FEDERA,L " REPORT,ER·.voL "',, . ,',J ." ·
stat-p.te should be made more exthe commission. should be empo",ered to prescribe it View of the clrcUIDstanc'es' of each pa:ttlcular case. .. .was tile to a provision found of the /ilU1:W of (article 17, § 1), as having liIQW.e.]:)M-pngo;n the discUlilsed in these cases; but as the billfjl ,petiUons .1iled plalnly. founded on the interstate comaJ:j.d tb,uliI a question arising under that act, there. is no from diverse citizensh!p, we :l),()t felt to, cPnsiMr or decide the proposition In view of what has founded been said,.:t;heseverflI are hereby affirmed.
(Clrciult Court of
Ninth Circuit. ,
May 28, 1894:)
JOJNTVENTURlC IN PuRCHABlIll niDSALE,'oll'LANDS TO ,SEr.t.. . . ,. '
ACTION ll'OlfPROll'ITB ON
PIainti,¢ and, apother /lgreement with defendants in June, 1882, to purchase certaln timber lands for de(endants,·the former to re'ceive for theirserVlces a certain perc-entage of the profits arising out of the sale btthe llmds or timber.: after dedUcting taxes and interest on the indefe.p.llants the time ,a.pd terms9f the :sllJe. Lands ,were tbereuuq.6};,between lw>A, and 1883. In 1883, defendan.1:EI1.'efused tul, offer made by a respon.siJ)le person to purchase the lAnds at a·'prIce which iwouldhave yielded abput 300 per cent. profit.: ·HeW, by a d:tivided courtvthllt plaintiff could maintain an ac1awt9 his.lJhlu"e of the profits based upon such ofCer.
, El'ror to theCfrcuit
Court for the Northern District of California.
1'111s. was an action by J: T. Noyes and John S. Noyes. The complaint, sworn, to and filed .MllY 22, 1891, alleged that on June 5, 1882, deferitlants and Delevan F. Clark and M. P. FlImore entered into an agreement with plalhtiff .and one CharUs G. Noyes whereby the latter agreed to purchlj.$e for the f,ormer certain redw9Qd timber lands, and to reo therefor cent. of the net profits to be derived from the saleo! such lands or from'stumpage\ after addin'g to the. sum of money expended In the purchase thereof the annUal taxes and' 7 Ver cent. Interest per annum; "8tumpage" to mean the value of the timber scaled on the land If cut by defendants, or tlle amount received from the sales, defendants "to determine the times and terms of sal¢s' of either, the market value of stumpage there obtaining." That plaintiff and said Noyes, Imm,ediately after the execution of Bald contract, purchased at dlvers times from June 5, 1882, to February :l7., , 1883, 5,19$.f!4 acres .of, redwood timber: lands for defendants and theh' associates. the tota1C08tof.'which, under the, terms ot the 6, 1883, That, ·on such day, qefendll-Dts,anll their associates. were offere4 .1;Iy ,a Person, wiIIlng aJl.d. to"ptirc11\lse said laud!,!, the sum of. ,per .acre for alI of said lands, and that such person, If such offer had bee;n a9c.6pted, wouldbave paJd defendants therefor the sum of $129,063.25, but that defendants declIned such That. the net . Of tile purchase 0( such, lands 8oUlOQnted, on Auto $\lM16.61, .that plaintiff, In, 1883, demanded of commissions, of 7lh per cent,. sucl!. net profits, which
Rebearlng pend Ins-
NOYES fl. BARNARD.
