(after stating the facts as above). We first inquire whether plaintiff, after having made the report he did, can maintain this action.
The mere making of a report is in itself nothing; it is the language thereof that counts. Schall v. Miller (C. C. A.) 287 F. 502. The report in the case cited was drawn with more care than the one at bar; for, if the report in this ease be taken as a voluntary performance on the part of the plaintiff, the result he then admitted is in the teeth of the facts he now alleges. On this point it is to be remembered that plaintiff and Peters were practically eafied to the Custodian’s office in New York and ordered to sign this report; we are satisfied by the evidence that it was extorted from them. To be sure, Peters did not sign; but, as he gave up his share of the “savings” by handing it back (or “loaning” it, as he says) to plaintiff, all necessity for signature on his part was gone.
*295This occurred in 1918 when war was flagrant. Peters was a German subject and an alien enemy. Becker was, to be sure, a naturalized citizen, but there are no signs that his naturalization had “taken” very thoroughly. The evidence convinces us that they were badly frightened by the Custodian’s agent, who indulged in threats that if Becker did not sign means would be found of sending him to Oglethorpe.
We hold that the statement relied on by the Custodian, to tho effeet that the money was held for the benefit of the German brother or his company, was not voluntary, and plaintiff is not estopped from alleging and pleading the contrary.
Thus is reached the second inquiry, which is but a question of fact, viz.: Was the “savings” fund the property of plaintiff? Undoubtedly suspicion is at once aroused; the very unanimity of the stories now told by Adolf and Beinhold Becker to the effect that there -was an agreement made in the early summer of 1916 that whatever was saved out of the $140,000 should belong to Adolf is not attractive. It does not seem good business. Yet it must be remembered that the pureiiase was at best a sort of gamble. If tungsten could be gotten into Germany, the gain would be enormous; but tho chance of getting through the blockade, and by means of a cargo carrying submarine, rendered the enterprise unique. It was not a sound “business” venture, and business rules did not apply. •
It is also easy to point out that the whole story might have been concocted as a method of disposing of what was left of the $140,000 — a sum sent to plaintiff by his brother not pursuant to any promise made earlier in the summer of 1916, but as a result of Peters’ estimate of cost m'ade at the end of August of that year. But there is no evidence of anything of the kind; it is all suspicion; and that suspicion should not outweigh uneontradicted evidence is quite strikingly shown in a recent decision by the Third Circuit in Miller v. Herzfeld (opinion filed February 26, 1925), 4 F.(2d) 355, a case under this statute where improba bility and suspicion might well have been given greater weight than in the present ease.
In our opinion the undoubted fact that decisively turns the scale in favor of the plaintiff is that in the fall of 3916 — a time when political parties in this country were vying with each other in expressing love of peace and aversion to war — this plaintiff actually took as his own, and largely spent as his own, tho fund which is the subject of this controversy.
There are no aspersions on his honesty in respect to Ms own family at all events, and, if he had not assurance that the money was his own, so that he could take it with good conscience, the question is crucial why did not he and Peters similarly appropriate the considerably larger sum equally within their control and arising from the profitable resale of the vanadium shut out of the Deutschland?
If the Custodian’s contention is correct, plaintiff was dishonest; but, if he was dishonest as to one fund, why not as to tho other? Equally is it impossible to explain why, if plaintiff and Peters merely sought to conceal the fund in controversy, they did not similarly attempt to. conceal the larger vanadium fund. These questions cannot be answered so as to justify the decree below.
It is accordingly ordered that said decree bo reversed, and the cause remanded, with the directions to grant the prayer of the bill, except as to interest — a point ruled by our recent decision in Henkels v. Miller (opinion filed January 5, 1925) 4 F.(2d) 988.