sideration and determination by the court. The complainant vol· untarily, upon ex parte application, asked the court for leave to dismiss the bill, and the court granted the order without looking into the pleadings, or deciding any point of law or fact. Had there been afinal decree entered upon the ruling on the demurrer, without further pleadings, the hearing on the demurrer might well have been regarded as a "final hearing," contemplated by the act. See McLean v. Clarke, 20 Reporter, 36; S. C. 23 FED. REP. 861. But the decree dismissing the bill was not a consequence of the decision on the demurrer. The item of $20 solicitor's fee, charged on the bill of costs filed by defendants, must therefore be rejected; and it is so ordered.
BOSTWICK v. COVELL.
«(Jircuit (lourt, S. D. New York. July 17, 1885.)
EQUITY JURISDICTION-ADEQUATE REMEDY AT LAW-INJUNCTION-REv. ST.
t 723. Injunction to restrain defendant's action at law denied, complainant having a full aDd adequate defense in that action, within the meaning of St. j 723.
In Equity. Chas. O. Bea,man, for orator. Wm. H. Arnoux, for defendant. WHEELER, J. The defendant's action at law against the orator, the further prosecution of which is sought by this suit in equity to be restrained, is for the recovery of money alleged to be due upon a written contract entered into by these parties. The orator's counterclaim is for money alleged to have been overpaid upon the contract, and for money paid on account of the failure of the defendant to vindicate the patents which were the subject of the contract. Whether the urator has fully paid what is due upon the contract depends upon its legal construction and effect. If he has fully paid, it is il1eq ui. table for the defendant to demand more; but that consideration does not make the defense an equitable instead of a legal one. There is no ground of defense which, apparently, a court of law would be prevented by any limitation upon its powers or processes from giving full effect to. The orator appears to have as clear a field to defend himself in on the law side as on the equity side of this court. 80 of the orator's claims against the defendant. He might, perhaps, maintain this suit against the defendant if necessary to the defense of the suit which the defendant has brought in this court against him in this district, although the defendant is not an inhabitant of, nor found within, this district, otherwise than as he is found bringing his suit within this district. Rev. St. § 738. But his claims arise out of the legal construction and effect of the written contract, which the court
NORMAN V. PEPER.
of law, after having construed, can enforce by a judgment in favor of the party to whom anything may be due, in as untrammeled a manner as a court of equity Gould decree its payment to him. The provision that if the patents are in part valid and in part invalid, "an equitable proportion" of the royalty, to be determined by arbitration in a prescribed mode, is to be paid, does not appear, on account of that form of expression, to involve relief in a court of equity, as distinguished from relief in a court of law, for either party. It seems to mean that a reasonable, just, and fair share of the royalty shall be apportioned to the valid part of the patents in that manner. This provision appears to be as fully within the scope of the powers of a court of law to be dealt with, as that of the powers of a court of equity. The remedy of the orator for the defendant's suit at law appears to be plain, adequate, and complete at law, within the meaning of section 723, Rev. St. Motion for a preliminary injunction denied.
and others v.
(Circuit Court, E. D. Arkansas. JUly 9, 1885.) 1.
When a mortgage given to secure a usurious contract contains a power of sale, a court of equity will not, at the suit of the maker of the usurious contract, enjoin the foreclosure of the mortgage, by notice and sale, for the amount of the debt and legal interest.
SAME-STIPULATION TO SHIP COTTON TO FACTOR TO BE SOLD ON COMMISSION.
The question whether this stipulation did not render the mortgage usurious is not decided, because its decision one way or the other would not affect the result, in this case. The case distinguished from Oockle 93 U. S.346.
