Levy

This case is here for the second time. The first trial was had in the court below with a jury, and, there having been a verdict and judgment ifi favor of the plaintiff in the action, it was brought here by the defendants thereto, where the judgment was reversed and the cause remanded for a new trial. 199 Fed. 407 , 118 C. C. A. 91 . The second trial was before the court without a jury, and again resulted in a judgment for the plaintiff. It is undisputed that the evidence on both trials was substantially the same — indeed, it is so stated by the trial court in its opinion, from which we quote as follows in order to show the grounds of the judgment given:

Turning to the complaint, it is seen that it contains four counts— the second count referring to and making a part of it the preceding *94 15 subdivisions thereof, the third count referring to and making a part of it the preceding 17 subdivisions, and the fourth count referring to and making a part of it the first 20 subdivisions of the complaint. The allegations thus referred to and made a part of the second, third, and fourth counts show, as does the first one of the complaint, that the fundamental basis of this action was the…