J'EDERAL REPORTER tV9l
(01lrcwU CWlrt, D. IO'Wa.
INF.llfCY"'-Al"otDAlfCII OJ' MORTGAGE-RIGHTS. OJ'
.suitto foreclose a mortgage glven by an infant the defense of tntancy personal to'the mortgagor. and cannot be set up by a subsequent llenholl1er.
In Equity. Bill to foreclose a mortgage. Brown & Dudley, for plaintiff. J. W. Rogers & Son, for defendants.
McCBARY, J., (orally.) ,ThIs is a bill to foreclose a mortgage executed by the defendant Rosier, to, the plaintiff to secure a promissory note. The defendant :Rosier.seE!ks to avoid the contract sued on by pleading his infanoy,at the time of its exe(}ution. The defendant, ,Davis holds So subsequent lien, on the. premises mortgaged, and he joins with Rosier in his 'lDsw6fj;andpleads the, infancy of 4is co-defendant, Rosier, .as a defense. To ·this al1swer,so far as Davis is concerned, the complainant but only excepts. The, contract ,oCan infant is not neces&arily, voidable, since the infant has snelection to avoid Hduring his, minority ,and affirm it after reaching his majority. The privilege of avoiding sl)d not absolutely his acts or contracts, when·they arevoi.d.able void, is paraonal to the infant, and one. which no one. can exercisefor him, except bis heirs or legal A person, not a party to the contrll<lt"cannot take advantage of the infancY !lftlle parties to it. It is a personal privilege. Schouler, porn. ReL(2d 535. I am oftheopiniQll that the defendant .Davis cannot .!let up as a defense the infatlcy of. ·the defendant Rosier. The exceptions to his answer are therefore sustained.
eARN IV. 'WESTERN UNION TEL.
(Oircutt Oourt rif·..t!ppea,Zs.Fifth .ctrcwl.t. December. 'l. 1891.)
,. anticipllting a heavy decllI18 in the market price of certain corporate ... stook; and desiring to speculate in the same by selling on the exchange before the '1dl!cliue. begllin, and thereafter: ,put:chasing a lower figure,. delivered to defendant telegraph company, in O'olumbus, Miss., a message to his bro'kersin New York city P' 'to'liell a certalti 'number of shares; The message was. not delivered to the brokers until eight days later, during wpich time the stock had dropped from $'l'S to $55 per abare. Plaintiff in fact hail no stock to sell, but kept with hill brokers securities, on the which tlrey would· have sold the stock on exchange, and bought ;.. or4El"'" in an action against the teleg,rsph company to recover the difference In price between the stock at the time the' message should have been delivered, and the time it actually' was delivered. that the were too remote, uncertain, and speculative, and there could be no recovery therefor. 46 Fed. Rep. 40, affirmed.
MESSAGll..,-MEABUBB OJ' DAMAGIIB.
UNION TEL. 00.
Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Mississippi. Action by E. Cahn against the Western Union Telegraph Company to recover damages caused by delay in delivering a telegraph message. Judgment directed for plaintiff for nominal damages. Plaintiff brings error. Affirmed. E, H. Bristow, for plaintiff in error. T. L. Bayne, Goo. Denegre, and Y. L. Bayne, Jr., for defendant in
Before PARDEE, Circuit Judge, and
and BRUCE, District Judges.
nessee Coal and Iron.
BRUCE, J. This is a suit brought in the court below by the plaintiff, who is appellant here, against the defendant telegraph company, appellee, for damages for an alleged breach of contract and duty on the part of defendant in failing to deliver in due time a telegraphic message from plaintiff to his brokers, Latham, Alexander & Co., in New York city. The message was in these words: "CoLUMBUS, MISS., Feb. 20th, 1890. "To Mt,Bf'B. Latham, '&It;Xander d\o Co" NtnD York, N. Y.: Sell 200 Teo[Signed] E. CABN."
