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UNITED STATES CIRCUIT COURT AB

STRACT.*

was sent to Hosie, who was a bauker, for the express purpose of paying a certain note and mortgage, who entered it on his books to the credit of the person who sent it, and before the note and mortgage arrived at the bank to be paid, Hosie went voluntarily into bankruptcy, the party was not entitled to have the money 80 deposited repaid by the assignee, because it had become impossible to do so, the money having become part of the general assets of the bankrupt, and that he must take his chances with the general creditors. And iu Bank of Commerce v. Russell, 2 Dill. 215, which was a case where a bank sent notes to a banker for collection, which he collected and placed with his other funds, the court held that the identical money not having been kept separate and distinct from the banker's other money, it could not be recovered from the assignee as a trust fund. Had Ward not failed or made an assignment, and had refused to pay the taxes, Neely could not have maintained an action against the First National Bank of Marquette for money had and received, based upon this theory that the money deposited by Ward constituted a trust fund. Much less could he have maintained such action against the Lansing National Bank. And if he could not in their bands, it is manifest that he could not follow it through their hands into those of Rood, and recover it in an action for money had and received.

An examination of cases at law where money has passed from the hands of the bailee or trustee to whom it was intrusted, to a third person, will show that the reason for allowing a recovery in an action for money had and received is based upon the fact that such person had received the plaintiff's money uuder circumstances which showed that he had no right to retain it as against the plaintiff. Thus in Rusk v. Newell, 25 III. 226, cited on plaintiff's brief, Rusk sent money by Newell, to be by him delivered to plaintiff's agent to be applied to a specified purpose. Newell delivered the money to the agent and took his receipt. He then received from the agent the same money back in payment of a debt due him from the agent. Here the identical money came to the hands of the defendant. He knew it was plaintiff's money when he received it, and knew it was being misapplied when he received it from the agent to pay the agent's debt due to him. Another case cited on plaintiff's brief will suffice by way of illustration to show the principle upon which the action can be maintained. Thus in Mason v. Waile, 17 Mass. 560, plaintiff had sent a package of money by one Sargent, a stage-driver, to be delivered in Bostou. Defendant kept a gaming-house, and won the money from Sargent at a game of faro. Mr. Justice Parker said the identical money of plaintiff camo to defendant's hands unlawfully, and that plaintiff could recover it from defendant in an action for money had and received.

In this case Ward received the money from the bauk on Neely's check, and the same was placed by the bank to Ward's credit. He then drew checks on his account in the bank from time to time, until there remained due him from the bank about $91, and this indebtedness from the bank he trausferred to Rood. The result of the whole proof is that plaintiff has wholly failed to trace Neely's money, or the avails of bis money, or of the fund created by it, into the hands of Rood.

As the facts upon which the plaintiff's theory is based are not supported by the testimony in this case, it follows that the judgment of the Circuit Court must be affirmed. The other justices concurred. (See 3 Am. Rep. 491; 35 id. 511.-Ed.)

CONTRACT-SPECIFIC PERFORMANCE- REMOVAL OF CAUSE-RESIDENT.-- (1) In order to sustain an action for specific performance against a railroad company to compel it to construct its line through a certain city, and for other relief, it is necessary for the complainant to prove that he had an agreement with the railroad company whereby that company was bound to construct and operate the main line of its road through that city. (2) A railroad company under a perpetual lease to a foreign corporation is not, by that fact, a resident of the same place as the latter; therefore an action against it and its lessor cannot be removed to a Federal court on the ground of its residence being in a State other than that of the complainant, unless it can be shown that it is not a material party. Cir. Ct., S. D. Iowa, February, 1884. Crane v. Chicago, etc., R. Co. Opinion by Shiras, J.

FRAUD--RIGHTS OF CREDITORS-DUTY OF COURTEFFECT OF ATTACHMENT.-In setting aside a fraudulent conveyance the cardinal rule of equity is to restore the creditors to what they have lost by the transaction, and their rights are satisfied when they are placed in statu quo. The court does not seek to improve their condition by imposing forfeitures and penalties for the sake of punishing the fraud. Where therefore the goods are immediately attached, taken from the vendee before they have been lost, damaged, or depreciated in his hands, and have been sold by the court at a small advance over the price paid by the vendee, the money being in court for distribution, the court did not, on the facts of the case, charge the vendee with any additional sum to increase the value, and allowed the fund to stand as a security to the vendee for a bona fide debt paid by the debtor out of the price given by the vendee. Cir. Ct., W. D. Tenu., May 22, 1884. Flash v. Wilkerson. Opinion by Hammond, J.