to pay. That Delevan F. Clark and Mllla.rd P. FUmore, defend· ants' RllllOciates, owned, thrre-eighths of all of said lands, and subsequently to August 6,1883, sold all their interest to defendant John S. Noyes; and that John S. Noyes sold one-quarter interest to R. A. Alger, and defendants paid plainftiff his commissions on said sale of one-quarter interest. That defendants have not paid plaintiff his commissions of 7% per cent. upon the remaining three-fourths of the net profits of said purchase, amounting to $73,059.46. That defendants were at the date of the contract, and ever since have been, and now are, nonresidents of the state of California, and are residents ot the state of New York. That defendants have been continuously absent from the state, etc. That Charles G. Noyes departed this life in San Francisco, April 1, 1890. Wherefore plaintiff demanded judgment for $5,479.46, with interest from August 6, 1893. An attachment was issued against such timber lands and levied upon defendants' interest therein. Thesummonswasserved by publication. Defendants appeared, and had the cause removed to the cireuit court for the northern district of California. Defendants demurred to the eomplaint, on the ground "that· the said complaint and the matters therein eontained, in manner and form as the same are therein stated and set forth, are not sufficient in law for the said plaintiff to have or maintain his aforesaid action therefor against said defendants, and that said defendants are not bound by law to answer the same, for that said complaint does not upon its face state facts sufficient to constitute a cause of action. And, for a second and further ground of demurrer, said defendants aver that the supposed promises and undertakings mentioned in said complaint (if any were so made) were, and each of them, made, as appears upon the face of the said complaint, jointly with one Charles G. Noyes, and not by plaintiff alone. And, for a third and further ground of demurrer, said defendants aver that the said supposed promises and undertakings mpntioned in said complaint (if any were so made) were, and each of them, made, as appears upon the face of said coIDplaint, by Delevan F. Clark and one M. P. Filmore, together with defendants, and such supposed contracts or undertakings were not made by defendants alone. And defendants further say that, by reason of the facts averred as aforesaid, the defendants pray judgment (1) that the said plaintiff may be barred from having or maintaining his aforesaid action thereof against said defep.dants; (2) that, by reason of the fact that the said Charles G. Noyes is not joined in said action as plaintiff, the defendants pray judgment that the said complaint herein may be dismissed; (3) that by reason of the fact that the said Delevan F. Clark and M. P. Filmore are not made parties defendant in this action, together with said defendants, they pray judgment that the said complaint herein may be dismissed, with costs." The demurrer was overruled, and an answer flIed. The trial resulted in a verdict for plaintiff for $8,000. Defendants sued out a writ of error, specifying, inter alia, as error, the action of the court in overruling the first ground contained in the demurrer, in that the complaint does not state facts sufficient to con.stitute a cause of action.
Frank M. Stone, for plaintiffs in error. Horace L. Smith and S. M. Buck, for defendant in error. Before GILBERT, Circuit Judge, and KNOWLES, District Judge. KNOWLES, District Judge. The defendant in error in this case with one Charles G. Noyes, entered into a contract with the tiffs in error and Delevan F. Clark and M. P. Filmore to act for them in purchasing certain redwood timber land on the Van Duzen river, in Humboldt county, state of California. The defendant in error and said Charles G. Noyes were to receive for their servIces 15 per cent. of the net profits to be derived from the sale of the said lands, or from stumpage, after adding to the sum of money expended in the purchase thereof the annual state, county, or othel' government taxes, 7 per cent. interest per annum on the pUllchase
prioe. ",IDheJ,agreement entered into was made in, the form of a "lette'jl8bdtp,e acceptance of the terms was made 'Qy tb:e following thereon: . ,, '
"We to the. terms expressed in the within instrnment and agreement,wit4"tbe understanding that \stumpage' means the value of the timber scaled on tll.ei.land, if cut by us, 01': the amount received from Bales, and that We are to the times and terms of sales of either, tbe market value -ot ,stullliPage tbere obtaining;"
i this action was br011ght, Charles G. Noyes died. The defendant in error brought this action, in his own name, in the superior court in and for the'eounty of .Humboldt, state of California. The petition for remqval shows that defendant in error is a citizen of the state of California, and that .plaintiffs in error are citizens of the state of New York. When this suit was commenced,an attachment was issued against the property of plaintiffs in and levied upon. their interest in real estate purchased on said Van Dm:en river. The summons was served by publication. The plaintiffs in error voluntarily appeared in the cause, andhM the same removed to the circuit court of the United the northern district of California, on account of the States diverse. citizenship of the parties to the action. In the circuit court the plaintiffs in error interposed their decomplaint,alleging that the same was defective in not stat,mg facts sufficient to constitute a cause of action; that it was defective in not uniting Charles G. Noyes, as a plaintiff, with .defendant in error, and also in not uniting the above-named contracting parties, Clark. an(l Filmore, as The point seems to be made in the brief of plailltiffs in error that the complaint is defective because itappearg therefrom thai the defendant in his own right, for onein error. brought his action to half of the 15 per cent.,of compensation to be; allowed him and Charles G. Noyes, when the contract is a jointione, and must be siled on as such. We do not doubt but that the, contract must be 'treated as a joint contrR<.!tl ,andcannot' be sued on as a several llOntract. .There is in tbecomplaint which would warrant tliecourt in holding that it was otherwise than a joint oontract. The presumption of law is that when two persons enter into a contract to perform certahi' work tqgether, in (:onsideration of a certain sum "of money to' be paid to them jointly' therefor, it is a joint contract. Pom. Rem. & Rem. Rights, .§ 185; If there are any facts that would show that a contract which is presumptively ajQint, contract is one in' severaIty,they should be pleaded; and if a contract which was a joint contract at its inception has been, by any .additional or subsequent agreement, changed into one in ,severalty, the facts showing such change should be pleaded, and the. contract declared on in its changed form. No such subsequent agreementappea·rg in the pleadings, and the original contract is the basis of the cause of a.ction presented by the complaint. We must therefore consider that the contract sued on is a joint one. Oharles G. Noyes, the co-contractor of defendant in error, died before this action was brought. The defendant in error was a
NOYES V. BARNARD.
