead “Assignment of interest provided that 1954, Company, F.2d 216 Railroad the Com bind shall not under this grant- judge Here, 169, the district hereon pany * * is endorsed consent its until judgment Company’s motion for ed the assign no such There was denied a new trial. and also n. o. v. Rubinstein, no was and consent ment reversing, a majority, ordered Snead accept Company to an endorsed very least, ma- trial, new jority and at Lazarus. in behalf ance of do likewise. here should law, policy here evi I read the As contract, highly personalized a My colleagues dences even reasoned that have Practice Appleman, § and Insurance Law though garage policy to an was issued a 4269, just named insured who insured, is named since as a individual contracting pertinently party ma engaged is partners in as a two then one of Annotation, An 122 A.L.R. 144. station, partner- terial. operating a service assignment regarded will therefore legally unauthorized as the ship be must Highway policy, Ins. They Baker v. void next conclude insured. named Tex.Civ.App., Underwriters, 1947, 209 partner, named the actual even if insured, first 979; Jayson American Cas. S.W.2d terminated 104, 153 A. 9 N.J.Misc. business before from the withdrew assignee remaining a occurred, if the is successor to even the accident date originally business and protected as an addi- insured partner was still he continues the business the contract. As even if insured under tional name, place colleagues under the same it, my a new contract write same see para- May 25, complaint, repealed by in the Act note that 12. We present applicable prayer relief, in ef- graph bat Stat. of its And done. see suit. that this be asks fect 89, 12, 3, 3935, May § 49 Stat. ch. Act of 172, knowledge that there had no was a 1. Wool “|T]he creditor 173: background partnership in the or that have the insurance be entitled shall partner. was an undisclosed Lazarus money applied satisfaction of to the did the Neither (1951), judgment.” 40-412 § D.C.Code Annotation, supra 151,152; construction, 122A.L.R. at as to the rule doubt Appleman, op. supra meanings in- “doubtful in an cit. contained § surance are construed to be majority a dif- But the here introduce * * * operates favor of the insured interpretation concept ferent their only identity after has of the insured clause, the “Definitions” stated * * Wylie v. been determined respect “Insured.” “Conditions” with Motors, 1943, Mountain 126 W.Va. language upon “The reads: The unqualified relied Appleman, 27 S.E.2d 496. See also used word ‘Insured’ wherever op. supra 4351-54, cit. §§ Insured but includes not the named Surely legal there is a difference be- any thereof, In- partner named also if a tween named insured and an additional any partnership, sured a or executive recognizes. just insured Thus, as the here thereof, named Insured is officer if the always there rec- on this subsisted provided partner corporation, or such question ord the who fact as to opera- officer the declared is active in the named And if there were insured. added.) My (Emphasis col- tions.” leagues disregard insured,” no Laz- “named the con- the fact that rights.4 part- arus derived no Here the tracting party, for a if he acted even nership had been terminated before They say partnership, Rubinstein. 3, 1949, clearly as the Laz- facts show. Company business, name insured a arus wanted his son-in-law the busi- speak. insured named so to But brought early April. ness and him in doing clearly only, busi- was Rubinstein feelings developed, As hard descrip- purely name, ness under a trade quit. He terminated the tive. April 24, 1949. us, open In whether it view signed April 28, then on Lazarus partnership which was Rubinstein or the Riggs Bank delivered to the National insured,” the “named April that, a notice effective only be derivative.2 arus most could longer partner. no Rubinstein was party He the contract was not a in addition on Lazarus *7 partnership Rubin- either event.3 The signed gave and notice on the bank’s will, Lazarus, had and terminable at stein already partner, form, had a new that May 3, in before fact been terminated Sorrentino, son-in-law, also who his 1949, injury, of the Com- the date signed signed Again, form. Lazarus assignment pany had not consented to an perjury, and, penalty of filed with “partnership” Lazarus. to of the partner- Revenue Bureau a the Internal or both of two stated on either Thus premises, reciting ship as form 1065 return here. In there was no May 1,1949, partner- formation of a colleagues say effect, my as a matter “Jerry ship, and David Sorrentino notwith- law Lazarus was covered that arus, Transport Amoco Service.” T/A standing Actually is no there the facts. colleagues My refer the formal dis- nothing ambiguity here, to construe signed by agreement, Lazarus on solution against if were But there 10, example, For in tbeir footnote McCrary, Lloyds Casualty 2. Insurer Savings Bank National Trust & First 172, 149 Tex. S.W.2d naming employer, “[I]n case states: re- status thus turned on his 3. His entire individuals, policy insured two this lationship insured.” with the “named Powell, while Charles Hascall and S. W. Fire & Life Assur. General Accident doing they & are as Hascall business Woeffel, 1957, Corp. Misc.2d they words, In other are each Powell. Iskowitz, 794; N.Y.S.2d Holthe v. doing insured while business under that Wash.1948, Rent-A-Car 197 P.2d 351.] firm name.” 2 P.2d. [213 Cal. Rutgers Fire Ins. v. Globe & Co. 1930, Again, majority’s footnote 148 A. 252. 