ests very commonly do ask more than the owners of larger interests. It is true that, under some 'circumstances, and" especially when there is reason to that the agent is not acting in good faith, the fact that more is paid to him for 'any interest that he may have in the property than he gets for his priIlcip,al may b13 of some value; but upon that cirshould not attach very much importiwce to it in reaching a couelu!:lion as to whether fraud was practioed in the negotiation. If, as,lll1egedin this bill, Mr. Eames covered up the ore with a view to conceal it, and to make abetter bargain than ,he would otherwise have been able to make, the plaintiff might, I think, avoid the sale upon that ground. But the evidence upoIi that point is not satisfactory. witness tEllltifies to itoJ;l behalf of. the plaintiff, and that is met by the denials of the defendants,. and by the testimony of other witnesses whp apas gOOll opportunities to know fact as the plaintiff's witness., ,So, also, if there was an agreement by Mr. Brown to pay from theproceeds'of the mine further and additional consideration to Mr. tQatw,ould be a fraud lipou<plaintift' Qer,e-woulp. show; that ,lmproper had been used to obtain the contract from BrsQken, -and upon that the sale, as Itbink,might be avoided. But the evidence upon that poil\t fails also. The, plairltiff ltlleges it in his bill, ,and he rec.itEls ihe which he,b.asfiled sonja statements that',p',sve been ll1ade' by Mr. Bracken in to it; bht''thatcannot beregat<ied knew nothing, ¢ that himself, and apparently as evidence: ' The heisdnven'td rely upon the testimony 'Of'Brakeri 'in respect to ,it, and not been given. So that; whatevet 'the plaintiff maybe able to ptpve'upon the final hearing of this case,'as alleged by him in his :bill,and as h13 ,will have to maintain it if he expects relief, is not sUStained"in alJ)'annerwhidh calls for any action of the court at this time, and" " the'lMdtlon' for .'an' .'. injuctidnandfor a " denied·. ' . 'J;' . '.
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(O'tuuit Oourt;: B; D. Net.D York. October 22, 188'7.)
JU;JUSDICTIONAL FAQTS-CODEQIVIL PROC. N.!. 1S89. Unde].' Code Civil Pt:0C. N. Y. § 582, providing that in pleading a ",uligment; it sball ,n:Ot be necessary to' allege thejurisdi'ctionaI facts, but that it ;may be stated was "duly, given or made," an allegation of the, appointment of COmmlsllloners by a judgment made by and entered in" a certaincouJ1 Ie sufficient. '" . ' ,
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At LaW. , Demurrer to, the complaint., ,, ,, ',' " , H,. Lee; HQnry H. Eaton, 'G. E. Stuart,. 'and R 'T.' Barton, piairitiffiij8tiedHEmry S. J. et: cd., lll1eging that ,they Were appointed special commiSsioners by ajudgment duly made hi the circuit Court 'MRichmond, Virginia, and that the defeild'iultS made certain bonds to'them. Defendant Terbell demurred, at-
SANBORN V. ,ROWERS'
leging that the judgment under which the wasnot.sufficiently set out. P. for plaintiffs. Jolt1/" Wi'll8low, for defendants.
WALr,ACE, J. Upon the argument of the demurrer to the complaint. althougp no doubt was entertained that the second ground of demurrer was not tenable, it was doubted whether the first ground was not well the averments were not suftaken; and I was inclined to the opinion ficient to show that the plaintiffs had legal capacity to sue, because of the failUTe to: allege the facts showing that the circuit court of the city of Richmond had jurisdicti6nof the subject-matter of the action, and of the person of the defendantS therein. Section 532, Code Civil Proc., dispenses with the necessity of aIleging these jurisdictional facts; and the complaint conforms to the requirements ofthat section bytheavertnents that the jUdgment which authorized the plaintiffs to maintain suit in was "duly niade." " The :demurrer is therefore overruled, with costs.
: «();,.cuit Court, W.
Michigan, 8. ,J). February at,
A'declaration set out a power of attorney given by defendant to platntiff, authorizing him to collect for certain infringements of a patent. It also set out a contemporaneous agreement concerning the amount of compensation plaintiff was to receive, and that, he was to have exclusive control of such business in certain territory. Qn demurrer. 'teld, that ,the power of attorney, stand;ngalone, was r.evocable; but, taken with the other contract, it was so far as it had been acted upon.