survivor therein, and as such brought this action. It was not necessary to have stated in the' complaint that he brought it as a survivor. That would have been the statement of a conclusion of law. The allegation of the death of Charles G. Noyes showed this. There is an allegation in the complaint that defendant in error has not been paid his commissions of 7! per cent. upon the remaining net profits of said purchase. Why defendant in error did not claim in his complaint the 15 per cent. on the net profits, to which he, as a survivor, was entitled, it is difficult to determine. Perhaps he had the purpose of claiming only the amount which on a division of the percentage on said net profits would be due him. We must, however, construe the complaint from its allegations, and from what are the known rights of defendant in error as the sur· vivor in the contract. It was his right to maintain the action as though the contract had been made to him personally. Id. §§ 188224. In the case of Holbrook v. Lackey, 13 Metc. (Mass.) 132, it is definitely held that a survivor held a joint claim, when a survivor therein, the same as an individual claim. In suing upon a joint contract, under such circumstances, he could join therewith one which was a separate contract made with him individually. This rule has not been changed in California by statute, although it has been so changed in some states. The fact, then, that defendant in error claimed in his complaint only one-half that was due him, does not make the complaint defective. The point that Charles G. Noyes should have been joined as party plaintiff was obviated by an amendment to the complaint, made by agreement, stating his death. The next point for consideration is the alleged error in failing to join in the complaint, as defendants, with the plaintiffs in error, their contracting associates, Clark and Filmore. It is held, I believe, that at common law this would have been a fatal defect in the complaint. Has this requirement been changed by the statute law of California? It should be borne in mind, in approaching a discussion of this question, that plaintiffs in error were nonresidents of the state of California; that suit was commenced, and 3,ll attachment upon the property of plaintiffs in error levied; and that service of summons was made upon them by publication. They appeared in court without having been personally served with process. It also appears from the complaint that Clark . and Filmore had sold their interest in said landed property. It does not appear that they had any property in the state of California upon which an attachment could be levied. They resided in New York. It would have been an entirely vain thing to have made them parties to the suit, for any proceedings in the case against them would have been a nullity. Pennoyer v. Neff, 95 U. S. 714. In this case the supreme court holds that an action commenced as this was must be considered as an action in rem. In the opinion, Justice Field says:
"It is true that, in a stl.'ict sense, a proceeding in rem is one taken directly against property, and has for its object the disposition· of the property ,Without reference to the title of individual claimants; but, in a larger and
FEDFlRAL REPOR'tEll, 'vol.
aense, the terms lire applied! to actions betweenpa.rtieB where Qbject is. to reach, and ()t properor,' owned by them, or of therein. Stich are casei; co,mmenced py attachment against the ,debtors, or 'instituted to real estate, foreclose a mortgage, ,or "etiforce 'a. Hen. So far as tbeY atrect property in the, state they are proceedings In rem, in the broader sense which we have mentioned."
