(Oircuit Oourt, E. D. Pennsylvania.
June 28, 1889.)
Plaintiff had filed an amendmen', to his bill. after the expiration of the patent Rued on, new causes of action, and moved to extcnd the time for taking He had allowed three years to elapse in total ,nactiv:ty on account of the alleged unsettled state of the law. H6Id, the delay not being sufficiently excused, the amendment will be stricken off and tile motiun dismisseH.
In Equity. Motion to strike off amendment, and to extend time for taking testimony. Church & Church, for complainant. W. G. King, fUl defendant.
BUTLER, J. The amendment was filed without hearing, subject to a motion to strike off. The patent had expired. New causes of action are embodied in the amendment. If suit were brought upon them it could not be sustained. The expiration of the patent terminated the right to sue here. Whether we could obtain jurisdiction by their introduction into the pcnding suit is open to doubt. The question, however, need not be decided. An examination of the record has satisfied me that if the court may allow such introduction it would be an unwise exercise of its discretion to do so. The suit was comnlenced in the summer of 1886, and nothing whatever has been done to prepare it for trial. The complainant's recent affidavit does not show a sufticient excuse for this delay. The supposed unsettled state of the law did not constitute a reason for total inaction during aU this time. If complaimmt did not believe he had a cause of suit which could be sustained, he should not have sued. If he 6:d so believe, he should at least have prepared for trial. The suit is virtually dead, and might be stricken off for want of prosecution. We should not, therefore, breathe new life int.) it by extending the time to take testimony, and allowing the amendment, thus depriving the respondent of the opportunity to try before a jury, which now seeems to be his right as respects the new camles of action, and virtually as respects the old. The amendment mnst be stricken off, and the motion to extend be di,,;allowed.
WHEELER 11. NORTHWESTERN SLEIGH CO.
NORTHWESTERN SLEIGH CO.
(Circuit Court, E. D. Wiscons'in. August 5,1889.)
When" corporation declares a dividend. the earnings represented by the dividend are no longer represented by the stock. but become a debt due to the owner of the stock at the time of the declaration, and this right of the stockholder does not pass by a transfer of the stock. in the absence of aspecial agreement. That the dividend is payable at a future date does not affect the stockholde,r's right.
PRINCIPAL AND AGENT-AUTHORITy-LIABILITY OF PRINCIPAL TO THIRD PERSONS.
An owner of stock on which a dividend had been declared. but not paid, -authorized an agent to sell the stock, expressly reserving the right to the dividend. The agent agreed with. the purchaser that the dividend should go with the stock. Held,that the purchaser had no right to assume that the -agent, becauSe possessor of the stock, was authorized to sell the dividend, which formed no part of lI;nd did not pass as an incident to it, and as to that dealt with the agent at his peril, and that the principal was not bound by the representations. The ow'ner received from the agent the eX'l.ct amount for which he had anthorized the stock to be sold, without any knowledge of the agent's representations and agreements, or that the purchaser claimed to have purchased the dividend. No transfer was made or demanded of the dividend. The owner was first inforlll;ed by the treasurer of the company of the purchaser's claim, but the ground of the claim was not disclosed, and the purchaser asserted none to the owner. Upon the maturity of the dividend the owner brought suit against the company, and upon the trial he was informed for the first time of the facts upon which the purchaser based his claim. Held, that the retention of the proceeds of the sale did not amount to a ratification of the agent's unauthorized acts.
At Law. On motion for judgment. W. J. Turner, for plaintiff. J. V. &; Chas. Quarles and J. G. Flanders, for defendant. Before GRESHAM and JENKINS, JJ. JENKINS, J. At the trial a special verdict was taken, upon which both parties moved the court for judgment. The plaintiff sues to recover a ()ertain dividend declared by the defendant upon stock in its company at the time owned by the plaintiff. This dividend was declared on the 1st day of March, 1886, and was payable by the terms of the resolution on May 1st and July 1st next thereafter. The defense is that after the declaring of the dividend, and hefore it was payable, the plaintiff sold the dividend to Chapman & Goss, to whom it was paid by the defendant. The facts established by the evidence and the special verdict are these: Soon after the dividend was declared, the plaintiff authorized one H. S. Benjamin to sell his stock at par, but did not empower him to dispose of the dividend declared. To the contrary, in his instruction the dividend was expressly reserved. The plaintiff retained possession of the stock. Benjamin, on March 12th, contracted with Chapman & Goss, then and previously stockholders in the company, and connected