CONTEMPT-UNITED STATES COURT-PUNISHMENT. -The power of the courts of the United States to punish for contempt and imprison for non-payment of money judgments is circumscribed and controlled by the laws of the State; and where an order made in the progress of the cause is of the character in substance of a judgment or decree for the payment of money, it cannot be enforced upon the theory that disobedience is a coutempt. Rev. Stat., SS 7:25, 990; In re Atlantic Mutual Ins. Co., 17 N. B. R. 368; The Blanche Page, 16 Blatchf. 1; Catherwood v. Gapete, ? Curt. 94; United States v. Tetlow, 2 Low. 159; Low v. Durfee, 5 Fed. Rep. 256. Cir. Ct., S. D. N. Y., May 30, 1884. Mallory Manufacturing Co. v. Fox. Opinion by Wallace, J.

CONTRACTS-FUTURES-OPTION-AGENT —- INTENT LEGALITY PRESUMED-EVIDENCE BURDEN OF PROOF. -If the parties intend in fact to buy or sell actual cotton, to be delivered at a future time agreed upon by them, it is not a gambling transaction, although they exercise the option in settling the difference in price rather than mako delivery; but if original purpose

be not to

deliver cotton, but to use the form of a contract for a genuine sale, as a method of merely speculating in the fluctuations of the warket price the contract is void, although there be an option of veritable sale and delivery. It is a question of fact for the jury to determine the intention. (2) Where the principal employs an agent to buy “futures," if the dealiogs be illegal as gambling transactions, the agent cannot recover his advances aud commissions, as he is the active agency engaged in placing the contracts and directing the business. (3) Where

*Appearing in 20 Federal Reporter.

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the defendant employed the plaintiff to buy"futures" the purpose of securing the payment of a sum of in the market of the plaintiff, without specific instruc- money, if it leaves a right of redemption upon pay. tions or restrictions, the plaintiff may assume that the ment of the debt, and if there is a power of sale, business is to be done by the rules or custom estab- whether in the creditor or some third person to whom lished for himself; and the defendant's knowledge of the conveyance is made for that purpose, it is still in that custom is not material; neither is bis intention to effect a mortgage. “If there is a power of sale,” says engage in gambling in prices material in determining Miller, J., in Shillaber v. Robinson, 97 U. 8. , whether the contracts actually made were illegal; but " whether in the creditor of some third person it is the test of illegality is the intention of the plaintiff still in effect a mortgage, though in form a deed of and the other parties to the contracts. If they intended trust, and may be foreclosed by sale in pursuance of to make contracts for actual delivery, and not for the terms in which the power is conferred, or by suit gambling in prices, the defendant is bound for the ad- in chancery.” To effect the object of this transaction vances and commissions, although he intended and it was necessary to convey the property in the form supposed he was only gambling in prices (4) While adopted, not only as security for the payment of the the law presumes that every man's contracts are in- money advanced, or paid for the plaintiff, but to enstended to be legal until the contrary appears, and the ble them to make the sales necessary to liquidate the defendant who sets up illegality must prove it, there is debt, and when this was done, when the transaction no presumption that any particular contract is valid or had accomplished its purpose, it would seem upon invalid, and the plaintiff must prove the case made by équitable principles that the residue of the property, his declaration. In doing this, if it appears that the like the excess over the amount of the debt after sale, dealings were illegal, he cannot recover, and the jury as decided in Crane v. Buchanan, 29 Ind. 570, would is to follow the presumption of legality only where belong to the grantor or plaintiff. Such being the obthere is no proof whatever to satisfy them to the con- ject of the transaction, it would be a fraud on the trary, Cir. Ct., W. D. Tenn., April 30, 1884. Kirkpat- plaintiff, when the debt secured by the property is rick v. Adams. Opinion by Hammond, J.