As the of this suit was' to reach the property of some of the parties to the contract, I think all that should be required , sho'\lld be to name asdefendantstb,e owners of said property. To require any other parties would appear to be a useless formula. The parties named as defendants were brought into court merely land. The judgment for the purpose of divesting their title' in against theni could ha\Te no other bearing. There aI'esti-()ng grounds, also,' for believing' that the legislature of California';na;s by statute the, rUJe that would require contrnct to be ,made parties to the action. Where parties to a noservicecal1'behad as to any parties, practically, the action is dismissed as to them.. Section 414 of the Code of Civil Procedure of Califptnla provides:
"When. tb,e is against two' or more defendants jointly. ,or severally liable on a c?nt,ra()t, and the sUPlmolls on one or more, but not on all of them, 'tire plaintiff lllay proceed' against the defendants served in the same lis If they Were the only defendants,"
It ,be supposed that the legislatur,e intended that any persons sIlWMd: ,be made parties to such an action, When it was known that ithey could not be served, with process, for the mere purpose of a vain proceeding. In the case of Tay v. Hawley, .qaL93, it is held that a judgment aga.inst a party pnly his property, and not joint property. It is, in effect, the:q., a.several proceeding a,.nd a several judgment. That a several judgment may be entered against a party served with summons is (recQgnized in the following cases: Tay v. Hawley, supra; Peoplev. Frisbie, 18 Cal. 402; Lewis v. Olarkin, Id. 399. In the case of Lewis, v. Adams, 70 Cal. 403, 11 Pac. 833, an action was commenced '!\l!On a judgment abtained in Texas against Adams. Collins, DalryJ;nple,llnd Kennedy. Adams alone was made a naxtv to the cav.se when the complaint was first filed. Subsequently, the complaint was ,amended, and the other parties ma,de defendantf'!. but no servic(f had upon them. Adams claimed that this was a new action" and that the statute of limitations had run against the same. held, however, that it was not; that the bringing in by amendment of the other parties "was merely a more complete statement of the cause of action," as far as Adams ,was conc-erned. The courtalsQ.held that, if there had been no objection to the com· plaint for the want of the other parties, the court could have rendered, as ..it tinally did, judgment agaJnst Adams alone, and the Texas judgment could have been introduced in evidence over the of Adams. Gertain,ly", this was not the rule at common It would appear that this-case goes far to establish the doc· tl'ine':that, when it would beuseIess to make certain parties de·
fendant in an action, because they Gould not be served, plaintiff need not join them.. I think, therefore, the case was properly brought in the state court. But, if I should be mistaken in this view, I think there are other considerations. which would prevent them from urging the point in the federal court. The plaintiffs in error appeared in the state court, not for the purpose of submitting to its jurisdiction, but for the purpose of removing the cause to the circuit court. When a case is brought into a federal court from a state court, as to all subsequent proceedings, it mu'st be treated as though originally broug'ht there. Suydam v. Ewing, 2 Blatchf. 359, Fed. Cas. No. 13,655. Section 737 of the Revised Statutes is as follows:
"When there are several defendants in any suit at law, or in equity, and one or more of them are neither inhabitants of nor tound within the district In which the suit is brought, and do not voluntaruy appear, the court may entertain jurisdiction and proceed to the trial and adjudication of the suit between the parties who are properly before it; but the judgment or decree rendered therein shall not conclude or prejUdice other parties not regularly served with process, nor voluntarily appearing to answer, and nonjoinder of parties who are not inhabitants of, nor found within, the district as aforesald,shall not constitute matter in abatement."
In the case of Barney v. Baltimore City, 6 Wall. 280, it was held that under this statute a plaintiff could prosecute his suit to judgment againat anyone of a number of joint obligors, in the district where he was found. See, also, Inbusch v. Farwell, 1 Black, 566571. The demurrer as to the parties must be considered as setting up what should be termed "matters in abatement." Perhaps the better, practice in a. federal court would be to set up such matters by a plea in abatement. That it would have better presented the matter for consideration in this case is evident, as we find, from the evidence of John S. Noyes, that both Clark and Filmore are de.ad. When they died is not stated. The demurrer for want of proper parties was not interposed until the cause was transferred to the circuit court. Whatever might have been the condition of the case in the state court, the. fact that Clark and Filmore were not joined as defendants could not have been taken advantage of in the circuit court. Without them, the cause proceeded rightly to judgment. It is urged that, by the express conditions of the contract, the times and terms of sale of the said lands were to be determined by the pla.intiffs in error. There is some dispute as to whether this part of the agreement referred to the sale of the lands, as well as to the sale of stumpage. But let the contention prevail in favor of the plaintiffs in error that it referred to both. Certainly, it was contemplated. that the time and terms of the sale of the land were to be fixed by them. The contract cannot be so construed as to leave it to their option to say whether or not a sale should ever take place, or as to whether the time or terms of sale should ever be fixed. It was contemplated that at some time they should be fixed. Courts, unless forced to the conclusion by the terms of a contract, will never hold that one party can elect never to perform it. A promise to pay a debt when. convenient has been con-
strued to be a promise to pay\vithin a reasonable time. Moak, Van SltD.tv. Pl. 410; Terrill v.A,.uchauer, 14 Ohio St. 88. In the case of v. DauteI,19 Wall. 560, .it appeal'S a promise was made to IAp.ney as ,soon al;j crop could be sold, or the money could be, ra;ised from an)" other source: The court said:
baVing been Wj.tbin wbicbthe crop should be sold, or them,qney raised, otherwise, law allnexes as an incident that one or the other" should be done within a reasonable time, lind that the sum admitted to be due 'sbouldbe paid accordingly., Payment was not conditioned to the .extent of depending Wholly and fiWllly upon the alternatives mentioned. '.rbe $tipulation secured to the, defendants a reasonable amount of time' within which to ,prpcure, in one mq<le. or the other, the means necessary to meet the liabilitY. Upon the oCCUrtetice ot either of the events named, or tMlapse of such time, the debt became due. It could notbave been the intention of the parties that if the crop was destroyed, or, from any other cause, eould never be sold; and the defendants could not procure the money from any other source; the debt shOUld never be paid. Such a result would hea mockery of justice."
