*1 462
n Motion strike bill 13, 1931; argued exceptions denied October 1; 2; August objection to May affirmed at Pendleton September allowed cost bill v. CORLEY A. CO. al.
J. CAMPBELL et 455) (2d) (2d) 610, (2d) 776, 14 P. 13 P. *2 Schmalz, E. V: of and Sleight, Richard Burns, of for motion. Portland, M. Duncan, Burns,
Robert A. and Edward Boyrie, opposed. Portland, 464 expunge This is bill
BEAN, C. a motion to J. exceptions from the record the reason that presented No. not rule 18 bill was accordance with Harney county, proposed circuit court for as the exceptions upon opposing coun- bill of was not served provided citing v. Baker sel, rule, as Oxman 1040), County, 115 452 P. 436, Or. other cases. judgment appears from
It the briefs against appellant entered on October 1930. On year, appeal notice of and under- December of that appeal taking circuit on served filed. The were extending the on different made orders court, dates, excep- prepare and file bill of time within questioned transcript appeal. on It tions exceptions trial that the bill of was certified transcript together record, and filed, court *3 by of trial order the court. within the time allowed stipulated January attorneys 1931, the 26, On February 1931, “in which 1, until have transcript exceptions prepare to and file its bill of ab- appeal Printed on in cause.” the above entitled respondent for on counsel record served stract of was February on 14th of that and filed 1931, on month. stipulation in into entered another was
There respective appellant counsel, March, prepare April its and serve to 10, 1931, until have brief. appellant to that the motion contend for
Counsel timely exceptions under rule expunge is not the bill of provides: That rule of this court. No. 23 * * * “ days filed within ten must be All motions knowledge attorney anof party obtains or his after a alleged attorney party to his or the adverse failure of
465
comply
requirements
with the
of the
or
statute
with
the rules of this
all
court,
unless so filed
defects,
except objections
jurisdiction
to the
court,
will
by moving party.”
taken
be
as waived
Therefore,
that there has not been a
compliance
strict
with the rules mentioned
either
party.
expunge
exceptions
to
motion
bill of
days
attorney
not filed
ten
within
after the
had knowl
edge
exceptions.
of the failure to serve the bill of
It is
suggested
any
not contended or
that there is
error in the
exceptions.
injury
bill
No
on account of the failure
respondents
copy
to serve the counsel for
exceptions
except
bill
is shown,
such failure. The
exceptions
trial court certified to the bill of
and the
unquestioned.
certificate is
The failure to serve the
exceptions
jurisdictional,
bill
is not
motion
expunge
to
bill
should have been filed within ten
days
attorneys
respondents
from the time the
had
knowledge
to
thereof,
order
be considered; other
wise, it is deemed to have
waived:
v. Adler,
been
State
(142
344);
Mayo,
P.
In Li v. Sai Cheuk Lee Or. 563 254), 94, 156 P. where an endorsement on the abstract plaintiff accepted of the record showed that service August thereby thereof 12, 1914, and obtained knowl- edge comply of the failure of defendant with the filing statute or as to rules court of a bill exceptions, plaintiff’s it was held motion dis- *4 appeal, escape miss defendant’s in order to denial days August thereof, must be made ten of 12, within 1914. (153
In v. 478, Mitchell 45 P. 162 P. Coach, 83 Or. 1058), filing it was held that since the of the under-
466
taking appeal jurisdictional, on is not a motion attack- ing filing it for filed defect in time of must be within days filing undertaking, required ten of the as by No. or it 23, rule is deemed waived. Krieger, (202
In
409,
Iltz v.
104
59
P.
206 P.
Or.
550),
Supreme
No.
find,
23,
we
under
Court Buie
appeal
surety
motion to dismiss the
for failure of the
appellant’s
justify
days
on
bond to
within ten
after the
exceptions
qualifications,
required
notice of
to his
as
by the
will be
the motion is not
code,
denied, where
days,
23,
filed within ten
in accordance with rule No.
jurisdictional.
as
default
not
was
See also Paul
v.
P.
