EVANSti. LAWTON.
233
The defendants, however, intei'pose the objection that the provision just cited is for the government oithe New York courts alone, and car>. have no control over the equity practice in the federal courts. On such examination as we have given to the matter and to the authorities cited in the briefs of counsel, we cannot assent to this view. No good reason has been assigned, nor does there appear to be any, why this court should not recognize the statutory provision of New York, and apply it to the pending suit between these parties. The question would seem to involve som.ethingmore than a mere rule of practice; it embraces the legal and equitable rights of the plaintiff under the laws of the state which create,d it, and, pres,cribed the terms and .conditions on which it might be consolida'ted with onear more corporations of the same state. In Banking .,Co.y.Georgin" 92U. S. 665" it was held that the of. two companie!> does not reasonably work a dissolution of both, and thecreationoh neW corporation. 'Whether such beits effect dependsnpon the intent manifested in the statute under whicq the consolidation takes place. Andso, in Bank v. Colby, 21 Wall, 614, the suprem.e court of the United States recognizes the doctrine that the' existence of corporation, whose chartered life had come to an end by forfeiture'qf. Gharter, or lapse of time, may be prolonged by statute for the purpose of conducting pending suits to judgment; nor was the idea anyWhere entertained in that case, as intimated by counsel, that it.,would make any difference whether the corporation had Peen created ,by,nn.act of congress or by the law of a state legislature. Hthe statute of New York WaS o( any or policy of the United States, r pJ;:lere would .· be'substantialgrounds for allowing this motion; but it has does it appellrto be, objectionable in this, to dismiss, .the bill is therefore and the motiqn on bebalf'of the ,cOIioplainant, founded on the defendants' to company as complainal1t, is granted, althc;lligh substitute there w041d El to. be no valid objeption to prosecuting the suit/lsit em now stands of as the act authorizing the consolidationlJermits either CQurse to b.6 taken. . I
EVANS
et al.
'!1. LAWTON
et at
«(Jireutt Court. E.D. Mtaaourt, N. D. March 5,1888.) 1. PRINCIPAL Jl,.1Q'D AGENT'S GtJARANTIilR. OF AGENCY-A:LTERATION-RIGBTS OF " . ' . '.
A'contract of agency in writing provided that the agent was to conduct 11 lumber·yard for the principals. they to supply him with stock, which he' was to sell; for "cash in all cllses." K. indorsed this agreell:l(mt. the ."due performance" by the agent "of his obligations iIkthe above contract. " Shortly after. the yard was opened, the agent hegan on credit. and continued to do 86 for several years; when he defaulted:' The principals not only knew of these sales, but they warned the agent "to be cautious in giving credit." and told him "to watch his book·,accountsi 'al1d<Ii'eep
"284 theJD. cl,osely made him whIch they authonzeq. him m terms to sell on crlldit., Held. mat the , eOb'trlict ',Of employmen,,'t 'liad'been materially altered,an'd''that theguatantor ,"w!'!lJdischlmled. 1 :,' ! ' ." , Where the contract of agency makes It the duty: of tlieagent to pay over whatever money was received in the 'course of the agency. a gnartmty of the agent,I,'n Wh,ieh t:he gU,M,an,tor agrees generally duly perfurlp all the obligationsimP9sed upon llh;n QY the, cOntract of employment, isnot to be'construed all ail: assumption bt'the guarantor ofa personalliabil. ity;in :any event for all ;money received by the agent. and not accolinted simplybeeause such accounting is" particularly" ,mentiqned in the instrument out of abundant caution. ' a. 8AME-L'ri'aIL'rTY OF AGENT TO PRINCIPAL-ACCOUNTING. Under a contract of agency it was provided that 'the agent was to open a yard fp::r the purpose of the prjnciJ;lals' lumber,! which they undertook to supp:ly: blrn, and which pe was to ,sell, ,for cash, in The was to account for the whqlesale price of the lumber, for his serVICes, and for all expellse.' of running! 'the yard. including freight, and ho W8S to receive , wha.tever,t,J;1e lumber sold ,for in excess of th8 Wholesale price at was ,billed ,to, hup. ,Shortly aft\'lr t,he b,usiness was. openeci. the ,agent, wIth the know1edg'e'ancisubsequerltratificatlOIl of the prmc,ip'als. made sales on credit. HeW" on an accounting. thai the agent was entitled:to credit for the wl;lOlesale ,price Qf by outl!t!ffid,iugbi\ls as to whi.ch he had exercis.ed due time, but uotformoney laid o,ut,by hIm for t,axes aud In, sunmce." " ' , " ' , ,,'l
"
OF,
0ll' ,CONT,R4.CT'J ;';, ;'",
'LO! ,"
In Equity.