Although it was left by the contract to the plaintiffs in error to the law steps in, and says that must have been a reasonable 'time, and the price must be a reasonable one. If said plaintiffs did not determine that the sale should take place within a reasonable time, for a reasonable price, then they committed a breach of their contract with said defend. Again, it is urged that this action should have been brought in a court of equity. As a survivor, the defendant in error had a plain, speedy, and adequate remedy at law; and the circuit court would have'had no jur:l.sdiction of the cause, sitting as a court of equity. 39 Cal. 303, was a case for specific The caSe of Agard v. performance, and properly brought in a court of equity. The case of Grain v. Aldrich, 38 Cal. 514,was one where a part of an indebtedness" 'had been assigned. The assignee sought to recover the amount due it by the assignment. Under the rule established in California, the assignee cpuld not make the parties who owned the other p'art of the indebtedness parties defendant. That rule only applies, in that state, to actions in equity. So as to have a complete settlement of the indebtedness, the assignee had to resort to a court of equity. That is not a case like this, where the defendant in error was the sole plaintiff at the institution of the action. It, is maintained that the court should have left it to the jury to have determined whether the offer made by Evans was to am sptisfied that the evidence shows bond or'pllrchase the land. that tlle'last Offer made by Evans was to purchase, and not bond, the and the court was right in not aubmitting that issue to the jUry-. ,MaJ;lyquestions were raised as to this offer of Evans. It is 1Jl'ged, that it ,should hiil-e been in writing, and that, it should h'aye ,}jeen an. offer as:would be binding under statute of frliuds.''! dO:.'not think there is any merit in these ,contentions. As' I look 'uppn this offer, ,it was only a IDe,anS, ofascertaining tbe value of t)iel3rnd at the tithe defendant in errol' requ,ested plaintiffs in error to sell the same, and as fixing the 'compensation to which
fix a time for the sale of the
NOYES 'V. BARNARD.
defendant in error was entitled. If the offer was a valid one,that is, made in good faith,-it had a tendency to fix the value of the land at that time. There was no dispute as to whether or not the land was of the market value of $25 per acre at that time. This was the main thing sought, but plaintiffs in error contented themselves in assailing the good faith of this offer. There was no question raised but a reasonable time for making the sale had elapsed when the offer was made. As there was no motion for a new trial in this cause, we cannot examine into the question as to whether the verdict was or was not supported by the evidence. It may be that under the evidence in this case the question of reasonable time was, according ta the rule established by the supreme court, one for the court; but plaintiffs in error da nO't camplain that it was submitted to the jury. As we view the case, the jury probably decided the matter carrectly, and hence the case ought not to be reversed on this accooot There are many assignments of error which were not presented in the briefs of counsel, and which we have not thought best to qiscuss. Taking the case as a whole, we think it was correctly decided, although, if the court had been called upon to dictate the pleadings, in the light of the evidence presented in the case, the issues presented by them might have been different. As some of the points which have occurred to us have not been presented by the arguments of counsel, we shall not review them. Perhaps they were cured by verdict in the cause. Lincoln v. Iron Co., 103 U. S. 412. It is ordered that judgment be, and the same hereby 's, affirmed. GILBERT, Circuit Judge (dissenting). I am unable to concur in that portion of the opinion which holds that the pleadings state facts upon which a cause of action may be predicated. The agreement sued upon in this case shows that the parties to this action were engaged in a joint venture, the object of which was to purchase timber lands with a view to realizing profits, either by the sale of the lands, or by the sale of the timber. The defendant in error and his associate were to contribute to this venture their services in purchasing the lands, and were to receive a certain fixed percentage of the profits. The other parties to the agreement were to furnish the purchase money, were to take the title to the lands, and were to receive the remainder of the profits. They reserved to themselves also the power to determine the time and terms of the sale, whether of lands or of timber, with the option to cut and use the timber for themselves, in which event they were to be charged the, market value of the timber. In arriving at the profits the purchase :!poney was to draw interest at 7 per cent., and the plaintiffs in error were to be allowed all sums paid for taxes on the lands. The contract was made in June, 1882. The lands were subsequently purchased thereunder. The complaint then proceeds to show that on August 6, 1883, an offer was made by a responsible person to purchase the lands at a price which, if accepted, would have yielded a net profit of $97,412.61, and on the basis of that profit the plaintiff
