AUSTIN t:l. FELTON.
AUSTIN 'lJ. FELTON
(otreuit Court, N. D. lllinoi8. January 11,1800.)
In consideration, of a deed of certain land, defendant assigned to complainant what purported to be II voucher of a claim against the United States. The conditionsl;Jrescribed by Rev. St. U. S. § 3477, for transferring such II claim, had not been comphedwith. The voucher transferred to complainant was not the one issued ,to the original claimants, but bad been surreptitiously taken from the files of the congressionaJ. committee on claims, which defendant probably knew, as also the fact that the claim it represented had been disallowed by the federal supreme court. that the transfer to complainant did, not give him even an equitable right to the payment of the voucher by special act of congress or otherwise, and that the deed was without consideration. .
In Equity. Bill to set aside a deed. Charles H.Aldrich, for complainant. Bisbee, Ahrens & Decker, for defendants. BLODGETT, J. '1'his is a bill in equity to set aside a deed made March 6, 1886, by the complainant to the defendant Felton, of a tract of 351 12-100 acres of land situated in Marshall county, in this state, on the ground that the conveyance of said land to Felton was without consideration, and was obtained through fraud practiced on complainant and complainant's agent, one Henry S. Austin. It appears from the proof in this case that the complainant was induced to convey the land in question to the defendant Felton' by an assignmentto him,(complainant,) as valid and genuine, of what purported to ben voucher for $10,350, issued December 28,1865, by an agent of the treasury department of the United States, to W. H. Whi.teside & Co., for charges incurred upon the seizure of certain cotton claimed by one C. M. Hervey. It is also charged that, within a few days after receiving the conveyance of the land in question from complainant, Felton gaged the same to the defendant Gibson, to secure the payment of $22,. 000, and, after making such mortgage, conveyed the land to one Kittredge, anti Gibson and Kittredge were both made parties defendant to the bil1;but bya stipulation filed in the case it is admitted that this mortgage has been released, and the land reconveyed by Kittredge to Felton, and the case is to be treated and considered as between complainant and Felton alone, as if the mortgage to Gibson and conveyance . to. Kittredge had never been made. Section 3477, Rev. St. U. S., makes null and void the transfer of any claim against the United States, or of any share thereof,or i.nterest therein, whether absolute or conditional, and whatever may be the considEilration thflrefor, except upon compliance with certain specially presc.:ribed conditions, after the claim has been allowed; and the proof shows that this voucher had never been allowed by the proper officer of the government, and that the, conditions and requirements to make a valid transferbacl,pot been complied with; and it is therefore insisted on the that no title to the indebtedness evidenced. by said v.41F.no.4-11
voucher ever passed to complainant from the original payee, thereby showing that the complainant has never received any consideration for the land in questioq, if the voucher h(1d been But the proof also shows that the practice of the department's agents'in issuing this class of voqchers, and it was followed jn this case, Wl:j.S to make the voucher .in of which was given thepayee,()be kept by the agent iasuing the same1 and the other transmitted to the treasury de.. partment;that the voueber put upon the complainant in pretended payment for his landwail'lil..9t the, one delivered to Whiteside ,& Co. as the evidence of their claim,but was one of the other members of the set of three, and, which hali been surreptitiously taken from the files of the congressional committee on claims, not by Whiteside & Co., but probably by one A. J. Park, and by him trJ1nsferred to Felton, under such circumstances as to justify the conclusion that he (Felton) not only knew that the voucher was not genuine, but also knew that claim of W. H. Whiteside & Co., covered by the voucher delivered to them, and anfor, $7 ,OQ6, transferred by Felton to complainant at the same tirne,to be collected for Felton's use, had been held by the court of claifus, ahd the supremeicourt of the: United States, to ,show no ground' for'legalantl equitable ,re'covery against the United States. See WhiteBide'v. U; S., 93 U. S.247; The defense interposed is 'that the complainaht:knew at the time he received the voucher in qUf'stion that the, claim purporting to be, represented thereby had been 'rejected by the treasury a,apartment oNheU11ited States,and that the'only value the voucher had' was as a foundation for a Claim to be presented to congress, andtnti.de the subject ofa special bill, recognizing it aaa valid claim againsUhe