the board who voted against it are not liable,andwithout proof we cannot infer that all or lilly one consented. Smoot, clearly, is guUty of a trespass. He took and detained the plaintiffs' property without warrant of law.· He supposed he had the and the next quesauthority and warrantor fuw, but he was tion is, what is the:' measure of damages? The plaintiffs seek exemplary damages, but we do not think that they are entitled to such damages. There was nothing vindictive,' harsh, violent, or even rude in the manner of the seizure and arrest. It was made, if we may say so, withurbanity, and while it occasioned the plaintiffs loss, it did· DO injury to theirfeelings, however sensitive. We think the true measure of damages is the actual value at the place of seizure of the cargo of oysters lost, the expenses paid by the plaintiffs to their crews, and tug, which they would not have had to pay had the seizure not bem made, the intention being to make the plaintiffs entirely whole, and nothing more. We find for the defendantS, ex.cept the defendant Smoot. As to him, we fbid for pfuintiffs,· and assess their damages at 8700.
SPECIFtc PERromtANOlll,,;,STATUTE oll' FRAUDS-PROOP Oll' CONTl\AOT.
A for the conveyance of land. although 'n compromise of pending litigation, will not bespecillcally enforced unless proved by the wrltinA' it· self, where there has been no such part performance aa to take the case ont of the statute of frauds. 1 '
2. SAMlll-:-ME)[ORANDUM":'TB:,LlllGRAM.· .., . . . . . A telegram from a bank to its attorneys, .. Our board have agreed to accept the proposition of L. B. Duff, assignee of Carrier & Baum, " does not connect itself with an informal and unsigned memorandum which requires parol,tesmerely for its identification, but also to show that it was an offer from the assignee. 1 8. SAlIE-'MJcMORANDUM-lNCOMPLETE WRITING. A writing which is the mere basis for and preliminary to a contract which is to be put into definite shape, and executed if the terms are ap,proved bya bankrupt court, is not 8. completed agreement, enforceable speclfically.S 4. OF, COURT-EFFECT. 'An order of a bankrupt court. made upon the ea: parte application of the asapproving the tllrms of an agreement of compromise, and authorizing the ,aSSigIllle to consummate the same,h llS no binding effect upon the other pattY t'o the proposed compromise. '. " ...
relating to lands to satisfy the statute of frauds Bell Love's Ex'rs v. Welch, (N. 0.}2 S. E. Rep. 242; Doherw v. Hill, (Mus.) 11 N. E. RElp. 581;.i Elliot v. Barrett,· (Mass.) 10 N. E. Rep. 820, and note I 'Higham v. HWrls, (Ind.) 8.L'i. E. Hastil1gs v, Weber,(M88s.) 7 N. l!1. Rep'. 846; Falmouth "& L. 'r. Co. v. Shawhan, (Ind.) 5 N. Rep. 408: Welch v. Darling, (Vt.) 7 (Pa.) S At!. Rep. 800; Banks v. ManUfactUring. Co., At!. Rep. 547LDumn v. 20'Fed. Rep. 007, WardElll v. WIlliams, (Mioh.}.28 N. W. Rep. 7ll6J. Oampv. Moreman, (Ky.) 2 S.;W. Rep. 179: Insurance Co. v. Webster v. Brown, (Mich.) 54 N. W. Rep. 676; v.Whitman, Id. 879: Hollis v. Burgess, Rep. 536: v.Dailey, (Tex.) 6 S. W. Rep. 426; Roehl v. Hau(Kan.) ' . . ,messer. (Ind.}lli N. ·See toot-note on next page.
vyhat is a suffi.oientmElmorandum o.f a
Specific execution will not be decr.eed in favor of the where the contract is not in like manner enforceable against him, nor binding npon hini.!
VENDOR AND VENDEE-BREACH OF CONTRACT-INJUNCTION.
If the plaintitf's case, upon a contract to convey land, is not one for specific performance, a court of equity will not grant an injunction to restrain a breach 'or disaffirmance of the contract, nor make a decree declaring it to be obligatory upon the defendant.
