THE ELECTRON. ELECTRO-DYNAMIC CO. v. THE ELECTRON. BIGLER v. CO.
(Circuit Court of Appeals, Second Circuit. May 26, 1896.)
Appeal from the District Court of the United States for the Eastern District of New York. This was a libel by the Electro-Dynamic Company against the yacht Electron, James Bigler, claimant, to recover a balance alleged to be due of the price of certain supplies and repairs. The claimant filed a cross libel in personam to recover damage for alleged breach of the contract under which the repairs were furnished, and the court granted a stay of proceedings on the original libel until security was given for the damages claimed under the cross libel. 48 Fed. 689. Afterwards the case was heard upon the merits, and the court below entered a decree for libelant, and v.74F.no.6-44
74 FEDERAL REPORTER.
dismissed the cross libel. 56 Fed. 304. The owner of the yacht appealed. Geo. Bethune Adams, for appellant. H. Galbraith 'Yard, for appellee. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.
SHIPMAN, Circuit Judge. James Bigler of Newburgh, N. Y., was the owner of the Electron, an iron yacht of 37 feet in length, which was supplied with electrical motive power. He lengthened her to 75 feet by cutting her in two and filling in the space with the same breadth of beam. On February 28, 1891, he accepted the written offer, dated February 17, 1891, of the libelant, the ElectroDynamic Company, a corporation of Philadelphia, the important portion of which was as follows:
<;1 hll,ve just seen lVIr. Bater;;, who confirms the rough I made to you the other day in answer to your requellt for a price on refitting the Electron with two hundred and fifty (250) cells of storage battery, and with the original motor rewound so as to produce 15 horse power, or 25 horse po,ver as a spurt, 01' to produce readily about 10 horse power at ordiilliry service. We therefol'epropose to furnish 'you with two bundred and fifty (250) new cells of '22 M' a:ccumulators, rewind one motor, supply two (2) new armatures. supply all' switches and wiring and ten (10) incandescent lamps and sockets for the sum of four thousand IUid ten dollars ($4,010), payable two thousand dollars ($2,000) cash on delivery of the material at Newark, N. ,T., ready to go on the boat, and one do 11M'S ($1;000) in a sixtydays note, and one thousand and tell dollars ($1,010) in a 9O-days note, interest added, drawn to your,ol'der, and indorsed by you."
All the apparatus,except the patteries, weremqde by the libelant at its ,factory in Philadelphia. The batteries were made for the libelant by another corporation, called the Electrical Accumulator Company, at its factory in Newark, N.·J. The yacht was sent to Newark to be equipped with the batteries, where the apparattls of the was alsQput in for the cori'yenifmce. After the equiplllenthad been putonpoardthe ,boat,aportion of the purchase price was paid, leaving a claimed balance of $2,106.08, which Mr. Bigler refused to pay, whereupon the libelant brought a libel in rem against the Electron to recover the unpaid amount which the libel alleged had been 'furnished upon her credit. , " , The answer of the owner and claimant alleged that the vessel was delivered to the libelant upon certain assurances made by itl'l officers as' to the horse power, velocity of wheel, and increased speed which would be produced by the new machinery, but that, "after the work had been performed; it was found that the electrical equipU18nt so supplied by libelant did 'not produce either the horse power or the· revolutions of the wheel which were con tracted for and guarantied by libelant as aforesaid, but that the same totally failed to produce the said horse power, or the said velocity of wheel, or the increased speed which was the object of :said agreement." The answer further alleged that; although a new wheel was put in the boat by the claimantllt Iihelant'srequest, the promised horse power and velocity were' notprbdllced, that the apparatus and equipment were defective, 'and that many
of the cells were of inferior workmanship. The answer further alleged that the batteries furnished by libelant were an infringe· ment of patents owned or controlled by the Brush Electl'ic Company and others, and that before said contract it had been adjudged that such batteries were covered by said patents; that he was not informed of said suits by libelant, and was ignorant of the same until he was notified on October 19, 1891, by the owner of the patents or a licensee, that said batteries were an infringement, and was threatened with a suit for using the same, and that, if he continued to use the same, he would subject himself to further liability; and that he had offered to return to libelant all the electrical equipment and apparatus. The claimant also filed a cross libel in personam against the Electro-Dynamic Company, which made the same allegations, and pra.red for the recovery of the damages which he had suffered. The principal defense upon the merits is that the new batteries and the rewinding of the motor did not produce the horse power which was guarantied in the letter of February 17th, and that