I'BBKINS V. UNITED STATES ELEOTRIO LIGHT 00.
618
UNITED STATES V. TIERNAt.
(Oireuit Court, E. D. Mi8lOuri. September, 1881.) OBIHINAL INFORJrlATION IN DISTRICT .COURT-REv. CIRCUIT COuRT.
ST. f 1037-REJlIT'l'EB
TO
A criminal proceeding by information filed in the district court cannot be remitted to the circuit court under the provisiona of section 1037 of the Revised Statutes.
Motion to Remand to Distriot Coun. W. H. Bliss, for United States. Marshall et Barclay, for defendant MCCRARY, J. This is a criminal information, filed in the district court, charging the defendant with a crime against the eleotive franohises, (Rev. l::lt. § 5511,) and it is proseouted under an information and by the authority conferred by section 1022 of the Revised Statutes. It was remitted to this court from the district court under the provisions of section 1037 of the Revised Statutes, which by its terms authorizes the district court to remit to the next session of the circui\ court of the same district any indictment pending in said district court. Defendant moves to remand the case upon the ground that the statute did not authorize the district court to send it here, this not being an indictment. The motion must be sustained. We are not at liberty to presume that the term, "indictment," in section 1037 of the Revised Statutes, was intended to include an information. We cannot enlarge or change the plain meaning of the language of a oriminal statute. It must be strictly construed
PERKINS 11. UNITED STATES ELECTRIC LIGHT
Co.
(CirC1lit Oourt, S. D. New L
)""rI.:.)
ENFORCING LmN FOR PuRCHASE MONEY-VACATING TRANSFER.
Equity will enforce a lien for purchase money, but it will not vacate a trans· fer because the purchase money has not been paid. The action to enforce the lien is in affirmance of the transfer, and the decree in such an action orders the property to be sold, or so much of it as may be necessary to discharge the lien. I. AGREEMENT IN CONTRACT TO ARBITRATE CON'l'RACT. WHEN A BAR TO SUIT ON THE
A simple agreement inserted in a contract that the parties will refer any dispute arising thereunder to abritration, will not bar a suit at law by either
v.16,no.5-33
514
FEDERAL REfORTER.
party upon the contract before an offer to arbitrate; but where the contrae:t stipulates that the arbitration is to be a oonditio n precedent to the right to sue upon the contract, or this may be inferred upon construction, no suit can be maintained unless the plaintiff has made all reasonable effort to comply with the condition. . S.. CONTRACT FIXING MODE OF ASCERTAUiING PRICE-SUIT TO ENFORCE. Where parties in a contract fix on a certain mode by which the amount to be paid for property, which it is agreed one of the parties may have the privilege . of purchasing, shall be ascertained, the party that seeks the enforcement of the agreement must show that he has dOlle everything on his part to carry the agreement into effect. The cause of action is not perfect unless the prescribed mode of determining the extent of the liability has been pursued or has been dispensed with.
Motion for Preliminary Injunction. H. A. Banning, for plaintiff. Butler, Stillmq,n et Hubbard, for defendant. WALLACE, J. The complainant for a preliminary injunc. tl0n upon a bill filed to restrain the defendant from granting licenses or otherwise using the rights secured by' several letters patent for inventions issued to the defendant. The complainant engaged in the service of the defendant ,for a term of years ata salary under a written agreement, which, among other things, provided that the defendant should have the option of pursuch inventions as complainant might make while in defendant's employ, pertaining to the art of lighting by electricity, at such prIce as might be agreed upon, or, in case the parties should be unable to agree upon the price, then at such price as should be fixed by three arbitrators; one to be selected by each party, and the two thus selected to choose the third. The agreement further provided that the defendant should pay all expenses of procuring letters patent, and should hold all the letters patent and inventions, except such as Hi should elect to purchase, in trust for the complainant, and to assign them back to him upon being reimbursed the expenses. The defendant elected to purchase the several patents which are the subject of this suit; but the parties were unable to agree upon the price to be paid therefor. Thereafter the defendant asked for an arbitration, selected an arbitrator, and notified the complainant. The complainant refused to accede to an arbitration, and now insists upon his right to re\'oke, and to compel an assignment of the letters patent. The patents having been issued directly to the defendant, it ac. quired the leg31 title. It not only acquired the statutory title to the inventions, but this inured to it with the consent of the complainant,
PERKINS
v.
UNITED STATES ELEcTRIC LIGHT 00.
