accounts against the government, a rejection of an account by him is, in contemplation of said pJ.'Qviso"a rejection by a department authorized to hear and determine the same. It being conceded at the hearing that so much of the plaintiff's claim as precedes the 3d day of March, 1887, was prestmted to and rejeGtedby .said comptroller, it follows this court has no jurisdiction "to hear and determine the same." evidence that.since the 3d day ofMarch; 1887, The court finds from to the 22d :day of1\1:ay, f88.8, the plaintiff,.under appointment by the courts, basrendere<f service as fluch crier for 88 days. The only remaining question; therefore, to be determined is, whether or not the lawentitles the plaintiff to compensationforsuch services. I think this ques'tionja fullyanswCiJred by the supreme court in U. S. v. Saunder8, 120 U. S.126,7 Sup. Ot.Rep. 467,. in which it is held that a person who holds two distihct';compatiDle offices or positions of employment, and performs the duties of each, may lawfully receive the salary of each. If there, be n,o inc.oIPpatibility betw!len the respective duties of the two 9ffi<;leS or employments, and the functions of each are separate and distinct, he is en- , titled to recover two compensations. The evid!lnce iIJ. this ,case shows, what the observation of the court !JonfirmlJ, that 'the two. duties of messenger and crier, performed by the plaintiff, are not only compatible, but, alth6Ugh'perfollll1ed contemporaneously, were distinct in. their character, and,devolved :UPQllc the plaintiff a work. His duties. for instance, as :laessengerof the court, attached and were performed on the same day, priOllto the sitting ,ofthe.court, often during its sitting, as also during' the noon recess of the court,and 'for the residue of the day after the adjournment of the sitting of the court, The one duty Wlj,8 in nowise connected with or in continuation of the other. No reason is therefore ap.parent wh.Y'the plaintiff'should not receive. the compensation allowed by law for the performanoeof this double semce, when there was no con- ' flict of'duty, nor any incompatibility between the office of crier and the employment of messenger. ,By section 715, Rev. St., U. S., such crier is allowed the sum of $2 per day. ' The court therefore finds that the plaintiff is entitled to recover for:the period of 88 days between the 3d day. of March, 188'1, and the 23d day of May, 1888, 82 per day, making in'the aggregate 8176. Judgment accordingly·
(tlWeuit Oowrt. lY. IJ; Miohigan, 8. D. January 29,1889.)
1, :Sn:CIII'IO ,PERFORM,ANCE-FltAtmUIiicNT
.. ,: Upon a .p,ill th!3 .speci:tlc pefformp,llce,ofa contracqo erect for defend· >' ants a creamery buildmg, and fl,lrUish creamery supplIes, it appeared that complainantll had represented that·'an association, which was the largest sub· .:. t.o ,the to:be organiz",dby defendanwfor carrying on. the buslDess, was an independent corporation, doing business with a largenumber; of creameries; and 'furnishing special facilities for handlin'g and marketing creamery products, through which defendants would obtain an advanced price ;
fol' ,thelrproductsj .w:hlle.W \'I'll.!! in. fact ftttI1 name, and: dId not. ail, ·,HeJKj, that, thlMonvaot would not be enforced. ," '.', " t.SAME. ' ,!. , It'appeared 8180 that the representation thatdeferl:dants were to ,have the sole rights t,o 8 l8rgeterritory their creamery wasfalse"in;thllt pomplain,antB had sold a large part of Hte ,1l,eld. , cific performanCe ,woum be refused. though complaInants tendered aJla881gnment of these rights by their grantees, there having tieen much delay-on coni. plainants' part, ill finishing the building, and the buUding8s tendered, beillg in, many respects defective and incomplete· . 8. EQ:01:TY-RESCISBION OF' CONTRACT-LACHES. ", ' The defendan ta having failed to elect to rescind the contract for fraud uni til tile, tiling of their answer and crOlla-bill, their prAyer for rescisSioD mu.st'be refused. l " ,
In Equity. On pleadings and proof. Trtggart, Walcott & Ganson, for complainants. H. D. Smith and M. L. HoweU, for defendants.