paid, to defeat the right of the plaintiff to the residue. Equity, which abhors fraud, will not permit this

(Sweetzer's Appeal, 71 Penn. St. 264), nor a fraudulent OREGON SUPREME COURT ABSTRACT. use of the statute for the prevention of frauds. Ryan

Dox, 34 N. Y. 308. (4) It is always the ARBITRATION AND AWARD-INVALID-PROMISE TO actual facts, and not the form of the transacPERFORM-RATIFICATION.-An award which does not tion, by which equity is governed in determining the determine matters submitted to the arbitrators is real character of the instrument; whether intended as not binding, but a subsequent promise to perform by an absolute conveyance or a mortgage, it is equally the party against whom it is sought to be enforced, valid, and equity will give effect to it according to the operates as a ratification, and renders it obligatory. substantial interest of the parties. Horn v. Keteltas, As :he submission might have been by parol, the sub- 46 N. Y. 600. Stephens V. Allen. Opinion by Lord, J. sequent parol promise to perform the award, includ. [Decided Jan. 14, 1884.] ing the value of the surplus material, was a valid ratification of the award in that respect. Page v. Pendergast, 2 N. H. 233. The general rule undoubtedly is MISSOURI SUPREME COURT ABSTRACT.* that an award which does not determine every matter submitted is not binding. Wats. Arb. 121 ; Wright v. BANK-PAPER DEPOSITED FOR COLLECTION AND Wright, 5 Cow. 197; Jackson v. Ambler, 14 Johns. 96; CREDIT-RIGHTS OF DEPOSITOR AND BANKER.-It påJones v. Welwood, 71 N. Y. 208; Davis v. Dyer, 54 per be deposited in or forwarded to a bank for colN. H. 146. But a subsequent ratification takes away lection, and in pursuance of a pre-arranged mode of all objections, on this ground and a promise to perform dealing the bank immediately places the amount to the award is sufficient. Cross v. Cross, 17 N. J. Eq. the credit of the depositor, and the depositor there288; Williams v. Williams, 11 Smedes & M. 393; Cul. upon draws or is entitled to draw against the same as ver v. Ashley, 19 Pick. 300. Belt v. Poppleton. Opin- cash, this works a transfer of title, so that the deposiion by Watson, C. J.

tor cannot afterward claim the paper; and it is imma[Decided Jan., 1884.]

terial that if the paper is not paper the bank has the MORTGAGE-EVIDENCE TO SHOW DEED TO BE-EQUIT

right to charge it back. Citing Clark v. Merchants' ABLE CONSTRUCTION.-(1) Whether an instrument, not

Bank, 2 N. Y. 380; Scott v. Ocean Bank, 23 id. 29; being apparent on its face, is to be regarded as a mort

Lord Eldon in Ex parte Sargeant, 1 Rose, 153: Story gage, depends on the circumstances under which it

Agency, $ 228; Ex parte Thompson, 1 Mont. & McA. was made and the relations subsisting between the par

102; and distinguishing Sweeny v. Easter, 1 Wall. 166; ties. Evidence of these circumstances and relations is

White v. National Bank, 102 U. S. 658; First National admitted, not for the purpose of contradicting or vary

Bank v. Reno Co. Bank, 1 McCrary, 491; Cecil Bank v. ing the deed, but to establish an equity superior to its

Farmers' Bank, 22 Md. 148; Levi v. Bank, 5 Dill. 107

; terms. Pierce v. Robinson, 13 ('al: 116; Peugh v. Da

Mechanics' Bank v. Valley Packing Co., 70 MO. 643; vis, 96 U. S. 336; Cornell v. Hall, 22 Mich. 377; Camp- ington Bank, 6 Conn. 529. Plaintiffs sent to the Mass

