37 F. 560 -

.560

FEDERAL REPORTER,

vol. 37·

nothing, for there was nothing upon which it could fasten itself. The offer had been declined by SeyIfl.Our'sprincipal, and another l:lUbstituted by him for it. But it is insisted that Gordon's note of July 5th in reply to Seymour'R letter should be construed into an acceptance of Seymour's offer. A reasonable regard to the manifest meaning of the terms of this note does not sustain this position. "I have turned the business [over] to Mr. White, and he will trade with you. 'i< * * Upon presentation of a deed from him, I will sign and send it back." As to turning the business over to White, he spoke of what had taken place before Seymour wrote. The fair interpretation of the language is that Gordon declined to take anystep in the matter, because he had placed the business in White's hands. "White will trade with you,-that is, White will sell to you,-and when he does, and presents me the deed, I will sign it and send it back." No doubt Gordon believed that White would sell to Arthur, but certainly there was no contract, order, or direction that he should do so. The following decisions control this case: '''The rules onaw which govern this case are well settled. As no contract is complete without the mutualassent of the parties, an offer to sell imposes no obligation until it is accepted according to its terms. So long as the offer has been neither accepted nor rejected,f;Jle negotiation remains open and imposes no obligation upon either party. The one may decline to aecept, or the other may withdraw his offer; and either rejection or withdrawal leaves the matter as if no offer bad ever been made. A proposal to accept, 01' an acceptance upon terms varying from tbose offered, iaa rejection of the offer, and puts an end ,to the negotiation. unless the party who made the original offer renews it or assents to th", modification sugge'sted. The ot.ber party. having once rejected the offer, cannot afterwarc!s revive it by tendering an acceptance of. it." Railway Co. v. Rolling-Mill Co., 119 U. S. 151. 7 Sup. Ot. Rep. 168. "A proposal to accept, or acceptance upon terms varying from those offered, is a rejection of the offer." Bank v. Hall, 101 U. S. 50. It appears that in the case under consideration there has been no meeting together of the minds 'of the parties so as to make a contract mutually binding upon each in regard to the sale and purchase of the lands in controversy, and, as a consequence, complainant is not entitled to the relief he seeks. His bill will therefore be dismissed, with costs, and it is ordered accordinglj".

NEUFELD 'l1. NEUFELD.

(Jourt. S. lJ.Oalifornia. February 2,1889.)
ATTACHM;ENT--IN FEDERAL COURTS·-iNSOLVENCY PROCEEDINGS IN STATE COURT.

Under Rev. St..U. S. § 910, entitling plaintiff in a common·law case in a federal court to remedies by attacliment or other process similar to those proyided Oy the laws of the state in .which the court is held, and requiring similar preliminary proof and security; and section 933. which provides that an attach· ment shall be dissolved on arty contingency on which an attachment would be dissolved in the state courts,-prOceedings in an action in which an attach-

NEUFELD .,. NEUFELD.

561

ment has been levied will be stayed where insolvency procet'ldings against the d"btor are instituted in the state courts. as otherwise the plaintiff would acquire an undue advantage over the state creditors. which is contrary to the intent of the statute.

At Law. On petition for stay of proceedings. Graves, O'Melveny « Shankland, for petitioners. Wells, Guthrie« Lee, for plaintiff. Ross, J. The plaintiff, Nathan Neufeld, a citizen of the state of Illinois, commenced in this court, on the 31st of December last, an action at law against the defendant, Julius Neufeld, who is a citizen of the state of California, to recover a certain amount of money alleged to be due the plaintiff from defendant,in which action an attachment was duly issued, and levied by the mar!:lhal on property of the defendant situated in Los Angeles county. A few days after the commencement of the action, to-wit, January 7th, the requisite number of the California creditors of the defendant instituted insolvency proceedings against him in one of the superior courts of the state, and, in pursuance of the state statute regulating such matters, the superior court made an order directing, among other things, that no creditor whose debt is provable under the insolvency act of the state be allowed to prosecute to final judgment any action therefor against the alleged insolvent until the question of his discharge shall be finally determined, and that any and all such suits and proceedings be stayed .until the further order of the said superior court. Conceding that such order does not operate to stay or otherwise aflect the action here, the counsel for the creditors in the insolvency proceedings, have, with leave of this court, filed a petition in intervention, in which is set out in full the proceedings Md in the insolvency court, and which further shows that the debts and demands of the petitioners, who are residents of the state of Californi.a, accrued in said state, for goods sold to defendant, to be employed by him as stock in trade in his business; that the debt upon which the plaintiff's action is based is a debt also provable under the state law by virtue of which the insolvency proceedings are had, and that the defendant has no defense to this action; but will 8uffer his default herein to be entered, and thereafter judgment to be taken against him. Petitioners therefore ask that this court stay furthp.r proceedings for the enforcement of plaintiff's demand, until the state insolvenoycourt shall have adjudicated the question of defendant's alleged insolvency, or until the further order of this court. At the hearing of the petition the facts upon which it is based were not' controverted. As already observed, counsel for petitioners do not dispute the proposition, too well established to require argument, that the right of the plaintiff to prosecllte his action in this court having attached prior to the commencement of the insolvency proceedings, th,at right cannot be arrested, taken away, or inipaired by any action of the state court. It is the action of this court that petitioners seek, and that in the interest of justice. It was not the purpose, I think, of the provisions of the Revised Statutes of the United States upon the subject of attachments v.37F.no.12-36

