were a natural person, actually present and superintending the train when the deceased was killed. The damages of intervening petitioner will be assessed at $4,000.
(Circuit Court, D. Indiana. March 29, 1888.)
SALE-:RESCISSION BY SELLER-TENDER OF MONEY PAID-REPLEVIN-DISPOSITION OF,}l'ENDER AFTlllR JUDGMENT.
M. bought goods on false representations as to his solvency, and, having disposed of $900 worth of them, transferred his whole stock to defendant in payment of prior debts. The seller, having tendered both to defendant and M. $400 paid by the latter on his purchase, brought replevin against both, and deposited the sum in court. Held that, defendant not being a bona fide purchaser as against plaintiff,plaintiff was entitled to said sum in part payment of the $900 worth of goods disposed of by M.
At Law. On motion for return to defendant of money brought into court to keep good a tender. . The facts are not in dispute. The plaintiff, a corporation engaged in the wholesale shoe trade at Cincinnati, had sold goods to the value of $2,540.50 to Miller, a retail dealer at Fort Wayne. Miller, when he made his purchases of the plaintiff, was insolvent,-the principal part of his indebtedness being to Trentman,-and obtained credit upon his pm:chases of the plaintiff by means of representations in respect to his solv\ ency which entitled the plaintiff, on learning the facts, to reclaim the goods, and this action (in replevin) was brought for that purpose against both Miller and Trentman; the latter having purchased Miller's entire stock of goods, paying therefor by crediting the price upon his demands against Miller. With this stock of goods Trentman came into possession of shoes or other goods sold by the plaintiff to Miller of the value of$1,640; the remainder ($900 worth) having been sold or disposed of by Miller before the sale to Trentman. Before bringing the action the plaintiff tendered to Miller, and also to Trentman, the sum of $400, paid by Miller on his purchases, and demanded of each a return of the goods. Miller having died, trial was had, and a verdict and judgment rendered against Trentman for a return of that portion of the goods found in his possession, or the payment to the plaintiff of $1,640.50, the assessed value thereof. Upon these facts counsel for Trentman say: '. "Oor contention is that, this being an action of replevin on the la w side of
the court"there could be no action maintained without a rescission of the contract under which the goods replevied were obtained. In order to such rescis. sic,m , it is settled that whatever was received upon the contract must be tend.. r.rheplaintiff has recognized this r\.lle, and proved upon the trial l!o tender' both to till; fraudulent vendee and to Trentman, who purchased the goods of him, and has followed this np by bringing the money into court. That such 'ttlnder' must ·be made and kept good· in such an action is settled in
BENRY L. CRANE BOOT & SHOE
Indiana, and by· abundant authority elsewhere. In Haase v. Mitchell, 58 Ind. 213, the action· was against a subsequent purchaser, and it was held that such action could not be maintained without first rescinding the contract by tendering back whatever thing of value had been received upon it. This being necessary, our position is that the tender in this case was made to Trentman, as all the rights of Miller had been acquired by him. If the goods are to be replevied from him on the theory that he stands in Miller's shoes, he must be regarded ,as occupying that position for all purposes, or at least to the extent that, if he IIluSt give up the goods, he has the right to receive whatever Miller might have received. " After looking throngh the cases cited by the plaintiff, we still insist that the position originally taken by us is coneet, and is not rendered untenable by any reason given or authority cited by opposing counsel. Wesimplycontend that, this being an actIOn at law in replevin, there must be a complete restoration of all the plaintiff received, in order to maintain the action, and that where the original vendee has parted with all his rights for a valuable consldt'ration to a vendee innocent of any fraudulent purpose, such remote vendee has the right to have returned to him whatever plaintiff would have been obliged to return to his grantor. That there are exceptions to the rule requiring restoration of what has been received we but we have seen no authority which, in our jUdgment, leads to the conclusion that this case is such an exception. If Trentman acquired Miller's rights, we maintain that it is not competent for Miller's administrator to make any waiver that could affect the rights of Trentman." Counsel for plaintiff say, in substance: That in an action of replevin the court, though a court of law, "has power to modify or shape the jUdgment so as to meet the eqUities of the case." Dilworth v. McKelVY, 30 Mo. 152; lJoutell v. Warne, 62 Mo. 350; Jones v. Evans, Id. 382; White v. (}raves. 