, " Smoot:&
Frank Ha.gerrrmn, for oomplainants. ! ,
ants against defendant Lawton, who at one time, a:cted' as their agent in 'selling lumber, and also against defendant Kellogg',:who the lQrJthl) p'erformanceby '¥gent. The agreement unl1er which Lawtonacted;8.S agent, wlis DecemberS, 1880. ' 'By the terms of the agl'eetilent Evans SheR'pard 'appointed Lawtoritheir il,gentat Metriphis,M;o., to conducfa lumber-yard.They aggreed to supply the yard with lumber, laths, shingles, doors, etc., which Lawton was to sell for account of Evans and Sheppard on the following terms, to-wit, sales were to be made for cash in all cases. Lawton was to render full and true aocounts of all sales made, and of all moneys received, and on the 15th and 30th days of month he was to remit to Evans & ,Sheppard whaj;eV,er moneys were in his hands received from the sale' oflu:mber, etc. Lawton was to account to his principals for the wholesale price of the lumbe,r shipped to him, and for his services, and for allexpens'es running the lumber-yard, includinll: freight, be Was to receiy,s; }Vhateyer the, lUll;lber sold for.in excess of the wholesale price at which it billed to him. On the back of the agency contract indorsed theJQlidwin'g'guaranty:
,'l'iUYE:R,J;, This isa bur tor aii aoc'ounting,' brought by compla:in-
of
"In consideration-of Evans &eheppard now entering into the above contract, and in further consideration 'of one dollarto me'paid by said Evans & Sheppard, t\J,ereceipt whereof is hereby acknOWledged, I do herebygull.l'anty 18ee note at end of caeO. ,;i'
the dtteperformance on the part of.Sa,id (ltorge ob) ligatiQos;inthe above and partieularlythat he shall dulyaceolliIt' for and pay oVer to said Evans & all moneys whieh shall be received, by'm' paid to said George H. Lawton, Senior, for lumber and other merchan-; disc hereafter furnished by Evans & Sheppard and sold and disposed of by: said Lawton, Senior. Signed at the same time as the above contract, to which this guaranty refers, as witness my hand. [Soigned.] , "A. A. KELLOGG. [Signed] OIL. MaTT."
Theprineipal qnestion for determination is whether Kellogg has beert' discharged from all liability by reason of a change in the. terms of the, agreement between Evans & Sheppard and the their agent, made without bis (Kellogg's) consent. The agreement required sales to be made for "cash in all cases." Defendant Kellogg insists that the agreement' was subsequently modified without his knowledge or consent, so as to permit Lawton to sell on credit, and that be did so sell to a large extent. On this ground he founds his claim to be discharged ftom all liability. \ Preliminary to adiseussion of tba main issue it is necessary to dispose of some incidental questions. It is suggested by complainant.S' counsel that Kellogg has not pleaded his right to a discharge' on the ground above 'stated. This point, I think, is not well taken. ,All the facts on which the defense depend are clearly stated, and in view of sueh' f.acts, and other matters also alleged, defendant Kellogg asks to be dis-' oharged without day. This is sufficient to render the defense available. Furtherrnore, it is said that "the guaranty was twofold," and that KellGlgg."absoluteiy bound himself to pay all money received by ton," and th6lCR$e of Benjnrninv. Hilliard, 23 How. 149, is cited in sup-' port of the position. This statement is rather mystifying, and is not elaboratE-d. The case cited does not explain What is meant. In that' case a guaranty was given which counsel insisted should be read in the· alternative as reqUiring the guarantor to stand responsible for the doing of one of two' things. The court,however, construed it, not in the alternative, but as requiring the performance of both obligations. I fail to see that the oase referred to has any application to the case at bar. The guaranty involved in this case is one by which Kellogg agrees generally that Lawton will duly perform all the obligations imposed upon him by the contract creating the agency, and particularly that he will account for and pay over all money received for lumber, etc. The last clause with reference to accounting for and paying over money did riot impose any obligation in addition to that imposed by the first clause of the guaranty. As the agency contract made it tbe duty of Lawton to pay over whatever money was' received from the sale of lumber. (or ratherto payoV'er the wholesale price,) the first clause of the guaranty was as effectual as the last to secure the perfonnance of that duty. The last clause ofthe guaranty was really uunecessary', and was probably inserted, not as imposing an additional obligation, but' merely out of abundllont caution.. It will be observed from the form of the guaranty that the/otuarantor did not bind himself with Lawton to discharge all or ar,y of the duties imposed br the agency contract. He guarantied that La"<\'i
236.