Bank,
Livestock
In v. Coos Amusement Co. Am. 107), Co., 129 find the announcement Or. we exceptions signed by judge, that the bill of the trial presented the time who certified it was within notwithstanding supple allowed, considered, will be excep mental certificate to the effect that the bill of presented required tions not within the time extending court and that no order had been made rule, exceptions. submitting for the bill time respondents candidly state, The learned counsel something omitted has been substance, in where injure exceptions that does not from the bill exceptions expunge party, a motion to bill other perhaps the motion not sustained. Where should be per- exceptions expunge than the bill of is filed later complained not No. the matter mitted rule being jurisdiction going and it not court, to the suggested any error or defect the bill that there exceptions, think that the same should be we expunged from the record. denied. therefore, is,
The motion *5 the Merits On 610) (2d) Boyrie, Edward A. of Portland, and M. Bun- Robert appellant. can, of for Burns, (Richard Sleight, Schmalz,
H. V. Burns Port- brief), respondents. on land, complaint alleges plain- The 19,1930, March that request tiff, at the defendants, sold and delivered to them 205 barrels and 10 sacks of “of flour the rea- agreed sonable and value” that $1,469.75, paid Judgment defendants on account is de- $739.75. manded for balance, admits answer that $730. plaintiff shipped to the defendants merchandise of they paid the value of $1,469.75, and that on account but all $739.75, denies other averments of the com- plaint. alleges It that March 19, 1930, the defendants, operate bakery Oregon, who a Burns, informed the purchase desired to flour “for the particular purpose making' good bread and other products bakery”; of that kind at their said that sub- sequently parties signed the contract mentioned complaint; “plaintiff, part in the as a of said contract and to induce defendants to enter into the thereby flonr that the defendants
same, warranted good other bread by plaintiff make would sold bakery”; at products their said kind at of that defendants’ was effected the contract the time large reputation bakery possessed favorable *6 produce to efforts the defendants’ lucrative that trade; shipped good bakery products to them the flour from although plaintiff, plaintiff that, failed; request, promised pursuant to show the to defendants’ good to make could be used how this flour defendants promise; keep the de- that later to its it failed bread, they plaintiff receive would fendants notified the plaintiff, and would retain no more flour from the recoupment partial unpaid “in balance $739.75 damage by plaintiff’s breach of said caused them warranty.” portion This of the answer concludes with shipped “worthless the averment that the flour incapable being good into bread or other and made products.” a the answer re- counterclaim, salable As just peats reviewed, the averment and adds large quantity of a bread and other defendants sold products the aforementional flour made from with the reputation injured result that as bakers was their many they portion lost customers. This of the answer alleges large expense that the defendants incurred a endeavoring to bake bread out of this flour, and that they received no consideration whatever for the sums plaintiff. Judgment paid by sought them to the reply, admitting The $5,000. after that the defendants portion of the flour used delivered to them the plaintiff, payment withheld and that $730, signed parties a contract for the sale of flour, signed August avers that the contract was 1929. reply It denies all other averments of the answer. The alleged copy requires sets forth it contract; ship nine carloads to to the defendants specifies containing 210 barrels, each flour, quantity as kind and follows: pkg. Brand or kind
Quan. Size 500Bbls................98................Craft 500Bbls................98................Collins Best 500 390
Bbls................98................Upright Bbls................98................Silverlight Bbls................98................Man OWar Bbls..............100
per cent Whole Wheat ‘‘ provides The contract that it can not be modified except by parties, written consent no of both verbal warrants or modifications are conditions, ’’ * * agreed valid, and that “It is understood and *: (2) subject change. agent repre- Contract not No or authority modify change sentative has or the terms ’’ copy of this contract. of the contract is followed allege pursuant with averments that, to its *7 plaintiff shipped terms, the the carload of flour men- complaint tioned in the March 19, on 1930; “that the by agreement defendants and, knew virtue of the said by hereinbefore set ordered forth, said merchandise ’ ’ patent its name, trade and that the terms of the estop written instrument should the defendants from claiming any warranty covenant or in recited subsequent written or a instrument in one. upon jury, judgment
Based a verdict of was entered in favor of the in defendants the sum of $51. After a motion for a new trial had been denied the plaintiff appealed. disposition assignments
