BA'l"tLlll fl. K'ARTHuB.
expressed' bitnselt as well pleased with the manner in which be had been treated by the engineers. He also stated, in substance, tbatthere was not much materia) on his portion of tberoad, entitling him to loose·rock classification, and that he had ma4e a v,ery considerable sum $10,000 or $16,000) out of the contract. This, in itself, is persuasive evidence that plaintiff sustained no injury by reason of the misconstruction of the contract. Taken in connection with all the other testimony in the ease tending to show the character of the material,how It was handled, and the amollnt of loose rock actually estimated and paid for, it has served to convince the court that the recovery in this case should be limited to the sum admitted to be due and alrl'ady paid into court. JUdgment may be entel'ed for that amount. with costs up to the time the money was deposited with the clerk. Subsequent cos1.8 will be taxed against the plaintiJf.
(CCrouu Court, E. D. Mis,ouri, N. D. December f. 1891.)
Under Rev. St. Mo. 1879, S 8202, providing that the lien ofa railroa4 contractor must be filed .wlthin 90 days next after the completion of the work, eto., and that all actions to enforce such liens must be commenced within 00 days after filing the lien, and prosecuted without unnecessary delay to final judgment, and that no lien shall continue to exist for more than 00 days after it is filed. unless suIt is instituted within such time, (Id. S 8205,) successive liens for the same labor and materials caunot be filed. The tHing of one account, sufficient to create lien under the statute, exhausts the contractor's power to inoumber the property; and the 00 days run from such tilDe. and cannot be extended by the filing of an amendment or .. new lien within the original OO.day&.
.. RBcllJPI' IN F11LL-EVPBCT.
During the execution by subcontractors of a contract for railroad frequent complaints were made by them as to the manner in which the chief englDeer estimated cel¢ain kinds of excavation, and these complalnts were made to the contractor, and by him to the rallroad company; and the contractor succeeded in having the estimates raised in some instances. HeLd, that a receipt "in full," given by the subcontractors to the contractor after knowledge of all the facts. and tender and payment of an amount on the basis of the engineer's final estimates, was biDding between the parties.
Even though a person does not receive all that is due to him, yet, wbere the sum actually due is in dispute, the avoidance of litigation is a sufticient consideration to support a settlement fairly made with full knowledge of all
In Equity. Suit by Battle & Cameron against McArthur Bros. and the Chicago, Santa Fe &: California Railway Company to enforce a mechanic's lien. James H. AnderBOn, for plaintiffs. Jame8 a. Davia, for McArthur Bros. Gardiner Lathrop and Ben. Eli Guthrie, for Chicago, S. F. &: C. By. Co.
THAYER, District Judge. Two questions are presented in this case which do not arise in either of the other cases just decided,-LewiI v. Railway Co., 49 Fed. Rep. 708, and Sumlller, v. Same, Id. 714.
, 1. In the first place, the railway company contends that these plaintift's did not bring their suit against it within the period limited by law, atidthat their alleged lien was for that reason lost. The court concludes tha.t point is well taken. So far as the railway company is concerned, the suit is simply one to enforce a lien against the property of the company locatedin thia state, which lien exists, if at all, by virtue of local laws. Vide article 4, c. 47, Rev. St. Mo. 1879. These plaintiffs have no lien against the property of the railway company, either at c()mmon law or in equityj por have they any right of action against the ta:ilway company, except such as is given 'by the Missouri statute creating Ii lian. In other words, the proceeding, as against the company, is purely statutory, and, to beeffectual,must have been brought in the manner and within the period prescribed by the laws of this state. The federal courts can enforce liens created by local laws, but they will only do so where the proper steps have been taken under such laws to render them enforceable in the state courts. To entitle a railroad contractor to alien under the laws·ofthis state, the lien must be filed "within ninety days next after the completion of the work·. or after the materials were furnished," (section 3202, Rev. St. Mo. 1879 j) and aU actions to enforce such liens must be commenced "within ninety days after filing the lien, without unnecessary delay to final jUdgment," (section 3205" rd.). As if to render the injunction more emphatic, section 3205 further declares that "no lien shall continue to exist * * * for more tdlan ninety days after the lien shall be filed, unless within that time an actionahall be instituted thereon. * **" Now, it cannot be admitted that a railroad contractor may file any number of liens for the same li'tbor and materials, and against the' same property, within the 90 days after his work is completed, and subsequently elect on which of tbe liens so filed he will bring suit. An account for work and materials, when filed with the clerk of the circuit court of any county through which the railroad runs,operates to fix a definite charge upon the property outside of as well as within