FOSTER V. CrfY OF JOLIET.
The proof satisfies me that the engines, pumps, and machinery are now, and were at the time this bill was filed, adequate to pump the maximum supply of water called for by the contract; that the reservoir is, in fact, larger than required by the contract, but is not now, and perbaps has never been, properly protected from sudace water. The size of the mains, which, as it is claimed, so largely contribute to the insufficiency of the water-works for fire purposes, is, I think, so far attributable to the joint action of the two parties' that the city cannot allege it as a ground of forfeiture. It is true that Starr agreed that the works should he sufficient to throw water from five hydrants at a time, to a height of 100 feet; but if the defect in the performance of the works in this regard comes from the fact that the mains are too small, thus increasing the friction of the water column to such an extent that the force of the gines is wasted or lost, as some of the defendant's expert witnesses testify, then it may he said that Starr should have known of this defect, and was bound to remedy it within a reasonable time, notwithstanding the city authorities were informed of the size of the water mains, and did not object, bnt the acquiescence of the city authorities in the size of the mains put in makes the mistake a mutual one, and neither party should take advantage of it. The chief difficulty I have encountered in the case is the fact that the contract required that artesian wells should be sunk to procure the water supply. Since the complainant, Foster, has had possession of the works a well about 30 feet deep has been sunk, which would seem, from the proof, to furnish an ample supply of water; but it is not an "artesian well," as that term is usually understood and defined. In Ure's Dictionary of Arts, Manufactures, and Mines an "artesian well" is defined to be "a well or bore-liole, in which water is obtained by means of a perforation bored vertically down through impermeable strata, into underlying strata of a more or less permeable character, such stratum to be charged with water. · · * Properly speaking, an artesian well is one in which the water from the lower stratum rises above the surface of the superincumbent impermeable stmta, but, by extension, the phrase has been applied of late years to any wells in which waters of the lower stratum are enabled to rise sufficiently near to the surface to allow of their being economically used." is to say, an artesian well need not be a flowing well, bnt the water must come from beneath the impermeable stratum, 80 as to be uncontaminated by surface matter. Thus, the city of London contains a large number of so-called "artesian wells," sunk through the "London clay," as it is termed, and through the rock underlying this clay. into the chalk formation, where the water is found; but these wells do not overflow, the water being obtained from them by pumps. The well sunk by complainant, while it passes through a comparatively thin layer of clay, cannot. I think, be called an "artesian well;" the stratum of clay overlying the water-bearing stratum of
gravel not being thick enough, nor shown to be extensive enough, to . make it certain that objectionable surface seepage will not at times contaminate the water. By the supplemental contract of October, 1880, the parties so far waived the obligation to put down artesian wells as to accept, or agree to accept, the water from a spring or springs, provided such spring or springs should furnish a sufficient supply of water; but if the supply was not S'Ufficient, then a resort was to be had to artesian wells. Having authorized Starr to use this spring water instead of artesian wells, he was justified in making a trial of the springs; and it was not right or equitable for the city to forfeit the contract because the experiment with the spring was a failure, but time should have been given Starr, or the water company, to bore an artesian well; but, instead of doing this, the city declared the contract forfeited, and refused to pay the hydrant rent, and thereby precipitated a financial failure upon the water company. and left the bondholders no alternative but to foreclose their mortgage, and take the water-works in the condition in which Starr and the company left them. Since that time the city has persistently denied all rights to the complainant and the company, and has placed them by its action where they could not safely proceed to complete the works without some judicial decision defining the rights of both parties. If the city at the time it passed the resolution declaring the Starr contract forfeited had filed a bill in equity asking to have the forfeiture enforced, I have no doubt a court of equity, under the circumstances, would have given the water company sufficient time to comply with the contract, and only decreed a forfeiture after the expiration of such time, in case the work was not substantially completed as required by the contract; because equity abhors a forfeiture, and a court of equity would not have enforced the forfeiture of this contract, and of the privileges granted and money expended under it, without giving a suitable opportunity to the party to fulfill it. So, now, with both parties before it, this court, under the present bill, should, I think, give the complainant time to sink an artesian well or wells; and complete or repair the reservoirs so as to exclude surface water; and to relay its mains, as far as necessary, so as to obtain, without dangerous pressure, the requisite head to throw water from the hydrants to the height of 100 feet, as requireCl by the contract. It is urged that the water in the well sunk by the complainant, from which the present supply is obtained, is as good, if not better, than water from other artesian wells which have been bo.red in that city, but this court cannot make a new contract between these parties. They have stipulated for artesian well water, and the court can· not compel the city, or its inhabitants, to accept anything else. My conclusion is that complainants stand in such a position that they have the right now to go on and complete the works, and that no forfeiture should be allowed or enforced until they have had a rea-
ADAMS V. MAY.
