CHICAGO CHEESE CO. v. FOGG.
(Circuit Court, N. D. Ohio, ill.D. December 8,'1892.)
'The construction of the written assignments in the light of the extrinsic evidence was not a question of fact for the jury, but was one of law for the court.
SAlJ!J:-JURISDICTIONAL AMOUNT-PARTIAL FAILURE OF CAUSE OF ACTION.
,Plajntiff having failed to show any title to the contract,. his cause of action thereunder entirely failed. and the suit remained as one for $400, which was fnsll(Dcient to support the jurisdiction of the circuit court. and a verdict was thereupon properly directed for defendant.
At Law,' Action by the Chicago Cheese Company against W. K. Fogg. A verdict was directed for defendant. On motion for new trial. Overruled. Williamson & Cushing and J. S. McClure, for plaintiff. Wm. R. Day and J. W.Orane, for defendant. RICKS, District Judge. The plaintiff's petition in this case sets forth two of action. In the first it claims damages for the breach of an alleged contract made on August 16, 1886, between the defendant and the Charles Baltz Company, of Chicago, m., by which the defendant agreed to sell to the said Charles Baltz Company 1,000 loaves of d9mestic Swiss cheese, and to deliver the same, as called for by it, at Ohicago, nl., on or before the last day of June, 1887, at the prices named, and varying as to the time for deliveries, and on payments specified, the loaves of cheese to vary from 125 to 180 pounds in weight, and to average not less than 150 pounds. In September, October, and November of the same year, the defendant delivered on pounds of the 150,000 pounds contracted for, said contract some and received pay for the same. The vendee having failed, and being indebted to A. S. White & Co. something over $17,000, it assigned, transferred, and sold to said firm, on the 14th day of March, 1890, in consideration of $15,000, "the following goods and chattels, to wit, the cheese then on hand, the boxes and cheeses to be delivered on
CHICAGO CHEESE CO.V. FOGG.
hand at 73 Water street, together with the outstanding accounts due to Charles Baltz & Company." Five days thereafter, to wit, on the 19th of }larch, the said firJ;D of A. S. White & Co. sold and transferred to the plaintiff, the Chica.go Cheese Company, for a consideration of $15,000, "all the cheese and empty boxes now on hand or in stock, belonging to said A. S. White & Co., purchased by them from the Charles Baltz Company, or to which the said A. S. White & Co. are entitled by reason of their said purchase." The last vendee brings this suit against the defendant, and claims damages in its first cause of action in the sum of $7,000, with interest, for the defendant's failure to deliver the balance of Swiss cheese covered by said contract of August 16, 1886. It claims in its second cause of action judgment for $400 and interest, for money advanced and paid by the Charles Baltz Company to the defendant on or about January 25, 1887, upon said unfulfilled contract of August, 1886. The defendant, in his answer, denied that the plaintiff had any right or interest in said claim upon which to base this suit, and denied any breach of contract, or that there was anything due to the plaintiff on either cause of action. The plaintiff, to maintain the issues made on its behalf, and to show its title to the claim sued upon, offered the two bills of sale or assi!,rnments above cited. r.}'he defendant objected to the introduction of said assignments, because upon their face they dis· closed the fact that the claims sued upon in the first and second causes of action were not included in either of said instruments. Upon the authority of the cases of Bradley v. Steam Packet Co., 13 Pet. 89, and of Reed v. Insurance Co., 95 U. S. 23, the court decided to hear ora.l testimony from the parties to the transaction, so as to put the court in the position of said parties at the time the transfers were made; not for the purpose of reading into those assignments or con· tracts any new conditions, or varying or changing their meaning, but for the purpose of ascertaining what the parties themselves meant by the terms uS3d in the written bills of sale executed. For this purpose the court heard the oral testimony of Charles Baltz and George H. Wessling, the former the president of the Charles Baltz Company, and the latter the bookkeeper. Some of the original books of the Charles Baltz Company were offered, and entries therein relating to the va· rious transactions pertaining to this contract were read and offered in evidence. Depositions of members of the firm of A. S. White & Co. were also read. All this testimony was heard by the court for the sole purpose of enabling it to intelligently construe the bills of sale or assignments upon which the plaintiff relied to establish its right and title to the claims upon which its suit was based. After such testimony was heard, the defendant moved the court to direct the jury to return a verdict for the defendant, for the reason that the written assignments referred to did not in fact transfer to the plaintiff the claims sued upon in the first and second causes of action. It appears from said testimony, in addition to the facts already stated, that before the assignment of March 14, 1890, from the Charles Baltz Company to A. S. White & Co. was made, Mr.- Ulric King, one of the said firm of A. S. White & Co., made a detailed examination into the assets of the Charles Baltz Company, and estimated their value as
eloselyas he could fu)m the infofD;l.ation him. Mr. his deposition, states thlJ,t· after making this careful examination of the books and assets of the:ftI1D, the transferees, A. R White & Co., agreed to from the Ch,.arles Baltz Company all of its assets, which he estimated to be wol'ththe sum of $15,000, and to credit that amount upon the indebtedness of $17,000 which was owing from the Charles Baltz·Oompanyto theA.. S. White Company. On cross-examination Mr. King admitted that the only evidences of indebtedness against the defendant found upon the books of the Charles Baltz Company were an open bOok account for $400, for money had and received from said firm by the defendant as an advancement upon the contract sued upon in the first cause of action, and an additional entry upon a memorandum or contract book, in pencil, which forms the basis for the contract set out. in the :first caUlle ·of action. This pencil memorandum was entered·by some one connected with· the Charles Baltz. Qompany, and is not signed by the defendant, buMt is claimed was to him, and approved byhirn ItS thacontract between the parties. Mr. King, in ad· mitting that the only estimate he put upon the asset representing that comwnys claim against· the defendant was $400, substantially admits that no value wa!il put upon this claim sued v.pon in the first cause of