. FEDERAL REPORTER.
noyances and pain; and that, in consequence of the non-action of his bowels, epilepsy has set in, and his mind is giving way. Now, on the face of it, it appears that he was hurt, and knew it; that he was injured, and was conscious of it; and all that can be said is that these representations, falsely and fraudulently made by the doctor, were as to the extent of the injury which he had sustained. That does not bring the case within the statute. There was nothing in that to prevent the commencement of the action. All that can be said is that the representations of the doctor misled him as to the extent of the injury he suffered, not as to the fact that he had a cause of action, or had suffered injnries. Further, it is not alleged that the defendant employed the doctor to make any such false statement. It is true, it is charged that the doctor was a physician and surgeon of the defendant; but it is also alleged that he was the confidential physician of the plaintiff prior to the accident, and continued to so act thereafter. Even if true. as it is alleged, that he "falsely and fraudulently," and with all of the other adjectives that are commonly applied, made these representations, yet nowhere is it stated that he was employed or authorized by the defendant to make any such statements, or that the company knew he had made them. Under these circumstances, can it be said that the defendant, by any improper act, prevented the commencement of the action? I think the demurrer must be sustained; and, it being one of those things which cannot be remedied, judgment will be entered for the defendant.
(Circuit Oourt, E. D. Missouri. March 24, 1886.-
AsSUMPSIT-PLEADING-PRESUMPTION AS TO WHETHER CONTRAOT SUED ON IB ORAL OR WRITTEN.
Where, in a suit for breach of contract, the petition fails to state whether the contract was oral or written, and no contract is filed, it will be presumed to have been oral.
SAME-WHAT PETITION SHOULD STATE.
In a suit for breach of contract the petition should state clearly what was to be done, agreed what has been done, and what has been omitted.
At Law. Suit for damages for breach of contract. Motion to make petition more definite and certain. The petition states, in substance, that on January 7,1882, the defendant and plaintiff entered into an aR1'eement, whereby the latter agreed to organize, and aid in the organization of, "a railroad company to construct and operate a railroad between the town of Pacific, in this state, and the city of St. Louis," and to act as secretary of
by Bellj. F. Rex, Esq., of the St. Louis bar.
said company for a period of three years from its organization, at a salary of $5,000 per annum; and that he also agreed to impart "certain information of law and fact affecting the charter rights and privileges of a certain railroad company, named in said undertaking," of which he was possessed; that in of the premises the defendant agreed to advance all money which it should be necessary to expend in locating said road, and organizing said company, and to allow plaintiff for his services 45 per cent. of the capital stock of the company when organized, and not to use said information for any purpose if the contract were not carried out. The petition further states that the plaintiff imparted said information as he had agreed to, and in conformity with the agreement took necessary steps to the organization of said company, and performed labor and services necessary to the location of the proposed line of said road, the expenses of whicb were defrayed by defendant, and was ready to perform his part of said agreement; but that the defendant refused to carry out or perform the agreement, and has ever since reand in violation of said agreement has made fused to carry it use of said information. Krum rf Jonas, for plaintiff. Thos. J. Portis and Bennett Pike, for defendant. TREAT, J. As to the first and second points, it suffices that if the alleged contract waR in writing, not averred, and contract filed, the statute provides for the result. It must be taken for granted that the contract was oral. The contract is not clearly stated as to the road or enterprise, or what was done or omitted to 'be done. Motion sustained.
V. SRACKMAN. 1
(Oircuit Oourt, E. D. Mi8souri.
March 29,1886.) 866,
REV. ST.-STATE STAT-
DEPOSITIONS-DEDIMUS POTESTATEM-SECTION UTES.
A "common usage, " within the meaning of section 866, Rev. St., cannot be established by a state statute.
2. SAME-DEPOSITIONS DE BENE ESSE.
A dedimus potestatem will not be granted to take testimony which can be taken by deposition de bene 68se.
3. SAME-DEPOSITION OF DEFENDANT.
Section 866, Rev. St., does not authorize the granting of a dedimus potesta· tem to take the deposition of a defendant, where the only object appears to be to ascertain what he will swear to before placing him on the witness stand in court, especially where no answer has been flIed. and the answer is not yet due. by Benj. F. Rex, Esq., of the St. Louis bar.