the county, for the sum stated in the account. It operates as a mortgage upon the entire line of road within this state, and is even more far-reaching in its effects than a mortgage or other incumbrance. Wde section 3,201, Id. In the very nature of things, successive'liens for the samll labor and materials cannot be filed. The filing of one account that 'is good and sufficient to create a lien under the statute anq satisfy its requirements exhausts the contractor's power to incumber the property. The first good and suffiCient lien so filed, sets the statute of limitations in operation, and, unless suit is brought within 90 days thereafter, the lien ceases to exist by the express provisions of the statute. It is unnecessary to decide Whether a lien account, when filed, z.nay be in matters of mere delliil py subsequent a'OlendnientaV:'filed within the 90 days allowed for filing a lien. for, even if such amendments are permissible, they should obviously be filed in t-be same county where the original account is recorded; and, in any ev.eQt, the ,time limited for bringing suit must be· computed from the date of thetirstfiling. Tbe amendments would take effect by relation
as oftbat dlly, ifltis permissible'to skelld such statements ofaccount. The construction which the court thus gives to the railroad lien law seems to be the only reasonable interpretation of the statute, and it is placed upon the locftl mechanic's lien also the construction law by the supreme court of this state. Jr[uUoy v. Lawrence, 31 Mo. 583; DaviJJ v. Schuler, 38 Mo. 24. It is proper to add, in this connection, that the mechanics' lien law was passed in the year 1857, the railroad lien law in 1873, and it is a well-known fact oflocal history that the laterlaw, in all ofits essential features, was modeled after the former, so that it may be safely assumed that the supreme court of the state would construe the railroad lien law as this court construes it. Inasmuch, therefore, as the record in this case shows that a good and sufficient lien account was filed by Battle & Cameton in Scotland county on June 4,1888, and that no suit to enforce such lien was instituted until' September 22,1888, the lien had ceased to exist before this action was instituted, and these plaintiffs are entitled to no relief as against the railway company. 2. McArthur Bros., whom there may be a recovery hi this suit notWithstanding thefaHure of the lien.) on their part, insist that they ha'Ve'made a settlement with Battle & Cameron which is final and conclusive. The facts bearing on that issue are found to be as follows: The controversy concerning loose rock classification was one which arose early in the progress of the work, and continued to the end. Very soon after that controversy arose (certainly as early as July 1, 1887)these plaintiffs, as well as other subcontractors, became aware of the manner in which the amount of loose rock was being estimated by the engineers; that is to say, they knew that the amount was being estimated on the percentage theory, anu that the engineers regarded the plowing test as applicable to hardpan, cemented gravel, etc. The court cannot conceive it to be possible, in view of alJ the facts and circumstances of the case, that they did not have such information for some months prior to January 1, 1888. These plaintiffs made numerous complaints after May, 1887, with respect to the quantity ofloose rock allowed in the various monthly estimates.' They appear, on one occasion at least, to have distinctly made the claim that hardpan should be estimated as loose rock without reference to the plowing test, although,as a rule,their complaints seem to have been directed rather to the amount of the allowance than to the method of estimation. Such complaints as Battle & Cameron addressed to McArthur Bros. the latter firm likewise made to, the railway company, sometimes in even more forcible language. McArthurBros. were equally interested in securing a more liberal Classification, and they seem to have made all honest effort on all occasions to accomplish that reault. Thus matters stood until the work was cally concluded. It admits of no doubt that a conference was held between Battle & Cameron and McArthur Bros., after'the work was about finished, with a view of asCertaining what 'percentage oflooserock in the classification of certain cuts on the line of plaintiffs' work would be satisfactory to them, or would be accepted as a settlement of the existi11g controversy. There can be no doubt, I think, that Battle & Cameron at
