sidered together; and depend on the final decr.ee, which m1.1st df'plmd upon and of both parties, then itcllnnot beremovedwhe,re oneal the pl;lrties is a: citizen of thl! same state with the. plaintiff or This case was taken to the supreme court of 'the United States, and affirmed,inH4,U; S. 60,5 Ct. Rep. 738. So it is clear that this is a ease whieh. cannot be r.emoved into this c,ourt.' And although the casehas;beenhere a long time, and although ce,rtain prcliminary proceedings have been had in this court, the righttocballenge tion"and insist upon a remanoing of the case, is not waived. Of oourse. where there are mere defects in the proceedings for removal, such defects can be,,,,,aivedj but where the question is one of jurisdiction and as to the right qf removal, mere delay 61' action on preliminary matters do not to insist. upon the matter of jurisdiction. The motion to WIll sustained.
RUSHTON "'. THOMPSON
(Oircuit Oourt, D. Nebraska. June 80,1888.)
8PEOIFIO PERFORMANOE-CONTRACTS ENFORCEABLE-MISTAKE.
, ;Plaintiff made an offer to defendant's agent, with power to selt for cash, to buy land at a certain price, part cash. and the balance in short payments, on the makingofa perfect title., The agent telegraphed the offer to the owner, without stating as to title, and he replied. acceptmg it. The land was at the time leased for a year, and the owner had no patent therefor, but only a final receiver's certificate. having taken it up under the timber culture act, all of whi$;Was .known to defendant's agent. Plaintiff refused to accept the title, but tendered the cash payment according to his offer, and on its refusal deposited it in bank. Defendant's ageut also tendered back to plaintiff the check he had deposited as a forfeit when making his offer. and told him he need not take the land. Held, that there was an evident misunderstanding as to title. aild that the contract should equitably have been abandoned when it was first discovered; and the,fact of plaintiff's deposit in bank. and loss of the use of the money. does not ilJcrease his equities. and as the issue of the patent is indefinite. and greater loss and inconvenience would result to defendant from enforcing the contract than to plaintiff by its abandonment, specific performance will not be deCreed.! .
In Equity. Bill for specific performance. Batty &- <Jasto and Robert Ryan, for plaintiff. J. M. Ragan, and J. M. Woolworth, for defendants.
BREWER, J. This is a bill filed by the plaintiff to enforce the specific performance of a contract forthe sale of real estate. The facts are these: Defendant Edward Thompson in the summer of 1886 made final proof in the United States land-office, under the timber culture act, and rer.eived a final receiver's receipt. Thereafter he removed to California. One
lSPeotiio. performance of.a oontract will not be decreed, when for any reason. it would .be iIlequitable.See Eaton v. Eaton, (N. H.) 14 At!. Rep. 86'1', and cases cited in note;
flyare v. StUbbs, (Ala.) 4 South, Rep. 755, and note.
. J'EDERAL REPORTER.
GeorgeF. Work, who resided in Hastings, was a real-estate broker, and was familiar with Thompson's property and title. Shortly after moving to California, Thompson, concluding to make some investments there, wrote to Work to sell the land for $10,000 cash. Work was a member of the firm of Dugan & Work, the firm consisting of George F. Work. A. L. Work, and Dugan, though this fact was unknown to defendant. On January 13, 1887, plaintiff submitted to Dugan & Work a proposition for the purchase of this land, as follows: "I will give Edward Thompson for the north-west quarter of section 147-10, Adams county, Neb., 10,000 dollars as follows. $2,500.00 on making of papers; $2.500.00 in 00 days from that date; $5.000.00 in 90 days from that date. and the making of a perfect title by the owner. If these conditions are performed by the' owner. and I fail to take the land. the $200.00 this day deposited shall be forfeited and paid to the owner of the land, or his order. [Signed] "J. H.l:;'uSHTON." Immediately a telegram was sent to defendant in these words: ..Edward Thompson. Los Angeles, Gal. Am offered ten thollsand dollars for farm; twenty-five hundred cash, twenty-five hundred in sixty days. five thousand in ninety days. Shall we sell? Answer. [Signed] "GEORGE F. WORK. Per D." To which he replied as follows: "JANUARY 13. 1887. Dated. Los Angeles, Cat, 13. To George F. Work; Gity: All right. Draw papers, and send me immediately for signature. . [Signed] "EDWARD THOMPSON." A deed was prepared with full covenants of warranty, and forwarded to the defendant for execution, and returned by him immediately to George F. Work, together with the receiver's final receipt, and a lease, which he had ,given on the land for a year, duly' assigned. On the receipt of these papers the plaintiff called at theoffic;e of Dugan & W;ork, and, findin'gthat no patent had issued, and that the only title held by the defendant WIlS th'at evidenced by the receipt, and also the of this lease for a year, declined to complete his purchase unless ,the title was perfected by the patent anp by the removal of the leasehold interest. maqe a tender of the $2,300 necessary to complete the first payment, as well as the notes and mortgage to secure the balance, and demanded full performance of the contract. On the other hand, Dugan & Work, finding that the plaintiff was unwilling to accept title as it stood and complete his payment, tendered back the check which had been left with them; and demanded a return of' the receipt which they had given. It appears also that the defendant's object in selling was to realize some money to complete a proposed purchase of property in'California, and therefore cash,or its equivalent, was a matter of urgency with him. Also that the plaintiff was offered, in the letter announcing the arrivaLof the papers, $12,000 for the land, and told that the" boom" was still on. It '8eems to be assumed by plaintiff that, if a valid and binding contract was created between himself and defendant, equity will, as a matterofcou.rse, decree a specific performance; but this is far from true. 'fhe law will always award damages for breach of a coritract, and
RUSHTON t1. THOMPSON.