SAUE. '. : "
ceptance, and that Ii failure' to allege that the plaintiff accepted the contract, or entered upon the performance, and gave notice thereof to the defendant, was a' fatal defect. ' 8. FRAuDs-STA.TUTE OP--DEUUR1UliR. When a contract is stated in a declaration, but it is not alleged whether it is.inwl'iting or not, there is no ground for demurrer.! ' JIt did not appear on the ,face of a complaint for specifio perfonnance that the proposition from, defendan,t, specifying the conditions on which he would convey, was not in writing., lleW. tbat the question whetl1er defendant's prop08itionwas in writing could not, be raised by demurrer. If raised at all" it must' be by answer. Hayt ",Y'. Hunt, When a pleading alleges ,l/Jl agreement which would be within the statute of frauds, unleBII in writing, it will be presumed to be a written, contract. Swetland v. Barret, 1 Pac. Rep. 745. on the contrary, it is held in Smith V'.lJ1heobald (Ky.) 5,S. W. Rep. 894, that a petitioll.based uJ?o,n a contract requJ,'red to be inwritiog, a,nd Sign,ad by the defendant, is if It does not set out thll fact of th,e writing and signa·j;,ure, , . , , : . .., " ,alleging a cause of lllltioni but omitting the avennent that an agreement relatmg to land was in writing, 18 sulBClenj;, on demurrer. Grooe,v.Jenkina, (8. 0')'6 18. H. Rep: 85.9. ' , " "
(0010.)15 Pac. Rep. 410. ' .' "
Held, also, that the contract was unilateral, and continued so until its ac-
At Law. On demurrer. The plaintiff's declaration, omitting the formal parts, is as follows:
'" '" '" Jesse K. Sanborn complains of Alexander Rodgers 'Ii * '" fOl that the said defendant did make and execute a certain instrumen'L In writing, signed by him, and did deliver the same to the said plaintiff, which said instru. ment is in the words and figures following, to-wit: "MUSKEGON, Mich., July 8,1881· .. To Whom It may Concern : This is to certify that I hereby authorize J. K. Sanborn to collect for all infringements of my patent tooth-bar log-turner, No. 81,432, and the reissue of the same, No. 5,487, July 1873, in the state of New York and Pennsylvania, the damages awarded to mein the U. S. court at Grand Rapids, viz., tvro hundredal1d forty dollars on each infringing machine. Parties so settling will avoid all further trouble, and will 'be entitled to a license to use the same ever afterwards. Said license will be forwarded fl"Om M'llskegon by the patentee. [Signed] .. ALEXANDER RODGERS. to -That, at the time of the making and exeqution of the aforesaid instrument of writing or power of attorney, the said defendant' undertook and agreed to and with the said plaintiff, by a contract or agreement then and there entered into by and between the said plaintiff and the said defendant, to pay to said plaintiff the sum of $100 for each and every infringing machine made or used in violation of the rights secured by the letters patent, and the reissue thereof, mentioned in said instrument of writing or power of attorney, on which said plaintiff should receive or collect the said sum of $240, in the states of New York and Pennsylvania, and the like sum of $100 on each infringing, machine for which,the money should be paid to said defendant, whether the same sbould be paid to or collected by said plaintiff, or to or by said defendant, or to or by any other person for the said defendant, in the said states of New "¥ork and Pennsylvania. And the said defendant on, to-wit, the day and' year aforesaid, further agreed to and with said plaintiff that he, (said defendant,) would not send any agents to look up infringements within the said states' of New York and, Pennsylvania, 01' in any manner interfere with the business of collecting information, evidence, or damages concerning cases of infringements as aforesaid. That by virtue of the authority contained in said instrument of writing or power of attorney, and in pursuance of and said plaintiff did upon the faith of said promise and agreement proceed to make the collections so authorized and pr()vided to be made by him, and did proceed to make the collections so authOJ:ized and provided to be made by him, and did continue in said business and employment for a period of four years, laboriously and faithfully performing his uutiesaccording to the terms of his agreement made with said defendant; and, in 'So doing, said plaintiff did expend a large SUlli of money, to-wit, the sum of $3,000, and also a large amount; of time, to-wit, four years, in making search for cases of infringement of said letters patent, and the reissue thereof, in said states of New York and Pennsylvania. 'fhat by means of such labor and expenditures, said plaintiff had, at 'the date of transferring by said defendant of l).is rights to said a8 hereinafter set forth, discovered and procured proofs to establish a largellUmber of cases of sucbinfringement, to-wit, 200 cases in the said states of New York and Pennsylvania; whereby said plaintiff earned and became entitled to collect and receive from said defendant, the sum of $100 for each of said 'cases of infringement 80 discovered, and the proofs to establish 'which Wflre so furnished as aforesaid by him. That, by means of such labor and expenditures, said plaintiff also discovered the names of, to-wit, 50 other persons, in the said states of New YOl'k and Pennsylvania, and had, at the