J., This cause was heard upon'pleadings and ptoofs, and was quite fully and elaborately argued., The bill alleges, substantially, that j)avis and Rankin, the complainants, 'having for sometime prior to thEltransaction in as :a firm, under the style. of Davis .& Rankin, in the business of furnishing .creamery supplies and erecting creamery buildings in various parts of the country, and having their bead-qulj.rters at Chicago, entered into a written contract, on or about the 17th day of December, 1885, with the defendants, who. were farmers,or were to some extent engaged in that'business, at and.near Cassopolis, in Michigan, whereby the complainants agreed that upon the terms .stated therein they would construct a creamery building, at Casjor the .other parties to the contract, to be compltltedby the 1st day,of April following, and to copform to the speciticationswhich are set the contract with particularity. They were also to furnish the same parties with certain creamery supplies, some of which were patented, and ,in(l1uding an eJ;)gine and other machinery and tools adapted to operatingthe creamery. The complainants also stipulatedthatthey would hire at. the defendants' expense a competent butter-maker, and 'Would superintend .the busil1ess of the creamery for one year, and wonId aid the second parties in the development ofroutes and territory, etc. They further agreed that the territory of the Cassopolis creamery should ex· tend to it and other creameries lished,-presumablyhaving reference mainly to the use of their patented cans, in which. the milk is stored and delivered by the patro,ns of creameries,-and that no other creamery should county. It was also provided that the second parties might become it corpc,>ration, taking stock according to the amount of their, several sub,.
. 1 The right todissfllrm a contract for fraud must be discov. eringthe facts constituting th.e fraud. Dennis v.. Jones1.<N J.. )l4 Xtl. Rep.D1S; B.ell .· v. Keepers (Kan.) 17 Pac. Rep. 785; Young v. Arutze, (4.l8.) 5 South. Rep. 253; Whitworth v.1'homas,.(Ala.) S South. Rep. 781, and note. On the general subject of.the rescission of controots on the ground O.f fraud,and the nece.SSit. of Oft.en.n.gto ll.lace the · other party in statu. quo, see Grayv. Bowman, (N. J.) 14 AtL an4 note; Gri4'ley v. Tobacco Co., (Mich.) 39 N. W;·Rep. 754, and nOte.· , .
8CriptiOtuJ. The parties of the second part consisted of a large number of subscribers,whose Dames are appended to the contract in a list, with the number of shares at $25 each set opposite their names, as if scribing for corporate stock. It was stipulated in the contract that the complainants were to be paid the sum of $5,000 when the creamery should be c()ll1pleted, and this is the total amount of the sums set posite the names of the parties of the second part. The first name upon the list of the parties of the second part was that of the "Chicago Creamery Association, 40 shares, $1,000;" and this association, it is alleged ip the bill. was identical with Davis & Rankin, and was a mere trade· name or title which they had appropriated to themselves. The other subscribers were the present defendants. The complainants executed the contract in their firm name of Davis & Rankin. The bill alleges that complainants completed the building within the stipulated time, and prays for a specific performance of their part of the agreement by the defendants. The defendants answered, and filed a cross-bill, in 'which they alleged that they were induced to enter into the contract by misrepresentation of certain matters essential to it by the agent of the complainants, conducting tbis business for the firm. Several misrepresentationsare complained of, the principal being the statement of the agent that the Chicago Creamery Association was a distinct corporation organized under the laws of Illinois, and having an intimate business relation with a great number of creameries in the for whom it operated at Chicago in providing a market for their products, furnishing special facilities for handling the product to the very best'advantage to the different creameries, whereby the latter realized several cents per -pound for their butter more than could be got without the aid of such , association, and the further statement by him that all the territory equidistant from Cassopolis to the other creameries established by the complainants, and using their patented utensils, was unoccupied and unsold, ,so that the Cassopolis creamery could have tributary to it, and within which it cauld gather custom, the whole field half way to the other creameries. Respecting the first of the above points, the defendants say that the Chicago Creamery Association was a myth, put forward as a and was in fact nothing else than Davis & Rankin in disguise, and that the defendants did not know this. Respecting the second, they -allege that nearly the whole territory contiguous to Cassopolis had been appropriated and sold by Davis & Rankin to a creamery at South Bend, ;before the making of the contract in question. Other matters are set up 'as misrepresentations,bntma;ny of them are merely in the nature of promises of what the complainants were going to do, or statements of exalted coloring about the advantages of such creameries, too effusive to detleive men of reasonable prudence and the measure of discernment have pqssessedj and as those matters are which. not materialto the grounds. of the decision, they will not be further attended to. The crqss·bil). prays for cancellation of the contract. The defendants' answer denies that the complainants have completed the building, and they particulars in which it is incomplete,
DAVIS fl. BEAD.