action. I'll is true that he claims he the assets of the Oharles iBaltzCompany, and that such was the understanding between the parties; but, inasmJich as the jndebtedness of the Charles Baltz Company was $17,000, Itnd that firm was credited with only $15,000. tlpQn,said.indebtediless, and that the assets making up this $15,000 of consideration were all valued and examined by .Mr. King for the firm of A. 8. White & Codtemby item, and that of all these assets the claims against Fogg,. the ,defendant, .were valued at only $400, it is hardly, conceivable that:in said assets was included a claim which, with ·. interest, now· to over $9,000. .If this· claim in fact passed, and was considered and included in the asseU'l, it would seem no more than reasonable that it should have been added to the estimltted value of such assets, which would have made their aggregate $24,000., and that upon such an approximate estimate they should have the amount allowed as a credit to at least the sum of $17,000,the . total amount of the indebtedness due from the Charles Baltz Company. . It appears from the testimony that, after this detailed examination was made of the assets of the Charles Baltz Company by Mr. King, the terms of the assignment were reduced to writing. We have a right to SuppOSe they expressed in that instrument the exact nature of the assets they were purchasing, but when we examine this written instrument we .1lnd that it embraced only two classes of assets, to wit, the goods and chattels Q-bove enumerated, and the outstanding acCl)cnts duetb,e Charles Baltz Company. With the statement of Mr. King that the enly item. of value in the assets of the Baltz Company was the $400 claim covered by the outEltanding account upon the books of said firm, we can readily see that the bill of sale was broad enough to cover the same. It is very signiftcantthat this instrument, evidently preparadnwith a great deal of omits the usual sweeping clause of transfel'ringall the "rights,. Cllloirps, credits, and accounts of every
kind"of the party whose assets were to be transferred. But at the time that Mr. King examined the assets of the Charles Baltz Cornpanr it is possible that this claim embraced in the first cause of action was considered absolutely worthless. The price of cheese in the market at the time of the alleged breach of the said contract may have <ro dt> clined as to make this claim absolutely worthless, and, therefore, no prflvision was made in the bill of assignment to cover any such unliquidated claim for damages. For these reasons the court was of the opinion at the time of the trial that these written assignments did not transfer any unliquidated claim for damages such as is set forth in the first cause of action. The court was then of the opinion that the duty of construing the written assignments, with the aid of the extrinsic evidence before it, devolved upon the court, and was not it question of fact to be submitted to the jury; the court being further of the opinion that the plaintiff, having failed to acquire any title or interest in the claim sued upon in the first cause of action by the 3,1;.l':lignments referred to, had no right to maintain said first cause of actlOn, and that, so far as that was concerned, its suit must fail. 'l'he only matter in controversy, therefore, pending between the parties, was upon the second cause of action. The sum involved in this ca.use being only $400, with interest, so that the recovery could not in any event exceed that sum with interest, which would bring the j udglfil.:mt below the jurisdictional amOunt required, the court held that the second eause of action must likewise fail, and therefore directed the jury torcturn a verdict for the defendant, which was accordingly done. 'This case is now before the court upon a motion for a new trial. Oonnsel for the plaintiff contend that the court erred in not sulmlitting as a question of fact to the jury whether or not the claim sued upon passed lmder these written assignments from the Charles Baltz Company to A. 8. White & Co., and. from A. 8. White & Co. to the plaintiff; and further contend that said written instruments, together with the extrinsic evidence heard, ought to have been submitted to the jury upon the issues defined. But, on a review of the authorities, and after careful consideration of the suggestions made by counsel, the court is still. of the opinion that its direction to the jury in this respect was correct. Counsel further contend that the court erred in not permitting the trial to proceed upon the second cause of action, and insist that the court having acquired jurisdiction of the parties and of the subjectmatter when the amount in controversy was nearly $10,000, the jurisdiction continued, even after the first cause of action failed. Counsel cited several decisions where the principle here contended for was sustained, but in all those cases there was no question as to the plaintiff's title and right to the claims sued upon. In those cases the defenses interposed defeated the plaintiff's right to recover, but did not in any case show an absolute failure of the title or right to maintain the suit itself. In one case cited the statute of limitations was pleaded, and the statute was held good as to a large part of the claim sued upon, leaving a balance due below the jurisdictional amount. In that case the court proceeded to render judgment for such balance due, although such judgment was below the jurisdictional sum. But it must be ra-
that the defense of the statute of limitations interposed did JlQt.afl;ect the plaintiff's title to the obligations sued upon, or his right a suit thereon. It related only to his right to recover t1}e full aDlOunt claimed. Both his title to the instrument sued upon and his right to bring the action were unquestioned. In this case, however, the plaintiff absolutely fails to show any right, interest, or title to the claim sued upon in the :first cause of action. It therefore had no right to bring suit upon the claim set forth in the first cause of action. "Its right of action absolutely terminates, because no interest in that claim preferred is shown. The failure to show anysucb right to institute its suit on the first cause of action therefore leaves it a suit for $400, with interest, upon the second cause of action. these circumstances, it seeDlS plain that the jurisdiction of tlle,4}o,urt terminated when the first cause of action failed. and, this Qeing apparent upon the face of the record, it was the duty of the CQlli't to proceed no further. I am therefore of the opinion that there error in the court directing the jury to return a verdict for the and the motion for a new trial is overruled.,
In re MoDOW.¥LL, Chief Supervisor of Elections. (Circuit Court, M. D. Tennessee. December 6, 1892.)