ROSSMAN, The J. of by of error will be facilitated a recital of the follow- ing In oper- facts: March of 1929the defendants, who bakery Oregon, subject a ate in Burns, became to com- place more in a
petition themselves in and, order produce cope position with desired to it, favorable products. past superior Be- quality to their bread of ing meet flour Northwest would informed Golden inquiry telegram of to the sent a needs, their and, result, of that brand flour as manufacturer employ in the T. a salesman Brown; one W. bakery. plaintiff, at The was their called agent as for flour, well for Golden Northwest as sales produced the flour with which this mill which gave The Brown an is concerned. defendants action Northwest flour and five carloads of Golden order for delivery Their ex- of one carload. ordered immediate by unsatisfactory, perience and, this with carload was remaining for the four car- consent, common the order At that Brown interested loads cancelled. time was Milling produced in the Collins the defendants flour products, Company, as whose as those of the other well States, are sold their trade mills in the Northwest unfamiliar with the names. The defendants were then flour, trade names and the merits Collins Pastry spoke exception until Brown flour, Collins- they signed subject. July to them for 210 flour, order barrels Collins early August part this was carload delivered. It exception composed of soft wheat with the flour, aof flour called flour. of 90 barrels hard wheat Craft pro- testified that the soft wheat flour defendants satisfactory results but that duced bread made previous flour from the Craft was inferior to their product. hand, the other Brown On testified that the *8 they him that defendants stated to were well satisfied August flour. 25,1929, with the Collins the defendants signed reply the contract in the mentioned and re- preceding of viewed in statement facts this defendants took deliv- 1929, the decision. October ten other brands, of one carload containing, among ery and later for it. flonr, barrels of Best paid Collins a delivery March 15, 1930, they placed requisition brands, of other containing, among the second car It barrels of Collins Best flour. was delivered in early and constitutes flour April, specific part in mentioned the complaint.
The defendants’ evidence indicates that the Col- Best in flour, repeated lins after trials which bakers in assisted, failed employ pro- duce bread to that they which had equal previously baked. Defendants swore that several hundred loaves were entirely unmerchantable, of their many customers complained quality unsatisfactory of their bread, many customers ceased buying their bread, and while they were using Collins Best flour two stores which had been their selling bread severed them. relationship with Prior to Au- gust 25, 1929 (the date contract), defend- ants had had no experience Collins Best flour a hard wheat flour, although the car pur- chased on 30th July contained, as we have already stated, 90 barrels Collins Craft flour. Collins Best and Collins Craft are both made of hard wheat but Collins Best is a longer patent flour, contains more gluten and protein, has greater fermentation toler- ance, from it the dark grades of material have not been removed.
The evidence clearly showed that before any of the above mentioned flour was purchased the defendants told Brown that their purpose changing from the brand were then using was to enable them to pro- duce better quality bread so as to cope successfully with their competition, that price was immaterial. *9 purpose was “to that their himself testified
Brown ’’ question, reply good to the In make a loaf of bread. making good “They loaf particular a about its were they?” sir.” answered, “Yes, he weren’t bread, ‘‘ Corleys trying were The At another time he stated: purposes.” satisfactory get to their that a flour was oper- were The under the defendants conditions which competent ating, access to altitude, as limited such help, to Brown. etc., were known water, character which the He familiar with the kind of flour also was using price then which defendants were paying for of the defendants testified were it. One nine carloads of flour that before the contract signed putting the Brown, he told “We wasn’t put loaf of should out. We wasn’t satisfied bread we that our satisfied with it, it, with customers wasn’t likely aat time we would more than have and that it was go competition and our bread wouldn’t on the market good competitor, good, competitor with a that keen ’’ good put testi- would out loaf bread. witness experimented un- fied after the defendants had that, satisfactorily flour with Golden Northwest and another suggested, brand Brown had latter declared, just believe, “I another flour that I be will, have what you produce you that will bread that want, want put and then market,” on the recommended Col- products. He lins testified that after their unsatisfac- tory experience Craft flour Collins Brown induced insert the contract the item of them to 