and is insufficient to meet the contract. The complainants answer and deny the affirmative allegations of the cross-bill. . The record is voluminous, and the testimony fills an immense space; but there are certain quite prominent features upon the facts which make it unnecessary to go into detail, and which, in the opinion of the court, must be regarded as controlling. The question whether the bill states a case for equity jurisdiction is one upon which I should have had great doubt if it had been presented; but as no objection has been made upon that ground, and both parties desire a determination here, and as there is a possibility that on account of the circumstance that complainants are parties of both parts in the contract they might be embarrassed in an action at law, I have, with some misgiving, concluded to allow that ground to be waived. The conclusion offact which I have reached upon the evidence is that the complainants' agent did induce the defendants to believe that the Chicago Creamery Association was a distinct cern, having an interest in the business of creameries, and special faoill. ities for marketing butter which would be of material advantage to the defendants. In the printed caption to the contract Davis & Rankin describe themselves as "General Managers" of the "Chicago Creamery Ailsooiation,"-a description well calculated to produce the belief and understanding that it was a separate concern, whose interests they were in duty bound to observe and promote, and that interest was by the express temlS of the contract made identical with that of the defendants. The complainants now say, in effect. that as Davis & Rankin were themselves the creamery association, they would have an equal motive in promoting the objects of the Cassopolis creamery to that which they could have all managers of the creamery association, and that thus the device was harmless to the defendants. But it also appears as a fact that Davis & Rankin did not handle the products of creameries at all, but that their business was the erection of creamery buildings, and the furnishing of machinery and supplies therefor. They took stock in some ofthe cream.l eries they established, but it is evident that they did this only when they found it expedient in inducing the establishment of creameries which would furnish a local market for the sale of their utensils. It is thus manifest ·that the facts in regard to the character of the "Chicago eryAssociation" and its facilities and business were not as represented, and that this representation was quite likely to have had a material influence in leading the defendants to the contract. Indeed, the conduct of the complainants in so industriously presenting it indicates clearly enough that they understood the probable effect of such a scheme. It is the doctrine of the court that it will not enforce specific performance of a contract into which the defendant has been led by unfair inducement 01' covert enterprise on the part of the complainant by which the other party has been misled in regard to any matter material to the value of the contract. Buxton v. Lister, 3 Atk. 386; Walpole v. (}rjord, 3 Ves. 420; Bey1IWurv. Delancy, 3 Cow. 445; Modisett v. John8on, 2 Blackf. 431; Fry; Spec. Perf. &§ 283, 234, 425; Ruat v. (Jom'ad, 47 Mich. 449. 4M, 11N.· W. Rep.· 265. . ·
doubt that the complainants had, prior to the making of this contract, appropriated a, la;rge proportion of the territory about Cassopolis,and sold therigptto use their patented therein to the .South Bend Creamery. At the hearing the complainants tendered Rl) assignment from the South Creamery to the defendants, which was not accepted. This would probably enable them to surmount this difficulty, subject to their being required to pay the costs, if it did not appear that the other conditions had changed in any material particular. Flu,dyer v. Cocker, 12 Ves. 25; ¥0rri8 v.Hoyt, 11 Mich. 8; Stevenson v. Maxwell, 2 N. Y. 415. But the defendants have lost three seasons .of the use of the building, and the inauguration of the enterprise has been so long delayed that its advantages may be to many of them substantially gone. The building, from being left in the condition in which it was, has suffered material dilapidation.