Plaintiff avers in his complaint"That said message was delivpred to and received by the agent or operator of the dt'ft'ndant at its olfice in Cu]urqbus, Miss., on or about 7 o'clock P. M·· on Thursday, the 20th day of Ft'bruary. 1ti90;. · · that. anticipating en early. rapid, and heavy decline in the value and price of the stock of the Tennessee Coal & Iron Company. and desiring to sell 200 shares of said stock before the decline began, wilh a view of later on the 8ame nuwber of shares the price and value thereof had reached a milch lower therehy realizinll the difference in the value tbereofat the time of sale and repurchase, and knOWing thlit Latham. All'xander & Co. held said stock. and would sell the same on his account, repaying themselves out of the moner of plaintiff in their hands. and would, at the option of the recl.'iver or purchaseJ'. deliver, before a quarter past two o'clock on same day. said stock certificate and power irrevocable in the name of' witness. or guarantied by a York Stock "Exchange, or afrit'nd represented at the exmemher ot the business in New York, or by transfer of said ,stock change, ft'Siding or aspl'Ovided by the constitution and rules of the New York Stuck Exchange. plaintiff delivered said message to the defendant. to be transmitted to New York. to be deli vered to the said Latham. A.lexander & Co.; that. I f said message hadbt'en transmitted and delivel'Pd in due time. the said brokers would have made the sale on the 21st day of February. at 878 per share."
But plaintiff avers"That said message was not promptly transmitted and dflllvpred all agreed. but by the gross negligence of defendant's servants and operatives in charge delayed, and not delivered until the 2l:lth day of February. of the same it 1890, when said stock had fl.dlen in price to, and was selling in the market at. 855 per share, thus taking several times longer for its transmission and delivery than it required in due course of mail from Columbus, Miss·· to New ,Yol'kcity;and that the cause of the delay and non.delivery of said mpssage, plaintiff avers. was of the defendant's operators and servants. Mod dllUJ8,nda Judgment fQr ea.451.66, and
To this declaration there are several pItas: (1) The general lssue, not guilty, (2) That the message mentioned in the declaration was a night meseage;and that plaintiff failed to present claim for damages to defendant company within 30 days, as required by the regulations of the company. (3) Defendant sets up contract with plaintiff that no claim for damages should be valid unless made within 30 days after the message was sent, and that the plaintiff failed to present his said claim, (4) Defendant sets up cpntract that sender of message should not claim damages beyond a sum equal to ten times the amount paid for the transmission "of the message, and pays into court the sum of fivo dollars,amount of its alleged liability, (5) That said defendant denies that said\plQintifl' had in the possession of said Latham, Alexander & Co., or il11ihepossession of anyone e18e, subject to their control, 200 shares ofthestock of the Tenrtessee Coal & Iron Company, at the time of the said message; und avers the fact to be that it was the intention of the plaintiff that saidbtokers, Messrs. Latham, Alexander & Co., to sell the amount of stock so named in telegram to be should deliyered of subject to delivery on the 21st day of February, 1890; but the teal intent of llll· the parties to . transaction was to speculate on the rise or fall of said stock, without any intention of selling or deliver/ ing the same, but, when called for, to settle the difference between the conhactptice IUId the market price onthe day when called [or,-that is to say,,!l on margins.. Wherefore said defendant says that said transaction was illegal and void, and this it is ready to verify. Replications are filed to second and third pleas; issue joined in fifth plea; issue,' in short, by consent to replication to the third plea. The case came on: for trial before a jury on the issues presented on the pleadings, apd. after hearing the testimony, plaintiff filed his motion for a peremptory instruct,ion to the jury charging them that they shall find a verdict fD.r the plaintiff for the sum to which he is entitlecl on the facts in testimony. which motion, afterarg\lment by counsel pro and can, was by the court overruled and refused, to which plaintiff: then and there excepted; whereupon the defendant filed its motion for a peremptory instruction to the jury cllargiI)gthem that they shall find a verdict only for the amount of the telegraUlon the facts in ,testimony, and, after argument. the court gave the instrllction found in the record. The is, in efl'ect, "that tbeplaintiff cannot recover;, tbe claim for damages is too remote, uncertain, and speculative, and will not be allowed by you in your verdict." To the giving of the charge the plaintiff excepted. The verdict of the jury wlls,f9r 32 cents and three-fourths of a mill, to which the plaintiff excepted. and tenders his bill of exceptions, em bodying all the testimony and the rulings and order of the court, The assignment of errors, as far as necessary to be here stated, are: gi dng the instrnction to the jury as to the measure The. court· erred otAarnages in tl,Je cause. The circuit court erred in to give the speciQ.1 instruction askE-d by. plaintiff. The question. then, is. did the court. err in instructing the. jury on the trial of the cause that the claim·· made by the plaintiff for damages is too remote a!1d speculative to be
eAHN 'v, WESTERN UNION '1'EL. CO.