neither the speed which was expected from the number of revolutions of the wheel, which had been referred to, and which Mr. Bigler supposed had been promised, in conversations which took place before l<'ebruary 17th, nor said number of revolutions, had been produced. It is obvious that these conversations could not be introduced to add to the requirements which had been embodied in a written contract deliberately entered into, and of which no reformation had been called for by either party. But the district judge admitted conversations which were offered to show the definition by the parties of the expression "to produce horse power," and by that means quite an amount of testimony in regard to anticipated revolutions came into the record. The theory of Mr. Bigler is that the previous conversations showed that the guarantied horse power was to be delivered to the screw or transmitted to the propeller, and that from 10 to 15 horse power would produce 800 revolutions per minute on point 2, and that 25 horse power would produce 1,400 revolutions on point 3. The libelant's definition of the disputed term is that the horse power was to be developed or produced in the battery and wires and delivered to the machinery, but that diminution must be expected to take place between the wires of the battery and the propeller blades. Heliance upon the accuracy of Bigler's recollection in regard to the strength of the assurances or promises which were made before February 17th, respecting the number of revolutions or the expected speed, is impaired by his letter to the president of the libelant corporation of March 11, 1891, in which he says:
"I am anxious to get some information in reference to the velocity of the. wheel as proposed to be run by the new motor. Please state as near as you can the No. of revolutions on the 3 feeds as you propose the motor will run. The wheel is 26" in diameter; the pitch is 15"; I think, too light."
On March 28th Bigler again wrote as follows:
"I would also ask, as I have done before, the velocity of the motor on the three speeds whio she is expected to run." h
To these requests the libelant replied on April 9th as follows:
"Since you were here, a rough calculation of the probable speed of the motor under the best conditions gives the following resul.ts:Minimum speed, 4()() revolutions per minute; ordinary speed, 800 revolutions per minute; maxilllum speed (to be used not more than 3 or 4 minutes at a time), 1,400 revolutions per minute. The speed of the motor depends upon the pitch and dia.. meter of the screw, so that the speeds above given are only approximate, and can be valjed, at your pleasure, by varyiug the screw."
Thill correspondence indicates that no positive assurances had been given before the date of the contract as to the velocity of the wheel, or the number of revolutions, or as to the effect of the horse power, as produced in the battery, upon the propeller. The record satisfies us that no such assurances were given, or could honestly have been given; for while :Mr. Griscom, the president of the libelant, was an electrical engineer, he was not a boat builder, and, while he thought he knew what his batteries would produce, he did not know the effect of this electric power upon the blades of the propeller. On the other hand, Mr. Bigler, who was a boat builder, and had altered his boat at a very considel'able expense, to make her 'an excursion boat, and had inferred that a certain amount of horse power would produce a certain result, was very much disappointed that the expected speed was not attained, and naturally concluded that the guarantied power had not been produced. , We concur in the conclusions of the district judge, whieh he stated as follows:
"It is evident that the whole subject was in the nature of an experiment, in which, whatever may have ble-ell t11e hope or exprf>ssion of cOllfidence by either party as to the result in increased speed, no warranty or guaranty was assumed by the libelant. Even down to the trial, the simple question, what was the amount of horse power delivered at the propeller blade, over and above all friction of machinery, was left undetermined, and is still uncertain; so that, if the contract were held to import an obligation to supply so much effective power at the propeller, the evidence would not establish any breach. One object of the admission of evidence in regard to the conversations of the parties in reference to power was to ascertain the common understanding of the parties, if there was any, as to what was intended by producing or developing so much horse power. In the absence of any definite evidence to the contrary, I should hold that this phrase, as applied to an electric battery, meant the horse power developed in the battery and wires and delivered to the machinery, subject to such frictional diminution in the machinery itself as might intervene between the ends of the wires of the bITttery and the propeller blades. If the latter view be correct, the evidence shows that the agreement was more than fully performed. The evidence does not sustain the chp..ge of bad material or bad workmanship."