· It is without doubt the doctrine of the court that it will not regard time as material when it is obvious that by reason of it the situation of the parties and the subject-matter has.not substantially changed, so that all ,the substantial advantages of the bargain. are Yet obtainable through its performance. Parkin v. Thorold, 16 Beav. 59; Richnwnd v. Robinson, 12 193; Hearne v. Tenant, 13 Ves. 287. On the other hand, it is certain that the .court will not enforce specific performance when it is clear, or when there is good reason to believe, that material circumstances are so changed that the full benefit of the bargain will not be realized by the defendant, if enforced, and he has not by his fault caused or contributed to the delay. Fry, SpAC. Perf. § 715; Smith v. Lawrence, 15 Mich. 499; Gram v. Wasey, 45 Mich. 223,7 N. W. Rep. 84,762; Milward v. Earl Thanet, 5 Ves. 720, n. Besides, it cannot fairly be said, upon the evidence, that the building, which in April, 1886, the complainants tendered to the other parties as completed, and for which they demanded payment, was a just and fair fulfillment of the contract. It is admitted by the complainants that there were some defects in the work which should have been remedied, 1;>ut it is claimed that they were .not intentionally left, are unimportant, and can be allowed for by way of compensation in framing the decree. . .I am not satisfied, however, that these defects are of so trifling a nature that they can he passed by, and a performance be compelled on the part of defendants of a contract in which performance was not due until it was earned by the complainants. On the contrary, the evidence leaves a strong impression on my mind that the building which they constructed was a cheap and scanty performance of their undertaking to do the work ".in a substantial and workman-like manner." The sills and walls were light. The latter were to be built with three air chambers. These were constl,'ucted bynaHing building paper on the outside and inside, horizontally, oUour-inch studs, with strips outside of the paper, and the siding and ceiling nailed .to th.e strips. There was nothing to keep the edges of the strips of paper together between the studs, and the whole wall was thus .brought to a thickness of seven inches, while the specifications seem, t9 show. that the parties a wall a foot thick; though it was not, as I think, expressly contracted that it should be so. The
contract provided that Davis & Rankin should provide the building with their "system of drainage," which was explained by their agent to mean something superior to the ordinary, and peculiar to the complainants' structures. As completed, the water drainage is little else than a gutter, and a hole made in the ground a few feet outside of the building. The refrigerator room was to be constructed on the plan of the "New York Cold Storage Room." What was built was a simple compartment, constructed so as to project from the working room into the ice room, the ice being filled in over and around the refrigerator, except at the entrance end. The latter had no ventilation, the only opening being the door by which it was entered from the work room. The special characteristics of the "New Yprk Cold Storage Room" do not appear to have been very clearly explained by the complainants' agent, but he created theimpression upon the defendants that it was peculiar in structure, was built upon that were patented, and was a very desirable thing to have in a creamery, and of somewhat expensive make. There were other particulars in which the building failed to satisfy the contract, which I shall not f!top to enumerate. The short and feeble performance of the undertaking, so far as the building was concerned, was such that it would not be equitable to compel the defendants to take it. While a court of equity ,will not allow an unimportant defect which ,has occurred without intention, and can be compensated for in damages, to stand in the way of compelling specific perfo:rmance of a contract where there is no other objection, (Winne v. Reynolds, 6 Paige, 407; Will. Eq. Jur. 290; Henry v. Graddy, 5 B. Mon. 450; Fry, Spee. Perf. § 791,) still.it will not compel a party to perform a contract which has not been, substantially performed on the other side. Certainly this must be so when by the very terms of the contract