HOSFORD '11. HOTCHKISS.
ance, as the case may require," without any actual rejoinder thereto; and the issues made between the replies in numbers 1,120 and 1,14:3. to the defenses of former judgments in actions on the same cause of action.
«(Ji1'euit Cowrt, E. D. New Y01'k.
HUSBAND AND WIFE-SEPARATE ESTATE-PROMISSORY NOTE-INDORSEMENT BY WIFE OF MAKF:R-LIABII,ITY.
Where a promissory note was made by one H., payable to the order of his wife, who thereafter, before the delivery of the note, signed the following indorsement: "Pay to the order of P. For value received, I hereby charge my separate estate with payment of within note;" and there was no protest or notice of non-payment of the note: held, in an action seeking to charge the wife as joint maker, that her liability was simply that of an indorser.
At Law. Demurrer to complaint. John McDonald j for plaintiff, Louisa P. Hosford. John E. Parsons, for defendants.
BENEDICT, J. On the fifteenth day of May, 1879, one Philo P. Hotchkiss made his promissory note as follows:
"NEW YORK, May 15, 1879. "Three years after date I promise to pay, to the order of Georgiana I. Hotchkiss, five thousand dollars, at the American Exchange Bank, value received, with interest at the rate of seven per cent., payable semi-annually. Due May 18, 1882. "PHILO P. HOTCHKISS."
Georgiana 1. Hotchkiss was at the time of the making and delivery of the note, and now is, the wife of the maker, and was then and is now possessed, in her own right, of a separate estate. She, before the delivery of the note, wrote upon the back as follows:
"Pay to the order of Mrs. Louisa P. Peet. For value received, I hereby charge my separate estate with payment of the within note. "GEORGIANA 1. HOTCHKISS."
Upon these facts, the question raised by the demurredo the complaint is whether, there having been no protest or notice of non-payment of the note, Georgiana 1. Hotchkiss can be held liable to pay it as joint maker thereof with her husband. Upon this question my opinion is that the defendant cannot be held liable upon this note in question as joint maker. Her writing on the back of the note contains no promise to pay. What she did was to write an indorsement on it by the words, "Pay to the order of Mrs. Louisa P. Peet." She then wrote: "For value received, I hereby charge my separate estate with the payment of the
by R. D. & Wyllys Benedict., Esqs., of tie Xew York bar.
within note;" but she,wrote no express promise to pay. A· promise to pay is doubtless to be inferred; but whether the promise to be inferred is the promise of an indorser or the promise of a maker is the question to be decided. My opinion is that the promise of an indorser is the promise to be inferred, and for this reason: The note itself shows that the primary relation of the defendant to the note was that of an indorser. She was the payee of the note; an indorsement by her was therefore contemplated. She wrote an indorsement on the note. If her action had been confined to writing this bare indorsement, and signing her name, the indorsement would have created no liability whatever on her part, because of the fact that she was a mar- . ried woman. Being a married woman, her bare indorsement would be equivalent to an indorsement without recourse. What she added to the bare indorsement had the effect to deprive her of the personal immunity from liability that would follow if nothing was added to the bare indorsement, and I find nothing in what she added indicating an intention to do more. In what she added she assumed a liability, but she did not state whether the liability was the liability of a maker, or the liability of an indorser, of the note. Her intention in that respect is disclosed by the relation she then bore to the, note, which was that of indorser. If she had intended to change her relation to the note from that of indorser to that of maker, something more would have been said. The indorsement she had written would have created a liability to pay in case of non-payment by the maker, and due notice to her, but for the fact that she was a married woman; and this was the liability intended to be assumed by her as a married woman when she added what she did. From this a promise to pay must be inferred, but the promise must be co-extensive with the liability assumed, and that was the liability of an indorser, and not the liability of a maker· . There must be judgment for the defendant on the demurrer.
, (Oircuit Oourt, 8. D. New York. April 17, 1886.)
CuSTOMS DUTIES-ACTION FOR ILLEGAL DUTIES-INTEREST-LACHES.
An importer who has brought suit to recover duties wrongfully exacted from him by a collector, cannot recover interest byway of damages, if he has been guilty of laches in unreasonably delaying the prosecution of the suit after it has been brought.
On Exceptions to Report of Referee. A. W. Griswold, for plaintiffs. Mr. Greenwood, for defendant.
BARTELIS 1/. REDFIELD.