The answer also denied that the equipment had been furnished upon the credit of the vessel. The libelant, a Pennsylvania corporation, had placed in the boat at Newark, N. J., the machinery, which it built at Philadelphia, and the batteries, which it pur· chased frOni a New Jersey corporation, the boat being owned by lJ citizen of New York. The libelant relies for the stability of its lien upon the statute of New Jersey, which provides as follows:
"·Whenever a debt shall be contracted by the muster, owner, agent 01' cr!llsignee of any ship or vessel within this state for either of the following jlHl'poses: 1. On account of any work done or materials or articles furnished in
this state, for or towards the building, repairing, fitting, furnishing or equipping such ship or vessel; * * * such debt shall be a lien upon sach ship or vessel, her tackle, apparel and furniture, and continue to be a lien on the same until paid. and shali be preferred to all other liens thereon, except mariners' wages." Revision N. J. DP. 5&3. 587.
The facts show that, whatever presumptions might arise from the existence of the statute in regard to the repairs having been furnished upon the credit of the vessel, they were not so furnished. The contract was made with the owner upon his credit exclusively. Upon these facts, two questions of law arise: (1) Can a state create a lien upon foreign vessels, which a federal court of admiralty will enforce? and (2) can the state statute be so construed in a court of admiralty as to attach a lien upon a foreign vessel for supplies which were not furnished upon its credit? The first question has been, in substance, certified in another cause by this court to the supreme court. Inasmuch as it may be answered, although the cause may be properly disposed of without an answer to that particular question, the subject of the power of states to create by their local statutes liens upon foreign vessels will not now be considered. The second question relates to the limitations, if any, that a court of admiralty must necessarily place upon liens upon foreign vessels which are created by state statutes which do not, in terms, provide that the protected repairs or supplies must be furnished upon the credit of the vessel. The authoritative exposition of the manner in which liens created by state statutes upon domestic vessels are to be made beneficially operative by admiralty courts is contained in the well-known case of 'l'he Lottawanna, 21 \Vall. 558, in which the supreme court again declared that, according to the maritime law as accepted and received in this country, those who furnish necessary materials, repairs, and supplies to a vessel in her home port, upon her credit, do not have, in the absence of federal legislati.on upon the subject, a lien on the vessel. But different states had passed statutes, which, though varying in lan.. permitted a lien to be placed for repairs furnished to a vessel iu her home port, and therefore a practical difficulty had arisen i.:r;, regard to the method by which such statutes could be enforced. Inasmuch as the maritime law of tbis country had not permitted sueh Eens, and as congress had not regulated the subject by. statute, it was conceded that the states might, by legislation, oeclare the rights of material men over vessels in their hOT'1e ports, as the states had exercised jurisdiction in the absence of federal legislation upon the subject of pilotage. To meet the difficulty in regard to the enforcement of state liens by proceedings in rem in the state courts, which would impinge upon the exclusive admiralty jurisdiction of the United States district courts, the court said:
"State laws, It Is true, cannot exclude the contract for furnishing such necessaries from the domain of admiralty jurisdiction, for it is a maritime contract, and they cannot alter the limits of tl1at jurisdiction; nor can they confer it upon the state courts, so as to enable them to proceed in rem for the enforcement of Ilens created by such state la ws. for It is exclusively con·
74 FEpERAL REPORTER.
ferred upon the district courts of the United States. They can only authorize the enforcement thereof by common-law remedies, 01' such remedies as are equivalent thereto. But the district courts of the United States, having jurisdiction of the contract ,as a maritime one, may enforce liens given for its security, even when created by the state laws. The practice may be somewhat anomalous, but it has existed from the origin of the government."
The anomalQus character of the practice which enabled district courts to enforce liens which the maritime law declared were not liens, and "the inconveniences arising from the often intricate and conflicting state laws creating such liens, induced the supreme court, at its December term, 1858, to allow proceedings in sonam only; but, a subsequent modification of the rule having permitted proceedings in rem or in personam, at the option of the libelant, the court in the Lottawanna Case further said:
"Of course, this modification of the rule cannot avail where no lien exists; but where one does exist, no matter by what law, it removes all obstacles to a proceeding in rem, if credit is given to the vessel."
