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NAKDIMEN v. BAKER

No. 11612.

111 F.2d 778 (1940)

NAKDIMEN v. BAKER.

Circuit Court of Appeals, Eighth Circuit.

Rehearing Denied May 27, 1940.

Attorney(s) appearing for the Case

James B. McDonough, of Fort Smith, Ark. (Patterson & Patterson, of Clarksville, Ark., on the brief), for appellant.

Harold R. Small, of St. Louis, Mo. (Thomas B. Pryor, of Fort Smith, Ark., Emmet T. Carter, of St. Louis, Mo., Pryor & Pryor, of Fort Smith, Ark., and Carter & Small, of St. Louis, Mo., on the brief), for appellee.

Before SANBORN, THOMAS, and VAN VALKENBURGH, Circuit Judges.

THOMAS, Circuit Judge.

This is the second appeal in this case. The opinion of this court on the first appeal is reported in Nakdimen v. Baker, 8 Cir., 100 F.2d 195, 196. The evidence is the same on both appeals. On the first appeal we held that the court erred in overruling the appellant's motion to require the plaintiff (appellee) "to declare whether he intends his suit to be one upon contract or one upon tort, and to elect upon...

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