in common-law causesin the circuit and district courts, to give to the nonresiden,t creditor any unfair advantage over the resident creditor. On the contrary, it seems to me to be plain that the purpose was to give to the non-resident, who might sue in the federal courts, the same rights, but no more, in respect to attachment, as are enjoyed by the resident creditor, who must sue in the state court. And this, I think, is manifest from the provisions themselves, which are as follows: "Sec. 915. In common-law causes in the circuit and district courts the plaintiff shall be entitled to similar remedies, by attachment or other process, against the property of the defendant, which are now provided by the laws of the state in. which such court Is held for the courts thereof; and Buch circuit 01' district courts rnay, from tirD:e to time, by general rules, adopt such state laws as maybe in force in the stiites where they are held in I'elation to attachments and' otber process; provided, that similal" preliminary affidavits or proofs, and similar security,' as required by such state laws, shall be first furnished by the party seeking such attachment or other process." ."Sec. 938·. An upon process instituted in any: court suoh judgment as may be recovered by the of theUnipm States, to plaintitftherein, except iuthe cases mentioned iii the nine sections, [Within which the present 'case does not come,] shall be dissol ved when any contingency occurs by whieh, according to the laws of the state where said court is held, suCb' attachment would ,be dissolved upon like process instituted in the nothing herein contained l!hall interfere colirts of said!st!\te: anypriofity of the UI).itedl::!tates in the payment There can be· derived from this language of ·thestatute no intent.to confer upon the non-resident creditor any other or greater rights than are enjoyed by the residentoreditor. It is true that the contingency has not yet occurJ;"ed in the insolvency proceedings referred. to,which, under the state law, would operate ,a dissolution of all attachments against the allegedinsolvent issued out of the. state courts, and which, under the express terms of section 933 of the Revised Statutes, would operate to dissolve theattaohment issued out of this court; and,such oontingencymay not occur,in which event the plaintiff herein would of course be allowed to proceed to judgment, ·for the satisfaction of which the propex:ty attached owould beHable. But by the:state law the attachment to which the resident creditors are entitled is subject to be, and as to this defendant has been, smyedby the insolvency court pending the insolvency proceedings; and unless·a stay of proceedings in this case is granted by this court the plaintiff may, and doubtless will, take judgment against defendant, the 'manifst-effectof which will be to give to the non-resident·creditor a remedy by attachment for the enforcement of his demand against .the de'fendant, which is not enjoyed by the resident of defendant. And this, in my: opinion, is contrary to the intent and meaning of the provisions oitha Revised Statutes on the subject. It is ordered that all proceedings in the cause be stayed until the further order of this court.

GEO.

& CO.V. KNOX COUNTY.

563

GEO.

D.

BA-RNAIl.D

& Co. v.

KNOX COUNTY.

(Oircuit Oourt, E. D. Missouri, N. D

l!'ebruary6,1889.)

1.

CO'("NTIES-:-W4RRANTS-ExCEEDING STATUTORY LIMIT OF INDEBTEDNESS.

In order'to defeat an action on county warrants, by Const. Mo. art. 10; that "no county * * * shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters," etc., it is not sufficient to show merely that during the years' in which the warrants sued on were issued the expenditures exceeded the county revenues [or those years, but it must be shown, in addition. that the limit had been reached before the indebtedness was incurred for which the 'warrants were issued,

2.

SAME-COMPULSORY INDEB1'EDNESS.

Rev. St. Mo. 623, 624,1061, 1184. 5376, having.made it the duty of the va· rious officers to provi9.11 suitable books and stationery at the expense of the county 'for the transaction of business in their offices, debts contracted for sucbpurposes by those officers and not by the county court, the ordinary contractillg; a,gent of the counW. are not within the purview of the constitutional :PI'0V1S10n above quoted.

At Law. .A:greedcase. Taylor & PoUard, for plaintiff. G. R. Balthrqpe and W. O. Hollister, for defendant.
THAYER,J. This is an action on 49 county warrants, issued during the years from 1882 to 1886, both inclusive, in payment for books and stationery sold aild to Knux county the instance and re'quest of various. county officers, and for public use, The defense is that when the warrant"! sued upon were issued by the county court of Knox county ,the county court had drawn warrants in exces!l of the total of the county for. the years during which the warrants were respectively issued, and that the debt sued for was for that reason contracted in violation ofsection 12, art. 10, Const. Mo., which provides that "no county * * * shaH he allowed to become iudebted in any manner, or for apy purpose,· to .an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters 'thereof, voting at aneIectiQn to be held for that purpose." The case has been submitted upon an ll,greed statement of facts, from which it appe!J.rs that the books and stationery in question were furnished for public use at the instance and request of the probatej\}dge, the clerks of the county and circuit court, and the sheriff and collector of the county, and that the same "were suitable and necessary for the officers in their official capacity to whom they were .Bold." It also appears that the total warrants issued by Knox county each year from 1882 to 1886, both inclusive. exceeded therevehue derived for the respective years from the highest rate oftaxation which the law permits, to-wit, 50 cents on each $100 of valuation; but that, deducting the warrants drawn on the "pauper fund" the warrants drawn in anyone of SI,lld years and "road and bridge did not exceed the revenUe for said year. JUdgment must be rendered for. the plaintiff for the full amount claimed in each count, (thans, for tUI:! amount,ofthe wl;l:.rrant described therein and interest at 6 per cent. per,annum>'i'rom ,the dateoft4e.aHegedpresep.tati01:1,)for two rellS()us,:;-, .