and to such as were given in a modified form. To the charge of the court wherein he says if McFallon consented to the delivery to Hurd, and delivered it as his engine, with permission to use it, to the language of the court, as there used in that connection, we except. Also to what the court said in using the language commencing, "But if he merely allowed Hurd to take it," etc. Also to the language of the court, "That if the jury find that Brown, or any other agent of the plaintiff, notified him, (Hurd,) and that Hurd took it as the agent of the plaintiff," etc. "That if Hurd took it at the solicitation qf plaintiff or any of his agents," etc., to the charge in that connection. To the language of the court in charging the jury with reference to the plaintiff requesting the defendant to keep the machine, and that there was no qualification as to the time he should keep it, or as to his meaning of "during the season." Verdiot for plaintUf.
FRANCAISE DU TELEGRAPHE DE PARIS A. NEW YORK t1. WESTERN UNION TELEGRAPH COMPANY and others.
(Circuit Oourt,8. D. New York.
Where a contract was made between two telegraph companies, whereby it was agreed that certain unassigned messages should be sent on the Wlres of one of the companies, and the other company, pending the life of the contract, should sell out all its property to a third company, its members taking stock in and becoming members of the company created by such consolidation, it is no ground for an injunction at the suit of one of the original parties to the contract against such consolidated company to prevent carrying out the consolidation agreement.
In Equity. George F. Edmunds, Oharles M. Da Oosta, and Lewis L. Delafield, for plaintiff. Wager Swayne and Everett P. Wheeler, for defendants. BLATCHFORD, C. J. I cannot regard it as an open or a doubtful question that the consolidation agreement was valid, whether considered with reference to the general principles applicable to it, or to the statute of New York, or to the act of Congress. But it is contended for the plaintiff that that agreement is in violation of the rights which the plaintiff has under the contract between it and the
COMPAGNIE FBANCAISE DU TELEGRAPHE, ETC.,
v. W. U. TEL. CO. 843
American Union Company. There is nothing before the court to enable it to measure with the least approach to accuracy, or otherwise than by the merest fancy or conjecture, the extent or the pecuniary value of those rights, which extend, at most, only to unconsigned messages, or the pecuniary amount of any damages, either past, or probable in the future, from the violation of their rights. On the other hand, it distinctly appears that the controlling reason operating with the American Union Company to sell its property, was the great· disadvantage in pecuniary result of continuing its business as an independent company, in comparison with the advan. tage to its shareholders of becoming such in the Western Union Company. When to this is added the fact that by the pooling or joint purse arrangement existing between the plaintiff and the other two cable companies, it makes no pecuniary difference to the plaintiff whether all messages are sent over the plaintiff's cables or whether all are sent ovet the cables of one or both of the other two cable companies, it is plain that the injury to result to the American Union Company from preventing the carrying out of the consolidation agreement is far greater than any possible injury to result to ' the plaintiff from a contrary course; and that, therefore, the case is not one for equitable interference in that regard. In respect to the prayers of the bill for injunctions touching the agreement of December 18, 1880, Schedule D to the bill, the rescission and cancelling of that agreement remove all ground for any injunction regaraing it. The prayers for injunctions against the Western Union Company .embodied in the last two subdivisions of prayer 9, and in the nine subdivisions of prayer 10, amount to a prayer for the specific performance by the Western Union Company of the agreements, Schedules A and B to the bill. The plaintiff has now, in its pooling arrangement with the other two cable companies, the practical benefit of a full performance of those agreements, in respect to unconsigned messages, to the same extent as if every message that goes over any cable of either of said other two companies were to go over its own cables. If, hereafter, damage is shown to result to the plaintiff from the sending by the Western Union Company of unconsigned messages over some cable other than a cable of the plaintiff, or of said other two cable companies, it may be proper to ask the interference of a court of equity. In such case the question of the existing mutuality of the said agreements, Schedules A and B to the bill, and' the question whether said agreements belong to a class of which spe-
cific performance will be decreed, and the qnestion whether the rem· edy at law is complete, adequate, and plain, and the question as to what control the court could have over the plaintiff to compel it' to observe the agreements on its part, will come up for consideration. The motion for an injunction mnst be denied.
(Circuit Court, S. D. New Y f/rk.
ATTORNEY AT LAW-LIEN OF.
August 9, 1881.)
Where the attorneys for a party withdraw from the case of their own motion, the new attorneys were subBtituted without prejudice to the existing lien of the original attorneys; but the former "ttorneys are not entitled to any lien oD, ultimate recoveries.
BLATCHFORD, C. J. In this and the nine other cases I think the new attorneys must be substituted, without prejudice, of course, to any existing lien of the former attorneys on papers, but without the imposition or creaiion of any lien on any future recoveries in favor of the former attorneys in respect to their first services. Whatever might be done in a case where the client, without any reason but his wish, desired to displace his attorneys, I think that as, in this case, the attorneys withdrew of their own motion, and no special reasons are shown for impressing a lien in their favor on any ultimate recoveries, no such lien should be created as a condition of the substitution.
((Jircuit Court, E. D. New York. December 5,1881.)
DAMAGElJ-PERSONAL INJURIES-NEW TRIAL-INSUI<'FICIENT GROUND.
In an action for damages for personal injuries, caused by negligently leaving open a hatchway on a vessel, where the jury believed a witness whose character was in nowise impeached, and against whose testimony there is nothing exC'ept that he is plaintiff in the action, and his testimony is in conflict with several other witnesses, the verdict of the jury cannot be set aside as being against the evidence.
Where, in such case, the jury was composed of intelligent persons,and,the trial developed no warmth of feeling, and there was nothing in the case from which to conclude that another jury would place the damages at a less sum, and the verdict was not the result of passion, prejUdice, or mistake on the part of ,the jury, a motion for a new trial will be denied.