the performance by the one is made the condition of the performance sought to be compelled. Fry, Spec. Perf. § 797; Bimmonsv. Hill, 4 Har. & McH. 252; Marble Co. v. Ripley, 10 Wall. 339, 357, 358. Applying these principles to the facts of thtl present case, it is clear that the bill cannot be sustained, and it must therefore be dismissed. Other considerations apply to the cross-bill. The purpose of that bill is the rescission and cancellation of the contract; and the ground for that relief. consists in the misrepresentations by the agent of the complainants in respect of material facts which were part of the inducement to the contract. Upon the facts disclosed by the evidence, I should be disposed to think that if there had been reasonable promptness and dilgence in repudiating the bargain when the falsitJof the representations was known; or should, with reasonable attention, have been known, many of the defendants were so far victims of imposition that they had an equity for rescission. It is clear enough from the evidence that the representations affected the different parties in a different way. Some appear t<;l have been more completely misled than others.. Some attached greater importance to the ,matters represented than others. There are· difficulties in applying the rem!'1dy for rescission in cases where some of the parties on, one side ofa:c<mtract are in a situation entitling them. on
their own account, and some are not; for if the contract is rescinded in part it must be in toto, and it is not difficult to see that such relief might thus in great measure miscarry under such conditions. Fry, Spec. Perf. § 696, and cases in notes. And there is a wide difference in the degree of merit which will enable a party to resist specific performance of a contract, and that which will entitle him to have it rescinded; and the attitude of the court towards the prayer for relief in such cases is for that reason not at all the same. Fry, Spec. Perf. § 233; Willanv. Willan, 16 Ves. 83; Savage v. BrocksO'pp, 18 Ves. 335; St. John v. Benedict, 6 Johns. eh. 111. But the defendants are not, for another reason already iudioated, entitled to a decree for rescission. The rule is that a party who seeks to rescind his contract on the ground that it was induced by the fraud of the other should take prompt action in repudiating the contract when the fraud is discovered, and should notify him of his purpose to disavow and disown it. Grymes v. Sanders, 93 U. S. 55; Ayres v. MitcheU,3 Smedes & M. 683; Lawrencev. Dale, 3 Johns. eh. 23; McKay v. Carrington, 1 McLean, 50. In the present case, while there is ample evidence tbat the defendants complained about the structure of the building almost from the laying of the foundations, there is no evidence sufficiently showing that they elected to rescind for fraud in the other party, and gave notice of such election. Indeed, there is nothing in the case, as it has been laid before me, to indicate that any claim for rescission was distinctly ll!ade until the filing of the answer and cross-bill. It follows that the cross-bill must also be dismissed. The defendants will recover costs in the main case, and the complainants should have costs in the suit upon the cross-bill. .
SMITH 11. GREEN
February 6, 1889.)
(Oirctlie OOU'1't, D. Minnesota.
To a bill for the cancellation of a quitclaim deed from complainant to defendant G., P. and J. were made parties defendant, the bill that they and each of them had made fraudulent representations for the purpose of procuring the execution of the deed. and a general confederating clause waS inserted. There was no averment that P. and J., or either of them, were agents or attorneys for G., or that G. held the title in whole or in part for their benefit. or that they had or expected any interest in the land conveyed; and no relief was prayed for as agalDst them. Held. that they.could not be required to answer.
In Equity. On demurrer to bill. Tbe bill of complaint states that from July 23, 1858, to June, 1886, the complainant was the owner of an indefeasible estate of inheritance in ·and to lot No.4 of the S. W. ! of section 28 of township 29 of range 24, containing 67.25 acres of land, situated in Hennepin county, in the state Of'Minnesota,and subject to a mortgage to the defendant John Green to