Il11ls'v. Railroad Co., 33 Fed. Rep; 81; Short v. Rm'lway Co., 114; Malone v. Railroad OJ.,35 Fed. Rep. 625. It isconterided by the de-
fendants the defect, if any, in the petition and affidavit have been waived by the plaintiffs continuing the case one term in this court. But 1 think the question is more jurisdictional. No case for removal has been shown to exist, and the court cannot take jurisdiction by consent of parties. The action is remanded.
(Oireuit Court, W; D. Missouri,
D. November 3, 1888.
EQUITY-CANCELLATION Oll' INSTRUMENTS-INJUNCTION-BREAClI Oll' CON- , TRACT.
Complainant, representing the members of a company proposed to be organ" ized for the D;lanufacture of glucose, called on defendants for the seeing the process. Before he was permitted to see it, a contract was presented to him by defendants for signature, which he at first declined to sIgn. as it conte1Ilplated the erection of an establishment with a capacity of 2,IlOO, bushels, while his associates had spoken only of one with a capacity of .l,pOO bushels, and that he had no authority to sign for them; but signed it on being' told that he would not be personally bound by it, and that it was unde1!a rule adopted by dl'fe.qpants, that no one should see the process, unleS! a contract was signed, and with the understanQing that it was to be the basi? of a later contract between defendants and the proposed company Hela that; the scheme fallen through without fault of complainant, defendantlf would be enjoined from an attempted enforcement of the contract, and that its cancellation would be decreed. ' The fact that at the time the contract was signed complainant spoke of his ability to build a house with a capacity of 1.000 bushels, presents no excuse for a reformation of the contract in that respect, and its enforcement against complainant.
SAME-REFORMATION OF CONTRACT.
In Equity. , ' Bill by George P. Olmstead against Jacob Michels to enjoin the prosecution of an action for breach of a written contract, and for cancellation of the contract. Peak, Yeager &: Ball, for complainant. a. O. 'Pichenor, for defendant. Before BREWER and PHILIPS, JJ. BREWER, J. Defendant commenced an action at law to recover dam· ages for the breach of a writtel1 contract. 1 Complainant filed thi$bill to of that action,and compel the cancellation of such enjoin the contract. A brief statement of the grounds of decision is here The written contract is perfect in form, and signed by the parties. One ground upon which the complainant rests his bill is this: That this writing signed by the parties, and apparently a contract between them,
"Michels v. Olmstead, 14 Fed. Rep. 211l.
was not intended as a contract, and was understood by neither of them to be binding. That parol testimony is competent to show that that which appears as a perfect written contract was not signed by the parties with· the intention of making a contract, and that no binding obligation was assumed by either, is we think unquestioned. A familiar illustration is this: Suppose a gathering of young people in which a moot court is pTO-· posed for the amusement of those present, and a suit for breach of.promise of marriage is the case to be tried in such moot court, and a young man and a young woman, for the purposes of such trial, sign what upon its face appears to be a contract to marry. Would it for a moment be doubted if, after the evening's amusement was ended, she should bring suit for damages for breach of such marriage contract, that parol testimony was competent to show the purposes for which the paper was signedLand that no real or binding obligations were assumed by either party in signing it. This, which is an extreme case, illustrates the prin'ciple upon which complainant rests, and we think the testimony shows that this case falls within that principle. 'The facts, in a general way, were these: One Harris came from Detroit as a :representative of defendant and two partners, to work up a comhere for the manufacture of glucose by the dry process. After some negotiations, several gentlemen, complainant among the number, hecame interested, and talked of organizing a corporation for the purpose of putting up a building and engaging in such manufacture. Before any definite plans were matured, it was agreed that complainant should go to netroit, and see the process. In pursuance thereof, he went with Mr. Harris, and there met the defendant al}d his partners. The talk here among the parties proposing to enter into the organization was the ing of a·1 ,000.bushel house. After complainantreached Detroit, he was' there three days without an opportunity to see the process. Talk was going on during these days between the parties, they suggesting theexpediency of a 2,000-bushel house. Finally he expressed a desire to see the process before returning home. Then this written contract was produced by OIwof the three partners, and it was stated that they .had upon ll: rule that no one should see the process unless a contract, was first executed. He declined to 8ign it; in substance saying that the. parties who he represented never talked of a 2,OOO-bushel house, and that he had no authority to sign for them. He was told that he was not to be bound personally by it, but that the signature was necessary to comply with their rules; and probably, from the talk, this contract, thus signed by him, was understood to be the basis of a contract to be there'fiter entered into between the three partners and the company to be f,ormed in this place. With that understanding he signed the paper, saw process, (lnd came home and reported. Thereafter this defendant came on for the purpose of assisting in the organization of the proposed but the scheme fell through, and that 110t through any fault oUhe complainant. Of the four parties who were present at the time thIs paper was signed, complainant and defendant being among the number, all agree that the contract as it sta.nds was not to be binding upon
FELIX V. PATRICK.
the complainant. The defendant, and perhaps one witness, insist that complainant stated his ability to build a house, even if his /tssociates failed to enter into the scheme, and insist that complainant was to be bound by this contract for a l,OOO-bushel house. Inasmuch as all who were present, the complainant and the defendant among the number, agree that this contract, as it stands, was not to be binding, it is very obvious that the defendant ought not to be permitted to enforce it. It was not signed as and for a contract, but signed simply as an excuse, and to comply with the rule of defendant and his partners in respect to the disr.losure of the process, and probably also as the basis oia contract to be thereafter entered into between the defendant and the proposed company. Neither can there be, as defendant suggests, a reformation of the contract. Both parties knew what they were signing,-knew what the language of the instrument was. There was no mistake or misunderstanding in this respect; and whatever may be the truth as to the parol under.. standing in reference to the building of a 1,OOO-bushel house, it is not true that this contract by mistake was written for a 2,OOO-bushel house, instea0 of a 1,OOO-bushel house. Hence there is no excuse for the reformationofthis contract. It must stand or fall as it is written; and, as .all the parties agree that as written it was not to be binding as a personal contract, we think the complainant is entitled to a decree cancellingtba instrument, and enjoining the action at law; and it is so ordered.
J. t concurs.
et al. v.
(Oirc'Uit Oourt, D. Nebraska.
October 29, 1888.)
Some half-breed scrip for government land, a blank power of attorney fin its location and conveyance, and a blank quitclaim deed, were obtained from the owner by fraud, and came into the hands of defendant. who used the scrip to obtain a patent to land of which he was in possession. The pate:yt was taken in the name of the owner of the scrip, which was not transferable, and the blank instruments were filled out, conveying the land to defendant. At that time the land was only of nominal value, but it afterwards very valuable. Held that. the acts of defendant being in violation of the original owner's rights, there was no express relation of trust. and that the owner and her heirs, having contributed nothing to increase the value of the limed. and having delayed to bring the action to declare the defendant trustee and to cancel the conveyances till after the period of limitation, were precluded by their l a c h e s . '
LIMITATION ·OF ACTIONS-EXCEPTIONS-INDIANS.
Under the Nebraska bill of ri/?bts, § 33, providing that .8111 courts shall be open. and every person, for any mjury done him in his lands. goods, person. or reputation. shall have a remedy, and under Rev. St. U. S. relating to actions between an Indian and a white man. about a right 01 property.. an:Irl· dian may come into the courts and litigate his title to land. and. where he is Dot shown to pe 'uneducated or unfamiliar with the laws, the statute of limitations willl'un against h i m . '