son able time to do so. The delays in completing the work, while a breach of the letter of the contract, are not such as should work a complete forfeiture of all rights acquired and money spent under it. Time was not made the essence of the contract, and the present situation of either party is not such as to entitle the city to insist upon a forfeiture. There is no proof that the city has lost anything by the delay, or that the complainants cannot now go on and fulfill the contract. A decree may, therefore, be entered declaring that the complainant is lawfully in possession of the streets of the city for water purposes under the provisions of the Starr contract, and enjoining the city from interfering with the mains and pipes already laid, and with the further extension of such pipes and mains; but that complainant shall, within the next 12 months, sink an artesian well or wells, from which to obtain an adequate supply of water for t.he purposes of the city as called for by the contract; and shall repair and protect the reservoir so as to fully exclude the surface water therefrom; and shall also make the works effective so as to throw the water from the fire hydrants to the height called for by the contract; and the court will retain the case until the expiration of such 12 months, or until the contract shall be substantially complied with at an earlier day, when the final decree will be entered.
and others v. MAY and others.
(Oircuit Oourt, S. lJ. Iowa. June Term, 1886.)
PARTNERSHIP-SUITS IN FIRM NAME.
A partnership cannot institute a suit in the firm name alone In the United States courts. The name of each member of the firm must be set forth.
COURTS-STATE AND FEDERAL-REMOVAL OF CAUSES-AFFIDAVIT.
An affidavit for the removal of a cause which states that a certain firm is a resident of a different state from the one in which the defendant resides. is insufficient; the name and residence of each member of the firm should be clearly stated.
At Law. Motion to remand to circuit court, Wapello county, Iowa. Sweeney a Walker, Murphy eX Gould, and D. C. Beaman, for plaintiffs. W. W. Cory and Sloan, Work eX Brown, for defendants, intervenors. LOVE, J. The jurisdictional facts do not sufficiently appear in this case. This being a court of special jurisdiction, it is necessary that the facts which give the court judicial power should clearly appear. There should be nothing indefinite, uncertain, or doubtful in the statement of the facts upon which the jurisdiction depends. It
is the constant plactice of this court to remand causes where the
jurisdiction here is doubtful. 'rhe reasons for this practice are cogent and conclusive. In cases like the present there is no doubt about the jurisdiction of the state courts. Instead, therefore, of reo taining such cases here, and going through the forms of trial at great cost and delay, we prefer, when the- jurisdiction of this court is at all doubtful, to send the parties back to courts where the power to hear and determine their controversies is not queotionable. Moreover, it is highly inconvenient, as well as expensive, to parties, to carryon litigation here, as compared with the state courts. In addition to this, I may add that the removal act provides that when, at any stage of the case, it appears satisfactorily to the court that jurisdiction does nO,t exist, the cause shall be dismissed or remanded. The amount involved in this case appears to be small. It is difficult to see why it was brought here at all, except for delay. The expenses of the litigation in tbis court will amount to a large proportion of the sum in dispute. It ought not to be kept here unless the grounds of jurisdiction are very clear. We must look primarily to the petition for removal for the facts of jurisdiction. The petition in this case states, in substrtnce, tbat Adams & Co., the plaintiffs, are citizens of Pennsylvania. But who are Adams & Co. ? Citizenship cannot be predicated of a firm eo nomine. It is settled that a suit cannot be brought in this form originally in the courts of the United States. The individual names of the partners must be set out, and citizenship alleged of each and every of them. The state statute authorizing suits to be brooght in the partnership name is inapplicable here. No doubt a cause commenced in a state court in the firm name, without giving the individual names, may be removed to this court; but the petition for removal should state the individual names and citizenship of the members of the firm, and show that no one of them is a citizen of the same state with an adversary partner in the controversy. At all events, this diversity of citizenship should appear in some part of the record, when the case comes here from the state court. This nowhere appel1rs in the present record. For aught that we can see, some member or members of the firm of Adams & Co. may be citizens of the same state with the defendants. There are other grounds upon which this cause might be remanded, but it is needless to state them. Let order be entered, in accordance with the foregoing opinion, remanding the cause to the circuit court of Wapello county, Iowa.