At Law. Motion for dedimus. J. C. Normile, for plaintiff. Z. G. 11:fitchell, for defendant. BREWER, J., (orally.) In this case application was made for a dedimus to take the testimony of a witness about to leave this jurisdiction, and also the testimony of the defendant. So far 8S the testimony of the witness about to leave the jurisdiction is concerned, that can be taken by deposition de bene As far as the testimony of the defendant is concerned, the application comes within the late decision of Ex parte Fisk, 113 U. S. 713, S. C. 5 Sup. Ct. Rep. 724, in which it is held that the deposition of a party cannot be taken unless it comes within the exceptions named in the federal statutes. Counsel cited to us an opinion by Judge MCCRARY, in which he interprets the words "common usage" to mean the usage prevalent in the state; but Judge MILLER in writing his opinion very emphatically says "it is not according to common usage to call a party in advance of the trial at law, and subject him to all the skill of the opposing counsel to extract something which he may then use or not as suits his purpose. This is a very special usage, dependent wholly upon the New York statute." I do not think the showing made is suffi. cient to bring the case within the provision "that when it is necessary to prevent a failure or delay of justice any courts of the United States may grant a dedimus;" for while plaintiff alleges in his affidavit that it is necessary to take the deposition of the defendant in order that he may set out specific matters of account which should have been kept on the defendant's books, and which have not been, Jet his,petition is accompanied by an exhibit in which is a full, itemized account, of some ten or a dozen pages, giving dollars and cents, pounds and fractions thereof, etc. Evidently, this is an effort to see what the defendant will testify to before he is put upon the witness stand in presence of the jury. The motion for dedimus will be overruled. Brother TREAT adds a suggestion which is very pertinent in this case. The petition bas just been filed; no answer has been filed or is due; and no one can tell in advance whether any testimony will be needed. Non constat but that the defendant may admit all that is claimed in the petition.
DANZIG 11. GUMERSELL.
and others v.
(Oircuit Oourt, E. D. Mi88ouri.
Where, by the terms of a composition agreement, the creditors agree t08Ccept notes indorsed by a particular person, and that person dies, they arenot -bound to accept any other indorser. Where, in such a case, the debtor wrote to his creditors them of the death of the proposed indorser, and suggesting B. as a substitute, and closed his letter as follows: "Should you deem his indorsement sufficiflnt, please advise me promptly:" held, that a creditor who did not signify his intention until notes indorsed by B. had been accepted by the other creditors, was not bound to accept such notes, and, having refused to do so, is at liberty to sue on his oriAtinal cause of action..
At Law. E. Cunningham, Jr., for plaintiffs. George M. Stewart, for defendants.
BREWER, J., (orally.) In the case of Danzig and other8 against Gumersell and others, an action on three notes, the defense is a composition agreement, signed by the creditors of Gumersell. The facts are these: The defendants, merchants in this city, becoming embarrassed, arrangements were entered into for a composition and a discharge upon giving notes to the amount of 50 per cent.; and an agreement was prepared and signed by substantially all, if not all, the creditors, which agreement was that the creditors would take five notes, amounting to 50 per cent. of their debts, payable in 3, 6, 9, 12, and 15 months, indorfled by Turnbull & Gumersell, of Newark, New Jersey. Plaintiffs signed that composition agreement. After it was signed, Gumersell, of the firm of Turnbull & Gumersell, died. That was on the ninth of March. On the same day a circular letter was sent to all of the creditors, announcing the fact of the death, and proposing that Alexander Turnbull, who belonged to the firm of Turnbull & Gumersell, should indorse in place of Turnbull.& Gumersell. After referring to some parties from whom information could be obtained as to the financial responsibility of Mr. Turnbull, the letter closed wi th these words: "Should ,You deem his indorsement sufficient, please advise me promptly." That letter was mailed to all the creditors on the ninth of March. The plaintiffs made no reply. On the nineteenth or twentieth of March, notes were prepared and indorsed by Alexander Turnbull for all of the debts. They were presented to one and another of the creditors, and by them accepted. They were presented to the plaintiffs, and by them declined, and thereafter this action was brought on the original notes of Gumersell & Bro.
Benj. F. Rex, Esq., of the St. Louis bar.