In Equity·.. Application for an injunction and other relief. Levi Bird Duff, for complainant. John H. 0rvi8 and Oharles H, McKee, for defendant. ACHESON, J.This is a suit in equity, brought by Bird Duff, assignee in bankruptcy of Carrier & Baum, against Albert C. Hopkins. The case is complicateq, and, for the proper understanding of it, a somewhat lengthy recital of facts is necessary. JohnCl!>rrier and Andrew F. Baum were adjudic)lted bankrupts by the district court of the United States for the Western district of sylvania in June, 1874, and, in the following September, assignees of their estates were appointed. Each of the bankrupts, at the commencement of the proceedings in bankruptcy, was the owner of the undivided one-third of four tracts of land, viz: Warrant No. 13, situated partly in Jefferson county and partly in Clearfield county, and Warrant Nos. 1988, 2009, and 3592, situated in the county, all in said district; but the titles to this real estate passed to the assignees incumbered by several judgments, which the First National' Bank of, Wellsville, Ohio, had obtain¢d in the United States circuit court for said district against the bankrnpts, respectively, and other judgments in the same court against the bankrupts, which were subsequently assigned to the bank. After the adjudication, .under the leave of the ba.nkrupt coutt, writs of scirefacw8 to revive all said judgments were issued; with notice to Richard Arthurs, the then sole assignee of the bankrupts, and judgments of revivalwere entered in the circuit court in the years 1878 arid 1879. With like leave executions against John. Carrier were the;o, issued out of the circuit court·, and the marshal levied upon and sold to JamesW. Reilly, the president of the bank, the Carrier interest, or undivided one-third, in said four tracts of land, and by his deed, dated August 25, and acknowledged, in open court August 26, 1879, the marshal conveyed the same who bought in trust for the bank. The bank also acquired tax titles to said lands after the adjudica,tion in bankruptcy. The office of assignee having become vacant on April 12, 1880, by the resignation of E,ichard Arthurs, Levi Bird Duff, on that day, was appointedthea&\ignee in bankruptcy. On January 5, 1882, the assignee last a bill in equity in the circuit counof the United States
1 Equity will not spec!floallyenforce a contract wanting in or mutUality. W. Rep. 514; Hall v. Loomis, (Mich.) 00 N. W. Rep. Bourget v. Monroe! (Mich.) 25 874; Moses v. McC am, (Ala,) 2 South. Rep. 741; Recknagle v. (Iowa,) 33N. W.Rep. 865; Durkee v. Cota, (CI'1.) 16 Pac. Rep. 5; Fogg v. (Mass.) 14 N. E. Rep. 741; Appeal of Holthouse, (Plio.) 12 AU. Rep. 840; Magee ·v.McManus, (Cal.) 12 Pac. Rep. 451. . .
DUFF V. HOPKINS.
for said district, to No. 11 May term, 1882, against the bank and other defendants, charging that some of the aforesaid judgments were without consideration, and all of them were fraudulently entered originally; that Arthurs, the assignee at the time the judgments were revived, was ignorant of their collusive character, and of the defenses thereto; and praying that said judgments and the revivals thereof, and executions thereon, and the title acquired by the marshal's sale" and also said tax titles, be declared null and void. The bank filed an answer in denial of the material allegations of the bill. Pending the taking of testimony in that suit, on November 28, 1883, the assignee in bankruptcy transmitted to the bank an unsigned paper containing terms of settlement, of which the following is a copy: "Liquidate judgments of Wells'oille Bank v. Baum, and against Carrier, at $45.000 by amicable sci. fa. to revive. with a stay on I for 6 months and Ifor one year. This to be in full of all claims of said bank against Carrier & Baum, as a firm. and against John Carrier and A. F. Baum, individually, and upon payment of these judgments the bank to surrender all claims which they hold against said parties as a firm or individually, whether by transfer by Smith & McGreggor, or otherwise. and for taxes or charges paid on their lands. The bank also to transfer to the assignee of Carrier &; Baum the jUdgments it holds against Robert Osborn on the same paper they have jndgment against Baum. The assignment to be made on the payment of the Baum judgments to the bank by the assignee. 