A. factor who is guilty of fraud in the conduct of his principal's business forfeits all claims to commissions.
Smoote et McRae and E. O. Mitchell, for plaintiffs. Montgomery et Hamby and B. B. Battle, for defendant. CALDWELL, J. This is a bill to enjoin the defendant from foreclosing a mortgage, under a power of sale contained therein, executed by the plaintiffs to secure an indebtedness from them to the defendant, amounting, as the defendant alleges, on the tenth of March, 1883, to
the sum of $9,972.88. The grounds upon which the injunction is Bought are (1) that the notes secured by the mortgage and the mortfor the gage itself are usurious and void; (2) that, as cotton plaintiffs, the defendant rendered them accounts of sales whICh were false and fraudulent in respect to the weight, grade, and price of the plaintiffs' cotton, whereby they were defrauded out of large sums of money; (3) that the defendant failed to for cotton consif?ned to him for sale; (4) that the defendant sold plamtlffs damaged, spoIled, and inferior goods, whereby their business was greatly damaged, and that he charged them for such goods the full price for sound goods of like character; (5) that' the defendant charged the plaintiff with excessive and illegal commissions and interest. The bill charges various other frauds on the defendant, which need not be particularly mentioned. Assuming, but not deciding, that the notes and mortgage are usurious, the plaintiffs cannot have the relief they seek, viz., a perpetual injunction against its foreclosure by notice and sale, without first paying or tendering the amount of the debt and legal interest. Pickett v. lUerchants' Nat. Bank, 32 Ark. 346; Spain v. Ha milton's Adm'r, 1 Wall. 604; Anthony v. Lawson, 34 Ark. 628. But they are entitled to have the accounts purged of all illegal interest, commissions, and charges. On the twentieth of April, 1882, the plaintiff executed the mortgage in question to secure an existing indebtedness of $9,581.40, evidenced by three promissory notes; and the mortgage contains this provision:
"And whereas, said Norman, Burns & Co. have also covenanted and agreed with said Charles G. Peper to consign to him during the corning cotton season-that is to say, between the date of this conveyance and same date of the year 1883-at least seven hundred bales of cotton, to be sold by him, said Peper, for account of the said Norman, Burns & Co., from time to time, at the discretion of said Peper, and as he may deem it prUdent and proper to make such sales; and whereas, the said Norman, Burns & Co. have also agreed with said Peper, for value received by them. that should they fail to ship and consign to him, during said season, the number of bales of cotton aforesaid, the.y will pay to him, said Peper, the sum of one dollar and twenty-five cents for every bale of cotton within said number of seven hundred bales which they may fail to ship and consign to him as aforesaid, and which sum of one dollar and twenty-five cents, it is agreed, shall be compensation to him, said Peper, for the commissions which will be lost to him by his not receiving such bales as may be then deficient in the consignment so to be made by said Norman, Burns & Co."
The plaintiffs did not ship the 700 bales of cotton, and the defendant charged them up with commissions at the rate of $1.25 per bale, amounting to $875, and now claims'the same a part of the mortgage indebtedness due him. About a year previous to the execution of the mortgage of twentieth of April, 1882, the plaintiffs made an agreement like that contained in the mortgage of 1882, to ship a given number of bales of cotton to the defendant, and agreeing to pay $1.25 commissions per bale on the difference between the number of bales they should actually ship and the number they had agreed
NOR},IAN 'V. PEPER.
to ship. The commissions charged up under the last-named agreement on cotton not shipped or sold, and carried into the mortgage debt, amounted to $523.75. These charges for commissions for selling cotton which was not sold are clearly illegal. The rule established by the case of Cockle v. Flack, 93 U. S. 346, does not apply. In the at bar there was no agreement for a joint use of capital and personal service of the defendant based on a loan made at the time. The mortgages were given to secure debts previously contracted. There was no agreement for future advances. This existing indebtedness the plaintiffs were to pay, with interest at the rate of 10 per cent. per annum, the maximum conventional rate. The additional agreement of the plaintiffs, contained in the mortgage and quoted above, to ship the defendant 700 bales of cotton, and to pay commissions at the rate of $1.25 per bale on every bale of that number not shipped, was without consideration and void. Whether it renders the mortgage usurious is not decided, inasmuch as the decision of that question could not affect the decree to be rendered. Whether the agreement to pay these commissions is void for want of consideration or for usury, the result is the same in this case. It is proved by two expert accountants, who examined the defendant';; books as they stood at the date of the examination, that he received for a portion of the plaintiffs' cotton $609.60 more than the account of sales rendered by the plaintiff show that he received for the same. In other words, he rendered accounts of sales of a portion of the plaintiffs' cotton showing he had sold it for $609.60 less than he in fact rEjceived for it. The defendant's books, so far as they relate to the plaintiffs' accounts, are not complete. The witness says: "The journal refers specifically to pages 85, 86, and 87, copy-book of accounts of sales for the calculations of the interest and amounts. I find that pages 84 to 92, inclusive, of this copy-book are cleanly cut out, and no examination can be made of them." The information contained in the missing leaves was not contained in any of the other books or papers of the defendant. The experts were unable, therefore, to determine the difference, if any, in the prices for which the remainder of the cotton was sold and the prices at which it was accounted for'. The method by which the defendant realized and retained more for the plaintiffs' cotton than he accounted for seems to have been quite systematic and uniform, and to have entered into all the sales of the plaintiffs' cotton, the history of which can be traced on the plaintiffs' books. It is but fair to assume that this uniform method obtained as to the cotton the sales of which cannot be fully traced on account of the mutilation of the defendant's books. On this assumption the plaintiffs are entitled to a credit for $217.86 for the difference between the price received and the account of sales rendered on the cotton the facts relating to the sales of which were contained in the missing leaves. "Everything is presumed against the despoiler." The depositions of the experts were in the possession or subject to the