68 Mo. 222; Dougherty v. Cooper. 77 Mo. 535; Montieth v. P1'inting Co., 16 Mo. App. 453; Heaps v. Jones. 23 Mo. App. 621; Duval v. Mowry, 6 R. 1.479; Nichols v. Michael, 23 N. Y. 273. !::lee, also, Albright v. (}riJfin, 78 Ind. 182. That as against Trentman. or any transfelee of the goods after they had passed from the possession of the original p\lrchaser, a tender was not necessary. Stevens v. Austin, 1 Mete. 558; l'hayer v. Tumer, 8 Mete. 552; Tapley v. Forbes. 2 Allen, 23; Kinney v. Kieman, 49 N. Y. 176; l'own of Springport v· Bank, 84 N. Y.409; Ladd v. Moore, . 3i::landf. 5S9; Pea1'se v. 47 Barb. 276; Higham v. Harris. !OS Ind. 254, 8 ,N. E. Hep. 255; Higby v. Whittaker, 8 Ohio, 198: Frost v. Lowry. 15 Ohio, 200; Wamcr v. Vallily, 13 R. 1. 483. The mone>' is in the custody of the court, Rnd hefore it Cau be obtained the court must be convinced that the party claiming it is entitled to it. As decided in the case of Krippend01:fv. Hyde, 110 U. S. 276, 4 Sup. Ct. Rep. 27, the plaintiff might proceed by petition in the original action, or bring his hill on the eguity side of the court. But, whichever method is adopted, the result must be the same.
Morris, Newberger& Curtis, for plliintiff. Harrison, Miller Elam, for defendant Trentman.
WOODS, J., (after stating the facts as above.) The general rule is weH established that one who would disaffirm a contract must do so totally, and therefore must return whatever he had received upon it. But at the same time he is entitled to reclaim whatever he had parted with, and consequently his .tender or ofrer to return need not be absolute, but upon condition, either express or implied, that he shall receive back his own,
nonn part only, but entirelYiand if this <lll.nnot be done, or is refused, he may:Withhold the tender, and bring it'into court for final disposition, may require. And if he prevails in the action, but does not complete relief, it would seem that he ought to be made the money or property so tendered and brought into the controtoUhe'court. It would be a defecLive.8ystem of justice or procedure which; could not afford such .relief. Under the maxim that the law does not ,require a vain thing to be done, ate-nder before bringing suit will not be deemed necessary if the vendee has parted with the goods in whole Or in part, .or in any way l1as put it beyond his power to make restitution;and itwill be enough if the plaintiff bring into court whatever, if had been practicable, he would have been bound to surrender. But, as against a third party who has come into possession of the disputed property asa transferee of the original purchaser or wrongful taker; it seems to be well established by the authorities cited, and J, thi.n,k consistently with principle, that ,neither a tender before suit nor a bri,nginginto court is necessary. Of course a rescission is necessaryThe action, whether against ·the vendee or his transferee, is menoed and proceeds on that theory; but, the latter not being interested (aRthe'decisions show) in the subject of, tender, the mere bringing of the action against him is, as to him, a sufficient declaration of the plaintiff's election to rescind, without previous declaration or notice to that effect, If. previous demand for the .property may be necessary in order to put such transferee in the wrong. In Town of Springport v. Bank, 84 N. y, 403; the doctrine of the caSAS on'this point is stated in this way : "Eve'll hi' such cases (for rescission) a third party, whose title depends UPO;l a contractelaimed to have been rescinded, cannot set up a want of tender by the plaintiff to the original party of the return of what the plaintiff hadreeeived urider the original contract, For instance, when a sale of goods is rescinqed by the vendor on the ground of fraud, and he reclaims the goods from a tranf;lfereeof' his vendee, the transferee cannot defend on the ground