that agreed gertain .olll$sJ;6cation, which put in the form .of showing the percentage of loose rock claimed in the severalcuts t and this statement was undoubtedly forwarded to the chief engineer of the railway coqlpanyby McArthur Bros. The percentage of loose-rock classification thus demanded was not allowed, but it caused the chiat' engineer to raise the classification some 20 per cent., and that increase entered into the final estimate. When the final estimate was received, McArthur Bros. exhibited it to the plaintiffs. Thelatter were not satisfied. and disputed its accuracy. On the other hand, McArthur Broa. represented that, even if it was unsatisfaotory, it was the best allowance that they had been able to obtain after p,roper efforts, and that, upon the whole, they considered it a fair estimate. They also contended (as they had always done with their subcontractors) that by the terrnsof their contract with Battle & Cameron decision of the engineer on questions of classification was conclusive, and that they were not bound to pay more than the amount shown to be due by the final estimate. The result of the interview was that Battle & Cameron'acceptedthe sum of $6,746.39 tendered to them, (that being the amO\lnt duellCcording to the final eatimate,) and gave a receipt to McArthur ,Bros., which was expressed to be "in full for the balance due us on contract for grading sections 155 to 165, inclusive." When Battle & Cameron signed this repaipt, it is possible, I think, that may have intended to sue the railway company. They may have supposed at the time could maintllin such a suit notwithstandingthe settlement with McArthur Bros.; but the court is fully persuaded that they did intendtQ McArthur Bro<:l. from further liability under the contract, and that they left the members of that firm under the impression, when the money was paid, that, so far llsthey were concerned,the controversy was finallyadj\lsted and settled. In view of the prt:mises, the court that there can be no recovery ag!Linst McArthur Bros. Even thpugh a person does not receive all that is lej!ally q,q.e to him, yet, where the sum actually due is in dispute, the avoidance Qf litigation is a sU/+iciep.t cOllsiderationto support a settlement fairly J:Uade with a full knowledge, of all the facts on which the person's legal #ght to exact a larger SUm depends. If this was not the law, no compromise would ever be binding. In this instance there was a controversy how much McArthur Bros. were liable to pay these plaintiffs under the terms of the construction contract. All of the facts on which the decision of that question depended were as well known to one party as the other, and they were quite as well known in May, 1888, as they are to-d8:Y' No facts known to McArthur Bros. were concealed; no undue l'l,dvantage was taken of these plaintiffs; and no fraud was practiced. "Onder these circulllstances it must be held that the settlement effected in May, 1888, is concluElh'e as between the parties thereto, and the COIllplaint will accordingly be dismissed as. to both of the defendants.
Court, S. D., New York. Februllol'J' 6, 1892.)
Tbecbarter and by-laws of tbe New York Cotton Excbange provide that death benefits arisinjf from assessments shall. not extend to a periOn who bad ceased to be a member, and that deaths in tbe membership are to be renorted by tbe trustees to the managers wbo levy the assessments. HeW, that, to levy an appearing to be I'b80lute, the investigation of the trustees is not conolvsive as to whether decedent was a member or not. . lI,v:pothecation ot a membership in the New York Cotton Exohange fora debt, with power ot attorney to transfer the which is not exercised, but tile debt 1s continued on the creditor's books, is not suoh a sale of the membership as will rlllievo the exobangefrom liability to make an assessment on the member's death. In,an action on suoh membership certificate, statements made by the creditor holding the oertificate are admissible for tbe purpose of shOWing the n8turaof his oJ.aim thereto, bUt are not oonclusive · to decedent's title to the membership.
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Action by Nathaniel against the New York Cot,. ton Exchange on a membership certificate. Judgment for plaintiff. 0.,4. Ulement, for plaintiff. , J. MeL. Nash and Stephen P. Nash, for defendant. WUEELJj)R),.District Judge. This suit is brought upon the membership of Horace E. Dillingham in the defendant corporation, and has been heard on waiver in writing of a jury. He became a member, and stood upon the books. as such, but had ,an account with Crosby & Co., and in January, 1886, delivered his certificate of membership, with a power of attorney for transferring it to them, for security, and they, after that, paid the dues on it, and charged them to him. On October 1, '1886, their balance against him was 83,389.25. The membership was worth $1,400. 'they credited his account, by profit and loss, 81,989.25, and carried forward the ball;U1Ce, 81,400, against him. The charter and by-laws provided that the benefits in question here should not extend to a person who had ceased to 'be a member, "by expulsion or by a voluntary or forced sale of his membership." The defendant claims that by this transaction of October 1.1886, he ceased to be a member by sale of his membership. The evidence does not show any express agreement between him and Crosby & Co. that they should then or ever have the membership for 81,400, or for what it was worth; he was not credited with that amount for the membership; but that part of his account which the membership would not be good security for was carried to profit and loss, and that part for which it would be good security was continued against him; the charging of dues paid to him was continued; he continued to enjoy the privileges of a living member, and stood upon the books as such to the time of his death. The trustees of the gratuity fund are to report deaths of members to the board of managers, who are by resolution to levy assessments for the next of kin, which the plaintiff is. The trustees, after investigation, reported that