'rhe bank also to convey to the assignee the Carrier title acquired by sale of U. S. marshal. Also the tax titles it holds on Carrier &; Baum lands in Clearfield county. Also all interest that maybe held by McLean, or those claiming under him, (except A. F. Baum and 'rife,) in the Carrier &; Baum lands, (excepting the i of 2009.) Also to transfer its interest in Osborn's land. acqUired by deed from U. S. marshal, viz., McGhea & McGary lands, Osborn tract. Garrison tract, and Mason tract, purchased in common with the Pittsburgh Savings Bank. The bank also to discontinue its suits against the assignee in Clearfield county. the assignee agreeing that, in the ejectment case all costs, inclUding the receiver's expenses, shall be paid out of the fund in the receiver's hands, and that upon the ion of the fund thereafter the Carrier &; Baum i shall belong to the assignee, and be shall take thereout sufficient to pay the costs in the two partition cases brought by the bank, (amount not known, but small, certainly not exceeding $100.) and he shall also take out of said two-thirds belonging to Carrier &; Baum a sufficient sum to pay the purchase money yet due .on tract No. 13, viz., $3,511.35, and the remainder of said Garrier & Baum share shall be paid to the Wellsville Bank and be a credit on their debt of $45,000, they to have the ()ption to credit it on anyone of their judgments. The assignee to discontinue, ()r have dismissed at his costs, the bill against said bank, and others, now pending in the U. S. cOUlt.This settlement to be submitted to and approved by the district court of the United States. Western district. The bank to give the assignee notice on Friday evening, November 30th, of their acceptance or refusal of this settlement." The minute-book of the bank, under date of November 30, 1883, shows a meeting of the board of directors, at which eight members were present, and contains the following entry: "W. M. Hamilton submitted a statement furnished by Col. Duff, giving an outline of tbe basis of settlement of the claims against Carrier & Baum, etc.,
(see statement on tlle.} to :which all the members present gave their hearty assent." The parol testimony shows that the "statement" referred to in the said' minute was the abO'Ve-quoted paper, or a copy thereof. On the date last mentioned Mr. ReiUlY,the president of the bank, sent the following telegram to the bank's counsel at Pittsburgh: "WELLSVILLE, OHIO, November 30,1883. "To Broum & Lambie.,Attlls., Fifth Ave., Pitts., Pa..: Our board have agreed. to accept .the proposition of L. B. Duff, assignee of Cal"fier & Baum. "J. W. REILLY, Prest." The contents of this telegram were communicated to the assignee by Brown & Lambie the same day, or soon thereafter. Th.e bank on February 27, 1882, had brought an action of ejectment fu court of common pleas of Clearfield county for thEl tract No. 2,009 & Coke Company (which was engaged agairistthe Sandy Lick in mining :coal therefrom) Blld others; and in that su.it a receiver had been a.ppointed to collect the royalties payable on the mining operations. On December 6, 1883, under an order of that court, entered pursuant to an arran,gement betweellthe assignee in bankruptcy and the attorney of record·Qf the bank acting'by its instructions, the sum of 83,686.07 (the or' Carrier's of the net fund in the receiver's hands was paid to the b,ank, and the like sum of 83,686.07 was paid to L. B. Duff, as assignee: of. Baum. OHhis latter sum the assignee paid $3,511.35 in discharge of the balance of purchase money due on the tract No. 13, and paid to the bank,-making the whole $3,860.79. On March 31, 1884, the amount thus received assignee in bankruptcy ap,,q. :Brown.& Lambie, the attorneys at law of the bank, signed a written agreement, of which the following is a copy: "For the purpose of settling all controversies between the First National Bank of WelIsville. Ohio, and the estate of Carrier & Baum, bankrupts, itia hereby agreed by and between said bank and Levi Bird Duff, assignee of said estate. as follOws, to-wit: . , "That the jUdgments ofaaid bank in the circuit court of the United States, Western district of Penna., against John Oarrier andA. F. Baum be revived and liquidated at the sumaf $45,000, with interest from November 80,1883, !fiss II credit 01 tbree thousimd;eight hundred and sixty and 79-100 dollars. ($3,860,79,) as of date of December 6, 18a3, with stay of execution. on ,one.. half thereof until the first day of October,A. D. 1884. and on the balance unA. D.1885. This to be full payment of all the cIaiIbs of said bank against Johri'Carrier and A. F. Baulll. both as a firm and as ,individuals; whether held '1>1' said bap.k in its own right or by assignment from Smith & McGreggor; ot otherwise howsoever, and for taxes or charges paid on the lands of said CatTier &lBaum, except the costs upon said judgments. which shall be paid by the estatJl of said bankrupts. Upon the payment by the estate of said bankrupts to the First National Bank of Wellsville of the said judgments in the manner and. at the times specified. the said banks shall satisfy said jUdg.ments, andreleaaeand cUsclmrge said estate from aU claims and demands whatsoever, and shall also transfe,r and assign to said estate. bY sufficient deed or deeds. all its interest in the lands in Clearfield county formerly belonging to ,Tohn Carrier, and acquired by sale upon judgments against said Carrier in the circuit court of the. United States, Western district, Pa., as per deed of
