WINCHESTER fl. DAVIS PYRITES CO.
rates charged by the latter to be reasonable. There is no attempt in the 'record to show that the charge for the simple keep of· the oattle in the pens is unreasonable or any higher than the railway company itself might charge for such semce. The decree of the court below is affirmed, with costB.
WINCHESTER et aL v. DAVIS PYRITES 00. (Circuit Court ot Appeals, Third Circuit. March 22, 1895.)
5,000 tons · · · of Small's Pyrites"; the ore to be burned by the
By a written contract, there was sold "the sulphur contents In about
purchaser, and the cinder remaining after extraction ot the sulphur to be the property of the seller. The purchasing company failed, and receivers were appointed. who operated the works for Bome time, but ceased finally to do so, leaving some of the ore on hand still unburnt. Held, that th(, contract was not assignable, that the receivers bad no right to sell the un burnt ore for the benefit ot their trust, and that equity could only be done by returning the same to the sellers. 64 Fed. 664, affirmed. Where property in the bands ot receivers is claimed by pe1'8onl!l not parties to the suit in wbich they were appointed, the proper procedure is to file a petition asking tbe court tor an order on the receivers tor delivery of tbe property. 64 Fed. 664, affirmed.
SAME-CLAIMS BY STRANGERS-PROCEDURE.
Appeal from the Circuit Court of the United States for the District of Delaware. This was a petition of intervention filed by the Davis Pyrites Company against James P. Winchester and Francis N. Buck, receivers of the Walton &l Whann Company, asking the delivery to it of certain property held by said receivers. The circuit court granted the petition, and accordingly entered an order directing the receivers to comply therewith. See 64 Fed. 664, where the opinion delivered by Wales, District Judge, will be found reported at length. The receivers appealed. Lewis C. Vandegrift, for appellants. Arthur W. Spruance and W. C. Spruance, for appellee. Before ACHESON and DALLAS, Circuit Judges, and BUF· FINGTON, District Judge. DALLAS, Circuit Judge. The action of the court below was clearly right. The opinion flIed by the learned judge of that court fully states the case, and also relieves us from discussion of the questions of law which he considered. Briefly stated, the material facts are these: The appellee sold to the Walton & Whann" Oompany "the sulphur contents in about 5,000 tons * * * of Small's pyrites." The ore was to be burned by the purchaser of the sulphur, and the cinder remaining after the extraction. of the 1Inlphurwas to be the property of the seller. Such.; among others,
are. the terms of the written agreement, the indubitable effect of which, as a whole, was, in our opinion, to require that all ore delivered should be burned, and that no part of it should be otherwise disposed of. The custody of the property of the Walton & Whann Oompany was taken by the court below, and passed into the hands of receivers of its appointment, who are the present appellants. The receivers found at the works of that company a considerable quantity of the unburnt ore which had been accepted by it under the contract which has been mentioned. Continuing fOt a short time to operate the then existing plant, the receivers burned some of this ore, and with respect to the part so burned there is no controversy. There remained, however, about 1,300 tons of unburnt ore, which it was admitted the receivers did not intend to-in fact, could not-burn, but which they proposed to sell for the benefit of their trust. This Eltate of affairs was properly brought to the attention of the court by petition of the appellee for return of the unburnt ore to it, and we are at a loss to conceive. upon what ground a court of equity could, under the circumstances, have refused compliance with this request. Retention of the ore could not have been rightfully persisted in, and the obligation to burn it be repudiated. Performance of that condition being precluded by controlling circumstances, equity could be done only by relinquishing the property to which it related. In no other way was it possible to discharge the debt of justice incurred by the court upon its assumption of the possession. The decree of the circuit court is affirmed.
KILBURN et al.
(Circuit Court, D. Minnesota, Third Division. Aprll 17, 1895.)
WORLD'S COLUMBIAN EXPOSITION- POWER TO GRANT EXCLUSIVE PRIVILEGES-
The corporation known as the World's Columbian Exposition, organiZed In Illinois to hold an international exposition, pursuant to the act ot congress providing therefor, which received from the city of Chicago authority to inclose and control a park for the purposes ot such exposition, sold to complainants the exclusive privilege of taking stereoscopic negatives ot objects within such exposition, and making and selling pictures therefrom. The corporation also prescribed a rule that no person except complainants should bring within the grounds of such exposition a camera larger than 4x5 inches, and that all persons bringing such cameras within the grounds should agree, in writing, not to make stereoscopic views from the negatives taken on such 4x5·inCh cameras. Complainants, upon a b1l1 and affidavits alleging these facts, and that defendant, surreptitiously, and without the authority ot the corporation, had obtained negatives, and manufactured and sold stereoscopic views, In violation of complainants' rights, applied for a preliminary injunction to restrain defendant from making or selling any stereoscopic views ot objects within the exposition, and trom copyrighting the same. Defendant denied that he had ever signed, or been asked to sign, any agreement not to make or sell such views, or that his negatives or views were unlawfully or surreptitiously obtained. Held, that a preliminary injunctlon should Dot be granted; the ot the exclul'l1ve right claimed