'. The plaintiff is entitled to have this injunction m!j.intained to protect his nroperty from the imposition of a tax levied upon an and fraudulellt assessment, and attempted to be collected on a void proceas.
(CtrcuU COUrt, D. Oregon.
December 28, 1891.)
b E BBIDGBComnTTRB.
The bridge committee of the city of Portland ill · mere agency of the city, for whose acts, done within the'sphere of their authority, the city ill liable; and therefore the city is,a. necessary and proper party to a suit for the specific performauc',e of a contract, ILileged to have been made with said committee for the sale &Ild Ci8livery of certain city bonds. '
.. BPBCIIl'IO PERli'ORMANClil·
I. CoNTRACT, WHAT CONSTITUTES.,
.A. contract for the sale and delivery Of, certain bonds of the city of l'ortland ill not such a cohtract as a court of equity wlll specifically enforce, for the damages Which may be recovered man action at law for the non-delivery will compensllte .' for the same.
"A statute authorized the Lrldge committee of the city of Portland to sell and deliver its bondl! tor the purJlose of building bridges across the Willamette, and the act required that the chairman of the committee should execute all written contracts on b.eh.altt.here.of. HeW. ;tha,t apr.oPOSal:in writing to purchase said b.onds,.and a entereq in ,its minutes, t!le same, constitute, resolution by the · written contract within the meaning of the and 1& Incomplete and invalid unless executed by the c h a i r m a n . '
In Equity. Suit for the specific performance of a contract of sale of bonds, ,brought by the. Rollins Investment Company against M. George, EkA. King, J. L. Sperry"C. H. Meussdorffer, William M·. Ladd, John J>arker, C. C. Redman. and T. W. constituting tlle bridge committee of the city of :Portland, Or. Heard on demurrer to the bill. . Demurrer s?stained. lIfr. o.. /!,. Paxton. for plaintiff. ,Mr. William T. Muir. for defendants.
DEADY, J. This8uitis brought by the Rollins Investment Company, acoporation .formed under the laws ·of Colorado, to specifically enforce an alleged contract by which. it claims .to have purchased from the defendants $500,000 worth of bridge bonds of $e city of J>ortland, and for a temporary injunction to restrain the defendants, in the mean from otherwise disppsing of said bonds. On the filing of the bill an order was made requiring the defendants to .show caus.e why such an injunction should not issue, and in the mean time restraining them as prayed for in the bill. . . Tpe d(;lt'elldants committe.eof eight persons, created by the act of February 18, 1891. commonly called "The Meusdorffer Act." The lWtauthorizes the cities. of Portland, East Portland, and Albina to prov,i¢le !\lna or. mQfe suitable bridges the Willamette, through the, agency of ,eight ;p\lrsops appointed, from the.. of
ROLLINS INVESTMENT CO.
mah county by the two circuit judges thereof, and styled "The Bridge Committee." For this purpose the committee is authorized to issue and dispose of bonds of these cities of the par value of 8500,000. On February 19, 1891, the legislature framed an act "to incorporate the city ofPortland ," with boundaries including the territorial limits of East Portland and Albina, to take effect upon a favorable vote of the three localities. The election took place on the first Monday in June, 1891, and resulted in a vote for consolidation of the three towns into one, by the name of the "City of Portland." The relation of these two acts, and the effect of the latter upon the former, were lately considered by the supreme court of the state, (Wintm'8 v. George; 27 Pac. Rep. 1041;) wherein it was held that the acts are in pari materia, and both in force, except so far as the elder act provides for the bOnds of the three cities, which is superseded by the latter, and the vote for consolidation thereunder, so as to abolish the corporations of East Portland and Albina, and make the bonds issued those of the city of Portland, as thus constituted. The .deftr-ndantEl show cause by demurring to the bill, and objecting, first, that thflre is a defect of parties thereto, in that the city of Portland is not made a defendant. In my judgment the objection is well taken. The committee is not a corporlltion, but a mere aggregation of persons authorized to 'do certain thing for and on be})alf of and in the name of the city. The city is responsible for its acts, done within the sphere of its authority. It is a mere agency of the corporation,-tbe city of Portland,-like the water committee, the police ,commissioners, or the common cil. The committee is not capable of suing or being sued, as suoh. True, their powers and duties are defined by law, and the city cannot control them in the exercise or performance of the same; but, neverthelessj the committee exists only to do a certain thing on behalf of and the name of the city, and this constitutes an agency. The city, asprincipal, is entitled to be heard on the question whether its bridge committee-has lawfully disposed of its bonds, and pledged its faith and resources for the payment of the same, and should be made defendant. Barnes v. District of Columbia, 91 U. S. 540; Brown' v. District of Columbia, 127 U. S. 586, 8 Sup. Ct. Rep. 1314. :But, as this objection can be overcome by an amendment to the bill, it is necessary to consider the matter further. It is also objected that the plaintiff is not entitled to have this alleged contract specifically enforced. because, if it is injured by the non-performance thereof, it has an adequate remedy at law, in an action thereon for damages. The tendency of courts in. modern times is to enlarge, rather than restrict. the jurisdiction whereby courts of equity undertake to compel the specific performance of contracts concerning personalty; and with this tendency I sympathize. But no court has gone so far as to exercise this jurisdiction in a case where the remedy at law is adequate and the party is solvent.