If full force is given to the last clause of the sentence, it is an implication that no proceeding in rem can be had against domestic ships, if no credit had been given to the vessel, and that such credit necessarily preceded any lien which could be recognized by an admiralty court. In The Howard, 29 Fed. 604,-a case arising under the New Jersey statute,-this was understood by Judge 'Vales to be the law of The Lottawanna. The case was one of supplies furni,shed to charterers at the home port in New Jersey, where both libelant and owners resided, and was regarded as one exclusively of fact, and upon ,a finding that no credit had been given to the vessel the libel was dismissed. The same question arose before the court of appeals for the Sixth circuit in The Samuel Marshall, 4 C. C. A. 385; 54 Fed. 396. The libelants were coal merchants in Detroit, who furnished coal to a steam barge which was owned by citizens of Buffalo, a citizen of Michigan and of York, was enrolled at Buffalo, and had been chartered by a Detroit corporation, which had agreed to pay her expenses. The district and the appellate courts found that the coal was furnished on the credit of the charterer, and not of the vessels, and were of opinion that her home port was, at the time of the sale, the port of the charterers, for the purpose of determining whether a lien attached, and that a lien under the state statute of Michigan did not attach, unless the supplies were furnished on the credit of the vessel. The statute gave a lien upon all vessels above five tons burden used in navigating the waters of Michigan "for all debts contracted by the owner or part owner or master * * * on account of supplies and provisions furnished for the use of such water craft." 'rhe coals were ordered by the master. The position of the court of appeals was that the court must import into a state statute of this kind the limitations which, under the principles of admiralty, are applicable to maritime liens of the same general .class. In support of this position it urged that the state statutes were passed to overcome the result of the decision of The General Smith, 4: Wheat. 443, and place material men, whether in a home or in a
foreign port, upon an equality; that, therefore, it is to be presumed that the legislature intended that the lien should have the characteristics of a maritme lien; that a court of admiralty has no jurisdiction to enforce liens unless they are maritme, and that an admiralty lien for supplies does not exist unless they were furnished on the credit of the vessel. The conclusion of the court was that it followed from this line of reasoning and from the authorities (The Young Mechanic, 2 Curt. 404, Fed. Cas. No. 18,180, and The Guiding Star, 18 Fed. 263) that "courts of admiralty will not enforce a maritime lien against a vessel for supplies created by a state statute, unless the supplies were furnished on the credit of the vessel, for that is indispensable to the existence of maritime liens of this class." The circuit court of appeals for the Ninth circuit, in Lighters Nos. 27 and 28, 6 C. C. A. 493, 57 Fed. 664, followed The Samuel Marshall, and Jar the same reasons. Judge Hoffman, in the same circuit, had previously insisted upon the necessity of credit to the vessel as a prerequisite to a lien under the statute of California. The Columbus, 5 Sawy. 487, Cas. Ko. 3,044. Since the opiniou of the district court in this case was written, Judge Brown has also decided the question of the necessity of credit to the vessel, with reference to the New York statute, in the same way. The Kate, 56 Fed. 614; The Advance, 60 Fed. 766. The foregoing cases were of liens by virtue of state statutes upon domestic vessels, or those which, for the purpose of a lien, were regarded as vessels in their home port. 'rile argument is stronger in regard to the necessity of requiring the credit of the vessel as a prerequisite to a lien upon a foreign vessel under a state statute. 'rhis class of statutes was created to supply a supposed defect in the maritime law of this country in regard to a lien for supplies furnished to domestic vessels upon their credit. In regard to foreign ships, there was no defect in the maritime law of the country, for the principles of the general law of the sea had 1;>een abundantly declared to be the law of the United States, and it is not to be supposed that the various states undertook to enlarge the maritime law in resped to liens upon foreign vessels by introducing a new element into local laws, and furnishing material men with a new kind of a lien, and thus to enlarge the admiralty jurisdiction of the district courts of the United States. It has been repeatedly declared (The St. Lawrence, 1 Black, 526; The Lottawanna, supra) that state laws cannot enlarge the limits of ad· miralty jurisdiction, but that result would necessarily follow if each state could abolish old limitations, and change existing l'equisites for maritime liens upon foreign vessels. Assuming that every local statute upon the subject of maritime liens upon foreign vessels is not beyond the power of a state to create, it is reasonably certain that it is beyond the power of the district court to carry into full effect a state statute which abolishes the principle npon which the maritime law of the country has declared that such liens rest. For that purpose the statute must be construed to imply that the repairs were furnished CpOIl the credit of the vessel.