Millikin v. Shapleigh, 36 id. 598, and Lawrence v. Stoubell v. Dearborn, 109 Mass. 130; Brant v. Robertson, 16 Mo. 143; Horn v. Keteltas, 46 N. Y. 608; Jones,

tin bank a check drawn on defendants, indorsing it Mortg., $ 258. As a consequence of this doctrine each

thus: “Pay J. J. Mastin, cashier, for collection 20case must be scrutinized and judged by its own sur

count of" plaintiffs. The check was inclosed in a rounding facts and circumstances; and when the result

letter, which stated that it was “ for collection and of the evidence is to produce doubt the courts incline to

credit." The Mastin bank had a standing arrangeconstrue the instruments to be a mortgage. Conway's

ment with plaintiffs to give them

credit on the day Exrs. v. Alexander, 7 Cranch, 218; Edrington v. Har

of receipt for cash items and checks," and it gare per, 3 J. J. Marsh. 354; Jones, Mort., $ 279. (2) The

credit for this check accordingly, and plaintiff dref object of a mortgage is to secure a debt; to effect that

against it the day it was mailed. The Mastin bank purpose the right of disposition must exist somewhere

sent the check to defendants, who were its correspoll. and be founded on the contract of the parties, either

dents, and defendants charged the same to the drawer, expressed or implied. (3) The conveyance of lands for

* To appear in 79 Missouri Reports.

DEED

STATUTE

OF

who had sufficient funds, and credited it to the Mastin SPECIFIC PERFORMANCE bank. The latter had in the meantime failed, and FRAUDS.—The orator by verbal contract purchased the made an assignment, but defendants did not know wild land in question, entered into possession, built this. Held, that the title to the check had vested in roads and shanties for choppers, and took off a quanthe Mastin bank, and plaintiffs could not recover the tity of the lumber. Defendant B., as the agent and amount of defendants. Ayres v. Farmers & Merchants' attorney of the defendant A., and by his direction, Bank. Opinion by Henry, J.

brought suit on a note held by A. against the former AGENCY--AGENT'S AUTHORITY TO RECEIVE PAYMENT.

owner, and acquired the title in his own name, by at-The employment of a canvassing agent for the sale of

tachment and levy, with the understanding of all books by subscription confers no authority to receive parties that the land was to be conveyed to the orator, payment for books sold but not delivered by him, nor

if not redeemed. It was not redeemed, aud the orator ever in his possession. Butler v. Dorman, 68 Mo. 298. paid B. according to the contract. A deed was made, Chambers v. Short. Opinion by Henry, J.

but was not witnessed, nor acknowledged, nor deliv

ered, but was expected to be in a short time. A bill COVENANT-LIABILITY OF COVENANTOR-SUCCESSIVE having been brought to compel the defendant to deed, GRANTORS.-(1) The fact that the defendant in eject- held, that by all the authorities such a performance ment, evicted under title paramount, was not in pos- takes the contract from the operation of the provision fession when the ejectment was brought, is no defense of the statute for the prevention of frauds, and entito an action by him against his grantor on covenants tles the orator to a decree in his favor. Pike v. Morey, of warranty, where it appears that the grantor himself 32 Vt. 37; Stark v. Wilder, 36 id. 752. The case last defended the ejectment. (2) Where land has been above cited very clearly states what is required by way conveyed with successive covenants of warranty, and of part performance of a parol contract for the purthe last grantor has been compelled to indemnify his chase of land to take such contract out of the operagrantee, he may in turn have recourse to his grantortion of the statute of frauds, and to entitle the purfor the amount paid. Dickson v. Desire, 23 Mo. 151; chaser, in possession, to a decree for a specific perChambers v. Smith, id. 174; Cockrell v. Proctor, 65 id. formance of the contract. Griffith v. Abbott. Opinion 41; Conklin v. Railroad Co., id. 533; Vancourt v. by Ross, J. Moore, 26 id. 98; Rawle on Covenants (4th ed.), 341.

STATUTE OF FRAUDS-DEBT OF ANOTHER-WHEN Jones v. Whitsett. Opinion by Martin, Commissioner.