FE))]jlJ4.L ,REPORTER.
ton would,.duly perform all of the obligations assumed. Kellogg's un· dertakingwas purely collateral. He was not a joint promisorj and it goes without saying that he was only bound for the due performance by Lawton of the precise contract to which the guaranty nJerred; and if that has been changed or modified to any extent without Kellogg's consent, he is discharged. Permission given by the complainants to their agent to sell lumber on credit to any extent, instead of for "cash in all cases," as the contract originally required, would clearly discharge the guarantor. The on this point are, of course, numerous. I only mention MtUer v. Stewart,9 Wheat. 680; Grant v. Smith, 46 N. Y. 93; Baylies, S,ur. 260, and cases cited. This brings me to the main controversy,-whether,theagency contract was. modified ,by, the parties thereto without the guarantor's consent. It appears from the ,testimony, without contradiction, that a large quantity of lumJ:>er sold by Lawton on credit. Such sales began shortly after the was established, and,continued for a periQdof several years, and was, terminated. During almost the entire period knowledge that: he was selling lumber on credit. That they had appea,rsfrom their correspondence at an early agency, and the fact is otherwise expressly admitted by period of tpam.. 'rliereisa further admission by the complainants that in some few ina,tances they expressly. authorized sales to be made on credit. It. is also admittep by one of the complainants that,in conversation with Lawton he told him that "he must be cautious in the manner in which he gave credit," and that "he must,watch his book-accounts, and keep them closely collected." Complainant's counsel contends. however, that mere knowledge of the fact that sales were being made on credit is something entirely different from a formal consent given that sales might be so made" and does not prove an alteration of the contract. In this he is right. The obligation to sell for "cash in all cases" was an obligation by Lawton. If he violated that undel'taking in some instances, and complainants were aware of the fact, they were not bound to terminate the agency on that account, or to sue him for a breach of the contract. They had a right tt:> overlook occasional violations of the contract of thatnature, and to continue further business relations under the cuntract,and by SQ doing the contract was not altered, or the guarantor discharged. So much may be conceded. Kirby v. Stttdebaker, 15 Ind. 45. But in, this case the !Jvidence shows something more than knowledge on the pl,l.Jtof coinplainants that their .agent was selling lumber on credit. In the light of thl'l testimony it will not do to say that they. were merely of repeattJd violations of the contract, which they were privileged to overlook without impairing their right to hold guarantor. :Lawton, as made, a practice for several ,of selling and such practice was Jl0t only known to the complainants, bU,t on certain occasions they warned him" to be cautious in giving credit," and "to watch his book.accounts, and keep them closely collfjcted.", Only one inference, as it appears to me, caube drawn from sllch a ,Gourse. of dealing, and from such language, and that is that they ..
the
on
.
EVANS Vi LAWTON.