These are the bouds of a solvent city. Indeed, it is alleged in the bill "that the city of Portland is a. wealthy and well-known city, of high financial standing and good reputation; that its bonds are of greater value and more easily sold than bonds of ordinary: cities and towns." Under these circumstances, it is difficult to see why an .action at law for damages does not furnish the plaintiff a complete .remedy for the nondelivery of the bonds. The difference, if any j between the price bid and the market price will. be the measure of damages·· Mr. Justice Story states the case for specific performance, (2 Eq. Jur. §716,) where he says: "Whenever,therefore, the party wants the thinginspeaie, and he cannot otherwise be fully compensated, courts of equity will grant him a specific performance." Here the party wants the thing (the bonds) in speck, but he can be otherwise (by an action for damages) fully compenSated· for its non-delivery. And again the author says, (2 Story, Eq. JUl. § 717:) "So courts of 'equity will not generally decree perf6rmance of a contract -tor the sale of>l:ftock or goods, not' because of their personalnatute, but because the damages at law. on the,market price of the stock or areas compll;lt'e a remedy to the purd,aser as. the deli very of the stock or gOods ,contracted for, inasmuch as with the he may ordinarily . purchase the same quantity of tl:!elike stock 01' are the bonds, of a municipality,-a part of and an of the atate.They are,' then, what are known as government or public bQuds. Professor Pomeroy, in his work on Contracts, (section 17,) says: "n is ,a settled rule that i\greements to purchase 'and sell or deliver shares ·ofgovemment or other pUblic stocks will not be specifically performed in equity, because such securities always tor sale, their price is known. and the damages a,warded at la,w will enable, the injured party to make himself ' .. ' . whole by purchasing in the . There is an attempt in the bill· by sundry allegations to make· it appear that the plaintiff will sustain special and peculiar damages from the non-delivery of these bonds which cannot be recovered at law. But in: my judgment they fail to show anything ,of ,the kind. For instance, it may he, according to these allf!gations, that the plaintiff may be put to more than ordinary inconvenience, in an action' at Ill, \V, in· showing the value of these bonds in tbeprincipal markets of the world. But ,mere inconvenience is no reason why the remedy at law is inadequate; and the extra expense of making such proof maybe recovered as costs. My conclusion is that this is not a case for specific performance, and ,that this objection is weH taken. Objection is also taken by the demurrer that there is no valid and binding contract to sell deliver these bonds to the plaintiff. The act of February 18,,1891, provides that the bridge committee shall organize· by the electiobof ,8 chairman and clerk. Section 7 provides that "the chairman of the committee shall execute all written oon-
tracts on behalf thereof, and sign all orders for the payment of mOli';:; authorized thereby;" and it is that the clerk shall attest all such contracts signed by the chairman. It is alleged in the bill that on Juuethe 10th the committee met, and a.dopted a resolution to the effect that it issue 3500,000 of boncls, as provided by the act constituting the ljame, and advertise the bonds for sale in amounts to be determined by the committee. That on June 27th the committee resolv.ed that $500,000 of the bonds be sold, and afterwards.advertised the sale of said bonds in the Daily Oregonian, to the effect that proposals would be received for the purchase of the aame until 12 noon of August 17, 1891, dated January 1,1892, payable in 30 years from date, with I> per cent. interest, payable on January and July lst of each year, in gold coin of the United States, at certain points, as the. purchaser may desire. .That on August 17th the plaintiff made a bid in writing to purchase said bonds at 92.69 of their par value, to be delivered in three lots, on January 1, 1892, February 15, 1892, and April 1, 1892; that on August 18, 1891, the committee met and passed the following resolution: "RE'solved, that the bid of the Rollins Investment Company for the bridge bonds be acceptedj" and thereupon the defendants duly made and delivered to the plaintiff a copy of the offer to purchase, with the resolution accepting the same indorsed thereon, and signed by the clerk. That afterwards, and before the commencement of this suit, the plaintiffs gave notice to the defend-ants of the place where the bonds might be made payable; but on November 24th the committee met and rescinded the resolution accepting the bid of the Rollins Investment Company, and rejected it. The proceedings of the committee were all entered in -their minutes. It may he admitted that under ordinary circumstances this proposal and the acceptance of the same constituted a binding contract for the sale and delivery of the bonds, but just here the statute comes in and requires all written contracts to be executed-signed-by the chairman. This is a wriiten contract, if anything, not executed by the chairman, and is therefore incomplete and inelfectual. The parties negotiated .lor the sale and delivery of these bonds, and came to an agreement or understanding in writing, but stopped short of the execution of the same by the chairm/ln of the committee, which the statute requires to make. a complete and binding contract. '1;he denied, and, unless amended. the bill is dismissed.