500 barrels by making following Best recommenda- Collins being as that was more said, tion : “He natured to the thought, that he work, would lots altitude, better. make a loaf of He felt sure freely would bread.” Brown conceded that defendants had never men- until tioned Best brand he had Collins recommended it, were the defendants aware, far as he was so that, signing contract. brand before unfamiliar with assignments of error contend The first and third rulings permitted its court erred when that the circuit jury im- of the sale to find that the circumstances pliedly suitable for sold was that the flour warranted assign- purposes. These announced the defendants’ *10 eight rulings predicated upon of ments of error are during of the examination the course that court made jury. Three instructions to the and witnesses rulings inquire permitted of the defendants to they acquainted pur- him whether with their Brown rulings, poses purchasing before the flour. The based upon challenge to the instructions, the are intended warranty, court’s of a and also its instruc- definition an tion which outlined the circumstances under which warranty implied is of fitness arises when an article purposes sold a vendor who the to the knows which buyer apply thing is sold, intends the aware buyer relying upon the is skill. The fact that his rulings remaining occurred when the court refused jury: “In instruct the this case it is admitted that the question contract under the flour in sold and which was writing, signed by into in delivered was entered both day plaintiff August, and defendant on the 25th you disregard shall, therefore, and not take any alleged quality into consideration statement of the any particular purpose of the flour or its fitness for * * * entering at the time of into made such contract; you hereby are instructed that the contract and sale in designated is this case what as the was law sale commodity by patent of an article or its or trade name. implied warranty In there is no such case any par- the flour in sold, article this is fit case, for * * *” purpose. ticular Oregon Section constitutes sec- 64-315, Code tion 15of the Uniform Sales Act and defines the circum- warranty implied quality stances under which an upon personal property. arises a sale of The first sub- paragraph warranty of that section states that such purposes arises when the vendor is aware of the goods purchased are and knows that buyer subparagraph relies his skill. The on fourth provides implied warranty that no created when patent article is sold under its or trade name. It will be observed from the evidence which we have during negotiations reviewed that and demonstra- preceded signing tion bakes which of the contract August 25, 1929, the became well ac- quainted purposes pur- with the of the defendants in chasing flour, knew that relied its possessed expert knowledge skill. The fact that it bread-baking readily apparent flour and sold—it produced by several brands of flour more than one employ expert mill, and had in its bakers. The fact *11 upon plaintiff’s the defendants relied skill is by shown any previous the fact that, without knowl- edge, they purchased from the several dif- produced by ferent brands of flour three different prepared by mills. The contract plaintiff, permitted the defendants Brown to insert in it the quantities and brands which he deemed best suited to their needs. buyer
A
who asks for an article under its trade
thereby indicating
name,
that he knows what he wants
rely upon
and does not
the skill of the vendor, is not
beneficiary
any
warranty except
one that de
mands that
the article delivered shall be merchant
specified:
able and the kind
Supply
Mine
Co. v.
Mining
(86
Columbia
789);
Co.,
475
Sanitary
Specialty
honing
v.
Earthenware
Coal Co.
986);
Laury,
(95
v.
Atl.
Ivans
67
Co., N. Law 174
88
J.
Brophy,
(50
355);
42 Minn.
v.
N.
Atl.
Goulds
J. Law 153
(43
392);
L. R. A.
on Sales
109
N.
6
Williston
834,W.
(2d
just
applic
Ed.), §
The rule of law
stated
236a.
buying
though
purchaser
states
able even
when
purposes
expects
apply
But
the article.
to which he
happens
a trade
the mere fact that the article
to have
in the
does not ex
name and is denoted
it
contract
assign
clude all warranties
to sub
transaction
begin
Oregon
§
4 of
1930. To
64-315,
Code
division
appear
goods
first
in
with it must
that the
were known
among
dealing
the market
those
in that kind of mer
chandise
its trade name: Barrett
v. Panther
Co.
Mfg.
(2d)
Co.,
Rubber
24 Fed.
329; Universal Motor
(140
Co. v.
E.
Snow, 149
690
S.
59 A. L. R.
Va.
1174). If the circumstances of the transaction show
buyer
purposes
that the
made
to the vendor the
known
for which he desired the
relied
article,
seller’s
judgment,
skill and
and that the
in
trade name was
merely
serted in the contract
for convenience of de
scription,
implied warranty
of fitness arises for the
protection
buyer,
in the absence of a clause of
jurisdictions
disclaimer, even
where the Uniform
adopted: Davenport
Sales Act has been
Ladder
v.Co.
(2d)
Co.,
Edward Hines Lumber
43 Fed.
63; Barrett
Mfg.
supra;
Co. v. Panther Rubber
Co.,
Wisdom v.