, DUFF .V.HOPKINS
John Hall. tT. S. marshal; also aH the tax titles it holds for lands of John Carsituated in Clearfield county. Pa.; also its i,nterest in rier and A,.f' lan(ls of Robert Osborn. apq,iJ,ired by deed of U. S.marshal, to-wit.: McGhee & McGary lands. the Osborn tract. the Garrison. tract. and the Mason tract. in common with the Pittsburgh Savings Bank: provided. however, that the undivided third of tract No. 2.009 (being the Osborn third) is not included in the lands to be transferred to said estate. The said bank also to convey to said estate all interest in said Clearfield county lands (excepting the one-third aforesaid) that may be held by George' F. McLean. or those holding under him. (except A. F. Baum and Margaret Baum. his Wife): provided, that said bank shall have the option of indemnifying the said estate against claims that may be set up to said lands by said McLean or those claiming under him. A. F. Baum and wife excepted. The said bank to discontinue all suits by it against said estate in Clearfield county. the costs in the ejectment case. inch!ding therooeiver's expenses, shall be paid out of the funds in the hands of the receiver. and upon the division of the funds thereafter the Carrier & Baum i shall belong to s\lid estate, and the assignee shall take thereout sufficient,to pay the costs in the two cases of partition brought by said bank against said estate. and the balance of the royalty belonging to the Carrier &, Baum f, earned up to Dec. 1. 1883. (except the sum of $3.511.35,' applied to the purchase money of No. 13,) shall be paid to said bank and credited on the judgments aforesaid, to be applied upon any judgment at the option of said bank. The said assignee agrees to discontinue or have, dismissed as to said bank. without costs to the bank, the proceedings in eqUity in the circuit court of the United states, No. 11, May term. 1882, wherein Levi Bird Duff, assignee. is'plaintiff, and the said bank and others are defendants. 'qnwitness whereof the parties hereunto set there hands this thirty-first day of March, A. D. 1884. BROWN & LAMBIE, "Attys. for First National Bank of WellsviHe. BIRD DeFF· ..Assignee of Carrier & Baum."
At the foot of the foregoing agreement there is an added clause, bearing the same date and signed in the same manner, supplying some omissions not material to this case. No written authority in any form was ever given by the bank to Brown & Lambie to sign the foregoing agreement; nor is there satisfactory proof that they had authority of any kind from the bank, or from any of its officers, to execute the same. They seem to have acted upon their own judgment, and, as they believed, for the best interests of their client, assuming that, as the attorneys at law of the bank, they had the implied right to sign the paper. Some time after the execution of the agreement of March 31, 1884, Mr. Lambie exhibited it, or communicated its contents, to Mr. Reilly, the president of tlle bank;, and to several of the directors. At first these persons express,:ld to Mr. Lambie an objection to the extension of the time of payment of the stipulated sum beyond the period originally proposed, but, after hearing his explanation, they did not press the objection. None of the officials of the bank took any active step either in affirmance or disaffirmance of the action of Brown & Lambie in signing said paper. The board of directors of the bank never approved or ratified the. agreement of March 31 , 1884, nor was any action with respect to it taken by board. Indeed, it does not appear that it was ever submitted to the board for action. On the twenty-sixth of April, 1884,
Mr. Henderson, the cashier of the bank, wrote a letter to Brown & Lambie about the taxes on the Clearfield county lands, in which he said: "We suppose this will be attended to by Col. Duff, under arrangement made with him. Please see that' the matter is attended to in time." The contents of this letter being communicated to the assignee, he paid the taxes on two-thirds of the tracts, viz., $874.50, in the succeeding month of May. As early as'October 29, 1883, the bankrupt court granted leave to the bank to sue out writs of scirefauiiJ,s for the second revival of its judgments, and to prosecute the same with notice to the assignee. Such writs were subsequently issued, and judgments of revival were entered in the several cases at various dates between December 4, 1883, and August 5, 1884. The judgments were severally revived for the whole amount thereof, without any stipulation as to stay ofexecution. The assignee did not pay 01' tender to the bank the installment, or any part thereof, which, by the terms of the agreement