237
were willing to, allow hiIll; to. sell on credit if he exercised caution, and sold to trustworthy persons, and was vigilant in making oollections. To this extent, in my judgment, the evidence shows that the contract was modified by consent of the parties thereto. Then, again, the plaintiffs admit that on several occasions they in express terms. authorized lumber to be sold on credit, which appears to have been consigned to Lawton to be sold and accounted for under the terms of the agency contract; that is to say, he was to have all that was realized over and above the wholesale price at which the lumber was charged to him by complainants. This, as it appears to me, was also a departure by consent from one of the provisions of the contract, which required sales to be made in all cases." Upon the whole, and especially in view of the general per,persons on mission which seems to have been given to sell to short credit, I conclude that Kellogg cannot be held under hIS guaranty. It is not a whether he was prejudiced by the manner of makillg sales, but whether there was in point of fact such change assented to by the complainants, and not assented to by Kellogg. Of this I,entertain no doubt, and accordingly dismiss the bill as to the guarantor. Fromwhat has been said it follows that in, statingJhe accouDtbetweell complainants and Lawton the latter should be given credit to the amount of the wholesale price of all lumber covered by bills 'now outstandfngas to which it appears that Lawton exercised due care in extending credit. He is no.t entitled to any credit on account of overcharges on lumber consigned to him by the plaintiffs, as there is no 'tlvidence of any such overcharges. He is not entitled to credit on account of taxes and insurance, as those were expenses of the business which he assumed to payout of his profits. With respect to the additional credit of $100, claimed for the two lots of land, it is sufficient to say that the evidence will not warrant a finding that they were worth more than $400, the sum already eredited on that account. A final decree may be drawn in accordance with these views, and submitted for approval; or, if the parties fail to agree in stating the account, tl reference will' be ordered to a master to state the same as herein indicated. NOTE, WRITTEN INSTIU1¥ENTS-Alll'ERATION. A material.alteration of a contract cif @al'anty will release. surety. Osborne v. Van Houten, (Mich,) 8 N. W, Rep, 77. Mac terial alteration made by one ofthe parties without consent of the otbel', .after signing, but before delivery, is fatat Pew v. Lauglilin;'S Fed, Rep. 89: No: recovery can be had on a promissory note that has been materially altered. Bank v, Clark, (Iowa,) 1 N. W. Rep. 491, even though innocently done, Davis v, Eppler, (Kan,) 16 Pac. Rep. 793. But where the alterations have been erased before transfer, a bona fide holder may recover tbereon. Shephard v. Whetstone, (Iowa,) 1 N. W. Rep, 753. Writing changing indorser into guarantor is material alteration. Belden v. Hann, (Iowa,) 15 N. W. Rep. 591. Adding seal to name of maker is material where it affects nature of contract, or the running ofstatute oflimitations. Rawson v, Davidson, (Mich,) 14 N. W. Rep, 565. Adding figure "7" to indicate rate of interest, when note was not to bear interest, is material, Davis v, Henry, (Neb,) 14 N, W. Rep, 523; or adding, "after maturity shall draw ten per cent, interest." Wyerhauser v. Dun, (N, Y.) 2 N. E. Rep. 274; or erasing "order" and inserting "bearer" after execution, Needles v. Shaffer, (Iowa,) 14 N. W. Rep. 129, Alteration of note by being signed by one as joint maker, .after execution by the original maker, is material, and will defeat the instrument, Sullivan v. Rudisill, (Iowa,) 18 N. W. Rep, 856, Alteration by writing in place of payment, is material, Charlton v. Reed, (Iowa.) 16 N. W. Rep. 64; Townsend v. Wagon