The libelant suggests that the claimant has waived any objection to the existence of a maritime lien upon the boat by his conduct in filing a cross libel in personam, and obtaining a stay of proceedings upon the original libel until security to respond in damages should be furnished. This suggestion is not well grounded. Bigler did not object, by plea or otherwise, to the jurisdiction of the court. It had full jurisdiction to ascertain the validity of the alleged lien, which was in issue under the answer, and thereby obtained jurisdiction of the cross libel, the subject-matter of which arose "out of the same cause of action for which the original libel was filed." Admiralty Hule 53. By bringing a cross libel, . the claimant lost no defense which was properly set up in the answer. The boat made her trial trip in June, 1891. She ran thereafter UpOI! excursion trips of about 45 minutes in duration, from Atlantic City to the ocean, 3 days in June, 18 days in July, 29 days in August, making several trips each day, and in September went to Newburgh, where the cells were taken out. In the matter of speed she appears to have been unsuccessful. The libel was filed on September 22, 1891. On October 19th the Consolidated Electric Storage Company, the licenS of two patents granted to e Charles F. Brush for improvements in secondary batteries, known as the "Brush Patents," notified Bigler that the cells which he was using in his boat were an infringement, and that it should claim damages for their use. It appears from the records of this court that these patents had been in litigation between the Brush Electric Company and the Electrical Accumulator Company in the Southern district of New York, and that on July 23, 1891, an opinion was filed in that court (47 Fed. 48) which sustained their validity and directed an injunction. From the decree dated October 13, 1891, an appeal was promptly taken to the circuit court of appeals and the decree of the circuit court was, in substance, sustained on October 4, 1892. 2 C. C. A. 682, 52 Fed. 130. The operation of the writ of injunction was suspended for 30 days from the date of the decree, with leave to the defendants to apply for a further or for the vacation of the injunction in case it should appear to the court that the complainant or its said licensee were not prepared to deliver to the defendant or its customers the types of batteries made by it at the prices which were specified. The company which made the cells for the Electron was the successor of the defendant in the Brush suit. Bigler offered, by letter of November 18, 1891, to return the machinery to the libelant, and filed his cross libel November 28, 1891. It was conceded upon the trial of the libel and the cross libel that similar cells to those which the Electro-Dynamic Company supplied to the yacht were in the litigation upon the patents which were held to be infringements. 'fhe libelant in the cross libel proceeded upon the theory of a rescission of the contract, and also that he had been evicted, and asked for a repayment of all the. sums which he had paid, for a cancellation of his outstanding notes, and for additional damages. The district court allowed to the defendant in the libel the
damages for the interruption to the further use of the battery from October 19, 1891, deducted the amount, which was determined to be $801.98, from the amount of the unpaid contract price, and directed a final decree for payment to the libelant of the balance, interest and net costs, amounting in all to $1,747.18, which had the effect of dismissing the (TOSS libel. The elaimant and the cross libelant appealed. In view of the facts which have already been found in regard to the alleged violation of the provisions of the contract, the suggestions which remain to be considered are those arising out of the fact that the eells, when furnished, were infringements of valid patents. Upon the sale of personal propei'ty in the possession of the vendor there is an implied warranty of title, and there must be the same implied warranty of the purchaser's uninterrupted right to use an article which the vendor sells to him; especially when, as in this case, its use is indispensable to the continuance of the business for which it was purchased. If the purchaser is prevented from the use of the purchased property,-in other words, if he is evicted,-he has a defense to an action for the purchase price. Bigler was not evicted, for a mere notice of the claim of infringement by the owner of the patent is not an eviction (Consumers' Gas Co. of Danville v. American Electric Const. Co., lC. C. A. 663, 50 Fed. 778); and in view of the condition of the original order of injunction against the Electrical Accumulator Company it is not probable that an injunction would have been issued against him pending the appeal. But he offered to return the equipment, and had attempted to rescind the contract, and therefore could have "an action upon the implied warranty, and, of course, a defense to an action for the purchase price." McGiffin v. Baird, 62 N. Y. 329; Case v. Hall, 24 Wend. 102. He was pntitled at least to a reduction from the purchase price by reason of the breach of warranty of the right of uninterrupted use, and he insists in his seventh exception that the libelant's sale of infringing articles constituted a complete defense to its claim. It is true that the new cells constituted a material part of the repairs which were furnished, but they constituted a part only. The boat had been used for a portion of the summer season, and the use of the cells was certainly not interrupted before October 19th. It cannot be said, as matter of law, that the breach of \varranty constituted a perfect defense against the payment of any sum whatever, and, while there is an exception, because the district court sustained the exceptions to the commissioner's report, as the record contains none of the evidence upon which the commissioner or the district court acted, there are no data by means of which this court can ascertain whether the amount which was finally allowed was inadequate. The cross libel of Bigler cannot be sustained, because his damages are less than the amount which he owes, and no decree in personam should be rendered in his favor when his debt to the Ii. belant is unpaid.