(274
1050);
Co.,
Morris
“If
his
or
through
he
described the strata
which
desired
had
Calyx Company tc
drive the
and had ordered the
drill,
him a
make or to select and furnish to
bore the desired holes
drill
would
rapidly
through these strata as
agreed
economically
drill,
as a
for
diamond
an
price,
plaintiff
accepted
im-
order,
and the
had
’’
plied warranty
have arisen.
would
buyer
of a
who
These two cases are instances
judgment
article
trusted to his own
and ordered the
although
its
he
name,
trade
in the Seitz case
disclosed
purposes
for
he desired the article.
which
being
opinion,
Such
it follows
in our
law,
that,
the circuit court did not err
it overruled the
when
plaintiff’s objections
questions
upon
to the
which,
inquired
cross-examination,
of Brown what statements
declaring
had been made to him the defendants
purposes
they
the flour
wanted
and indicat
ing
plaintiff’s
the defendants’ reliance
skill.
Reverting
excerpts
requested
to the
instructions
quoted
it will be observed that
above,
are in direct
principles
conflict with the above
of law, and therefore
the circuit court did not err
it
when
declined to sub
given by
scribe to them. The instructions
the court,
appeal,
and which
criticizes on
are
not,
subject
opinion,
transcript
our
to review. The
*13
any exception
them,
trial does not note
to
and the bill
dividing
exceptions,
paragraphs
of
into
those
after
portions
prin
the
of the instructions which enunciate
governing
ciples of substantive law and state the rules
damages,
paragraph
the measurement of
follows each
plaintiff
with the statement, “to which instruction the
exception,”
point
has filed its
but
not
out
does
error which the
believed existed. The neces
sity
being specific
pointing
and of
out to the trial
judge
alleged
defects in his instructions
objecting party proposes
argue
before this court
many
recognized:
has been
times
v. Ma
Blanchard
(290
(2d) 583);
kinster, 137
P. 1098,1
Or. 58
P.
Lott v.
(299
303);
De Luxe
Co.,
Cab
A conclusion warranty that an available to the defendants does no violence to the Parol Evidence Rule. Warranties of that ldnd are never in writing, by meeting are not created of the minds parties, any portion and do not constitute contractual agreement, elements of but are a product operating upon of the law the circumstances p. sale: 24 R. L., § C. Sales, 178, 451, and 55 p. § C. J. Sales, 701. The disclaimer clause of the merely contract attempted excludes verbal amend arising ments and agreement modifications from the parties and, implied hence, does not affect an war ranty. Such clauses say are “intended to that no con tractual warranties have been made”: Bekkevold v.
4?8 1164). R. N. 59 A. L. Minn. 87 W. Potts, 173 nothing at variance with the contract contains Since warranty, implied its terms do the aforementioned negative it: Williston on Sales therefore, exclude and, supra. (2d Ed.) Potts, Evi Behkevold v. 239. See also buy purpose establishing dence disclosure skill is not received reliance the seller’s er’s varying purpose contract, but the terms of warranty: implied v. Panther establish Barret Co. *14 Mfg. (2d) 24 329. Co., Rubber Fed. as- conclude that the first and third
We, therefore, signments merit. of error are without plaintiff argues language to
The
that
point as a foundation for the al
the defendants
leged implied warranty
nothing more than dealers’
assurance that the flour would
and that Brown’s
talk,
merely
expression
“good
an
make
bread” was
liability. Implied
opinion incapable
creating a
war
expression
an
the mere
do not arise out of
ranties
App.
opinion (Washburn-Crosby Kindervatter,
v.
147
(131
871);
Y.
DeZeeuw v. Fox Chemical
Div. 114
N.
S.
605)
out of the sel
Co.,
N. W.
nor
The assignment of error presents con- sideration the rules governing the measurement damages. This assignment based an upon (1) at- tempted to those exception portions of the circuit court’s instructions wherein it stated the rules ap- to plicable the allowance damages; (2) exceptions to the refusal of the court to to the give four jury in- structions the requested by plaintiff; (3)
480 action, objections overruling plaintiff in of the
court’s
Corley
questions
M. H.
addressed to the defendant
concerning
during
inquired
loss of business
bakery
days
using
several
flour.
when
Collins
govern
The instructions of the
court outlined
rules
ing
recovery
damages
harmony
prin
in
with the
ciples
enunciated
Barrett
v. Panther Rubber
Co.
Mfg.
supra;
supra;
Co.,
v. Makinster,
Blanchard
Am
(274
erican
v. Foust,
Oil Co.
