Talcott v. Friend

Citations

• 179 F. 676
• 43 L.R.A.N.S. 649
• 1909 U.S. App. LEXIS 5005

Syllabus

<p>1. Apfeal and Error (§ 192*) — Objections in Lower Court — Waiver of Objections to Pleadings.'</p> <p>Where the. merits of a controversy were fairly presented and tried, an appellate court will not consider technical defects in pleadings not questioned in the trial court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1221; Dec. Dig. § 192.*]</p> <p>2. Courts (| 352*) — Federal Courts — Procedure—Trial of Issues to Court.</p> <p>In a federal court, a written stipulation waiving a jury in accordance with Rev. St § 649 (U. S. Comp.- St. 1901, p. 525), is not necessary to the submission to the court of issues of law on what is virtually an agreed statement of facts.</p> <p>[Bd. Note. — For other cases, see Courts, Cent. Dig. § 930; Dec. Dig. § 352.*]</p> <p>8. Fraud (§ 35*) — Action for Deceit — Estoppel—Affirmance of Contract.</p> <p>An action for deceit is not based on a rescission of the contract, but implies an affirmance and tbe proving of a claim in bankruptcy for the price of goods sold and delivered on a contract, and the receiving of dividends thereon is not a bar to a subsequent action by the creditor for deceit based on fraudulent representations inducing tbe sale.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. § 30; Dec. Dig. § 35.*]</p> <p>4. Bankruptcy (§ 426*) — Discharge—Conclusiveness—Action for Deceit— Former Adjudication.</p> <p>Neither tbe action of a creditor in opposing a bankrupt’s discharge on the ground that be obtained credit on a materially false statement nor a finding by the court thereon, that tbe bankrupt bad not been guilty of any act which barred his right to a discharge under Bankr. Act July 1, 1898, c. 541, § 14b (3), 30 Stat. 550 (U. S. Comp. St. 1901, p. 3427) as amended by Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 (U. S. Comp. St. Supp. 1909, p. 1310), is a bar to a subsequent action by the objecting creditor against tbe bankrupt for deceit based on the same false statement, the parties app