*1 Bellingham. of could in conclusion Directors of He correct court was presented managing consent, of Frauds refuse to offi Statute Northwestern, cial a validity, was of instrument to what he did as since the bar signed by party Bellingham. board and member On the in of charged. record, sought in Northwestern was promis terested, pressing but was that a charged Northwestern Western sory recognized taken, its note be since machinery deliv for all the on its books obligation immediately pay own and Bellingham. billed plant It of ered Belling- gotten from directly items dur for the Northwestern ing ham, profited. Because Northwestern delivery and installa the course findings factors, of these that time August 23, tion. On about was extended the consent of without McMillan, pay urging the insistent Northwestern are erroneous and Belling- by promissory note and ment already are set As it aside. by accepted There Western. ham held as matter of that Northwest law Bel upon, carried Western the books of findings surety, ern are was lingham as the note accounts immaterial. But Northwestern cannot on this A memorandum maker thereof. escape liability evidence, what original account, referred to legal theory adopted.12 ever charges had been where the part, part, Affirmed in re- reversed time at no Western Northwestern. manded with direction enter Northwestern claim that abandoned against plaintiff and defendant debtor. was the full amount due the contract. found this the trial court On correctly no novation there was Bellingham whereby the debt assumed Northwestern, accepted the Western liability the consent

transfer of parties. no novation. all There was promis There was sory contention by Western note was Dorothy Showell, original obligation of Jack SHOWELL and payment Petitioners, Northwestern. The Belling- that Western extended time to note, by taking promissory ham COMMISSIONER OF INTERNAL REV- ENUE, Respondent. consent of Northwest this without the errone ern. These sole ous. McMillan was United States Court directly involved official of Northwestern Ninth Circuit. negotiations and the contract all the April Western, a member also but was Bellingham. of Directors of Board that Northwestern shows maintaining the credit was interested rating Bellingham. A chattel mort denied, gage sold was the articles arranged payment and it was given.

promissory McMillan note be of the Board

voted for these as a member surety. 12. Neither the trial court nor in to be a is still cited as shown authority Washington the wealth of cases in court. controlling jurisdiction, Bank Geske State First National & Washington, pertinent points. cited on 148 P. involves the Wash. point in a different situation.