“If the seller shall fail to make in accord- ance with the terms and conditions of this contract buyer may, upon by telegram notice to the seller or letter addressed to the seller’s home exercise office, following options, either of the C, orD, E, with the understanding agreement that the shall seller responsible ship according be for failure to to the terms and conditions of this contract fail- where such any ure is caused fires, strikes, difficulties, labor failure of carriers to furnish facilities or other acts beyond of carriers or other causes the control of the ’’ seller. opinion paragraph We are of the that this contract does not mean that if the seller should breach implied warranty of fitness the measure of com- pensation provided by govern, the contract should but *16 payable specify if the the sum that to it was intended ship in the the times and to seller should fail within Being opinion, manner stated in the contract. this err we the court when it declined conclude that did ques- requested to subscribe to the instructions. The propounded Corley, plain- tions and to which the exception, brought precise tiff saved an forth data showing profits resulting sales loss of and loss of from justi- precedents the use of this flour. The last cited objections. overruling plaintiff’s fied the court in It assignments opinion, follows in our these of error that, are without merit. assignment predicated upon
The fifth is of error attempted exception and instruction which mentioned right possessed by buyer of rescission to whom defective merchandise delivered, acts who promptly. they The defendants had testified that when discovered the fact that the flour was defective plaintiff notified the it told flour where the possession. stored so excep- that it could assume expressed tion to this instruction was in the same previously quoted. words already as For reasons charge subject stated, we hold this is not review. assignment
Under the sixth of error argues that its motion for a directed verdict should argues have warranty, any, been It allowed. that the if express distinguished was an implied one, as from an prove one, and that the evidence failed to damages sought which the defendants were the result alleged quality defective of the flour. The evi- dence capable pro- indicates various factors are ducing bread-baking; results in yeast, bad for instance, temperature, altitude, acid condition of etc. milk, Cer- tainly, implied warranty the doctrine of can not be so *17 buyer’s guarantee satis- that it will
far stretched possible Accord- of use. conditions faction under all satis- ingly, assure the defendants did this doctrine not part. they But the evidence if failed to do their faction neglect When Brown of the defendants. no discloses products would that assured the defendants Collins produce familiar with results he was the desired they operated. fact, In local conditions under which charge had of some demonstration he himself had plant. The defendants in the defendants’ bakes expert bakers in the that when their testified witnesses employ to make bread out undertook resulting plant flour in the defendants’ Collins and that Brown unmerchantable, of bread were loaves testimony may untrue, was It be that this so admitted. jury’s it of it renders but the favorable consideration ignore being impossible it. true, for us to Such supplied testimony that the which indicates defendants damages sought plain- proximate cause'of the was implied warranty. are of the tiff’s breach of the We opinion if evidence, believed, that the established warranty distinguished express implied as from an price may decline in of flour which one. It be signed shortly after was the occurred the contract was the defendants to refuse circumstance which induced accept shipments. testimony, But this like further evidence, the rest of the for the consideration jury. assign- this We, therefore, conclude Although ment of error discloses no cause for reversal. that the motion the directed verdict was we hold doing properly our action in so should not be denied, part products our deemed a conclusion Milling Company possessed no merit. of the Collins jury apparently found that were unsuited to ’ and we are needs, bound that result. the defendants in the rec- has disclosed no error appeal Since it of the circuit court is judgment follows that the ord, affirmed. Campbell J., Brown, JJ., Rand, Kelly,
Bean, C. concur.
Belt, J., did participate. Motion to Retax
On Costs *18 (2d) 455) P. appellant ROSSMAN, J. moves to strike respondents’ following from the cost bill the item: “Copy Transcript Testimony........$43.05.” ap It pears appellant from the record that the filed with the transcript testimony, clerk this court the of the discharged expenses in full all incidental thereto. The accompanying affidavits the aforementioned motion in subsequently respondents’ attorneys dicate that pro copy testimony transcript cured for their Spain convenience. Based Bell al., v. et 110 Or. 235), Cunningham P. 322, v. riendly, (147P.752), F only 76 Or. 16 which hold that expense obtaining original transcript testimony filed the clerk of this court constitutes a taxable expense, the motion to strike the item above from re spondents’ cost bill is allowed. Campbell J., Brown,
Bean, C. Rand, Belt, Kelly, JJ., concur.