A decree in rem cannot be rendered in favor of the libelant, for the repairs were not furnished upon the credit of the vessel. The decree of the district court is reversed, without costs, except so much of the decree as dismissed the cross libel.
HINCHMAN et al. v. PARLIN & ORENDORFI<' CO.
(Circuit Court of Appeals, Fifth Circuit. May 5, 1896.)
EVIDENCE-DECl'lASED ST. § 858. The husband of a deceased party, defending an action as her executor, is not precluded, by Rev. St. § 858, from testifying to incidents, occurring wii:b third parties for the benefit of the deceased, as to which she, if living, could not have given testimony to contradict his, although in such transactions he acted at the time as her agent.
FRAUDUr,ENT 'CONVEYANCES-QUESTION FOR JURY.
Though a conveyance of property by a husband to his wife, made when he is in embarrassed circumstances, will be scrutinized closely, and will not be permitted to cloak a fraudulent purpose, a preference in good faith of a wife's claim will not raise a presumption of fraud, and the inferences to be drawn from the time when such a conveyance is made, from the condition of the grantor's business, and from the deed itself are questions for a jury, and as to which, in an action involving the same, counsel have a right to argue to the jury.
In Error to the Circuit Court of the United States for the Northern District of Texas. D. A. Kelly, for plaintiffs in error. U. F. Short, for defendant in error. Before PARDEE and McCORMICK, Circuit Judges, and SPEER, District Judge. McCORMICK, Circuit Judge. This is a statutory action for trial of the right to personal property taken under judicial process. The defendant in error, the Parlin & Orendorff Company, held a judgment against Acanthus Hinchman and' others, on which execution issued and was levied on the personal property in question. \Vhen the marshal had made the seizure, the claimant, Martha A. Hinchman, made her affidavit and bond under the statute, the property was surrendered to her, due return made of the affidavit and bond, and this cause docketed for trial. The plaintiff in the execution (the defendant in error here) tendered issues, showing its judgment, the execution issued thereon, the levy on the property in the possession and control of Acanthus Hinchman, one of the defendants in the execution, and averripg that the property was owned by Acanthus Hinchman, was subject to the execution, and was of the value of $3,000. Before the trial, the claimant died testate. Acanthus Hinchman, named executor in her will, qualified as such executor, and replied to the issues tendered that the claimant was not liable for the plaintiff's judgment; that the property seized was not of the value of more than $2,325; that the property was a part of the sep-
HIKCIDIAN V. PARLIN & ORENDORFF CO.
arate estate of the claimant, Martha A. Hinchman, the wife of Acanthus Hinchman; that it was purchased with the proceeds of her separ'ate estate, and was taken by her in payment of debts which he owed her for funds of hers which he had used in his business; that he, as her husband, was the lawful custodian and manager of her separate estate, and in that capacity held and controlled the property at the time of the seizure, for her, and as her agent. The proof showed that Acanthus and Martha A. Hinchman had been husband and wife from January, J856, to her death; that before their marriage she had no separate estate; that her father then gave her three or four hundred dollars; that she afterwards inherited from her father about $;;\00, and from an nncle abont $100; that ,,,hile tllC'Y rel:iided in Missouri the hnsband invested the claimant with title to certain real estate near Pleasant Hill, in Cass county, :\10., with the view and to the legal effect of making it her separate estate. 'fhe proof tended to show that the husband afterwards used this property in his business, and that at the time it was so used it was of the value of $27,000; that III 1877 they came to Texas, and the husband went into business in Waco, 'fex., where he owned and used as his place of business a certain lot and improvements suitable therefor; that on the 5th of September, 1881::\, while using the same as his place of business, he conveyed the ground and buildings thereon to his wife, the claimant, reciting in the deed as follows:
"]'01' and in consideration of sixteen thousand dollars, to me in hand paid by my wife, Mattie A. Hinc!<man, said sum being the estimated value of the property hereinafter described, and which sum is a credit in my favor upon a balance of twenty-six t.housand seven hundred and six dollars, which lowe my wife for property and money belonging to her separate estate, which I have heretofore used in my business, and for which, to the extent of the value of the property hereby conveyed, I now reimburse and pay her, leaving due her, after deducting payments already made, the sum of fourteen hundred and twenty-six dollars, have granted, sold, and conveyed, and hy these presents do grant, bargain, sell, and convey unto the said Mattie A. Hinchman, to be held, owned, possessed, and disposed of by her as her sole and separate property and estate, all that piece or parcel of land situated, lying, and being in the county of McLennan, state of Texas, city of 'Waco, and described as follows."
