Appeal from the District Court of the United States for the Western District of Pennsylvania.
Before WOOLLEY and DAVIS, Circuit Judges, and JOHNSON, District Judge.
This case was here before. Our opinion disposing of it at that time was published in 44 F.2d 141.
After this case was argued, the Supreme Court handed down opinions in the cases of Chase National Bank v. United States, 278 U.S. 327, 49 S. Ct. 126, 73 L. Ed. 405, 63 A.L.R. 388, and Reinecke v. Northern Trust Company, 278 U.S. 339, 49 S. Ct. 123, 73 L. Ed. 410, 66 A.L.R. 397. Counsel for the government and the taxpayer in this case have different views as to the application of the principles, announced in those cases, to the facts in this case. A reargument was granted. But after further consideration, we think that the case was correctly decided in our previous opinion reversing the judgment of the District Court and granting a new trial, which is accordingly ordered.
It appears that in the per curiam opinion filed in this case on March 17, 1932, the court was under the impression that the case was then being considered on a reargument of the first appeal rather than on an argument of the second appeal. This mistake was apparently due to the fact that the appellee's brief is entitled "Brief for Appellee on Re-argument" and to the further fact that the argument was in substance a reargument of the questions decided on the first appeal.
As stated in the opinion filed, we think that the case was correctly decided on the first appeal and that our decision [44 F.2d 141], is not inconsistent with the principles announced in the cases of Chase National Bank v. United States, 278 U.S. 327, 49 S. Ct. 126, 73 L. Ed. 405, 63 A.L.R. 388, and Reinecke v. Northern Trust Company, 278 U.S. 339, 49 S. Ct. 123, 73 L. Ed. 410, 66 A.L.R. 397.
The order, therefore, directing a new trial is vacated and set aside, and the judgment in this second appeal, which was entered in accordance with our decision on the first appeal, is affirmed.