of March 31, 1884, was payable on October 1, 1884. To excuse thiEf failure it is said that the bank had not yet obtained the title of George F. McLean. But the bank was not bound to convey the title until the second installment was due. In fact, however, the bank had acquired McLean's title through a sheriff's sale in September, 1884. True, it is alleged, and perhaps correctly so, that the sheriff's sale did not divest an interest in the tim.ber granted by McLean to one De Witt. But even if this was the fact, still the bank had the right to indemnify the estate of the bankrupts against all claimants under McLean. , On the thirteenth of January, 1885, the said bank and James W. Reilly, as itstrustee and individually, as parties of the first part, and the said Albert C. Hopkins, as party of the second part, executed a written agreement, whereby the first parties agreed to sell and convey to Hopkinsall their right, title, and interest in and to all the lands hereinbefore mentioned,and to assign and transfer unto Hopkins all the bank's aforesaid judgments; and in consideration' thereof Hopkins agreed to pay the first parties the sum of $45,000, as follows, viz.: $10,000 in hand, $7,500, with interest, in one month, $7 ,500, with interest, in two months, and $20,000, with interest; to be secured by negotiable paper, in six months. This agreement contains the clause following:
"It is expressly understood and agreed that the said conveyances and transfers are to be made by the part,ies of the first part, and are to be accepted by the party of the second part, subject to any rights which Levi Bird Duff, assignee in bankruptcy of Carrier & Baum, may have under an agreement made by said Levi Bird Duff, assignee of Carrier & Baum, with Brown & Lambie, attorneys for the First National Bank of Wellsville, Ohio, bearing date March 31, 1884, Qat admitting, however, that Levi Bird Duff, assignee as aforesaid, has any legal rights or claims under said agreement. And it is also expressly understood and agreed that the party of the second part will take said convey. ances and tran.sfers subject to the resl)lt of the proceedings in equity in the circuit court of the United States for the Western district of Pa., to No. 11, May term, 1882, wherein Levi Bird Duff, assignee of Carrier & Baum, is plaintiff and the First National Bank of Wellsville, Ohio, et al... are defendants."
Hopkins having made his payments, and fully complied with the terms of said agreement, the bank and J. W. Reilly, before the bringing of this suit, executed and delivered to him conveyances of their titles to said lands, and assignments of said judgments. The proposition for settlement which the assignee made to the bank in November, 1883, was never submitted to the court for its approval, nor was the agreement of March 31,1884, so submitted until May 29, 1885. On this last date the assignee presented to the court, sitting iu bankruptcy, his petition setting forth that he had entered into an agree-ment of compromise with the attorneys of the bank, and attached to his petition a copy of the agreement of March 31, 1884;; and he prayed the court to fix a time for hearing his petition, and that on such hearing, "an order be made authorizing him to enter into said agreement of compromise with said bank." Upon that petition such proceedings were had that on September 5, 1885, the bankrupt court approved the compromise, and authorized the assignee to consummate the same, and carry it into full effect. The assignee in bankruptcy has paid no portion of the money payable to the bank under the agreement of March 31. 1884, nor has he ever tendered or offered to pay that money, or any part of it. The equity suit in the circuit court was not discontinued. Nothing therein has been done since November 28, 1883, but the suit is still pending. The purposes of the present suit, which was commenced on December 2,1885, are disclosed by the specific prayers of the bill, which are as follows:
"(1) That said A. C. Hopkins be restrained, first by preliminary and afterwards by perpetual injunction, from selling any of the lands of said bankrupts, or eitber of them, on the execution now in the marshal's hands, or any other execution issued on the judgments he holds against said bankrupts. (2) That said composition, confirmed by tbis court, be decreed to be legal and valid, and binding upon the said A. C. Hopkins, and that he be restrained by injunction from asserting and claiming any title in or to the lands ot said bankrupts herein described, and included in said composition, in contravention and denial thereof. (3) That said Hopkins be reqUired to pay to said bankrupt estate such damage as it has sustained by reason of the opposition of said Hopkins to tbe carrying out of said composition, and the obstruction of the settle.ment of said estate."
