FIDELITY & DEPOSIT CO. OF MARYLAND v. MUIR

FIDELITY & DEPOSIT CO. OF MARYLAND v. MUIR. No. 5698. Circuit Court of Appeals, Sixth Circuit. Dec. 30, 1931. For former opinion, see 53 F.(2d) 605. L. T. Wolford, of Louisville, Ky. (Wm. Marshall Bullitt, R. Lee Blackwell, and Bruce & Bullitt, all of Louisville, Ky., on the brief), for appellant. Ernest Fulton, of BarHstown, Ky. (David Á. McCandless, of Louisville, Ky., and Fulton' & Fulton and Will H. Fulton, all of Bardstown, Ky., on the brief), for appellee. Before DENISON, HICKS, and HICKENLOOPER, Circuit Judges. [MAJORITY — DENISON, Circuit Judge.] DENISON, Circuit Judge. ■ On application for rehearing, MeClaskey’s counsel call attention to what they think an error of fact statement in the opinion. We stated that the purported sale for storage charges was made after the whisky had been shipped) to Chicago. The record fairly indicates that the statement was correct. The withdrawal for bottling was procured in September, 1922. McClaskey says he obtained the permit for the Chicago shipment at about the same time. The sale for storage charges was January 5,1923. There is nothing to dispute the inference ofi a shipment soon after September, except the testimony of the attorney conducting the sale (the present counsel) that he “was told,” before January 24, 1923, that it had all been shipped. He doubtless understood that this was done after January 5, the date of sale. Even if his understanding was correct, and our opinion erroneous on this point, it would not be controlling. When McClaskey gave the notices of sale or permitted them to be given in his name, describing these barrels of whisky, he knew, or was bound to know, that the contents had been bottled and their identity lost, and that the sale would be just as ineffective as if the goods were in Chicago. The vital consideration leading to the reversal was that McClaskey participated in the conversion by withdrawal and bottling. Our overstatement — -if it was — as to his collateral conduct, did not affect the result. No judge who concurred in the opinion desiring rehearing, the application is denied.