ROOT V. Ml!,;RRIAM.
«(Jircuit Oourt, D. Nebra.ska. June 26,1886.)
PROMISSORY NOTES-CoNSIDERATION-OPTIONS IN GRAIN.
No recovery can be had on a promissory note, executed in the state of Illinois where the consideration on which it is based arises from option deals in liven though the note may be owned and held by an innocent bona fide holder. 1
Suit on Promissory Notes. Mr. Pritchett, for plaintiff. Lambertson, Burnham et Holmes, for
DUNDY, J. This suit is based upon two promissory notes, executed and delivered by the defendant to the parties, and for the purpose hereafter to be stated. Issues were joined, the cause was tried!:?e. fore a jury, and by them a special verdict was rendered, on which both parties claim they are entitled to judgment. The. one note was given by the defendant to Martin & Bennett, in the city of Chicago, on the twenty-fourth of February, 1883, for the sum of $346.25, due in one year from that date. The other note was given to Thomas Bennett, at the same time and place, for the sum of $500, due in one year from the date of tbesame. Both were sold and transferred by .' the respective payees to this plaintiff, before due, and without notice of any alleged infirmity. The only defense interposed -is that the one, the eonsideration on which the notes were baaed was an same having been given in furtherance of a gambling better known, perhaps, as an "option deal" in grain. The jury, by their special findings, fully sustained the truth of the matters on which the defendant relies for his defense. The only question necessary to eOllsider here is, do the facts relied on by the defendant constitute a defense to notes given under such circumstances, when the same have been transferred, before due, to an innocent bona. fide purchaser, who brings suit here to enforce the payment thereof? The payees in the note induced the defendant to embark in "option dealing" with them, and without any intention on the part of either to deliver any grain, as provided by their contracts. The transactions, as they were carried on from time to time, led to the payment of profits, and the repayments of losses sustained by the defendant. 1'he venture, however, in the end, proved quite disastrous to the defendant, and finally culminated in his giving the notes in suit. At the time the notes were given the laws of the state of Illinois declared that notes given for such consideration should be deemed and held void. If the payees in these notes had brought suit in the state of Illinois, to en· force payment of the same, the result could not have been can·
lSee note at end of case.
sidered doubtful. There would then have been no question of good faith on the part of anyone for the conrt to consider. As the laws of the state of Illinois denounce Buch vicious transactions, and declare to be void notes given in connection therewith, it is not perceived how an innocent purchaser stands in any better attitude than the payees, who knew all about the facts and participated in the wrongs. If the notes were void when given, tbey were void for all purposes and for all time, and any number of transfers would not avail an innocent holder. If the plaintiff has any remedy against anyone, and if he is really an innocent purchaser, for value, as he claims, he must seek his redress against the parties who have most likely sought to use him to accomplish a purpose in which they were bound to fail, had they sought relief in their own names. These findings entitle the defendant to judgment for costs.