It appears that some negotiations took place betwaen the assignee in bankruptcy and the defendant for the sale by the former to the latter of the undivided two-thirds of the timber on two of said tracts of land, the defendant already being the owner of the other one-third thereof; but, the parties failing to agree, those negotiations were finally broken off early. in the fall of 1884. The assignee then endeavored to make a sale ofthe timber to Crider & Son, and on October 14, 1884, gave them a 30 days' option to purchase the same, which option was extended 15 days. At the end ofthat period the Criders declined to purchase. The bill charges that Crider & Son, in the course of their examination of the title, "were met by the defendant, his agent, or attorneys, who, by false statements in regard to the assignee's title to said lands, induced Crider &; Son to
;believe that the assignee h'ad ndright to sell and ;could not convey said timber, and thay, therefore, ,refused to pnrchase'l! And the bill further the time that your orator waseildea.voring to make charges :that sale ofsaid lands to comply with said composition; and the said Hopand his rtgentsand attorneys, by faJsereports of the title kins, by was preventing a 'the said A.: C. Hopkins, wa51 J.fiecretly negotiating with the said First National Bank. of Wellsville,: Ohio, fo1' the purchase uf the incumbrances and titles held by them, for the purpose of defeating said conlposition and subjecting the bankrupt estate to further litigation, with intent to delay and defraud the general creditors of said estate." All these charges are denied by the answer. ' The voluminous proofs bearing upon this part of the case I have carefully considered, and my clear conclusion is that the above-quoted charges are not substantiated. The defendant's negotiations with the bank began early in January, 1885. Several months before that time all negotiations between the assignee and the defendant had ended. They had never been able to come to an agreement. No confidetltial relations of any kind then existed, :01' had ever existed,between them. For the failure of the assignee to make a sale to Crider &80n the defendant was not responsible. He had:dtme nothing to preclude himself from buying the titles and judgments of the bank if he saw fit to incur the risks involved in the purchase. Of. two such risks express mention is made in his contract with the bank, viz., his possible subjection to rights which the assignee in bankruptcy have under the agreement of March 31,1884, and, the result of the pending litigation in the circuit court. Whether or not the defendant at or prior to the time he entered into his contract of January 13, 1885, had, express notice of the assignee's proposition of settlement made to the bank in November, 1883, and the bank's action thereon, is disputed, and the evidence touching this matter is conflicting. But even if there was no such express notice, still, in view of all the proofs, thedefendant, I think, must be treated as having learned enough to put him <In inquiry, and, therefore, as having at least constructive notice of all that had transpired between the assignee and the bank looking to a compromise, and leading up to the agreement which the counsel ofthe bank signed on March 31, 1884. In the further consideration of the case, 'then, it will be assumed that· the defendant took the titles and judgments <lfthe bank subject to any equitable rights which the assignee in bankruptcy might have enforced against the bank had it 'not made the conveyances and transfers to the defendant. The first <}uestion here naturally arising is whether there was any contract between the assignee and the bank which a. court of equity would specifically enforce. In determining this, several matters deserve notice. In the fi:rstplace, it is to be observed, that the principal subject-matter of the alleged contract was tlieconveyance by the bank of its titles to the designated tracts of land, and, notwithstanding the contract may have been in compromise of pending litigation, it was undoubtedly within the uperatidDof the statute of frauds and perjuries. Now, specific perform-
DUFF ",. HOPKINS.
ance of such acontraCt will not be decreed unless it is proved by the writing exclusively. Soles v. Hickman, 20 Pa. St. 180, 183; Hammer v. MeElduwney, 46 'Pa;.St. 334. That is not a written contract which is not self-sustaining. 'ld. And where the terms of the contract are to be sought in tWC:H>r more writings they must connect themE/elves together without the aid of parol testimony. Wat. Spec. Perf.§ 233. Furthermore, when the writing is the mere basis for the contract, and not the contract itself, or' any of the terms remain for future adjustment, or where the·maUer is left open and one party may withdraw from it, or there appears to be ltn intention to negotiate further, there is no binding agreemerit. Id. § 234. Let us' apply these legal principles to the facts in this case. As Brown & Lltmbie signed the agreement of March 31, 1884, without written, or, indeed, any authority, it is quite plain that it can': have no tendency to establish ll.writtencontract binding 011 the bank. The teMgram of November 30, 1883, from ,the president of the bank to Brown & Lambie does not, I think, connect itself with the assignee's so-called proposition, which, it must be remembered, was an informal and wnsigned memorandum, requiring parol testimony, not merely for its indentification, but for