NOT WITHIN.-The debt sought to be recovered in this EVIDENCE-PRINTED LAWS AND ORIGINAL ROLLS- action is one for which Isaac A. Bailey, father of the CHARTER OF A TOWN-EXCEPTIONAL CASE.- :--The origi- defendant, was liable as surety. The defendant was nal roll, as deposited with the secretary of State, is the not liable upon it originally. In the year 1863 the debest evidence of a legislative enactment. Yet where fendant took a conveyance of the real and personal there was a discrepancy between the charter of a town property of Isaac A. upon condition that he would as published in the printed laws of the State and the pay all Isaac A.'s debts that remained due. This debt statute roll on file in the office of the secretary of in question, which was not negotiable, became the State, in this, that in the former it was provided that property of the plaintiff on the 31st day of May, 1876, the trustees of the town might impose fines for breach and after that date the defendant promised the plaintof any of their ordinances, not to exceed $20 in iff that he would pay it, if his brother Harvey, who amount, and in the latter the word “twenty" was was the principal upon the notes evidencing the debt, ninety; and from aught that appeared in the record did not. The defendant contends that this was a this discrepancy was first brought to the attention of promise to answer for the debt of another, and being the defendant upon his trial, about twenty years after in parol, was within the statute of frauds. It has been the enactment of the charter, in an action by the held in this State that where a debtor places property town to recover of him a penalty of $90 for refusing to of any kind in the hands of a third person, and that take out a merchant's license, as required by ordi-person promises to pay the debt, such promise is not nance. Held, that under the exceptional circumstances within the statute. Merrill v. Englesby & Tr., 28 Vt. of the case, the printed copy of the charter would con- 150; Wait v. Wait's Executors, id. 350; Smith v. Est. trol in determining defendant's liability. Pacific R. of Rogers, 35 id. 140; Fullam v. Adams, 37 id. 391. BaiCo. v. The Governor, 23 Mo. 353; Noy's Maxims, 37; ley v. Bailey. Opinion by Taft, J. (See 46 Am. Rep. 4 Inst. 240; Pease v. Peck, 18 How. 595. Town of Pa- 296.) cific v. Seifert. Opinion by Philips, Commissioner.

NEBRASKA SUPREME COURT ABSTRACT.

ex

VERMONT SUPREME COURT ABSTRACT.

STATUTE OF LIMITATIONS--ACKNOWLEDGMENT.-The debtor wrote and sent a letter to the plaintiff creditor

within less than four years next before the commenceTROVER-CHATTEL MORTGAGE-TENANTS IN COM

ment of the action on the account, saying: “If ever MON.-8. and W. were the owners of certain furniture.

I get able I will pay you every dollar I owe to you, and 8. executed to the plaintiffs a chattel mortgage of his

all the rest. You can tell all as soon as I get any undivided half of the same to secure them for having thing to pay with I will pay. As for giving a note it is signed a note with him as sureties. W. was in posses- of no use. I will pay just as quick without a note as sion of the whole furniture; and while so in possession with it." Held, that the letter acknowledged an caused S.'s half to be attached on a debt against him; isting liability,” and thereby took the case out of the but the property was not removed, and in a few weeks, operation of the statute of limitations. Devereaux v. though after the commencement of this suit, the at

Henry. Opinion by Reese, J. tachment was released. Held, that the plaintiffs at best were only tenante in common with W.; that w. (Decided May 28, 1884. ] bad a right to the possession equal to that of his co

TRIAL-RIGHT TO OPEN AND CLOSE-LIBELEVItenants; and that an action of trover would not lie

DENCE.-(1) In an action for libel, where the defendagainst the officer serving the writ, as his acts did not ant justifies and pleads the truth of the charge, and amount to a conversion. Welch v. Clark, 12 Vt. 681; | that the publication was founded upon rumor, and Frost v. Kellogg, 23 id. 308; Gassett v. Sargeant, 26 id. was without malice, held, that the question of malice 424. Spaulding v. Orcutt. Opinion by Veazey, J. being iu issue, the plaintiff was entitled to open and

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close. Lexington Ins. Co. v. Paver, 16 Ohio, 324. (2) States. The building was placed upon a permanent In an action for the publication of an alleged libel in stone foundation, but the agreement with Stubbs was a designated newspaper, the republication of the same not in writing. Stubbs obtained his patent to the matter in other papers is not admissible in evidence. land, but refused to convey to the county, and also reVifquain v. Finch. Opinion by Maxwell, J.

fused to allow the plaintiff to remove the house. The [Decided May 27, 1884.]