$1' Rep. 274;;, r,awfJ"n of, thl'l contr,actof,*e in a I?ll:rti, y6Vent \ieCOrIlilrh'a. !a1;fsrtiiaL' Id. Where "'contractwinch iswnt'!;BbdifYiIig'the' 1Il0 "ill,detached, and' the, note transferred, this is III at4p1Ih and t'h.ere can 91' ,nor,eyoyery. ,Davis 1.. Henry, (Neb.) 14 N, W 1 · ReI? 1523:' W ere a rhateriltl alteratlon ill ppaJ;ent on the face of a prOmissory note, of· 'fared itlEl' ", lice I the question as to alteration was made before or after . is the iVry, 13ankv,'Morrison,(Neb.) 22 N. W. Rep, 782;, note altered the saIl1e and tral1sferred.U'befol"e duEl to a bonajtdB p'lutlhaeer,lt,ij;as:"held that such alteration Vitiated the note and there oould be no reo Spder, (Ne!?) 1:N. W. Rep. 980; aorn v. :Bank, (Kan.) 4 Pac. Rep., 1022·. Adding tl1e name of another maker to a note, without the'consent of those ·aLready bound ls'amateriaJ. aJ.teration. Singleton v. McQuerry, (Ky.) 2 S. W. Rep. 652. Wllere no ell:pill.nat!Qn is of ,a material erasure of a note for the payment of money .there can be no t-eco'very t1).ereon. '"Hood's Appeal, (Pa.) 7 Atl.Rep. 137. See, al,so, all' to what isa,materiaJ.. alteration,' Coles; v. Yorks, (Minn;) 10 N. W, Rep. 775; Osgood .'V'.' .SWv,enson, (Mass.) Q N.. E.l;l.ep. 825,; v.Ba,nlt, (N.Y.) 2 N, E, Rep. 881 i.l.ohnllon v. Moore, (Kan.) /) Rep. 406; .stephens v. Dav19. (Tenn.) 2 S. W. Rep. 382. w nere a promil\!lorynotehils been renderedvoiclby a material alteration, made without fraud,1!,l'e,*t intent.:!t4 may upon the original.consideration, all,d m,a'$ establish 'the in:debtedn:e s though lio note had' been executed by anyevidence he may lIave, either, tten.ororal, whitlh'ha:s not been vitiated: bye the alteration. Gordon Vo; Robertson.) 4: N, w,· Rep. 579; ,Morri,son v. ,<Jowa,) .ld, 81>4,' ; SUllivan, v. (IOwa,) 18 N. W. Rep. 856. Immaterial alterations, as filllng'blanks in a contract with the name of the, party thereto, will not avoid the contract,notechanging its. legal; (Iowa,) 2 N. W. Rep. 529; Rowley v.,.Tewett, (!owa,) 9 N. W. Rep. 858, CanoH v. Grigsby, (111.)'5, N.,E. Rep. 862; :Bank v. (M1Ch.) 27 N. W; Rep. 589. An,'inttrlineation. madebva st1!anger, of the words "or bearer" after the' of t 4e,' .p.&y,.ee, ,in a nObill has n,oetrect upon the rights .01' li,abilities of the parties. ' Andrews v. 'calloway, \Al"k.) 'I' Rep. 449. Figures in margin of promissory nO'tie are no pllrt of It, and alteration does not vitiate, Harvester Co. v. McLean, (WiIl.P15N. W. Rep.. 177; :and it held that Qbtaining the signing ofanother ·name as .. is' 'not· matetill1 alt'eration; and 'Will' not l"elieve the first surety, W"l.lro, 'v. Hack,et,t, (M, inn.) 14, N., ,W. Rep: '57,S. ,It has, b,e,en held that Wh,ere, a.mortgage· was executed and wife of, hel,' .land for the accommodation ofa partnership ofwhicl1 tIle. husband is a member; and 'as Secllrity for the payment of 'a negotiable promissory note made by"tble,husband to :hj.s partner and indorsed by the part:ner for the purpose, alild towhicb,note the :partner before negotiating it, addsthe wife's name a maker without' the cOnsent or knowledge of herBelf or 'husband,' such note, is no1. thereby avoided as against one,who, in ignorance of the note having .bel'ln so aJ.tered; mOney to the upon the security of the note and mortgage. ,:Mersman v. WergeB, 5 Sup, Ct.-Rep, 65. If ati alteration of a pl"omisBory note ill not material, it matters' not with what intent it was made, for under no cir; ,can it in any WfJ,y dect:tl1e of the parties. Fuller v. Green, (Wis.) 24 N'. W. Rep. 907. The 'extension by 'alteration of the time of payment of a promissory note is not such an alteration of the note as .will avoid it, the maker being :fre!lto,pa;v the note on, or before such daY,and the payee being restrained from compelling payment before that time. Dre:ll:ler v.' Smith, 30 Fed. Rep. 754. The burden of 11roo,f aB,t,0 an:al,t,erll.,tiOn,iS, u,,pon the pJ!orty asserting tt. ',DdelLV. Gallup, (Iowa,) 17N. W.Rep.502U·rGoI'donv. RobertBon, N. W. Rep. 579; Cox v. Palmer,S Fed. Rep. 16: In a clv action'a preponderance of evidence is all that is necessary to establish ii. fraudulent alteration. Coit v. Churchill, (Iowa,) 16 N. W. Rep. 147. See, also, on the generalsubje!lt of the aJ.teration of wl'itteJ;l Sawyer v. Perry, (Iowa.) 17 N. W. Rep. 497; Woodworth v. Anderson, (Iowa,) 19 N. W. Rep. 296; Scofield v. Ford, ; v. It;lB\lra.nee Co., (N. :,¥,).5, N, E. ',ReIl. 338, ; ChU,reb. v. ' , :&:owle, (¥aes.).6N. E ..Rep. 764; Martm v. Insurance CO" (N. Y.) 5,N.E. Rep. 888; Mar. tin ,v. lainingOo., r 8 Pac. Rep. 488; Arguello, v, Bourl1, 8 Pac. Rep. 49;_ ;pereau v.lj'redEl'ricK" (Neb.) 22 N. W. Rep. 2815. ' 'ten onBllllW p
".,."