allowed by the jury in itsV'erdiet? ' A number of cases are cited by the counsel for appellee to sustain the ruling of the court, among which is the case of Telegraph Co. v. Hall, 124 U. S. 444, 8 Sup. Ct. Rep. 577. In that case the message was to buy, and not to sell, as in the case at bar. It was dated December 9, 1882, and should have reached the sendee at Oil City, Pa., at 11:30 A. M. that day, but the message was not delivered until the exchange had closed for the day, so that Hall could not purchase the petroleuIl1 ordered by the plaintiff; and that at the opening of the board the next day the price had advanced from $1.70 per barrel, the price on the previous day, to $2.25 per barrel, at which price Hall did not deem it advisable to make the purchase, did npt do so. The was, "Buy ten thousand, if you think it safe." The court held there could be no recovery, because,,in point of fact, the plaintiff had suffered no actual loss, and the court say at page 454, 124 U. S., and page 580,8 Sup. Ct. Rep.: "It is clear that, in point of fact, the plaintiff had not suffered any actual loss. No, transaction was in fact made, and, there being neither a purchase nor a sale, there was no actual difference between the sums paid and the ,sums received in consequence of it, which could beset down in a profit and loss account. .All that can said to have been lost ,\vas the opportunity of buying on November 9th and of making a profit by selling on the 10th; the sale on that day being purely contingent, without anything in the case to :show that it was even probable' or intended, mucb less that it would have certainly taken place." The case at bar is the counterpart of the case cited. The order was to sell 200 shares of stock, but bythe fault of the telegraph company this order was not' delivered to appellant's brokers in New York, as it should have beed,' on the morning of the 21st, and not until the 28th; and there was no sale of the stock on the 21st. or on I1ny subsequent day. And it may be said here, as it was there, "lill that can be said to have been. lost was the opportunity to sell" at a higher price on the 21st and buy :at a lower price afterwards. The claim in the case at bar goes much beyond any rule of damages in any of the cases cited. It is not for the .difference in the price of the stock between what it was on the 21st, when the order to' sell should have been received by the brokers in New York, and what plaintiff actually sold for on It repeated order and no ·sale on any subsequent day, not even on the 28th, when the order was received, but not acted upon, by plaintifFs brokers. In the case cited, 'which seems to be quite elaborate, the court, at page 455, i24 U.S., .and page 580, 8 Sup. Ct. Rep., goes on to say: "It is well settled, since the decision of Masterson v. Mayor, etc., '1 lIill, ·61, that a plaintiff may rightfully recover the loss profits as a part cif'the damages for breach of a special contract, but in such a case the profits to be recovered must be such as would have accrued and grown out of the contract itself as the direct and immediate result of its fulfillment. In the langnage ·of the supreme judicial court of Massachusetts, in Fox v. Harding, 7,OlJ,sh. .516: are part and parcel 0.1 the cont,ract itself, alld must hilove l)een in the contemplation of the parties when the agreement was entered into; but, :if they are sllch as would have been reaUzed by the patty from othe1" iode'Pendent and collateral undertakings. although, entered into in conseqnence
and on the contract, tJIenthey too uncertain and mote to be taken part of the damages occasioned by the breach of the suit'" :' ' , ." , Coupsel make it sOD;lE!what vigorous on the of the decision in the cllSe of ,Telegraph Co. v. HaU, and say it will never be applied, beyond the. facts i,n that particlllar case. However that may be, we find it cited by the, supreme court of the United States approvingly in the case of Howard v.Manufacturinfl: Co., 139 U. S. 205, 11 Sup. Ct. Rep. 500, where. it washeld-, ! "That ,in an action,to· r,ecover the contract price for putting up mill maof the defendant, ,resulting from grinding wheat chinerYanticipated into tl,ourand selling Bl\lDellad the mill,been completed at the date specifieu in' the -contract, cannot be recovered by way of damages for delay in putting it