NOTE. Where the consideration of a note, and the foundation of the transaction by which the note was given. both rested on a gambling transaction, though the note be negotiable in form, itisvoid, even in the hands ofagood-faith and innocent holder for value. Harper v. Young. (Pa.) 3 At!. Rep. 670. A uote given for a consideration lost in a gambling transaction isan absolute nullity. (under Code Iowa. 4028, 4029,) and is void even in the hands of an innocent holder. Traders' Bank of ChICago v. Alsop. (Iowa,) 19 N. W. Rep. 863. Where some of the transactions which enter into the consideration of a note are mere gamillg transactious, the!. render the whole void. Barnard v. Backhous, (Wis.) 6 N. W. Rep. 252: S. C. 9 N. W. Rep. 595. When a demand note, as secnrityfor a continuing option transaction, but valid on its face, was brought lU the regular course of business, and for full value, 23 days . aft,er date, by one who knew the payees of the note dealt in options, and suspected, but did not know. that it had been taken in some option deal, it was held (1) that the note had been negotiated within a reasonable time j and (2) that the purchaser was a bonafide holder without notice, and entitled to recover. Mitchell v. Catchings, 23 Fed. Rep. 710. An Illinois statute provided that all promises, notes, bills. contracts, etc., made UpOll any gam bling consideration should be void; that a court of equity might set aside any such promise, etc.; and that no assignment of any bill. note, agreement, or other security, as aforesaid, should in any manner affect the remedies of any person interested therein. The plaintiff indorsed certain drafts payable to his order, staked them at faro and lost. The drafts were subsequently transferred in the usual course of business, and without notice. and for a valuable consideration, to the defendant. In a suit to cancel the indorsements, and to have the draft,s delivered to the plaintiff, it held that the indorsements were void; that the defendant acquired no title to the drafts; and that the plaintiff was entitled to the remedy sought. Chapin v. Dake, 67 Ill. 295. But see Poorman v. Mills. 39 Cal. 346.
CRAIG V. M'ARTHUR.
and another, Partners, etc., v. McARTHUR and another, Partners, etc.
(Oircuit Oourt, D. Minne8oia.. July, 1886.)
No question of law appears to have been raised in this case. The damages sought by the defendants in their counter-claim were rejected as being too remote, and judgment rendered fot' the balance founrl rlne nll\intiffs on their contract.
Action to recover the contract price on an agreement to furnish atone for mason work. Suit on contracts. Jury waived. . Gordon E. Oole and Lewill .t Le8lie, for plaintiffs. Bigelow, Flandrau X Squire8, for defendants.
NELSON, J. On February 1, 1884, a contract was entered into between the plaintiffs and defendants, by which it was agreed that the plainti.ffs should furnish all the impost and arch stones for the build· ing of a viaduct over the St. Paul & Duluth Railroad, on Seventh street, in the city of St. Paul, at the price of $8.50 per cubic yard. dressed, and delivered F. O. B. at Mankato, Minnesota. "F. O. B." means "free on board cars." This contract is evidenced by the following letters:
"MANKATO, MINN., February 1, 1884. on Seventh street, in St. Paul, at eight dollars and fifty cents per cubic yard, dressed, and delivered F. O. B.at Mankato. Minn. We also offer to furnish the balance of the masonry required inyour contract with the city of-St. Paul for the improvement of Seventh street (except coping, curbing, and gutter o ing) at five dollars per cubic yard, dressed. or at two dollars and fifty cents per cubic yard, undressed, F. O. B. in Mankato. Minnesota. "W. B. CRAIG & Co." "ST. PAUL, MINN., February 1, 1884. .. W. B. Oraig & 00., Manlwfo. Minn.-GENTLEMEN: In answer to your letter of this day, we accept your proposition of eight dollars and fifty cents per cubic yard for the impost and arch stones for the viaduct over the St. PaUl &, Duluth R. R., in St. Paul, dressed, and F. O. B. in Mankato. As to your offer for the stone for the balance of the masonry for the Seventh-street improvement, we will answer at an early day. and we hope circumstances will be such that we can accept the same. "Very truly, McARTHUR BROS."
"McArthur Bros., St. Paul. Minn.-GENTLEMEN: We offer to furnish you the impost and arch stones for the viaduct over the St. Paul & Duluth R. B..,
The plaintiffs' offer of February 1, 1884, contained two independ.ent propositions: one to furnish impost and arch stones, and the .other to furnish stone for balance of masonry. The first was accepted, and on July 5, 1884, was modified, with consent of parties, by the following letter: