which compels the court to so hold, the mere fact that. an agent is here, and does a wrong, does not transfer its citizenship or inhabitancy or presence so as to be considered as found within the state. In the Case of Telephone Co., Fed. Rep. 17, which was before Judge JACKSON, and I believe Judge SAGE, in the lower district of Qhio, where the Bell Telephone Company, a corporation of Massachusetts, was sought to be sued in Ohio, the court lays down this: "In the.absence of a voluntaryappearance, three conditions must concur or co-exist in order to give the federal courts jurisdiction in personam over a corporation created without the territorial limits of the state in which theqourt is held, viz.: (1) It must appear, as a matter of fact, that the corporation is carrying on its business in such foreign 'state or district." The W astinghouse Air-Brake Company is engaged in the manufacture' and sale of brakes. ,That is its business, which was not carried on in this state. "(2) That such business is transacted or managed by some agent or officer appointed by and representing the corporation in such state; and (3) the existence oisome local law making such corporation, or foreign corporations generally, amenable to suit there." As we have seen, the fair construction of these sections· of the Iowa statute does not remove that corporation into this state by the mere fact that it was here with its property for the purpose of advertisement and exhibition. '. . Entertaining these views, we 'are all of· the opinion that the motion should be sustained. ' LOVE and SHIRAS, JJ., concur.
August 5,1887.) .
«(Ji'l'cuit (Jourt. E. D. WilcQn8in.
An advertising solicitor entered into a contract with a "specialist," to nish him with 60,000 letters which were in the possession of the Voltaic Belt .Company, of Marshall, Michigan, that had been written to that company in response to its advertisements of the curative qualities of the instruments and articles in which it dealt. The solicitor paid $500 to the company for such letters, and delivered them to the specialist, who agreed to pay him therefor $1,200, and did pay him $500, but refused to pay him the balance, claiming that the letters had already been used by other specialists, and were valueless. The solicitor sued to recover the balance. Held. that the receiver of :private letters has not such an interest therein that they. can be made the sub· Ject of a sale without the writer's consent, and that the contract in this case was roid.
A contract by an advertising solicitor to selI to a "specialist" letters writ· ten by persons afllicted with diseases, to another person who advertised ar. ticles and instruments that it was claimed would cure them, in order that such specialist might send his advertisements to them, is contrary to good morals, and void. . . ."
G. W. Hazelton,for plaintiff; Markham & NOYe8, for'
DYER"J; At the ClOnc1usion of the plaintiff!s testimony on the trial oHMs case, the court directed averdict; which, in effect, was a dismissal of the 8uit. The plaintiff hall moved for a new trial. The facts developed by the testimony were, in brief, these: The plaintiff t.estified that' he was an "advertising solicitor," arid that among other advertisements solicited by him were such as specialists furnished for the cure of sQ.;cailed11private diseases." In 1885 he opened correspondence with the defendant, who was a "specialist," practicing his at Milwaukee, for the salefu him, for Ii pecuniary consideration, 0£60,000 letters which were in of the Voltaic Belt Company, of Marshall, Michigan., That company was engaged in furnishing electric belts. suspensories, and other electric appliances for the oure of various ailments and disorders. The letters in question were such as it had received from persons residing in' different parts of the country, in response to advertisementsof the curative qualities of the instruments andl:lrticles in which that company dealt. After considerable correspondence on the subject, the plaintiff agreed. td furnish to the defendant the letters in question, and the defendant agreed to pay therefor, for the use thereof in connection with his busin.ess, the sum of $1,200. The letters were shipped to the defendant, and received by him, and he paid to the plaintiff $500 on the purchase. The plaintiff testified that he paid the Voltaic Belt Company $500 for the letters, and,Rsa part of the transaction, was to furnish to that company other letters procured from" specialists." The defendant's purpose in procuring the letters in question was to obtain the names and post-office addresses of the writers, so that he might send to them circulars advertising his remedies for the various diseases which he professed to cure. It was claimed in argument that it was not, and could ndt been, one of the objects of the parties engaged in this business,to enable the defendant to learn from the letters the nature of the maladies with whiChtne writers were afflicted, because a perusal of the contents of the letters would be in the last degree disl:l<)Dorable, and, ofQourse, the contemplated only 8Jl honollabllLtransactionl 'The court is, however, of the opinion that parties who would engage in su'cha traffic as this; would hardly refrain, ona point ofJ;ionorl from a letters, not only to obtain the names and post-office addresses·of the writers, but also all the disclosures tIte infirn:ities from whleh tOl;)y were suffermg. The court has no doubt that th1s was one of the' objeots sought in the sale and purchase' oithe use of these letters, because, ob'Viously,it was quite asimportant to the defendant to know whether the writers of the letters stood in need of such restoratives to health as,' he could supply, as to know their ,and post-office addresses. '," ",l : , .'.I'pe refused to Pl}Y of $700 yet due to the plaintiff On the sale, and tbis suit was brought to recover from the defendant
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that sum. The defendant resisted payment, on the ground that the plaintiff represented to him, ip making the sale, that the letters had never before been used, or, in the technical language of the profession that this representation was false, and that the letters were valueless. Enough was disclosed in the testimony to ,show that the sale of the use of the letters in the manner described, is a branch of" industry" extensively pursued by certain "specialists" throughout the country. But it would seem that,in cases where the writers are made the repeated victims of advertising circulars, their betterrsenseat last gets the advan:tage of their credulity, and they refuse longer to be baited by the remedies which might otherwise tempt them, and so their letters become valueless' as articles of merchandise, or for further lise. Thus it was, according to the theory of the defense, in the case at bar. The trial, however, did not proceed 'far, enough to fully develop the, facts in this regard. To fitly characterize the contract in suit is to unreservedly condemn it as utterly unworthy of judicial countenance. It was contra bonQ8 mores, and it would seem that, on grounds ,of public ,policy, the, court might well refuse either to aid the plaintiff in enforcing it, or the defendant in recovering, damages for the breach of it. Thus to trafficin the letters of third parties, without their knowledge or consent" and to make them articles of rherchandise in the manner attempted ,here,wasj to mildly eharacterize, it, grossly disreputable business. ,It was said on the ltrgument,that the letters were not iiI evidence, and that the court could :a.ssume nothing with reference, to their contents. But, enough ,was iudieated in the correspondence of the parties which precedEld the making of the contract l which correspondence was in evidence, to point to the eonclusion that the letters which were the subject of bargain and sale, were written by persons who sought medical aid for disorders with whieh . they were afflicted. ,Counsel for defendant had in court a lal,'ge nllplber ,of the letters, and his 'statements were not controverted that they related to infirmities and malacUes oiivhich the,writers sought to be The very nature of the contract in, suit presupposes such to have been the fact. Ought courts of justice to lend, their sanction to such a traffic? Suppose a physician-trusted and confided in as such in thecomrnunity -were so far to forget or abuse the obligations of his profession, as to make the confidential <lommunications of his patients the subject of bargain and sale; would any court listen fora moment to his complaint of non-performance of the contract, and'aid him to'recover the purchase price? 'Presumptively, the letters here in question, were confidential,:at least they were personal as between the writers and the receiver; and though it be true, as wal3said in argument, that authority is wanting , directly applicable to the question here presented, I would not hesitate, <>n grounds of morality, and upon considerations of common justice, to make an example of this case, by putting upon it the stamp of judicial reprobation. ; But there is another ground uporiwhich, applying to, the cage a prini,(liple sanctioned by high authority, the court may, it seems to me"well
refuse to lend its- aid to give legal effect to this transaction. The writers of these letters retained such a proprietary interest in them that they could not properly be made the subject of sale without their consent. The receiver of the letters had only a qualified property in them, and legal authority to sell them for a pecuniary consideration could only be maintained upon the theory of an absolute property right. Such a right did not exist. At an early day in the history of equity jurisprudence, the question arose as to the right of the receiver of letters to cause them to be published without the consent' of the writer, and as to the power of a court of equity to restrain such publication. It would be ill-timed and superto review in detail all the cases on the subject, since they have been so thoroughly reviewed and discussed by Justice STORY in the case of Jiblsom v. Marsh, 2 Rtoy.y; 100, and by Judge DUER, in the case of Woolsey v. Judd, 4 Duer, 379. . The leading cases in England on the subject are Pope v. Ourl, Atk. 342; Thornpsonv. Stanhope, 2 Amb.737; Perceval v. Phipps, 2 Ves. & B. 19; and Geev. Priichard,2 Swanst. 402. In the first-mentioned case, Pope had obtained an injunction restraining the defendant. a London bookseller, from vending a book entitled "Letters from Swift, Pope, and others," and a motion was made to dissolve it. Sorne unknown. person had possessed himself of a large number of private and familiar letters which had passed between Pope and his friends" Swift, Gay, and others, and they had been secretly printed in the forrn of 11. book which the defendant had advertised for sale. The mise waS argued before Lord HARDWICKE, and he continued the injunction as to the letters written by Pope. It was objected that the sending of letters is in the nature of a gift to the receiver, and therefore that the writer retains no property in them. But Lord HARDWICKE said: "I am of 'opinion that it is only a special property in the recei ver. Possibly the' property in the .paper may belong to him, but this does not give license to any person whatsoever to publish them [the letters] to the world; for, at most, the receiver has only a joint property wilhthe writer." Thompson v· Stanhope was the case of the celebrated Chesterfield letters, in which Lord BATHURST continued an injunction which had been previously granted, restraining the publication of the letters, on a bill filed by the executors of Lord Chesterfield to enjoin the publication. In Perceval v.Phipps, a bill was filed praying an injunction to restrain the publication of certain private letters which had been sent by Lady Percival to the defendant Phipps. Lord EWON granted an injunction, but the vice-chancellor, Sir THOMAS PLUMER, dissolved it, and laid d9wn , the doctrine that it is only when letters "are stamped with the character of literary compositions," that their publication can be enjoined. And he sought to bring the decisions in Pope v. Ourl and Thompson v. Stanhope, within the sccpe of that doctrine, thereby making them inapplicable to the case before him . .Then came Geev. Pritchard, which was. a case presented to Lord El.noN, on a motion to dissolve an injunction which he had previously
granted, forbidding the publication by the defendant of a number of private and confidential letters, which had been written to him by the plaintiff in the course of a long and friendly correspondence. The motion to dissolve the injunction was denied. ' Following the authority of Perceqal v. Phipp8, maintaining that the cases of Pope v. Ourl, ThompSMt v. Stanhope, and Gee v. Pritchard involved only: the principle of literary property , Vice Chancellor MCCOUN in' Wet'mOre v. Scovell, 3 Edw. Ch. 543, held that the publication of private letters would not berestrained, except on the ground of copyright, or that they possessed the attributes of literary composition, or on the ground of a property in the paper on which they were written. This view of the question received the sanction of Chancellor WAJ"WORTH, in Hoyt v. Mackenzie, 3 Barb. Ch. 320; but these two cases stand in antagonism to the views .expressed by Story in his work on Equity Jurisprudence, (volume 2, §§ 944-948,) and to the judgment of the same learned jurist in FolSom v. Mar8h, supra. The opinion of Judge DUERin Woolsey v.Judd, BUpra, is ijD exhaustive and able review of the subject, and analysis of the cases; and he very satisfactorily shows that the decisions in Pope v. Curl, Thompson v. Stanhope, and Gee v. Pritchard proceeded upon the principle of a right of property retained by the writerin the letters written and sent by him to his correspondent, without regard to literary attributes or character. The case was one involving the right of the ceiver of a private letter to publish it; and it is there clearly shown that the proposition settled as law by Lord ELDON in Gee v. Pritchard, was that "the writer of letters, though written without any purpose of publication or profit, or any idea of literary property, possessed such a right (If property in them that they can never be published without his consent, unless the purposes of justice, civil or criminal, require the publication." Commenting on Pope v. Curl, the learned judge made the very just observation, that pot only was there no intimatiop. in the judgment of Lord HARDWICKE "that there is any distinction between differem kinds or classes Of letters, limiting the protection of the court to a particular class, but the distinctions that were attempted to be made, and which seem to be all the subject admits, were expressly rejected as groundless." Again, in discussing the effect of the decision in Gee v. Pritchard, Judge DUER observed: "Two questions were raised and fully argued by the most eminent counsel then at the chancery bar: First, whether the plaintiff had such a property in the letters as entitled her to forbid their publica.tion,-it being fully mitted that they had no value whatever as literary compositions, and that she never meant to' pUblish them; and, second, whether her conduct towards the defendant had been such as had given him a right to. publish the letters in his own justification or defense. These questions were properly argued as entirely distinct. and each was explicitly determined by the lord chancellor in favor of the plaintiff. The motion to dissolve the injunction was accordingly denied, with costs. It has been said that it was through considerable doubts that Lord ELDON struggled to thiS decision; but the doubts Which he expressed related solely to the question whether it ought origina.lly to have been held that the writer of letters has any property in them after their trans-
mISSIon. He had no doubts whatever that such was ,the law, and thatlie,was bounQ to follow the decisionsof,his predecessors. ,He expre!'lsly . would not attempt to unsettle doctrines which had prevailed in his court for more than 40 years, and cO,lild not, therefore, depart from theWhich Lord HARDWIC:tm and Lord APSLEY had pronounced iii cases (Pope v; OU1'l.Thompsonv. Stimhope,) which he was unable to distinguish fromtbatwhicb was before him. Subsequently. in support of his opinion that the plaintiff had a sufficient property in the original letters to authorize an injunction. he refers to the language of Lord HARDWICKE (quoting the words Pope v. Curl) as proving the doctrine that the receiver of letters. although he has a joint property with the writer, is not at liberty to without the consent of the writer; which is equivalent to 6aying'that thelatter retains an exclusive right to control pUblication. He then adverts to the decision in Thompson v. Stanhope, as following the same