that, generally ,in transactions concerning personal property, is the only remedy afforded. Equity will take hold of contracts for the sale of real property, and will enforce them specifically, but only when, under all the circumstances of the case, and considering the relative situation of the parties, it is equitable that it should do so. Now, this defendant had given no authority to anyone but George F. Work. George F. Work knew the exact state of his title, and he had a right to presume, when notified by the telegram of the offer made, that it contemplated tbe purchase of the land under the title, and in accordance with the title that he held. He had had dealings with the land department at Washingtontheretofore; knew that often there was delay in the issue of a patent; and, urgent for money, it is not to be supposed that he would prove a contract of sale with the idea that that contract was to remain unperformed for an indefinite time in the future, and to be dependent upon the perhaps distant issue of the patent. There was an obvious misunderstanding between the parties. He promptly offered to surrender everything that he had from the plaintiff; told him that he need not take the property. It may be true, as plaintiff says, that the misunderstanding was wholly on the other side,-a matter between the defendant .and his agent. It may be true that the contract was yalid and bin,ding; that the law presumes, in the absence of stipulations to the contrary, that a perfect title is intended: and that the defendant was charged with notice; and especially that when the warranty deed was sent to hini for execution he was bound to know that a perfect and legal title was intended to be conveyed. But notwithstanding all this, the fact remains that there was a misunderstanding by the defendant in respect to the matter; and to' enforce a specific performance umler these might carry out the strict rules of the law, but would not be responsive to the dictates of equity. It would enforce the letter, but it would sacrifief the spirit. It is well to look a little further into the equities of these to determine their real equities we must have to the situation as it was when the lack of a patent was first by the plaintiff, and before he made the tender. What would either party have suffered, if the contract had been then abandoned? It is needless to inquire as to the present situation, for if it was inequitable to insist upon the contract at the very moment that the misunderstanding was discovered,then the pl!l,intiff cannot increase his equities by doing an inequitable thing. If, at the time of the discovery of this misunderstanding, he ought equitably to have abandoned the whole matter, it will not do for him now to say that he then placed money in the bank, and has consequently lost the benefit of that money ever since. NoW, at the time plaintiff had paid nothing. True, he had given his check for $200, but not a dollar had beep. drawn upon it. If, in the absence of testimony to the contrary, it .niay be presumed that he left the money in the bank, which otherwise he might have withdrawn and used, then all that he had lost was the use of that $200 for the two or three weeks pending the negotiations. On the other hand, the defendant. if held to his contract specifically, would find (as he has found) his property tied
'688 up for'intintnsr possibly lose hiedhyestrnent 'inCalifo'rnia, and forego the chances'ofa'sale to som'e 'other party, whCl might not be so particular -about the legllltitie.Certairily the injury to thedefendant by insisting upon the contract was vastly morethau the loss to the plaintiff by its abandonment., And again, defendant haanot yet received his patent; nevertheless,.pl:airitiff is asking a decree for a specific performance. In -other words, 'he 'is ,ltsking this court to compel a conveyance of the very titlewhich,"wheil' offered, he declined to receive. True, he asks that thiscQutt't'El'tain: jutisdietioliof the case' and of the defendant until such time as tlie pateht shall' be issued, and that in the mean time, he himself be relieved from the obligatibnto paYi in fact, the bill has a twofold aspect,---"ooo petforrnance by defendant, and the other to delay paiytilet1t,"by the plaintiff. ' 'Again,as a general rule it may be observed,in eases,iof this kind, a leading inquiry is as to who is seeking to avoid the eontiMt. It may happen that a vendor under such a contract, 'seeihg a chance to realize more on another sale, or believing in the rapid Increase of' value, seeks some technical excuse to avoid complying with his contract. When that is apparent. and the purchaser has acted in good faith, the colitt will readily' enforce specific performance. It will punish the wrdng:.d.oeorby compelling 'him to do that which he agreed to db· .on theotber hllnd, when the; vendor is acting in good faith, is ready to perform that which he understood he had agreed to perform, to transfer 'all the title that he has, aind the purchaser is the one who is making ex'cuses; and 'seeks without present payment to hold hill claim upon the property, then the courts will be very apt to say to him to pursue his 'remedy by an action at law, and let go his hold upon the property. Fil1:a11y, itmny be observed that in matters of this kind courts not merely observ;e the words of the contract, but also have respect to the obligations of the' golden rule, and that, unless a plaintiff has done as he would be done by, it is useless for him to come into that forum where equity and good conscience reign supreme over the letter of the law. A decree will be entered dismissing the bill.
SWANSON 'D. CltICAGO, ST.
P. & K.
(Circuit Oourt, D. Minnesota. June 28. 1888.)
ATrORNEY AND CLIENT - COMPENSATION RIGHT TO PROSECUTE SUIT.
COMPROMISE WITHOUT PADlBNT-
Where plaintiff in an action for personal injuries voluntarily proposes a compromise. which is accepted, and there is to show that it was collusive as to plaintiff's attorneys, who had no knowledge of it, a motion by the attorneys for leave to prosecutenotwithstanding the settlement will be denied.
On Motion. Arctander & Arctander, for plaintiff. Lusk& Bunn, for defendant.