county replevied the house, and the Supreme Court

decided the action could be maintained. Brewer, J., AGENCY-NOTICE TO PRINCIPAL.-When an agent is clothed with ample powers to buy and sell real estate,

in delivering the opinion of the court, used the foland institute and defend suits in the name of his princi- lowing language: The house "was placed by the pal,actual notice to him in relation to the subject-matter plaintiff upon the land to which the defendant, Stubbs, of the agency is actual notice to the principal, and is a

had an inchoate title, with the understanding that it valid defense on a motion to set aside a judgment ren

should remain the property of the plaintiff. How did

the plaintiff lose its title? The manner in which it was dered by default in cancelling a tax deed. Story Ag., $ 140. Merriam v. Calhoun. Opinion by Maxwell, J.

annexed to the ground did not prevent the intention

of the parties from remaining effective. The building [Decided May 27, 1881.]

was, it is true, on a stone foundation, but it was held EVIDENCE--DECLARATION OF AGENT-RES GESTÆ.— there by its own weight. That it could be remored In an action by B. against H. for the value of a horse without destruction is evident, not merely from the which B. had left at the livery-stable of H., with per- description of the building, but also from the fact that mission to occasionally let him to proper and careful it had been once moved. The contract of purchase drivers, and which had been let on the fourth day of may be laid out of consideration, for it was void, and July to an improper person, was overdriven, and not was repudiated by the owner of the realty, and it was properly cared for, from the effects of which he died not intended thereby to affect the ownership of the on the eighth of July following, a statement made to building. *

* * The intention of the parties made
B. by the agent of H., and foreman and general man- this building personalty, and neither the manner of
ager of said livery-stable, as to the condition and ap- annexation por any other matter prevented this in-
pearance of the horse when returned to the stable, tention from being carried into effect. Demand was
July 4, his symptoms since that time, and at the conceded. Replevin and not forcible entry and de-
then present time, was properly admitted in evidence tainer, is the remedy to recover personal property."
on the part of the plaintiff, having been made at the Waters v. Reuber. Opinion by Reese, J.
same time of the depending transaction, and consti- [Decided May 29, 1884.)
tuting a part of the res gestae. Homan v. Boyce. Opin-
jon by Cobb, C. J.
[Decided May 28, 1884.]

IOWA SUPREME COURT ABSTRACT.
FIXTURES-INTENTION-BUILDING ERECTED PEND-
ING SALE--REPLEVIN.-Ag to whether a building con-

NEGLIGENCE-CROSSING RAILROAD-CONTRIBUTORY structed upon the land of a person other than the

NEGLIGENTE-FAILURE TO LOOK AND LISTEN,-Whers owner of the building becomes annexed to and a part

a party driving has, at a distance of fifty feet from the of the freehold, must depend to a great extent upon

railroad, an unobstructed view of 1,300 feet of the the facts and circumstances of the case and the inten- track, and his attention is in no way diverted from tion of the parties. The owner of real estate offered it

seeing an approaching train, his failure to look and for sale; then put it into the hands of an agent for

listen is such negligence that he cannot recover if insale at a fixed price. The agent sold it for the price jured by a train upon the track. Schaefert v. C. M. & named. The purchaser, without a written contract,

St. P. R. Co., 17 N. W. Rep. 893. Where two tracks or the payment of any money, took possession of the

run parallel at some distance apart, though the train property, pending the execution of the deed, and be

on the first track might have prevented the plaintiff gan the erection of a house thereon for himself. The

from seeing the train on the second track (the one on owner of the real estate afterward repudiated the sale

which the collision occurred), he is not excused from of the land, and took possession of the building con

seeing the train on the first track, the view being un. structed by the purchaser. Held, that the purchaser

obstructed, and waiting until it passed to see if there was not divested of his title to the building, he being

was danger in crossing the second track; the crossing in no default, and having constructed the building in

of one track, and the attempt to cross the other, were good faith, and that he could maintain replevin there

parts of one act. Pence v. Chicago,"R. I. & P. R. Co. for. The authorities all distinguish between an un

Opinion by Rothrock, C. J. authorized erection of the buildings upon the land of

[Decided June 4, 1884.] another, and improvements made thereon by his con- AGENCY