inspection of the defendant and his (llel'k for two v; .:leks before the taking of depositions in St. Lonis, the place of their residence, was closed, and one of them was examined, and both might have been, after said depositions were taken, but no attempt was made to explain or contradict the testimony of the experts on the points men· tioned.· ' By his fraud and misconduct aB factor for the plaintiffs the defend· ant has forfeited all claims to any commissions for conducting the business. Fordyce v. Peper', 16 FED. REP. 516. The commissions charged over and above those charges for cotton not sold are $891 for cotton sold, and $530.59 on purchases. The experts testify that the interest account is excessive in the sum of $282.13. Much proof was taken as to the character and quality of goods purchased by the defendant and shipped to plaintiffs. It is undoubt. edly true that some of these goods were not merchantable, and that the defendant knew it, and that the plaintiffs suffered some loss by them. But their character and quality were known to the plaintiffs and made a matter of complaint before they gave their notes, and I am not inclined to open up a question of that kind after it has been deliberately settled by the parties with a full knowledge of all the facts. The defendant's claim must be reduced by the following amounts:
Commissions charged for selling cotton not sold, $875 00 " .. " " " 523 75 Commissions for selling cotton, 891 00 Commissions on purchases, 530 59 Amounts received for cotton Bold and not accounted for, $609.60 and $217.88, ' 827 48 Excess of interest charged in account, 282 13 $3,929 95
These sums, amounting in the aggregate to $3,929.95, will be cred· ited on the mortgage debt; the $875 as of the date it is charged, and the balance as of the fifth of April, 1882, and as to these amounts the injunction will be made perpetual. As to the balance of the mortgage debt the injunction is dissolved. As the defendant's misconduct and fraud compelled the plaintiffs to bring this suit, and they have maintained their bill as to a material part of the relief sought, the defendant will be required to pay all costs.
C. RY. CO.
FARMERS'LoAN & TRUST CO.
OREGON & C. By. Co.
(No. 11 112.)
(Ui-rcuit Court, D. O-regon. August 3, 1885.)
SUBJECT" OF AN ACT AND" MATTER PROPERLY CONNECTED THEREWITH"TWO-UOON'rY JHOHTGAGE TAX LAW VOID. The clause in of the act of Octobcr 26, 1882, (Sess, Laws, 65,) COIn-
monly called" The Mortgage Tax Law," which declares that all mortgages or other oblIgations whereby land in more than one county" is made security for the payment of a dent shall be void," is a "matter properly connected " With the" sUbject" of the act, and therefore not in contravention of section 20 of article 4 of the constitution of the state; and a mortgage executed by the defelldant to plaintiff, as trustee of its road and property in several counties in Oregon, to secm'e the payment of certain bonds of the same date, in violation thereof, is void and of no effect.
CoNSTRUCTION OF STATUTE.
A plain provision of a statute cannot be construed so 8S to exclude 8 particular case from Hs operation upon a surmise or conjecture, however probable, that the legislature did not actually contemplate, or consciously intend, its application thcreto. '
INSTALLMENT OF INTEREST, LIEN OF MORTGAGE MAY BE ENFORCED FOR.
When a debt, payaule at II future day, with interest payable in the mean time at stated intervals, is secured by mortg-age, and detault is made in the payment of an installment of such interest, a suit in equity may be maintained to enforce the lien of such mortgage, so far as such installment is concerned, by II sale of so much of the mortgaged property as may be necessary to pay the same; but if such property cannot ue sold in parcels Without injury to the parties, or olle of them, then the court may order the whole of it sold, fr('e from the lien of the mortgage, and apply the proceeds on the whole debt according to its then value.
Suit to Enforce Mortgage Liens. William B. G'ilbertl for plaintiff. Richard Williams and James K. Kelly, for defendant. DEKDY, J. This suit is brought by the Farmers' Loan & Trust Company, a corporation formed under the laws of New York, against the defendant, a corporation formed under the laws of Oregon, to enforce the lien of two certain mortgages on the property of the defendant, by a sale of the same, and to have the proceeds thereof applied on the several bonds secured thereby, according to their priority. The bill was filed on January 29, 1885, and states, among other things, that on June 1, 1881, the defendant executed and delivered to Henry Villard, Horace White, and Charles Edward Betherton, as trustees, first mortgage on its property, consisting of about 306 miles of road l running througn various counties in the Wallamet and Umpqua valleys, together with the rolling stock, land grants, telegraph lines, and everything pertaining thereto, with the franchise to operate the same, and the income and profits thereof, to secure the payment of certain bonds, " Jl the interest thereon, about to be issued by the defendant, at the mte not more than $20,000 per mile of its road, then and to be constructed, for the purpose of completing the same to the Oalifornia line; that said trustees accepted said trust, but thereafter, and from time to time, changes were duly made in said trustees, so that on July 7, 1883, the plaintiff became and now is the sole trustee thereof;