515
and rightfully, under the terms of the agreement between the The complainant has no'paramount equity which can prevail against the title of the defendant. There is no equitable principle upon which -complainant can found his right to relief.' He is entitled to a transfer {)f such patents only as the defendant has not elected to purchase. If it should be assumed that he is entitled to be paid for his patents what they are fairly worth, and that the defendant has refused without right to pay, the property is vested in the defendant, and the complainant's remedy is by an action to recover the consideration. Equity will enforce a lien for purchase money, but it does not va<late a transfer because the purchase money has not been paid. The a.ction to enforce the lieu is in affirmance of the transfer, and the -decree in such an action orders the property to be sold, or so much of it as may be necessary to discharge the lien. Mullikin v. Mullikin, 1 Bland, 538, 541; Wade's Heirs v. Greenwood, 2 Rob. (Va.) 475; Outton v. Mitchell, 4: Bibb, 239. But the defendant has always been ready to carry out the agreement respecting the price to be paid for the pat.ants it has elected to retain. Its conduct is agreeable equity, while the complainant seeks the assistance of the court to abrogate an agreement fairly and deliberately made, and made (or the express purpose of adjusting any differences that might arise between the parties without recourse to a legal tribunal. No authorities countenance his position. It is familiar doctrine that a simple agreement inserted in a contract, that the parties will refer any dispute arising thereunder to arbitration, will not oust courts of law of their ordinary jurisdiction. Either party may sue the other upon the contract without having offered to arbitrate. He may be liable for damages for a breach of his agreement to arbitrate; but the agreement will not bar his suit. If, however, the contract stipulates that the arbitration is to be a condition precedent to the right to sue upon the contract, or if this may be inferred upon construction, no suit can be maintained unless the plaintiff has made all reasonable effort to comply with the condition. But under the agreement here there iEl n::> cause of action upon the facts as they exist. The agreement which creates the obligation of the defendant providos the mode by which the extent of the obligation is to be ascertained. In U. 8. v. Robeson, 9 Pet. 319, it was held that when the parties in a !Jontract fix: on a certain mode by which the amount to be paid shall be ascertained, the party that seeks the enforcement of the agreement must show that he has done everything on his part to
516
REPORTER.
carry it into effect. The cause of action is not perfect unless the prescribed mode of determining the extent of the liability has been pursued or has been dispensed with. In Story, Eq. JUl'. § 1457, it is stated that "under a contract to pay the covenautee such damages in a certain contingency as a third person shall award, there is, in the absence of fraud, no cause of 'aCtion either at law or in equity unless the award is made." This doctrine is abundantly supported by the adjudgtld cases. Herrick v. Belknap, 27 Vt. 673; Hood v. Hartshorn, 100 Mass. 117; President, etc., v. Pennsylvania, Coal Co. 50 N. Y. 250. The parties here selected the means of determining what price should be allowed for property, the value of which is always more or less speculative and conjectural. The case is one where it is peculiarly appropriate that they should be held to their contract according to its terms and intent. The motion is denied.
FORDYOE,
Assignee, etc., v.
l-'EPER.-
(On Bill.) (On Cross-Bill.)
PEPER and others
Assignee, etc.
(Oircuit Oourt, E. D. Arkansas. 1. FACTOR-RIGHT OF SALE FOR ADVANCES.
April Term, 1883.)
.
A fact.or who has made advances on the credit of the goods consignett to him for sale, has a right to sell enough to reimburse his advances, unless restrained by some agreement with his consignor.
2. SAME-AGREEMENT TO HOLD FOR CERTAIN TIMB. If cotton factor for a sufficient consideration agrees to hold the cotton of a
consignor until the opening of the market the next year, he is bound to do so; and if he sells the cotton before that time wit,hout the consent of the consignor, he is liable for the difference between the price at the time he sold and the price at the time he was authorized to sell. 8. SAME-]'RAUD GROSS NEGLIGENCE OF.
a
A factor or other agent, who is guilty of fraud or gross negligence in the con. duct of his principal's business, forfeits all claim to commission or other com. pensation for his services. 4. SAME-FALSE ACCOUNT OF SALES.
Where a factor knowingly 'transmits to his consignor a grossly false and fraudulent account of sales, and does not enter the sales on his books until months after they were made, and then enters them falsely, no credit will be given to the factor or his books.
In Equity. E. W. Kimball and G. W. Murphy, for plai.nt,iffs.
Wm. G. Whipple and G. H. Latta, for defendants. * Reversed. See 7 Sup. Ct. Rep. 287.