wise, again particularly in a footnote and petition our for memorandum rehearing.2 us, eye- To untrained but with fair sight, recapitula- the sheet like looks prepared in about three installments. January The entries from 1 to December least, inspection .7 on the best we can document, appear been to have successively sitting written at one sharp fairly pencil. the same soft Then, beginning with 17 and December running through gains December sharp, seems to have been written with a again pencil, hard with the arrest- same ing uniformity pencil. For December 10, 11 and 12 and December the en- ink, apparently tries are in ink the same pen. and the same credulity What strains our breaking point is this exhibit is containing contemporaneous entries, we must conclude McLane, that Bookie McLane, Lee McLane & W. single picked up yellow Showell appellants. loose Phoenix, Ariz., Jr., for January January sheet 1 or 2 and Atty. Gen., Stull, Acting Asst. John N. day, (a wrote on that “Jan 1—3950.00” Jackson, Taúbeneek, A. Lee Theodore gain); that he then filed the or Weinstein, Anderson, Marvin Robert N. Attorneys, lay September it let around until or Justice, Department Wash- eight later, and a half months ington, C., appellee. D. picked “Sept it and wrote HEALY, POPE Before (a loss); perhaps 17—882.50” wrote Judges. CHAMBERS, Circuit pencil with the same state of sharpness. Judge. CHAMBERS, Circuit prior opinion, acknowledged In our we appreciates that it This court could ex- sorely court. But troubled strange plain appearance of the docu- 3, the book- Exhibit Showell’s ment. produced by him record1 ever agents ordinary This is not the case of a wit- relating representing ness Tax Court as event before where his subject its nature check- exact ing. In “contempo- our sheet of is an accountant’s The exhibit ought raneousness” the entries to be paper. yellow In first column work capable disproof. And, not, entitled The second column is are dates. “gain” ought susceptible too proof. “loss.” The and the third column gain. days for 22 indicate hope We not a situation days loss. entries for 15 indicate where the Commissioner and about four document, agencies se, per di- have taken the view that stage. rectly looking attacked at In our into the is all document someone questioned we it slant- else’s business. cancelled checks for Showell 2. Showell v. 238 F.2d 148. expense items of overhead and two given by a checks” him customer. “bad meaning reopened fleet income” case to be within remand the We Code, evi- 41 of further the 1939 Internal Revenue to receive authenticity Particularly U.S.C.A. 41.2 dence. inquiry. subject of 3 should be compu- *3 Under those circumstances the findings and de- aside should set required tation of the income be to cision. made “in accordance method with such opinion inas the of the Commissioner Remanded. does reflect income.” No the Judge (dissenting). employed by POPE, such method has been the Circuit according Tax dispo- proposed objection My the existing opinion, Court’s there was no ma- as stated case of this opinion sition jority any apply basis on which to cannot I believe is that reconstructing petitioner’s method of the purpose in view any useful serve required by income as 41. It seems § now Tax Court which the me fair construction of 41§ will I assume it which and from made require approval would an of the state- I, too, to withdraw. reason find inment Bradstreet Co. of Maine Com- handwriting the had a look Revenue, Cir., missioner of Internal 1 65 handwriting expert, I am no 3. 943, 945, respecting F.2d. correspond- expert would an doubt that such I but ing section earlier statute that: it- able, on basis the the be adopt “The burden to a method will self, most of the clearly reflect the is on the Com- income sitting. rather made at one were equally missioner as on well the tax- precision well shown uniform payer.” whose careful writer characteristic the style usually handwriting uniform in I is performed believe it fair to the if find- appearance. duty I think no his under ing 41, might back to assessments, now referred make based evidence, can determine out- Tax Court other available which provided they would here. be sustained come arbitrary or unreasonable. Cf. has now after remand Tax Commissioner, Cir., Schira v. keep “the found that surely any adopted by 672. But method permanent regular, adequate and properly the Commissioner cal- must be handwriting trans records of culated taxpayer’s to reflect the income. is elaborated This actions.” opinion that “Aside suppose where it adds Court’s Let us then that under the petitioner main present from Exhibit remand to the Tax Court the respect record with handwriting no account or experts, tained court calls ex- betting him in his received amines Exhibit and then makes find- paid ing out to sums transactions believe during year.” winning This gave bettors which the witnesses as to how that found in Tax Court has up. means that the (The exhibit was made Tax Court taxpayer’s method of substance believed that when it wrote its accounts “does not re- pro- first and there recited the disagree reasons I does not clearly income, reflect dissent. my stated computation shall accord- ance with sucli method as in the opinion rule —The income 41. General “§ of the Commissioner does clearly reflect computed upon the basis of the shall be the income. If the taxpayer’s annual ac- accounting period annual taxpayer’s counting period is other than a fiscal (fiscal calendar year year, as the case defined in section 48 or if the be) in accordance with the method accounting has no annual period accounting regularly employed keep keep or does not books, the net ing taxpayer: the books of such accounting computed shall be on the basis of no such method has been or if so employed, employed yeay.” method calendar making entries.) obliged himself followed cedure or some of this the mandate requirement But under finally at a so arrives supply the Tax Court furnish and method ques- falsification, 3 is which “clearly that Exhibit would reflect the case? does that leave the income.” where Plainly still the Commissioner it leaves

facing unperformed duties under § elementary of that a disbelief It is *4 not serve to witness’ simply ply is ' “But disbelief in the record. ZUTICH, Mile Joseph Savich, Steve Jan engineer’s would not us, Jr., McCreary, Donna Executors proof.” Chesa- ply Moore v. want Damjan Janus, Estate of Peter 576, peake R. U.S. & O. Deceased, Appellants, “Nor 95 L.Ed. 547. 71 S.Ct. peti- judge’s disbelief of district can the Whitney GILLILLAND, Chairman of the story fears motives and tioner’s Foreign Claims Settlement Commission evidentiary gap in the Govern- fill the and International Commission, Claims Dulles, 78 Nishikawa v. case.” ment’s Appellee. Dyer Mac- The case S.Ct. 265, 269, Cir., Dougall, is a United States why Court of explanation is so. reasoned Sixth Circuit. commenting Judge Hand was There April 29, things might many con- the fact judge that a witness’ vince only truth false but that “the yet story”,3 opposite of his is situa- went on to a disbelief of a witness’ required proof of what substitute held

facts In that case the court are. proof was a fatal lack of available there simply because there were no witnesses alleged.

available to the facts 3 was

A here

something rec- contrived would leave the naked than as to more ever of

ord actually was.

what the the further error All this refusing allow petitioner to introduce evidence dis-

closing net worth and disbursements. kept and records in- If the should go been allowed to into proof but the Commissioner was worth may satisfy “Moreover, such hesitation, be uttered with dis- tribunal, comfort, arrogance defiance, the witness’ true, fabricating, that, but that the truth assurance that he is opposite story; is, the de- if he there alternative but one, deny, who has a nial motive to assume truth of what he denies.”