in that case Justice LAMAR, speaking for the court, at page 206, 139 lJ' S.. , and page 503, 11 Sup. Ct., says: "The grounds upon which the general rule of excluding profits In estimatIng damagt'll rests are (1) that in the gl'eater number of cases of such f'Xpected proUts are too dependent upon numerous uncertain and changing contingenciesto constitllte adelinite and trustworthy measure of actual damages; (2) because:such line of profits is ordinarilyrelllote, and not, as a matter of and iWluediate result of the non-fultillmelitof the contract; eourse, (3) and. because, most frequently the engagement to pay sllch line of prolits, in case of default in the performance. is not a part of th6coutract itself. nol' can it be implied fromlts nature and terms." <.:lting Telegraph CQ. v. Hall, and other authori ties. ' We the case at bar falls witllin the princj pIe of the case of Telegraph:Co. v. Hall, and much authority is citeli,in line with that decision,so,jpat we do no.! /lee why that should taken as settled law; at case is binc1ing upon us. . . .' . the plaintiff ordered the of.200 shares of Tennessee Coal & lron stock,..,.,-not his stock, which he helel or owned, for he does not claim to have held or owned filly such the time of this transaction; but it is said his brokers, Latham, & Go·· haq thp. stock,-not even that they had it and ovv.ned. it, Qut, as the witnesses Llltham and Alexander botbsay, in answer to. interrogatory 15, it lllay be noticed in that the answers of the8e two witnesses to this interrogatory t anllto most .ofthe otherinterrogutories t are in thtl same identical words, and notable for the of conclul3ions rather.thanlilCts:) "If Latham. Alexander & Co. had received thll said telegr.am of E. Cahn w.bf'u it Ilhould have deli ven-d, t4ey would have executt'l1 the order withiil cOljtlifnel1, luid sold. fqr him 200 shares of stock,of th6 'fennf'ssee Cllal & Iron Cp.,anA wQuld bavesuppliel1 stock in their pussession for lit-livery on nt of !Iale, lng-to the custom of the New York stock saidCahIldid not, own the.'stock...· . The,ra is at soma obscurity in the meaning of this answer, and the cOl:Jstituti6nand York Stock Exchange are not in the theoPIlorturiity of referring to them. Th& fact conceded that Cahnc!iq:pot .hoid or own 'the stock in
CAllN 11. WESTERN UNION TEL. :00.
question at the time of th&·order to sellon February 21st, nor .lid he have money in the hands of his brokers at the time to purchase the stock. Latham and Alexander. both testified, in answer to the same question,in the same words: .... "Latham. Alexander &, Co;, on the 21st 6t February, 1890. did not hold for E .. Cahn any stock of the 'Tennessee Coal&; Iron Co. Latham, Alexander &'Co. did not hold forE; Cahn any money on deposit with which to buy or sell stock, but they did hold for him securities sufficient to warrant them in making the Bale of saidstQck as direetecihlld the mes!Jage been receivedop of Februa,ry 1890." Appellant could doubtless have gone into the market and bought the stock rorptesent or could have authorized his brokers to do 'it :fof'hitn, or they could supply it themselves, as they: testify'they 'Would have done bad they received the order; and, if so, and Cahn bad pail! 01" become Hable'for themarket price of the stock that day,'thete would have been no profit to him in the transactionl and therefore;·no damage. If, by supplying the stock, Latham and Alexander mean that their firm would have loaned it to him,.then his case is that, by the alleged negligence of the defendant company, he was prevented from borrowing 200 shares of Tennessee Coal & Iron stock, and selling it on the 21st of February at its ma;rket price on·that· day, and the same number of like shares of stock on the 28th, or on a subsequent day, when the market price,had fallen; and SO Buffei'ed·aloss of the profits he would have made if he had borrowed, sold, bought back, and returned, brokers. Manifestfy, in such a transaction---,..or, rather, the, 'Wanto£'transactiQn-the'alleged damages are too',uncertain, remote,'and to constitute a proper basis for a recovery. ., insisted that an·order, and delivery to an agent of a telegraphic <;ompaI:lY to ahll;resof stock,Uuder the circumstances of the transaction in question, implies and means an order to buy to "cover," as it is and that such will be held to have been within the ktiowledge andeontemplation of the parties,the plaintiff (appellilllt) 'and 'ft'PpeHee, (telegrapbeofupany.)