There is further objection to it. If the court could grant the relief asked, it would come within its discretionary power. Since, in a case like this, it does not, and in the nature of things cannot, appear that the defendant may not reform, and live out the ordinary expectation of life, it is·not, as matter of law, in the opinion of the court, a proper case for the exercise of the discretionary power to order a cancellation, even if such power existed.
(Oircuit Oourt, 8. D. New l'ork.
February 13, 1886.)
NEW TRIAL-VEBDIOT NOT SUSTAINED BY EVIDENOE-PROVINCE OF COUBT.
The weight of the evidence is for the jury, if there is a.ny to support plaintiff's ca.se; but whether there is a.ny or not 1S for the court.
At Law. W. Hildreth Field, for plaintiff. David Willcox, for defendant. WHEELER, J. The plaintiff was in the employ of a mercantile house in New York, at $6,000 a year. The defendant had $48,531.07 of commercial paper of western firms, some months overdue and unpaid, in the discharge of which one Thacker was interested. The plaintiff's employers had $13,544.90 of like paper, and two other banks of the city enough more to make $90,376.05 in all. The plaintiff was informed by Thacker that he wished to get this paper taken up through a mercantile house, and not through attorneys, and a proposition to pay $17,000 in cash, and to give $3,000' in se· cured notes and unsecured notes for the balance, was left with him. This proposition was taken by the plaintiff to all the others, who agreed to accept it, and then to the officers of the defendant, who refused. They mentioned terms to the plaintiff which they would advise aooeptance of, if made. The plaintiff communicated these terms to Thacker, who came, and, in company with plaintiff, had an interview with the defendant's officers on the subject. Afterwards he sent a proposition of 25 per cent. in cash, and the balance in unsecured notes, and the plaintiff took this to defendant's officers. They told him to get another firm, who held $11,000 of similar pa. per, to pool their claim, and the propositioJl would be accepted. He got that firm to do so by paying them $250, and the proposition was accepted. The amount of the 25 per cent. of the whole was sent by Thacker to the defendant, and placed to his credit. lJ.'he $250 paid out by defendant was deducted; the proportion of each was computed; Thacker's checks, payable to the order of the plaintiff, were drawn for the respective shares, except that of defendant, and indorsed by
FOURTH NAT. BANK.
the plaintiff to each, leaving defendant's share in its hands; and the $250 was sent to the plaintiff. The plaintLff claimed a commission for his services, which the defendant refused to pay, and this suit was brought. The plaintiff's testimony tended to show that he expected pay of defendant while he was doing what he did do, although he said nothing whatever to the defendant's officers about it. The defendant's testimony tended to show that they did not expect to pay him anything, nor that any pay would be claimed. The jury were instructed, in substance, that if the plaintiff performed any servo ices at the request of the defendant in procuring this settlement, he would be entitled to recover reasonable compensation for such servo ices; and that if he performed services without request, under such circumstances that the officers of the defendant would be given fairly to understand that the services were to be paid for, he would be en· titled to recover fair compensation for such services. . The defendant, on this motion for It new trial, does not claim that these instructions were not correct u.S propositions of Jaw, but does insist that there was no sufficient evidence to bear out a finding that there were any valuable services performed by the plaintiff for the defendant, or that there was anything to give the defendant to understand that the plaintiff was to be paid by the defendant. On carefully reviewing the testimony, it seems to fairly amount to no more than that the plaintiff took the propositions of Thacker to the defendant, to get them accepted if he could. It does not show that he was operating in the interest of the defendant to procure the most that he could from Thacker; but rather that his business with Thacker was to shape the propositions to the lowest terms which the defendant would accept. A letter which the president of the defend. ant gave to the plaintiff to show that the last proposition was accepted, and which the plaintiff took and acted upon, sets forth somewhat the position of the plaintiff, and how it was understood. It reads:
"D. Uruikshank, Esq., New York-DEAR SIR: You are hereby notified that I will accept the offer of settlement for certain notes issued by J. Stevens, Jr., as arranged with you, on the basis of the letters of Mr. Newton Thacker of February 20th and March 14th. "Yours, very truly, O. D. BALDWIN, Pres."
The plain import of this is that the plaintiff had been acting on one side and Baldwin on the other, and not both on the side of the bank and Thacker on the other, in effecting this arrangement. As the case stood upon this trial, there was nothing fairly tending to show that the plaintiff performed any services for the defendant, either on request or any implied understanding that they were to be paid for, or under circumstances which would give the officers of the defendant to understand that they were being performed for pay. The weight of the evidence was for the jury, if there was any to support the plaintiff's case; but whether there was any or not is for the
court. The verdict does not appear to rest on any substantial evidence. Motion fol:' new triar granted.
BYBEE V. OREGON
& C. Ry. Co.
((Jilrcuit (Jowrt, D. Oregon.
GRANT TO THE OREGON
& CALIFORNIA RAILWAY COMPANY BY THE ACYl (W 1866, The grant of lands and the right of way to the Oregon & California Railway Company by the act of July 25, 1866, (14 St. 239,) and the act of June 25, 1868, (15 St. 80,) construed to be (1) a grant of the odd sections of land within 10 miles on each side of the line of the road, not otherwise appropriated or disposed of under the laws of the United States prior to the definite location of said line. on condition that the road is completed by July 1, 1880, for a breach of which condition the grantor alone can claim a forfeiture; (2) the grant of the right Of way absolute, to take effect on the definite location of the line of the road from the passage of the act of 1866, as against any person claiming under a settlement of appropriation subsequent to the passage thereof, without condition, save that whIch the law tacitly annexes to the grant of any such franchise, the liability to be lost or forfeited for non-user, ascertained and determined in a Judicial proceeding instituted by the government for that purpose.
2. SAME. The declaration in section 8 of the act of 1866, that, in case the road is not completed by the time prescribed, "this act shall be null and void." taken in connection with the context, that the lands not patented to the company at the date of ani such failure "shall revert to the United States," and the general purpose 0 the act. and the policy of congress in passing it, amounts to nothmg more than a declaration that the lands are granted on the condition that if the road is not completed in due time, the portion then remaining unpat· entedor unearned may be reclaimed by the United States.
Action to Recover Damages. Edward B. Watson and James F. Watson, for plaintiff. E. C. Bronaugh, for defendant. DEADY, J. This action was brought in the circuit court of the state, for Jackson county, to recover damages for an alleged injury to a water ditch. The defendant answered, denying sundry allegations in the complaint, and then set up a title or right of way in itself over the locus in quo, under an act of congress, to which defense the plaintiff demurred. Thereupon the cause was removed by the defendant to this court, as one arising under a law of the United States, where the questions arising on the demurrer were argued by counsel. ,It is alleged in the complaint that the defendant is a corporation duly organized under the laws of Oregon; that on September 3, 1883, the plaintiff was the owner in fee of an undivided half interest in a cer· tain watel' ditch and right, situated on the south side of Rogue river, said county, and in the possession thereof as tenant in common with Daniel Fisher, when he and said Fisher, in consideration of