On February 28, 1890, by deed duly acknowledged on the following day and recorded in the deed records of McLennan county, Mattie A. Hinchman and her husband, A. Hinchman, conveyed the "Vaco business lot to Sanford Johnson, reciting a cash consideration of $6,750, and the further sum of $6,625, due in one year from date, and a like sum due in two years from date, with 8 per cent. per annum interest thereon, as shown by two notes made by Johnson, payable to the order of M. A. Hinchman, and secured by vendor's lien on the property. There was proof tending to show that some of the personal property seized was purchased for M. A. Hinchman with the proceeds of the sale to Sanford Johnson. It was shown that on the 24th day of November, 1887, for a recited "consideration of $4,000, said sum being a part of her separate estate which I have used in my business, for which I now reimburse her, have granted, sold, and conveyed to said A. Hinchman, to be owned, used, and disposed of by her as her sole and separate estate and property, two cer-
tain tracts of land in Limestone county, Texas," etc. It was also shown that on the 5th of September, 1888, A. Hinchman conveyed to his wife certain ranch lands in Hamilton county, Tex., reciting a consideration of $---, the other recitals as to her separate estate be· ing the same as in the deeds already mentioned; and on the same day, for a recited consideration of $3,000, with similar recitals as to payment on indebtedness, etc., conveyed to her certain cattle, horses, and other personal property described, and then on the ranch lands above mentioned. There was also proof that the separate property of M. A. Hinchman at Pleasant llill, Mo., was traded for certain lots in Kansas City, which were conveyed to A. Hinchman by deed dated Maroh 1, 1887, reciting a consideration of $27,000, which he conveyed to Henry J. Blanchard by deed dated October 25, 1888, upon a recited consideration of $30,000, showing that said property was subject to an incumbrance of $10,000 given to the National Loan & Trust Company. On the same day (October 25,1888) Blanchard and wife conveyed the same property to Mattie A. Hinchman, with the same recitations. It was shown that the Pleasant Hill property was worth $27,000 at the time it was traded for the Kansas City lots, and that these had steadily decreased in value, and at the time of this trial were not worth more than $10,000, if free of incumbrance. On the trial, while A. Hinchman was on the stand as a witness for the claimant, he was asked "if he knew whose money paid for the property seized," and "if he knew from what source the money was received which paid for it." Plaintiff's counsel objected to this question, and to the evidence which it was designed to elicit, for the reason that it involved a transaction between the witness and the deceased, M. A. Hinchman, and that the witness had not been called to testify concerning the same by the plaintiff; and the court excluded the testimony on the ground that the witness, through all the transactions, was acting as agent for the claimant, and that the proposed testimony involved transactions between the witness and the claimant, and hence could not be introduced. Claimant attempted to make similar proof in reference speeially to the mules seized, which was objected to on the ground that it involved a transaction between the witness and the claimant for which the plaintiff had not called him to testify. "The court was of opinion that the matter involved a transaction with the deceased, which the statute forbids, and the plaintiff's objection to the evidence was sustained." The claimant offered to prove by Louis A. Hinchman that the money paid for the sheep in controversy was derived from the sale to ,Johnson of the business homestead lots in Waco. Plaintiff objected to this proof on the ground that claimant had shown no title in herself to that Waco property as a part of her separate estate; that claimant had not shown that her husband owed her any sum whatever; that the different conveyances to her showed that they were made for the purpose of defrauding the creditors of A. Hinchman, and that no gift of exempt property had been pleaded. The court sustained the plaintiff's objection to the testimony. The proof was conflicting as to the value of the property surrendered to the claimant. 'Vhen the
HINCHMAN V. PARLIN & OREli:DORFF CO.