WALLACE, J. This case comes here upon exceptions filed by the defendant to the report of a referee to whom it was referred to ascertain what sums are due the plaintiffs for excess of duties illegally exacted by the defendant as collector of the port of New York upon the importation by plaintiffs of certain merchandise. The suit was brought in November, 1863. April 21, 1864, a verdict was entered for the plaintiffs upon a trial before a court and jury, which, as has been considered when this case was here on a former occasion, was in effect a stipulation between the parties that the plaintiffs were entitled to recover judgment for excess of duty on account of certain specified exactions, but the amount was undetermined. See 16 Fed. Rep. 336. April 21,1864, an order was entered in the case referring it to the clerk of the court, or his deputy, to ascertain and adjust the amount to which the plaintiffs were entitled under the verdict. Subsequentlyan order was made by the court vacating the order of reference to the clerk, and referring the case, with a large number of similar cases, to the collector of the port for adjustment. Subsequently that order was. vacated, and the present reference was ordered. The exceptions raise the question whether the plaintiffs are entitled to recover interest upon the sums illegally exacted by the defendant. The case of Redfield v. Ystalyfera Iron Co., 110 U. S. 174, S. C. 3 Sup. Ct. Rep. 570, is an anthority for the proposition that a plaintiff who has bronght a suit to recover money wrongfully exacted from him by the defendant cannot recover any interest by way of damages, if he has been guilty of laches in unreasonably delaying the prosecution of the suit after he had brought it. The cases of Bann v. Dalzell, 3 Car. & P. 376; Newel v. Keith, 11 Vt. 214; Adams Exp. Co. v. Milton, 11 Bush, 49,-are referred to in the opinion of the court as deciding that where interest is recoverable, not as part of the contract, but by way of damages, it may be properly withheld if the plaintiff has been guilty of laches in unreasonably delaying the prosecution of his claim. Bann v. Dalzell was an action at nisi prius of debt, on an Irish judgment, in which the original debt would not have carried interest; and the judge left it to the j llry to determine whether the plaintiff had taken proper steps to find the defendant, instructing them that if he had they might give him a verdict, with such interest as they should deem reasonable. Newel v. Keith was an action for personal services; and the court held that where no time is agreed upon for the payment of personal services, and no charge in fact made for them, nor presentment for payment in the life-time of the party, and the claim was permitted to sleep a great length of time from the voluntary act of the plaintiff, no interest should be allowed on such claim except from the death of the party. Adams Exp. Co. v. Milton was an action on an unliquidated account for a balance claimed to be due for work and labor; and the court held that interest was not allowable under the rules of pleading, becanse there was no special
count for interest. None of oases throw any light upon the question here, as in none of them was the point oonsidered respecting the effect of laches subsequent to the bringing of the suit. The rule adopted in the Redfield Case by the supreme court has introduced into the present case an issue which is quite foreign to those made up by the pleadings, and relates to transactions, oovering a period of 20 years, which have taken place since the bringing of the suit. Had the case been tried as these cases generally are,with a jury,-it is quite safe to say that neither of the parties could have been prepared to enter upon such an extended field of inquiry as that to whicll the voluminous evidence before the referee has been directed. The delay which has intervened since the consent verdict in the case was entered, a period of over 20 years, is extraordinary. If the defendant, or rather the government, which is the real party in interest, has not been mainly responsible for this delay, there would seem to be no just cause on its part to complain of it; because, by the rules of practice, the defendant could have \>rought the trial of the case to a conclusion at any time as well as could the plaintiffs, or the government might have asserted its unwillingness to acquiesce in further delay by a motion for judgment as in case of nonsuit. But the referee finds that the delay was not fairly attributable to the plaintiffs, but arose mainly from complications incident to the fact that the suit was one of a very large number of similar suits in which questions affecting the defendant's liability were being litigated from time to time, with varying results; that any recovery which defendant might have obtained would not have been acquiesced in by the government, but would have been further litigated; and that his claim was to that extent involved with the trials and results of the other suits that it was reasonable to postpone the trial in prospect of an adjustment, which at times seemed to be near at hand, but was constantly deferred by the vacillating action of the officers of the government. The conclusion of the referee seems to be sustained by the evidence. The exceptions are therefore overruled.
BIRDSEY:2 V. HElLNER.
and others v.
(Cilrcuit Oourt, 8. D. New York.
December 22, 1885.)
PA.TENTS FOR INVENTION-INFRINGEMENT-PLEADING.
By taking issue upon a plea. complainant admits its sufficiency in point of form and substance; and if the facts alleged are established, defendant will be entitled to judgment.
In Equity. Edmund Wetmore, for complainants. Livingstun Gifford, for defendants.
WALLACE, J. By taking issue upon the plea tbe complainants admit its sufficiency in point of form and substance. The only facts which are put in issue by the replication are whether the springs or stays which the defendants have employed in making corsets were purchased by them from one Bassett, and whether Bassett was licensed by complainants to manufacture and sell said stays or springs for use in the manufacture of corsets. If these allegations of fact are established, the legal conclusion that they are a good defense to the suit is not open to contention. The case has been argued as though the question were whether the complainants have authorized Bassett to license others to use the complainants' patents for improvements in corsets. No such issue is raised by the plea and replication. The proofs show that the defendant purchased the springs or stays used by them in manufacturing corsets, and which are known in the trade as "twin.wire," from Blun & Co. and one Doremus, who had purchased them from Bassett, and who were his agents to sell the same to others. The only question, therefore, is whether BasBett was authorized by the complainants to sell the articles for UBe in the manufacture of corsets. The complainants and Bassett entered into an agreement, bearing date March 30, 1881, by which Bassett covenanted to manufacture for the complainants all corset materials which they might require, upon specified conditions, including bonewire, twin-wire, and other corset materials, and the complainants covenanted to discontinue the manufacture of such materials. The agreement contained these provisions:
"It is agreed that the parties of the second part [the complainants] shall not sell bone or twin wire to any other corset manufacturer, except when it is intended to be used in corsets intended for the sales of the parties of the second part. It is agreed that the party of the first part [Bassett1 shall not sell twin-wire to any party or parties for a less price than twenty'per cent. in addition to the price which he shall charge the parties of the second part, and he shall pay to the parties of the second part five per cent. on all sales of twin·wire which he may make to any party or parties other than the parties of the second part."
It appears very clearly by the proofs that the complainants had been making, for several months, the article of twin-wire for use in corsets v.27F.no.3-19