doctrine. and declares that he could not abandon a jurisdiction which his predecessors had exercised. byrafusing to, forbid a pUblication in a case to which the principle they had laid down directly applied. He then saYB": 'Such is my opinion, an!! it is not shakenpy the case of Perl;eval v. Phipps;' and signifi- . cantlyadds: think it. will be extremely diJIicult to say where the distinction is to be found between private letters of one natureandprivateletters of another nature.' " Such, also, :was theviewof StorYi for he says, (sections 947, 948, Eq. Jur.,) speaking of pri\7Rte letters on business, or on family concerns, or on mattersqfpersonal friendship: "It would btl a·sad reproach to English and American jurisprudence, if courts of equity could not interpose in such cases, and if the rights of property of t1l:e' wliters should be 'deemed to exist only when the letters were literary compositions.. If :the mere sending of letters to third persons is not to be deemed, in, cases of literary,composition, an utter abandonment of the right of by thesez;tder, af01·tiori, the act of sending them cannot be property presumed ,to be ari abandonment thereof, in cases where the very nature of the letters imports, as matter of buslness,or friendship, or advice, or family or personal confidence, the, implied or necessary inl.entionalld duty of privacy and secrecy. ,Fortunately for public, as well as for prlvate peace and morals, the learned doubts on this subject have been overruled, and it is now held that there is nO' distinction between private letters of one nature and private letters of citing (Jee v. P1'itchard. In Jifjlsom'v,'Mar8h, supra, a case decided in the circuit court of the United States for the First circuit, Justice STORY held that an author of letters or papers of whatever kind, whether they be letters of business or private letters, compositions, has a property therein, unless he has unequivocally them to the public, or to sOme private personi and no person has any right to publish them without his consent, unless such publication be required to establish a personal right or claim, or to vindicate character. "The general property," he says, "and general rights incident to property, belong to the writer, whether the letters are literary compositioIis,Qt familial' letters, or details of facts. or letters of busiiIess.. :'1he,geperal property in the correspondence remains in the * * * ajortiori, third persons, standing in no privity with either party I are not entitled to publish them, to Bubserve their own private purposes of interest, or curiosity, or passion. If the of Percival v. Phipps, 2Ves. & B. 21-28, before the then vice-
LII!'lll &fANNUITY INS. CO.
chancellor, (Sir THOMAS PLUMER,) contains a different doctrine, all I can say is ldo not acceMto itsatithoritYi and I fall back uppn the more intelligible and reasonable doctrine of Lord HARDWICKE in Pcrpe v. Our/., 2 Atk.342, and Lord APSLEY in the case of v. Stanh.crpe l 2 Amb. 737, and of Lord Keeper HENLEY EDEN in the caseor.Duke of Queen8bm-y v. Shebbeare, 2 Eden, 329, which Lord ELDON has riot scrlipledto hold to be binding authorities upon the point in Gee v. PritChard, 2 SwaDst. 403." If this be the law, where the right of publication is in question, assuredly it is not less so in a case where third persons, having obtained possession of private letters, are seeking to make them the subject of sale and purchase, without the consent of the writers; Nor do I think the court should hesitate to apply the principle here,although the writers are nottheniselves interposing for equitable relief, since, if the property right is yet retained by the writers, no lawful sale of the letters can be made. In Eyrev. Higbee, 22 How. Pl'. 198,-'-decided by Judges GOULD, MULLIN'.; 'and INGRAHAM, an concurring,-it was adjudged that letters in regard to matters of husiness or friendship, although they pass to ap-executor or administrator,arendt assets in their hands, and cannot be mitdethe subject of sale or assignment by them. This judgment olthe oourtwltS made expressly to rest upon the principle that "the property which. the rElceiver of letters acquires in them is not such a property as the holder must have in order to make them assets." Motion for a new trial overruled.
HARTFORD LIFE & ANNUrrY INS. Co.
(Oirouit Oourt, E. D. MU8OUri, B. D. October 14, 1887.)
When. a policy of life insurance provides that payments of premiums should be made on a given day or days, and that, in default of such payment at the time specified, the policy should be void, but the company issuing such policy afterwards pursues a practice of premiums after the time of payment specified in the policy, without insistlUJ1,' upon the forfeiture. then such practice of ,r eceiving premiums overdue operates as a waiver of the right of forfeiture. ' .' A receipt of an insurance company for an overdue premium contained the following conqition: "It being understood that the receipt by this company of payments after date due is only on condition that the member is alive, and in good health, at the date of such receipts." Held, that such receipt, even though it be for an assessment paid after it was due, does not tend to show a waiver by the company of its right of forfeiture for non-payment of dues at maturity, except in the event that the assured is alive and in good health when payment is tendered.
Plaintiff, in an action on a policy of insurance, was under no obligations to make out formal proofs of death of her intestate alter the insurance company had advised her that 'they did not recognize the policy as being in force, and had refused payment on that