proof was closed, counsel for the claimant offered to address the jur;r, but was prevented from so doing by the court; the trial judge stating to counsel that it was useless for him to address the jury, as a peremptory instruction to find for the plaintiff would be given. Counsel claimed that they had the right to address the jury upon the question as to whether or not, under the evidence, the several transfers which had been introduced in evidence were made for the purpose of defrauding creditors or for the purpose b;r A. Hinchman of paying a debt which he owed his wife for property of hers, which he had used; and also to address the jury upon the value of the property seized, as to which there was a material conflict in the evidence. Counsel's claim to address the jury was refused. '1'he claimant duly excepted to the adverse rulings of the court and to the general charge to find for the plaintiff, and reserved and presents the exceptions by proper bill, on each of which error is assigned. Acanthus Hinchman, having become a party to the suit as executor of the deceased claimant for or against whom judgment would be rendered, could not be allowed to testify against the adverse party as to any transaction had with the testatrix, unless called by the opposite party, or required to testify by the court. Rev. St. U. S. § 858. 'Ve do not clearly perceive how the trial judge reached the conclusion that the matters about whkh it was proposed to examine A. Hinchman were transactions with the deceased testatrix. Is not a witness, although, as legal representative, a party to the suit, competent to testify about incidents occurring with third parties for the benefit of the deceased? It does not that Mrs. Hinchman, if she had been in life, could have been herself a witness, whose testimony might have conflicted with Hinchman. If he had been offered to testify against her interest in a matter she might, if alive, have contradicted, 01' to a transaetion between her and the plaintiff, the reason of the rule might have excluded him. To apply the statute as the circuit court bas done in this case would take us beyond the reason of the law. Besides, the plaintiff had examined this witness as to the execution of his deed of :November 23, 1887, to the lands in Limestone county, and also his of September 5, 1888, for the Pancake or :;.Ieill's Creek ranch in Hamilton county, and had offered these deeds in evidence. with their recitations as to the consideration; and it is not so clear that, having been called by the plaintiff to testify at all as to the execution of these deeds thus put in evidence against him, he should not have been allowed to speak fully as to the consideration. 'We are of opinion that the court erred in giving the general charge to the jury to find for the plaintiff. The deeds from Acanthus Hinchman to his wife, which were offered in evidence, are not manifestly fraudulent. Each, taken on its face, shows a good, a valuable, and an adequate consideration, and each is effective to convey the estate it purports to convey if its language speaks the truth as to its consideration and purpcse. Tbe inference of fact to be drawn from the time when each was made, and from other proof touching the condition of the grantor's business, whatever may be its force, is certainly within the province of the jury to determine. While such transactions between husband and
74 FEDERAL REPORTER,
wife will be scrutinized closely, and will not be permitted to cloak a fraudulent purpose, the good-faith preference of a wife's claim over the liability to other creditors by even a failing debtor will not raise a presumption of fraud. It seems to be established by the proof that about 10 years before those conveyances were made the claimant had a separate estate of about the value of $27,000. It appears that her husband exchanged her property for land, the title to which he took in his own name; that nearly two years after this transaction he caused this property, then incumbered to the extent of $10" 000, to be transferred to his wife. It does not appear what the value of the property was at the time of this last transfer. It is proved that the conffideration recited was nominal. It does not appear that it is now worth more than $10,000 free of incumbrance. Upon the whole -record it appears to us that a reasonable mind might conclude that the husband had not, before the 5th of September, 1888, fully repaid his wife, or restored to her separate estate the value of the Spring Hill property, which he had at one time converted to his own use. There are, therefore, issues here which should have been submitted to the jury under proper instructions. It is also clear to us that counsel should have been permitted to address the jury on these issues, and as to the value of the property seized. It follows that the judgment of the circuit court must be reversed, and this l'illlse remanded, with directions to that court to award a new trial.
WONDERLY v. LAFAYETTE COUNTY. (Circuit Court, W. D. Missouri.
ScIRE FACIAs-MISSOURI STATUTE.
June 15, 1896.)
Under the practice in Missouri, a writ of scire facias to revive a judgment, which has been assigned, is not demurrable because issued in the name of the assignor, but it is sufficient if the writ itself shows that it was issued on behalf of and to the use of the assignee, and permission may be given to amend the writ by striking out the name of the assignor where It is mere surplusage. The right to a writ of scire facias to revive a judgment is not limited by the Missouri statute (Rev. St. Mo. § 0(13), providing that a plaintiff may have the writ, at any time within 10 years, "to revive a judgment and lien," to cases in which the judgment which it is sought to revive is a lien on property.
The right to a writ of mandamus for the enforcement of a judgment ill eqUivalent to the right to issue an execution thereon for the purposes of an application to revive the judgment on scire facias.
The revival of a judgment by scire facias, under the statutes, continues the right to enforce the same by execution or mandamus, or to bring an action thereon, and such rights do not cease upon the expiration of 10 years from the entry of the original judgment.
Christian & Wind, for plaintiff, J. Lewis and Elijah Robinson, for defendant.