· TelegmphiceompanieS ·transmit and deliver messages, for hire, touching business or other relations ofthe persons who employ them. It is not like contracts between persons for the building of structures, erecting machinery ,or .even for the delivery of goods, all of which classes of cases much depends upon what lIlaj be' considered been fttirlya:nd justly within the eOrit6mpla-tiOlf ofithe parties wberdhe -contract wits made; nnd it may bequestioned whether an, order' to sell 200 sharas' of a' gl:ven stock delivered to a' over his line would imply knowlbdgeon his. part tnat anordar to purchli:se' the same number of of same stock'lY'ould surely" follow. It is said that Scott, the te,legrfl:ph ai Columbus, Miss., was informed and well knew tQe P9xpose and of :ithe message; but he says in his deposition: . "I'.uhderstood it· was ,an to Mess. Latham;'Alex:arider &; Co'. to sell 'Coal &' 'lron.-:'·just What appears on the luce of 'the . ':. , ' ,
FEDElRAL REPORTER,vol. 48.. l,.
But, e ventit: he (Scott) was familiar with, transactions' of this· character made the stoekexchl1nge in New York, his company could hardly be held responsible on account of such knowledge possessed by one of its employes. But, even if it could be conceded that an order to sell an order to buy,.the question remains uncertain as to when ,.such auprder to givenfor execution. That would, in the nat!1re of things, depend: upon. the market, and upon the buyer's judgment of the' market. Again, the legal, if not the only, presumptionwol1ltl'bethatCal'inwtts sale of his own stock, Rnd not that he contemplated the sale of something he neither'had nor'proposed to, acquire, with ,no :intention ,that in the sale oJ.'pered an actual .deliveryofthe,sto.ck :wa.s to be, made, for such inYolye a violation of the, law as it has, peen held in SOme of the ,courts, lin country. In allY of the Cllse, we' perceive no error cnarge to ,the jury ,the below and the is ,afin ,nrmedj,and it so,
(CireuA.t Oqurt, S. D. ,IlUnois. May, 1881.)
, A partriershipbeing unable to pay a note upon which it became liable bya partI\ership indorsement, its, stg/led, as individuals, tb& creditor for a? extension ,time, agreeiogto convey to him before the expiration thereof oertam lands, whleb. were to be SOld, and any excess after' payment of the debttui'nedover to theparl;Ul\l'II. Held, that the agreemllntJP,erely provided a se curity fort,he original partnerahip debt, and on the subsequent bankruptcy of the firm and itS tnembersthe"debt was provable against the partnership, and not , against the individuals. !,
,;, In Bankruptcy.
from the decision of court that jthe plaintiB;s claim was provable against the pa..-tnership, and not against tb,eestate of a par,tner. W. a. Kue,ffneJf',for creqiWr. '_,_ F. A. McConaughy, for assignee.
J. Moritz;r. pobschutz and JosElphAbend were part,ners in bua:ines$, and became indebted to the plaintiff on their own note, :it,ls,makers, for $4,500, upon which some payments were made" leaving 'about $3;000 due, and on,two notes given by & Browson of $8,000 each, and indorsed, by Dobschutz & Abend. 'The latter became -bankrupts 'as partners nnd as individulJ.Is, a decree in bankruptcy was 'l'enderedagaipst them; and an assignee appointed; and the plaintiff which th,e bankrupts had inclaims the indebtedness on the two dor,sed was, provai:>le the separate of Dobschutz. The district court thatJt was a debt,and was provable, not against the separate, but against the partnership, estate. From this de-