PEELER ". LATHROP.
Of Appea18,.FiJ'th. Oircuit. December T. 1891.)
The amount in dispute or "the matter in controversy which determines the jurisdiotion of the circuit cou!,'t in suits for the recovery of money only, is the amount demanded by plaintift in good faith, aud uot the amount of recovery.
COURT!l-JURISDIOTION-AMOUNT IN CONTROVERSY.
, In anaotion to recover rents alleged to have been collected by defendant as agent, testiJ;nony of plaintifl's solicitor that he fixed the amount of the claim by question. , ingthe tenants who had paid the rents, where there is no showing to the contrary, is sufficient to show good faith. '
SAME-WABI:r..ITY OF AGENT FOB NEGLECT-ERROR NOT PREJUDICIAL. ,
PRINCIPAL AND AGENT-RECOVERY OF MONEY COLLEOTED-EvIDENCE.
tn an action, against an a/ofent to recover for rents collected by him, and for damages for failure to collect rents, an allegation that defendant has "neglected said , business, and hence has, to collect rents that with diligence he might have collected, .. insufficient, and demurrable; but, where such charge is disregarded On the trial, the overruling of a demurrer thereto is not prejudicial.
'" TBuSTe--.-AGREEMENT TO CONVEY PROPERTY PURCHASED ON FORECLOSURE.
,a member of a firm, bansferred to :P., a,creditor thereof, as collateral security for Iiay'ment of the debt, two acceptances, secured by a deed of trust, 'on agreement by P. that on .foreclosure of the trust-deed, if P. should purchase the property, he would, on payment of .his debt, reconvey the same to B. Held, that the transaction oonstituted a trust in favor of B. foz. the two' acceptances, which extended to , the property in case of its purchase by P. on foreclosure. , A bill in equity for an accojlnting of renta, collected by defendant as agent for plaintift, ,and to avoid a settlement with defendant for misrepresentations made by cannot be sustained alone on the gro1Jnd that defendant,. when making, the settlement, falsl\ly repres,ented that he had not collected any rents from certain property. It must appear that all' the rents collected were more than sufficient to oflSElt 9-efendant's just claims against plaintift.
SAME-WEIGHT' OF OF
,'1'6 a bill ill eq,uity to avoid a settlement fot tents collected by defendant as agent, on the grouJl,d of false representations by defendant that he had not collected any rents frOIl1 certain property, defendant answered under oath, as required by the bill. denying fully and speciAcally any false representations. Held, that such answer, was not overcome 'by the te$timony of plaintift's solicitor, corroborated only by a lJ.im sent todefepdant, which defendant did not answer, it apparently req,uirlllg no answer.
Appeal from the Circuit Court of the United States for the Western Division of the Southern District of Mississippi. Bill in eq13ityby Fannie E. B. Lathrop against Richard Peeler for an accounting of rents collected by defendant, and to set aside a settlement between the parties for false representations of defendant. On the death of defendant the suit was revived hi the name of Clementine G. Peeleras administratrix. Decree for plaintiff. Defendant appeals. ·Reversed.
STATEMENT OF CASE.
On December 31, 1889, appellee filed in the circuit court the following bill:
"Mrs. Fannie E. B. Lathrop, a citizen of the state of Louisiana, residing in New Orleans, exhibits this. her bill of complaint. against Richmond Peeler, a citizen of the state of residing in the western division aforesaid. Complainant shows that on the 25th day of February, 1888, and for many years prior thereto, the said Pet'ler was a mortgagee in possession of complainant's two tracts of land in Warren county. Miss., know'1 as the