the more vital purpose of showing that it was an offel: from the assignee. These observations, it seems to me;,als(} apply to the meager entry of November 30, 1883, on the minute book oUhe bllnk. But aside from these considerations, it is clear that the socalled proposition, the minuted assent and the telegram, were merely preliclinary.to a eontract to be thereafter put in proper form and duly executed.' .They did not constitute a completed contract. The memorandum, as we have seen, was not signed by the assignee. It bound neither him individually nor the estate of the bankrupts, and was not intended to bind either. It was a fundamental condition expressed on the face of the paper that the settlement thereby contemplated should be approved by the bankrupt court. Without the direction of that court no binding contract of the kind could be entered into. Rev. St.§5061. The contemporaneous entry on the minute-book of the bank designates the papel'las It "statement" giving "an outline of the basis of settlement." The recorded assent thereto, viz., "to which all the members present gave their hearty assent," does riot imply deliberate, final corporate acceptance of a proposition. That the foregoing views oftbese transactions are correct isin9,isputably established by the subsequent action of the assignee in joining with Brown & Lambie in drawing up and signing a formal agreement in writing, covering the whole subject-matter of the prior negotiations, but with an important modification of the terms originally suggested in respect to the time of payment. It was this agreement, and Done other, which the assignee eventually submitted to the bankrupt court for approval,and which the court did approve. Upon the whole, then, I think it may be confidently affirmed that there was no contract in writingibetween the assignee and the bank to satisfy the statute of frauds. Nor was there any such part performance as would afford ground for equitable relief·under this bill. Payment of purchase money in part or.in whole does; not take a case out of the statute, as it admits of direct com-
pensation·. Gangwe:r v. Pry; 17Pa. St. 491. This is a .sufficient answer to any argument based on the payment of taxes and the appropriation made of the fund in the ejectment suit. As the bank, as the holder of the legal title to the Carrier interest, was entitled to .the one-third of the fund in the hands,of the receiver, it is not clear to me that the estate of the bankrupts was prejudiced by the disposHion which was made of that fUlld; But ifinjured the matter can be rectified. ltis, however, insisted that the bank received the benefit of the stipulation as to the revival of its judgments, and that this result was due to the forbearance ofthe assignee. But this affirmation rests upon a misapprehension of the rights of the parties. It is not to be doubted that for the preservation of its liens the bank had .a right again to revive its judgments,and, hence, the bankrupt court had granted the bank leave to do so. Moreover, there was no defense to the writs of scire facias open to the assignee, for none of his supposed defenses were pleadable to those writs. Benton v. Burgot, 10 Sergo & R. 240j Dowling v. McGregor, 91 Pa.St. 410j Maxwell v. Stewart, 22 Wall. 77. Relief for the causes alleged was obtainable only on the equity side of the court. There the assignee's bill is still and the second revivals are no obstacle whatever to its successful prosecution. If the original judgments should be overthrown the revived judgments will, 'of course, also fall. But again: tt> entitle a party to specific performance the rule is that there must be mutuality both as to the obligation and the remedy. Wat. Spec. Perf. §.. 196j Marble Co. v. Ripley, 10 Wall. 340, 359; Bodine v. Glading, 21Pa. 'St. 50; Meason v. Kaine,63 Pa. St. ,335. That rule applies here, and is decisive of the., question under discussion. Id. In Marble 00. v. Jl,ipley,imp'fa, the court says: "And it is a, general principle that when, from personal incapacity, the nature of the contract, or any other cause, a contract is incapable of being enforced against one party. that party is equally incapable of enforcing it spacificallyagainstthe other, though its execution in .the latter way might in itf:!elf be free from the difficulty attending its execution in the former." No one pretends that the assignee incurred iIidividualliability, and to give the agreement in question any binding effect against him in his representative character, the consent, of the bankrupt court was a sine qua non. Now, the assignee alone could invoke the authority of that tribunal. The bank had no standingin that forum for such purpose. . It is idle to speculate as to what might have been the result had the assignee made a timely application to the court and obtained its sanction to the proposed compromise. The fact is that he did not move in the matter until after the expiration of the year within which the contemplated settlement should have been carried out to full completion. In the mean time the attitude of the parties had become one of antagonism. The bank, after the assignee was in clear default in his first payment, had conveyed its titles to the defendant, who from the first has repudiated the alleged agreement. It is scarcely necessary to add that the order of the bankrupt court of September 5, 1885, did not conclude the bank or the defendant. Neither was a party to that proceeding. The
PUFF V. HOPlqNB.