that the seeu.ritles received by the yendor from the original vendee have not been tenderl'd back to him. Kinney v. Kiernan, 49 N. Y. 165, 172. In such a case the title to the securities reverts to the original vendee on the rescission, . but the rightto .insist upontheirretllm is his, and not that of his transferee 'of the goods.. Ste-vens v.Austin, 1 Mete. 558; Pearse v Pettis, 47 Barb. 276. " The question here, however, is not whether a tender was necessary, but,one having been made and kept good by the bringing of the mbney into court, wbat shall bedo'ne with the !)loney? The proposition that "Trentman acquired Miller's rights," Or Ii stands in Miller's shoes," in respect to the property in question, is manifestly not true in fact, because, of the goods sold by the plaintiff, Miller had disposed of two-fifths before the transfer to Trentman; and, besides, the evidence does not show whether the terms of the transfer we.re such, between themselves, as to give Trentman any cl\1,im to. stand in the place of Miller; and if the point were conceded; yet Trentman, not standing in the position of an innocent purchasl;'r,of the goods as against the plaintiff; cannot through Miller assert any right which Miller could ,not;. and with the proceeds, of plaintifrs goods in his possession to the value of $900, not paid for except
with this money, :Miller in. good conscience could assert no right, as his administrator has conceded, and ,as some of the cases cited show. See, especially, Pearse v. Pettis, supra. In the judgment of the court,. even without the consent of Miller's administrator, this money should be returned to the plaintiff; but with that consent, on the authorities, and, as it seems to me, upon principle, there can I;>e no doubt about it. So or' dered.
LEAVITT, Consul, 'II. UNITED STATES.
(Dilltrict Court, 8. D. New York.
March 29, 1888.)
CLAms AGAINST UNITED' STATES-ApPROPRIATIONS-AUTHORlTY OF EXECUTIVE DEPARTMENT-AcT OF MARCH S,1887.
Though an executive department has no authority to bind the in excess of appropriations, yet where" an appropriation has been made by congress for a general purpose contemplating a multitude of acts to be done by the department, its agency is general within those limits; and where per· sons act in good faith under orders of· the department, no excess of authority in giving orders above the prescribed limits will be presumed, and the burden of provi!lg" this ·defense ill upon the goverrimen t, when the facts are peculiarly within its power, and the creditor was not in circumstances to ascertain them. Thll,govern111Bllt having appropriated $10,000 to enable the state departII!ent to participate in the World's Industrial Expoaition, at New Orleans. the department sent to the petitioner. then consul at Nicaragua, a circular letter, "suggesting" that he procure certain characteristic articles as souvenirs of his consulate fbI' the exposition, referring to an appropriation by congress, and stating,that dependence should not be placed upon voluntary contributions. A few. accordingly purchased by the petitioner, and forwarded to the representative of the department, and accepted. A year and a .half afterwards, wh'en his bill was presented, he was told that the apPropriation was exhausted. Upon suit in this court under the provisions of the act of March 8, 1887, held, that the reasonable constru'ction of the drcular was a request or Order to procure the articles at the expense of the government.
Held, also, that there was no presumption that this order when made was an , illegal act, or in excess of the appropriation; that the consul was in nosituation to inquire into the extent of orders issued. by the department; and had then. and hl).s now, theright to rely on the presumed authority of the department' under tbeapPfopriation, until the contrary is proved. ' 4.SAyE. . The fact that the appropriation WitS found a year and a half after to be exhausted, is not such proof. The petitioner was therefore held entitled to judgment, as on an authorized and binding contract with the government. (SyUabu8 b1l the Court.)
SAME-DUTY OF CONSUL.
Consul's Claim for Reimbursement. Peters x Whittaker, for the petitioner. Stephen A. Walker, U. S. Dist. Atty., and Abram J. Rose, Asst. U. S. Diilt. Atty., fGf the United States. BROWN, J. On the 17th of August, 1887, Hnmphrey H. Leavitt, the petitioner above named, filed his petition in this court pursuant to the