n:ZcKMANV. MACON COUNTY;
more than eight years before· ,this suit was filed. From that time, at least, Nickles had a right of action for breach of warranty, if he ever had. I can attach no importance to the fact that the mandate was not filed in the territorial court until January 29; 1884. The agreed statement concedes that the decision of the supreme court was of such character as to extinguish Nickles' title, and such was obviomly the effect of that decision, which has been made a part of the agreed case. Nickles had the right to abandon the further prosecution of the suit against Wells, if it was ever incumbent on him to bring such a suit, as soon as the judgment of the supreme court was announced. The statute of !imitations in my judgment began to run against him certainly from the time his title to the property was pronounced worthless by the court ofIast resort, and its operation was not· stayed merely by delay in sending down the manda.te. If, as the plaintiff claims, he was not informed at the time of his purchase ofthestiptllation entered into on July 10, 1875, between, Patton and Wells, the former acting as agent for the United States, by virtue ofwhi<lh, as the supreme court of the United States holds, Wells acquired a good title to the lumber in dispute" then it would seem that a moral obligation rests on the government to refund the purchase money, which congress might properly recognize. For reasons stated, however, the demand is not a legal claim egainst the United t1;le can now,enforl;le. Judgment for defendant. .1,-. - . .
, HIcK!iAN V.MACON CoUNTY.
(Circuit Oourt; E. D.MiBBouri, N. D.
AC'l'I01'r 011' JUDGMENT.
It fsno to asuft on a'judgment that the time Wlthin whlob an execution could be 1511UOO on the judgment has not expired.
At Law. This was a suit in two counts, the fitst count being on coupons oicertRin county bonds, and the second count on a judgment recovered by the plaintiff against the defendant in the United States circuit C()urt for the western district of Missouri, in the year 1883, before Macon county was attached to the eastern judicial district of Missouri. Defendant disputed the right to recover on the judgment; for the reason that an execution might yet be'sued out on the judgment in the western district, and also for the reason that, under the fourth section of the act of February 28, 1887, (24 St. U. S. 425,) the case might be transferred from the western district to this, the eastern, district of Missouri. Thoa. K. Skinker. foi:' plaintiff. Robt. G. M''IkheU. for defendant..
that a suit on a judgmept maybe maintained in th.e' same court in which
J., (Mally, after stating tlte facttt as above.)
It has belm held
thejudgment was recovered, although the time has not eXl>ired within which' an execution may be sued out on the judgment. Such rulings, it seems, are based on the ground that the right to an execution on a judgment is merely cumulative, and does not take away the commonlaw right to sue on an unpaid judgment as often as the judgment creditor elects to sue. Simpson v. Cochran, 23 Iowa, 81, 92 Amer. Dec. 410, and cases cited. This doctrine would probably have to be accepted with the qualification that, in case of more than one judgment being recovered on the same demand, a payment of either in full, with costs, wouldl'ender the judgment creditor responsible for the costs made in the other ,proceedings. The law seems to be very well settled, however, that &uits on judgments in courts other than that in .which they were recovered . may be maintained at the will of judgment creditors, regardless of the fact that the time allowed, either by statute or· the common· law, for taking out an execution on the original judgment, has not ex· pired. ,8i.mpson v. Cochra,n, ffUprajKin,gitand v. ForreBt, 52 Amer. Dec. 232; FreemJ Judgm. § 432, and citations. Judgment will be entered for plaintiff.
CONNECTICUT RlVER LUMBEaCO.
(O-£rcwU Oourt, D. Vermont. June 25,1890.)
To a plea of release under seal,.a replication settlng up fraud is bad, since such fraud, if it induced plaintiff to sign· a paper dUYerent from the one he intended to si/Pl. may be shown under a replication of non est factum, while if it merely deceived plaintiff 88· to h18rights, it constitutes no legal defense. To a plea setting up an accord and satisfaction and the paymentof a specific sum 1Il full settlement, a replication which neither admits nOr denies the payment, but. contains long averments to the effect that plaintiff was induced to agree to the settlement through fraud, is bad, not being responsive to the plea.
SAME-ACCORD AND SATISFACTION-FRAUD.
At Law. On demurrer to replication. Smith« Sloane and C. A. Prouty, for plaintiff. Ide « Stafford, for defendant. Before LACOMBE and WHEELER, JJ.
PER CURI<i\;M. The second and third pleas set forth a release under seal. If tnefl;lcts averred in the replication are relied upon as establishing the proposition t1;lat, through some fraud practiced upon him by the the plaintiff was deceived into /3igning a paper other and different from that which he intended to sign, they lllay be shown under a. replication of non est factmn. If, however, plaintiff relies upon facts showing only that through fraud and imposition the· plaintiff \Vas deceived as to his rights, and was thus induced to extinguish a valuable claim in' consideration 'of the payment of a trifling sum, then he can avail of them only by a direct proceeding in equity to set aside the ra-
BOWl!! 17. UNITED STATES.
lease. George v. Tate, 102 U. S. 564. The replication to the second and third pleas must therefore be held bad on demurrer. The fourth and fifth pleas set forth an accord and satisfaction and the payment of a specific sum agreed upon between plaintiff and defendant to be received by the former in full settlement of his claim. The replication neither admits nor denies the receipt of this sum. To that extent, it does not meet the issue tendered by the pleas. The replication, moreover, contains long averments to the effect that the plaintiff was induced to agree to the settlement of his claim in the manner set forth by fraud and imposition. This is merely pleading evidence. If, through any fraudulent practices of the defendant, the plaintiff was 80 deceived as to the character and condition of his claim against defendant that the minds of the parties did not in fact meet,-in other words, that there was no accord and satisfaction,-such facts may be shown under a replication joining issue upon the defense raised by the plelt. Demurrer to replication sustained, with leave to tile a new replication within 20 days, if so advised.
BOWE fl. UNITED STATES.
(Circuit Court, N. D. Georgia. April SII, 1890.)
Where a A'overnment contract provides that the work done and the materials furnished shall be subject. to the inspection of a certain officer, who shall have full power to reject any work Or materials which in his opinion do not conform to the plans and sp8CificaV-ons of the contract, the contractor can have no extra claim against the government for work done and materials furnished under the requirementsof such officer, or for delay in the work caused by such requirements, where the officer made his requirements in good faith, in order to compel the execution of the contract as he understood it, and the contractor failed to make, at the time, any claim for extra compensation for work or material which he now insists were outside of the contract. An agreement between a government contractor and one of the sureties on his bond, by which the surety agrees to furnish the money necessary for carrying out the contract, and the contractor agrees to divide the profits with hiIn, does not amount to a transfer of the contract, within the meaning of Rev. St. U. s. 5 8787, which declares that the transfer of a public contract shail annul it.
SAME-ACTION AGAINST GOVERNMENT.
Under Act Congo March 8,1887,0. 359, which allows suits to be brought against the United States "upon contract, expressed or implied, or for damages in cases not sounding in tort, n an action may be brought by a contractor for extra work done by him under the direction of the government's agent, and for damages for an improper interference by such agent with the fulftllnient of the contract.
At Law. Action by William F. Bowe against the United States under the act of March 3, 1887, (c. 359,) which provides that actions may be brought against the United States "upon any contract, expressed or implied, with the government of the United States, or for damages, liquidated or un. liquidated, in cases not sounding in tort." Rev. St. U. S. § 3737. pro-