158 Md. Zimmerman case stated that it was majority by business, Typical do tL but the individuals who cited cases position as I read them. covered. their not sustain public, May that 17,1949. record of the rather the insured But the shows than to by every agreement prepared suggest I as such.” venture that the formal attorney member of this in- tendered Rubinstein’s court carries signature protect surance on his him- Lazarus for automobile to before against possible might simply self execute failed to which and he claims agreement May negligent operation Moreover arise from the until judge’s pay Rubinstein car. We that when for contract for evidence discloses partnership, possibly releases fear of a terminated substantial against may Com- up the American Oil us. were drawn It be understood that progress being pany before Rubinstein substantial and executed made in is many May jurisdictions provide com- either to require proof mon funds or to of finan- indisputable, record a whole is as responsibility cial that members Riggs Bank’s evidence and the National injured public may in be afforded redress totally unrefuted, particular sub is injury operation event of due to the mit, had terminated Rubinstein that salutary steps automobiles. Such af- accid the date of the before predicate ford no for this court’s under- ent.5 taking to rewrite the terms of the con- ignore say My colleagues “we cannot before tract us. paid policy premium the fact that the ac- funds” out II cordingly presumably policy re- “that Company protested District (My of the firm.” mained an asset against ruling Court as a matter emphasis.) same The records of the of law the partnership. insured a Riggs I have Bank to which National protested against rulings It which Septem- just referred, established rejected proffers its of the verdicts in check ber drew a favor of Rubinstein reached charged with account Lazarus,6 upon in Hudson v. which broker, payment which he his made it had relied for judi its defense of res ma- Max this fact becomes Wool. How protested against cata. It the order dis presumption terial to establish a missing prejudice complaint with Of was a firm not clear. asset legal representative Hudson’s who had may course it cited to establish party plaintiff. been protested It Riggs upon reliance Bank records allowing Hudson’s erstwhile justifies equal least reliance counsel, represent next to Lazarus. April the same bank records of protested against allowing Lazarus whom *8 28 and the which show that it had never insured and who had never partnership And had been terminated. judgment satisfied the Hudson to recover assignment of the since there had been no damages in his own name $23,- of some suggest required terms, its I protested against 000. the action of only that it not an of the not asset judge recalling already the trial in dis firm, but it afforded no jury then, missed and being without its successor of Lazarus and resworn, permitting it to return ver a Sorr entino. for upon dict Lazarus’ counsel fees which Perhaps the clue to an best understand- agree. it earlier had failed to Yet other ing majority’s philosophy of the is the pressed error claims of in the trial suggestion in that the court should bear urged by now court and are here mind of that “the ultimate benefit injured insurance accrues to an member employee Lazarus, Harris, appellee “an Reference to Hudson of back 5. U.S.App.D.C. station” arus’s service where Sorrentino 217 F.2d charge,” May 3, will that we “was in on show there considered operation of a customer’s car Supra note Company ga for directed The moved a chased for himself and Lazarus the rage policy suit, Thereafter which verdict was denied. here in Rubinstein judg- assigned Company had partner filed its motion for his interest in the ship for a 17, 1949,8 ment n. o. v. or in alternative Lazarus on and judge new trial. As considered the trial full force and in effect, Company’s protection all and claims of error for the of both Lazarus looked back case, whole and over the record Rubinstein. simply he he was concluded that pre-trial, objected At Hudson to the grant judgment bound to the motion for trial of the cross claim with the trial of v., leaving n. o. new trial the motion for a question liability. the main Rubin- right, disposition. for later He was objected stein to a trial of the issue of submit, correctly judg- and he ordered insurance and moved to strike the refer- February Company ment for the ence. Court, however, The District en- counsel, But, plaintiff’s thereafter tered its order cross claim of parte assured, ex are we submitted against Rubinstein Lazarus was not to be judge signed denying a new an order tried with the case in chief but was to be Obviously ap- trial. pellant he concluded that suspended until after verdict. Lazarus any prevail was not entitled to requests concerning filed for instructions My colleagues disregarding event. Rubinstein’s claimed termination of the cross-assignments Company’s of errors partnership and his abandonment of the touching trial, new now re- respect business and further with to the verse, judgment appel- order but effect the ultimate dissolution of the Company’s lant. I think asserted partnership, agreement evidenced nullify cross errors would 1949. The record shows that on the verdict event.7 jury requested various exhibits bear- ing upon the claims of Lazarus and Ru- Ill respect binstein with to the Consider, illustrate, Company’s termination, including and its records of judicata. defense of res In Hudson v. Riggs Bank, copy National supra ap- Lazarus, Company note agreement Amoco, with and the dissolu- peared for Rubinstein as it was bound to agreement. tion do. A verdict was rendered favor jury returned a verdict favor of Rubinstein, specially answering, against against Hudson Lazarus but not found the had termi- following Rubinstein. Thereafter the oc- May 3,1949. nated before curred : that, record pleadings of show 13(g), relying upon 28 U.S. “The Fed.R.Civ.P. Court: Members of court, you jury, pursuant order have returned verdict in C.A. against plaintiff claim favor filed a cross Rubinstein [Hudson] Thereupon Lazarus, Lazarus filed his the defendant trad- Lazarus. agreed ing admitting co-partner, you to re as a also re- answer arising from claims turned a verdict in favor of lease de- *9 Transport Rubinstein, trading operation Amoco fendant partner. as a