,
J
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[:<"
ZERINGUE V.,TEXiAS'& 'P.'R. CO.
ZERINGUll: V.' TEXAB&
P. R.Co.
,Wircuit Oourt,
l 1..
D. Lo'!liaiana. March 10,1888.)
1.
SPEOIFIO PERFORMANCE-STIPULATIONS OUTSIDE OF CONTRACT.
o'\V;Derof some land, expropriated for It railroad sold by notarial act the land .tothe. company, after judgment, for the amount specified inthecqudeitmatl<>n, the railroad undertaking asa further consideration to do and hot to do lJElttAlo things for the benefit of the rest of vendor's land. Vendor·filed a bill for specific performance and damages on the ground that'therallrqad had falledtt> carry outthe agreement. .The bill also alleged neglect of Qtl:!er considerations assured vendor and not contained In the decree of COnde1tination or act of sale. Held, that tl:!e contract 'between vendor and the railroad was to be found either In the of s,"e, and that allthe allegll;' tionsnot so embodied should be eliminated from that a motion to'suppress evidence in relation to these allegations should be granted. " .', '
J. ,'
8. BAME-PRACTICE-'-DAMAGES-DISMI8SAL OF BILL. 'Where ft,'billin the federal court for specific performance of Stlpittati'6DS ina contract fails to make out a case for such relief; but onlr a case for damages for breach of such sti,p.ulation, the bill will be retaIDediIl. eq\lityto , .award such damages, .but will be dismissed without prejudice to an"action at IawoD the' same caUse of :action. "
In a deed Qf. Sale and,comprpmise \'i!38the stIpulation that the vendee ;<,lr "shall and. k'eep in repair ,such .bri4¥es as may over the lands herem acqUired," Held, that thiS stipulation waS Indefi· nite to be the subject ofal bill and decree for specific perfMmance, because , nqjsujficientlydefined enforce.. . ,:, i
BAlIlll-REQUISITES OF CONTRACT-DEFINITENESs.
Bill.in; eqplty for specific perform"J;lce aJ;ld damages. On the 19th o! March,.,1870, Camille Zeringue,by natedto the New Orlell,Iill;!,Mobile & Chattanooga Railroad Compa.J;lY the rightQf,way,aJ;ldpassage()YElr andthrOl:igh his plantation lying in Jefferson ,parish, an4saidcQrnpauy thereupon andconstrnctedtbereou the road, etc. On the 3d of May,.l870, the railroad .compa.nyinstituted proceedings to expropriate a certain portion of said plaJ;ltation, aggregating 192,10 acres. A decree was rendered expropriating said, land for the use ·()f the said cOrnpllny, copdemning the said compa.ny to pay therefor t/:le Bum of $45,000, and also 19 lJ'Uild .boundary ,place boundary posts or stones; to drain said l"n<is for the 'Use arid benefit of the remaining L!.nds of Zeringue; to<bJ;lUd and 4eep jn across the drainage caJ;lals; .andto maintain a rOlldwaypveJ;'andthrough the lands expropria,tedof ,a width of 25 feet, ,free to. and use of same being reserved to said .Zeringue, .his heirs and judgment was revllraed by the supreme court and {J8.s.e reml;lndedforanew triaL On the19th of March , 1872, a."second died, in order to avoid further litigation, and to had in the decree was. rendered in said proceedings expropriating said land, con1 Equity wili not spec.i1icallyenforce a contract wanting in mutuality, Bourgetv. Monroe, (MIch.Y25 N. W. Rep. 514; Hall v. Loomis, (MICh.) SO N. W, Rep. ,374,; Moses v. :MbClI!-In, (Ala,.) 2 South, Rep, 741; Recknagle v. (Iowa,) 83 N. W. Rep, 365; v. Cota, (Cal,) 16.Pac. Rep. 5; Fogg 'f. (Mass,) N. E. Rep, 741; APp.eai of II.althouse, (Pa,) 12.Atl.Rep,. 840. ; Magee v. (C.at,) 12 Rep. v. Tripp,&, 83 Fed. Rep. 530; Stembridge't. Stembriugt,l, (Ky,) '11:). W. RlilP, tip; v, 5 S, E.iWp.297; v.Sunpson, (Mao) 8 SOuth. Rep. 71>1l, Du:tr v, Hopkins, 88 Fed. Rep. 599. .