order, indeed,. was not an adjudication of the rights of any body, but was merely permissive-authorizing the assignee to act. Still further: according to the settled doctrine of equity he who asks a specific execution of his contract must show a performance on his part, or an offer to Perform. Colson v. Thompson, 2 Wheat. 336; Boonev. Iron Co., 17 How. 340. But the plaintiff can shpw neither of these things. Even now he makes no offer to p.erform. Upon that subject his bill is altogether ll'ilent. For the above reasons, then, I am of the opinion that the plaintiff has no right to a decree for the specific performance of the alleged contract. And, indeep, the bill is not framed with a reference to a specificexecution. It contains no prayer for such relief. Nor at the ba:rdid the, plaintiff ask such relief under the general prayer. On the contrary, in his brief of argument, reasons are suggested why a bill for specific performance against the defendant would be "barren of results." At first view, then, it might seem that the foregoing discussion of the question was a work of supererogation; but, upon reflection, it will be discovered that the question has a very close relation to the specific prayers of the 'bill. Fothergill v. Rowland, L. R. 17 Eq. 132. If the case is 1,lot ooe for specific enforcement what basis is there for the relief prayed? 'The first prayer of the bill is for an injunction to restrain the sale of the lands of the bankrupts upon execution issued on the aforesaid judgments. 'l'hisprityer, be it observed, is not coupled with any tender or offer to the defendant of the amount confessedly due thereon. It must be noticed, also, that the object is not to suspend execution until the determination of the equity suit pending in the circuit court. That measure ofrelief is attainable in that suit. The injunction here sought is a perpetual' one. But if the alleged contract is not to be specifically executed, why should the defendant be perpetually restrained from proon his judgments? Besides, the stay of execution given by the agreement of March 31, 1884, has long since expired, so that under the very terms of the alleged contract the defendant is entitled to proceed by execution. The second prayer of the bill is that "said composition confirmed by this court" be decreed to be binding upon the defendant, and that he be enjoined from asserting or claiming any title to said lands in contraventionand denial of the composition. In so far as this prayer assumes that the ordei' of the bankrupt court made September 5, 1885, wasobligatory upon the defendant, it proceeds upon an erroneous conception of its effect. But again: if the alleged compromise agreement is not to be specifically enforced, why make this decree? Clearly, it is not neee$sary in aid of any proceeding at law open to the plaintiff. What good purpose would be subserved by a decree so limited in its range,-so in- " complete in results? To adjudge that the compromise agreement was binding on the defendant, and to enjoin him from asserting the contrary, SAd there to stop, would indeed be an "impotent conclusion" to this.litin truth, the reasons for denying specific execution hold igation. good against the allowance of the decree contemplated. by the second v.33F.no.10-39
prayer. In fine,wnen it is once shown, that the· plaintiff has no right to a decree for the specific performallceofthe 'alleged contract; it logically follows that he is not entitled to the relief sought by either the first or the second prayer of the bill. " Little need be said as respects the third prayer. There being no ground for granting to the plaintiff any reliefof a purely equitable nature, the court has no jurisdiction with ,referenee to a. mere question of damages. Root v. Railway 00.,105 U. 189. Under the proofs, however, Ido not see' that the defendant is answerable'in damages for the causes assignediil this prayer. Let decree be drawn dismissing the plaintiff's bill, with costs to the defendant,' payable out of the estate of the bankrupts.
POTTS 'V, 'CHICAGO CITY
((l1rc'Ilit Court,N. D. Illinoi8.
December' 20, 1887.)
COMMON CARRIERS-OF PASSENGERS-CABLE CARS-NEGLIGENCE-BURDO OF PROOF. '
Plaintiff was injured by II colli.dop with a horse and buggy while riding .in a cable car whose curtains were drawn to keep out'the ,rain. Held, that plaintiff must show, by a preponderance of evidence of credible testimony, some neglect of duty or want of care a'll the part of the employes, or some one of , the employes, of defendant, in charge of the train. 1
In an actiOJi a common carrier with negligence, it is not necessary that it should be of great it is enough if the accident was cansed solely by any neglige.nee o.n Its part. however sUltht, if, by the exercise of reasonable precaution, the injury would not have been sustained. " Although there are no contract relations between the driver of a grip car of a cable road and the person whols to be carried, yet it is reasonable that the law should demand of him a vigilance corresponding to the responsibility placed upon him." .
OF GRIP-MAN. ' .
.. BAME-PA8BENGERS-NEGLIGENOE-WJU,T CONSTITUTES.
The plaintiff, who was a pa.esenger on one of defendant's.cable trains. was . injured by being .struck by tbe, shaft of a wagon projected into the car. His view of the sides of the strllets. imd knowledge of what was going on, was prevented by the cu.rtains being down to keep out the rain. . Held. that the pulling down of the curtains on account of the rain was not negligence on the. part. of the conductor of the train, even though it prevented a view of the sides of the streets.
Plaintiff was a passenger in the middle car of one of defendant's' cable trains. After the grip car had passed. a horse pr9jected one of the shafts of a wagon int'o the car in which plaintiff sat. Held, that defendant's liability dellended upon whether"the actions of the horse before the' grip car passed him were such as should reasonably have excited apprehensions ofa collision in theJllind of the grip-mltn, .
In an action for dama!l"es for injuries caused by the negligen'ce of the 'servants of a common carrier, the jury'are limited to only Buch compensatory damages as the plaintiff is entit\ed to recover.
Bee, also, Hayman v. Railroad Co., (pa.) 11 AtL Rep: SUi.