from co- agreed denying you go had he Now will that ask but Service liability. question, and from tort back consider Rubinstein this release and you pleaded special way this is as a By defense” verdict: of “second Did partners were find Rubinstein that he and existed be- pur 1949, Rubinstein had tween the two defendants at the date Duncan, Despite policy requir- Montgomery 8. & Co. v. the clause in the Ward 7. 189, ing Company’s consent, 61 S.Ct. never 311 U.S. forth- coming, New and see Snead v. two weeks L.Ed. the acci- after Cir., any Company, 4 dent Railroad event. York Central 173. 216 F.2d ualty Gordon, terminated Ins. ®fthis or had it Co. v. accident Now, F.2d the Com- before accident? when pany pleads judicata in this case res reached “The Foreman: We have colleagues errors, my asserts find other verdict, Your Honor. they are, them “irrelevant.” Of course your “The And what Court: if it be despite the law terms verdict? the contract, Company insurer is an find that no “The Foreman: We any of Lazarus in event. 3rd. existed on verdict of “The Is that the Court: every you? each and one of Jury: Yes.

“The May I Lazarus]

“[Counsel Mr.

request polled, Your

Honor. Very well.”

“The Court: individually jurors stated their

The findings favor Rubinstein. LUFF, Appellant, Morris F. representative next Hudson’s When sought ap- of an an order for allowance Slacks, Willard J. LUFF and John W. assign- peal pauperis, in forma one Appellees. error ments of claimed attacked Slacks, Willard J. LUFF and John W. findings jury’s as to the termination Appellants, Rubinstein, partnership. with the favor, opposed al- jury’s in his verdict LUFF, Appellee. Morris F. pauperis appeal lowance of in forma Nos. findings as good as “not in judge allowed The trial faith.” Appeals United Court of States noting appeal, memorandum a written District of Columbia Circuit findings special that certain Hudson’s Argued Jan. specifi- questions meritorious, but Decided March ground cally con- not included was the cerning findings jury’s in favor of judge refused allow Rubinstein. ground. appeal on that appeal When Hudson filed his in this assignment court, there no error desig- ruling,

as to the nor was there concerning record

nation for the

jury’s findings as to the termination of partnership. matter

before us nor was it considered. Thus case, judg- was out of the

ment in his favor followed. me seems to that Rubinstein in the very Hudson case entitled to take the steps pleadings, as above disclosed 13(g), noted, Rule see Collier *10 Cir., Harvey, 179 F.2d

668; Corpora- Bondholders cf. National Bank, Nat. Citizens

tion v. Seaboard 1940, 110 F.2d Ohio Cas-