de,1ll,al).dedjudgme,t. ,OCt 'is .alleged that :aI1yciftlie' been sold,. and th6l'e is no averment of the' it is assumed' that because, .ili·1883,an to sell at a certain price, the rightacci'ued to the d¢fengant in error to sue for and recover his proportionate amoun1f that would have resulted, had that offer been parties to this ,contract did not agree that the lands should to, the highest bidder, or at the first offer that might be It was left to the discretion of the plaintiffs in errorto sell at> ilq!fh times and terms all they might deem advisable. They however; and no doubt the concould Q9tIJPuse that tract impQ&¢d upon them the obligation. to sell within a reasonable time, aljl4.:a,tTR reasonable price. But, clearly, they were under no the offer of Au,g,ust 6, 1883. They had the right judgment concerning its acceptance or rejection. to That power had been voluntarUyconferred upon them, and the contract p,a4. been entered into·. with. that understanding. It is withincptrlW()nlmowledgethat the value, of such lands is tiuctuat· ing t ·It;(9PEl.S"Qotfollow that because, in 1883, an offer was made, whichdf Mcepted, would have insured a profit of $97,412;61, that profits, !3inount have earned. The property may have in value. since that date. In declining that offer the error,. may, it is true,have lost an excellent op· [email protected]
CHICAGO, B. &: Q. R. 00. t1. IVES·
& Q. R. CO. v. rYES et aI.
(Circuit Court of Appeals, Eighth Circuit. No. 416.
TRIAL-PROVINCE OF COURT AND JURY- RELEASE AND DISCHARGE EXCEPTIONS.
In an action for damages, the exclusion of a release which was pleaded, and which plaintiffs alleged was obtained by fraud, held error, which was not cured by the court's suggesting that defendant incorporate into its bill of exceptions evidence admitted at a former trial on the issue as to the validity of the release, defendant having declined to adopt the suggestion.
In Error to the Circuit Court of the United States for the District of Colorado. Edward O. Wolcott, Joel F. Vaile, and Henry F. :May, for plaintiff in error. No brief filed for defendants in error. Before CALDWELL, SANBORN, and THAYER, Circuit Judges. THAYER, Circuit Judge. The judgment in this case must be reversed for the following reasons: The suit was brought by Charles W. and Alice rves, who were husband and wife, under the Colorado damage act, for the negligent killing of their minor child, who was run over on :May 20, 1892, in the city of Denver, by a car owned, and at the time operated, by the plaintiff in error, the Chicago, BUl'lington & Quincy Railroad Company. For a defense to the suit the defendant company pleaded, among other defenses, that it had been released from all liability for the wrong and injury complained of by a release duly signed and executed by the plaintiffs on the 21st day of :May, 1892, for a consideration expressed therein of $50, which sum had been duly paid to the plaintiffs. To this defense the plaintiffs replied, in substance, that their signatures to the release pleaded had been obtained by fraud, and that the release was not binding upon them; that the money paid to them thereunder had been tendered back to the company, and that the release had been repudiated and revoked as soon as they discovered the fraud and the true nature of the instrument by them signed. The record now before us recites that:
"The case was tried to a jury at the November term, 1892, which was a mistrial, the jury failing to agree. At that trial the issue as to the release * * * was submitted to the jury. The court, being of the opinion that such submission was imprO'perly made, the facts disclosed showing that the release was not properly obtained, declined to allow counsel to present the issue at this trial. '.rhis ruling was made when plaintiff's counsel was opening the case to the jury, and defendant's counsel then and there excepted to the ruling. The court suggested to counsel for defendant that the evidence relating to the release at the first trial be put Into this bill, to enable the court of appeals to decide on the sufficiency of such evidence. Defendant's counsel deClined to proceed In that manner,"
The record further shows that. after the plaintiffs had concluded their testimony in chief the defendant's attorney, among other proof, offered a release signed by the plaintiffs, Charles W. and Alice