go'vel'nment, and appropriating the necessary 'amount for its payment;:and-that the land in'lluestionwas not of the value at which it was estimated ·by complainant's agent in the negotiations with defendant. But I am satisfied froiti· the proof that there was no such transfer of this voucher: to the complainant as clothed him with the right of Whiteside &,Q:o.'to claim even :anequitable right to the payment of this act ()foohgress,or otherwise. The paper transferred to the cOlllplainantwas totally valueless to him, as representing either a legal or equitable claim against the United States, as,H-anyone has a standing to ,present a claim, 'even for relief, by a special actof congress, it is not the complainant,as'the holder Of this surreptitiously obtained paper, Which is not a voucher, butWbiteside & Co., who are, so far as the proof shows, still the legal holders of the claim represented by' the otiginalvoueher delivered to them. As to the :point that the 11ilid waS not actually worth as much as it was represented to .be worth bycotnpiainantor his agent, it makes'no' difference, for the purposes here, whether that land waS 'Worth as much aathe defendant expected or not, so long as defendant gave no value whatever for it.: Therefore, without diseussing the question whether an alleged claim of an individual against the government,the oilly expectation for payment of which is the probability 01' ; possibility of' obtaining the passage
EBUSH-SWAN ELECTRIC.t;.cO.Op; lUl:WENGLAN'D'f.·UUSH ELECTRIC
of a special aQtof'congressjcanieoiilltiUitea 'valuabIeoonsiderlition, such as will support the conveyance ,I:>f real estate, it is sufficient,for the purposes of this case, to find, as I do, from the proof, that the paper transby Felton to the complainant not a;; claim' against ,the United States, and ga:ve complainant no right, or equita.. bIe, to the money purporting to be represented complainant 'hl1:s received no consideration for the C911veyanoe <;>f his land to the Felton, and the. deed should be set and the defendant bya decree of this. court, to reconvey the land to the compl,ainant. '1'he case standssubstantially as it would if the pro()f had shown that, defendant to pay for the llj,nd in money, but in fact passed upon the, co,mplainant, as genuine,counterfeited money. Story,.Eq. Jur. §§ 19,3,246; Warner v. Daniels, 1 Woodb. &:M. 90·.
OF NEW ENGLAND
(Oircuit Oourt, S. D. New York.
CONTRACT-MODE OF PAYMENT-MODIFICATION.
On a bill for specific parformanoeof a oontract granting cot;nplainant the exclusive a,ttenoy for tbe sale of patented articles and apparatus to be furnished by defendant· the oomplatnant'sbook-keeper testified that he was o:fJ1cially informed by defendant's president that defendant had agreed W w.ait for its pay for apparatusful'nished until complainant's customers had paid therefor. It appeared that' business was conducted in that way thereafter, and that shortly before, the contract complainant the territory, and agreeing to supply it with apparatus, had been continued thOugh it was known to be Virtually insolvent. Held suffiCIent to show a modification of the contract as to mode of payment, though some, correspondence between the parties seemed contradictory. By ,making, after the known virtual insolvency of complainant, an reoognizing and continuing,the original contractt a provision of the origInal authorizing abrogation of the contract, after an arbItration showing that complainant's financial reSpOnsibility has become so impaired that defendant oannot safely do through it, is waived, uJ;lless complainant's oredit becdmes further im· , ' As the contract gave no to security, refusal to furnish it was no ground for demand of arbitration as to IlOmplainant's financial responsibility·
SAME-EII'FECT OF MODIFICATION-WAIVER OF CONDITION.
SA..Joffi-ABBITRATION AND AWARD-CONTRACTOR'S FINANCIAL RESPONSIllILITY.
having terminated the contract, and demanded arbitration as to comFlainant's1inancia:1 responsibility becaulje of its refusal to furnish llElcUl,"ity, cannot Justify"its breach on the ground that other caUBes existed which might have been made grounds for terminating the contract.
,. SAME-ExTENDING TIME OF PAYMENT-VALIDITY.
A promise bytbe patentee to extend the time of payment bya liceneee for the articles robe furnished according to oontract until the licensee's customers shall have paid therefor, which is,maqe when the licensee is finanoiall,yembarrassed, is valid. Where specific performance of an .agreement giving a license and exclusive agency within certain territory for sale. of a patented article cannot be enforced, the bill may be retained, and an injunotion and accounting ordered; the defendant being by the contract prohibited from selling in the specified territory.
PATENTS FOB!NvBNTION-LIClI:NSE-SPECIII'IO PEBII'OBMANCB-INJUNCTION AND AcCOUNTING. '
In Equity. Bill for