ELEOTIONS;-CHIEll' l:!UPERVISO:R8-PER DIEM FEES.
Under Re". St. § 2081, chief supervisors of elections are entitled to $5 per day foreacb day they are on duty to the extent of 10 days. In re Conrad, 15 Fed. Rep. 641, followed. McDermott v. p. S., 40 Fed. Rep. 217, limited.
Examination of the Accounts of the Chief Supervisor of Elections. , JACKSON, Circuit Judge. The within account of E. C. McDowell, chief supeI'visorof elections, has been examined, and is approved by the court. The twelfth, item, for "ten days' service as chief supervisor,' $50.00," is supported by the case of In re Conrad, 15 Fed. Rep. 641, where a per diem to the extent of 10 days' services was allowed under section 2031, Rev. St. What was said by this court in :McDermott v. U.S., 40 Fed. Rep. 217, 226, apparently inconsistent with that constructi()Jl' of the statute, was applicable to the special claim made in that 25 days' attendance upon the court, which attendance was not shown to have been necessary or required in the performance of duty as chief supervisor. While the language of that opinion may be somewhat broader, subsequent reflection satisfies the court that chief supervisors are entitled, under said section, to $5 per day for each day they are actually on duty to the extent of 10 days. The order will accordingly be entered approving and allowing the within
mUTED STATES ". GREAT PAtLS II: O. BY. CO.
trNITED STATES T. GREAT FALLS & C. RY. CO. (Circuit Court. D. Montana. November 21. 1892.)
In an action at law by the United States to recover the penalty for a via lation of the contract-labor law, (Act Feb. 26,1885,) a complaint alleging that defendant offered to one of its employes in Canada to continue his employment if he would come to the United States, and that in consideration of such promise, and in pursuance of such he did come to the United States, and work for thll defendant, is sufficient to show the acceptance of the offer in Canada, under the Montana rule that pleadings shall be liberally construed, with a view to substantial justice. Compo St. Mont. diT. 1. § 100.
At Law. Action by the United States against the Great Falls & Canada Railway Company to recover the penalty of 81,000 for the importation of a laborer under contract. On demurrer to the complaint. Overruled. John M. McDbnald, Asst. U. S. Atty.! Geo. W. Taylor, for defendant. . KNOWLES, District Judge. This is an action brought by the United States to recover of defendant 81,000 for a violation of the provisions of section 1 of the act of congress of February 26, 1885, entitled "An act to prohibit the Importation and migration of foreigners and aliens under (:ontract or agreement to perform labor in the United States, its terri. tories, and the District of Columbia." The provisions of that section provide"That it shall be unlawful for any corporation, - · · In any manner Whatfloever, to prepay the transportation * * * of any alien or aliens, auy for· .eigner or foreigners, into the United States, its territories, or the District of Columbia. under contract or agreement, parol or special, express or implied, made previous to the importation or migration of such alien or a!iens, foreigner .or foreigners, to perform labor or services of any kind in the United States, its territories, or the District of Columbia. "
The cotriplaint in this case charges that defendant entered into an ,express parol contract with one John Lamont, an alien, by which defendant agreed that, in consideration that the said John Lamont would immigrate into the United States, to wit, the district of Montana, and perform services and labor for it, the said defendant, it would continue him as an employe at satisfactory to the said John Lamont. This <lontract, it is alleged, was made on November 5,1891, in the dominion of Canada, a dependency of the United Kingdom of Great Britain and Ireland. The complaint further sets forth that thereupon, upon the date aforesaid, the said John Lamont, in consideration of the said promise, and in pursuance of the said agreement, did immigrate and CClme into the United States, and into the state of Montana, and, in pursuance -of said contract, worked asa laborer upon the defendant's road; that the -said defendant prepaid the transportation. of the said John Lamont, and did otherwise assist,encourage, and solicit his migration, knowing that he, the said John Lamont, being an alien, as aforesaid, had entered into this _ illegal contract. with said defendant. Defendant demuned to