-COMMISSIONS—WHEN NOT ENTITLED TO.sent, as respects the title to the improvements or the Where a real estate agent contracts to sell lands at cerbeneficial interest therein. See Tyl. Fixt. 88, 81. Sup- tain designated terms and prices, for a specified compose the contract of sale and authority to take posses- mission, he does not show himself entitled to the comsion and construct the building, pending the comple- mission when he claims only to have furnished a tion of the contract, had been made by the plaintiff in customer to whom the owner might sell if they could error, and he had afterward refused to execute and come to any agreement as to prices and terms, espec. deliver the necessary deeds, would the case have been ially where, as in this case, the owner made the transmaterially different from what it is? We think not.

action in entire ignorance that the real estate agent The right to remove buildings under such circum. had any thing to do with producing the purchaser, and stances is strictly equitable in its nature, but as be- where the prices and terms agreed upon were matetweeu the parties it has come to be recognized at law. rially different from those the agent was authorized to Little v. Millford, supra; 2 Am. Lead. Cas. (5th ed.) offer. There is no doubt that an agent or broker who 589. The case of Rush Co. v. Stubbs, 25 Kans. 392, is is employed to sell property at a designated price and quite similar to this in many respects. There the on stated terms is entitled to his commission when he plaintiff placed its building upon the land of the de- has found a customer who is able and willing to take feudant, upon which he had a homestead filing, with the property at that price and on those terms, whetber the understanding that he should convey to the piaint- the sale is consummated or not. McGavock v. Woodiff when he procured his patent from the Uuited lief, 20 How, 221; McArthur v. Slauson (Wis.), 9N, W.

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Rep. 784. It is also true that where the undertaking of ment of the money, and that the right of action acthe agent is simply to find a purchaser, he will be entitled crues when the payment is made, and that such acto compensation when be produces a customer who is tion is barred in five years from the time it accrued. ready and willing to buy it, and with whom the principal See also Lamb v. Withrow, 31 Iowa, 164, and Johnsenters into negotiations which result in the purchase

Belden, 49 id. 301. (2) Parol evidence is admisby him of the property. Iselin v. Griffith, 18 N. W. Rep. sible to show that the actual transaction between the 302; Kimberly v. Henderson, 29 Md. 512; Jones v. Ad- parties was other and different from that implied ler, 34 id. 440; Gillett v. Corum, 7 Kan. 159. But this by law, because of the order in which the names apcase is not within either of these principles. Plaintiffs' pear on the back of the note. The reasons are thus employment was to sell the land. The allegatiou of stated by Church, C. J., in Hubbard v. Gurney, 64 N. their petition is that defendant appointed them its Y. 458-463, “it does not tend to alter or vary either the agent for the sale of the laud, and this allegation is terms or legal effect of the written instrument. The admitted in effect by the answer, and the evidence contract was in all respects the same whether the deshows that they were furnished a list of the lands, fendant was principal or surety. In either case it which stated the price and terms on which they were was an absolute promise to pay $1,000 one day after authorized to sell it. They were agents then for the date; nothing more, nothing less. There is neither sale of the land, at the prices and on the terms stated condition vor contingency; it would have been prein the list. They do not claim however that they have cisely the same contract if the defendant had added procured a purchaser to take the land at those prices the word “surety " to his name. The addition of that or on those terms. Nor do they claim that they are word would not have varied it in the slightest entitled to recover on that ground. Their claim is that degree. The only service it would have perthey induced the purchaser to enter into the negotia- formed would have been to give notice to the other tion with defendant which resulted in the sale of the party. If it is shown aliunde, it is equally effective." property, and this is the ground on which the court This reasoning is entirely satisfactory, and is susheld they were entitled to recover. But they are tained by the following cases: Rey v. Simpson, 22 clearly not entitled to recover on this ground, on the How. 341; Good v. Martin, 95 U. S. 93; Riley v. Gregg. theory that what they did was a performance of their 16 Wis. 666; Carpenter v. King, 9 Metc. 511; and the undertaking when they accepted the agency; for as following cases determined by this court: Kelley v. we have seen their contract was to sell the land at the Gillespie, 12 Iowa, 55; Harrison v. McKim, 18 id. 485; prices and on the terms designated in the list, and not and James v. Smith, 30 id. 55. Sup. Ct. Iowa, June 7, merely to furnish a customer to whom defendant 1884. Preston v. Gould. Opiniou by Seevers, J. (19 N. might sell it if they were able to come to an agreement W. Rep. 834.) as to prices and terms. We think the difference be

NEGOTIABLE INSTRUMENT DRAFT- RELEASE OF tween what plaintiff contracted to do and what they

ACCEPTOR-RIGHTS OF DRAWER.--The release of an claim to have done is very apparent and very mate

acceptor of a draft, even though it be effected by a rial. If what they did do was accepted by the defendant

mere agreement not to sue, has the effect to release as a performance of their undertaking in the contract,

the drawer. That this is the rule we think cannot be they doubtless would be entitled to the commissions

denied. 2 Dan. Neg. Inst., § 1291. This rule should provided for in the contract. This is the doctrine of

not be confounded with the rule in respect to a joint Stewart v. Mather, 32 Wis. 319. Blodgett v. Sioux City

maker. Dean v. Newhall, 8 Term. R. 168. No legal ques& St. P. R. Co. Opinion by Reed, J.

tion being presented, we have only to inquire in re[Decided June 5, 1884.]

gard to the construction which should be put upon the writing in this case. Did it have the effect to pre

clude the plaintiff from maintaining an action upon FINANCIAL LAW.

the draft for the enforcement of a personal obligation ?

It certainly did, unless the right to enforce such obNEGOTIABLE INSTRUMENT-ACCOMMODATION PAPER ligation was saved by the words, “nothing herein -CONTRIBUTION-PAROL EVIDENCE AS TO LIABILITY. shall be construed as in any manner affecting the -(1) A note indorsed by the payee and another sim- rights of said bank to the proceeds of a mechanic's lien ultaneously, for the accommodation of the maker, upon the Cresco elevator, nor the rights of Day Bros." raises as between the indorsers an obligation to con- But in our opinion, the right to enforce a personal obtribute in case of non-payment. McCarty v. Roots, 2 ligation was not saved by such provision. If the inHow. 437; Woodward v. Severance, Allen, 340; tention had been to save such right, the agreement not Clapp v. Rice, 15 Gray, 557; and Church v. Barlow, 9 to prosecute any action upon any claim held by plaintPick. 547. We do not understand the legal proposi- iff should have been qualified simply by excepting tion determined in Coolidge v. Wiggin, 62 Me. 563, and therefrom the draft in question. But the qualificaKirschner v. Conklin, 40 Coun. 77, to be in any respect

tion is made to apply to the proceeds of a lien, evincdifferent. In the latter case it was found as a fact that ing very clearly, as we think, a design to save the the indorsers were not joint guarantors or indorsers, plaintiff's rights in respect to a supposed claim in rem. and in the former it was held that the mere fact that It is true, that as a matter of fact, the plaintiff had no the indorsers placed their names upon the note for the

claim in rem. The drawing and acceptance of the accommodation of the maker would not change the

draft did not have the effect to carry the lien, though legal presumption, or make the indorsement joint. probably the draft was drawn and accepted with refThese cases are distinguishable, because it must be as- erence to the debt secured by the lien. This precise sumed that the District Court found that the plaintiff question was decided in First Nat. Bank of Decorah and defendant were joint sureties on accommodation v. Day, 52 Iowa, 680. But this does not change the paper; and if one indorser suffers judgment to be re- fact that the plaintiff thought that it had a right to covered against him on the note, and pays the same, such lien; or to use its own language, a right to the be must bring his suit against the other for contribu- proceeds of the lien. Nor do we think that the plainttion within five years. It was held in Wilson v. Craw- iff is helped by the provision of the writing that the ford, 47 Iowa, 469, that the payment of a judgment by rights of Day Bros. growing out of the claim secured a surety on the instrument upon which the judgment by the lien should not be affected. The intention apwas rendered, gives him a right of action against the pears to have been simply that Day Bros, should have judgment debtor upon an implied promise for repay

the full benefit of that claim by the enforcement

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