ANDREWS BROS. CQ. ,t'. YOUNGSTOWN COKE CO. ANDREWS' BROS. Co. v. YOUNGSTOWN COKE CO., Limited. (Oircuit Oourt, 1.
353
w: D. Pennsylvania.
July 25, 1889.)
LIMITED PARTNERSHIPS-CONTRACTS-STATUTE OF FRAUDS-EQUITY.
A contract of sale by a limited partnership association of the state of Pennsylvania, organized under the act of June 2,1874, which will impose a liability exceeding $500 for non-performance, cannot be enforced against the association, either in a court of law or equity, unless in writing, and signed by at least two managers of the association. One dealing with such an association is bound to take notice of the statuto"y requirements for the valid execution of contracts; and if he makes a contract with an agent of the association, which is reduced to writing, and signed by only one manager, he cannot, on the ground of mistake, maintain a bill in equity against the association for the reformation of the instrument by compelling its execution by two managers.
2.
SAME-REFORMATION-MrsTAKE.
In Equity. Suit by the Andrews Bros. Company against the Youngstown Coke Company, Limited, to reform a certain written instrument, for specific performance thereof by defendant, and general relief. S. Schoyer, Jr., for complainant. S. L. Mestrezat, for respondent. ACHEso:,\, J. The defendant is a limited partnership association of the state of Pennsylvania, organized under and subject to the provisions of the act of assembly of June 2,1874. The fifth section of the act provides that "no liability for an amount exceeding five hundred dollars, except against the person incurring it, shall bind the said association, unless reduced to writing, and signed by at least two managers." This clause of the act was considered by the supreme court of Pennsylvania in Melting Co. v. Reese, 118 Pa. St. 355, 12 Atl. Rep. 362, and it was there adjudged that a contract for a sale by such an association, which will impose on it a liability for non-performance exceeding $500, cannot be enforced unless in writing, and signed by at least two managers of the association. The bill here sets forth that Frederick C. Keighley, the defendant's general manager, acting in its hehalf, agreed with the plaintiff corporation that the defendant should furnish the plaintiff the coke necessary to run its furnace-about 10 cars per day-from July 10, 1888, to .Tanuary 1, 1890, at the rate of 95 cents per ton, upon the basis of then existing wages, the price to rise or fall in proportion as wages might advance or decline, and that the agreement was reduced ing, and was duly executed by the plaintiff, and was signed in behalf of the defendant by H. O. Bonnell, the treasurer, and one of the managers of the defendant company; but that the plaintiff is advised by counsel that the said agreement, in the form in which it stands, cannot be enforced at law against the defendant; and the bill prays, in substance, that the said written instrument may be reformed so that it shall be and appear to be executed .by at least two of the defendant's managers, to the8nd that it may be legally enforceable against the defendv.39F.no.6-23
\..,
FEDERAL
nEPOR'tEn, v()l;' 39.
ant, and· that the defendant be decreed to specifically perform contract, and for general relief. ' ," It is admitted that the liability for non-performance which would be imposed on the defendant exceeds $500. Confessedly, then, there is here no contraCt which legally binds the defendant. But if there is no such valid contract at law, upon w,hat principle can the plaintiff be granted the equitable relief here sought? Undoubtedly the above quoted statutory provision is as binding on a court of equity as on a court of 114 U. S. 190, 5 Sup. Ct. Rep. 820. Cerlaw. Litchfield v. tainly the general rule is that courts of equity cannot dispense with regulations prescribed by a statute, or supply any circumstance for the want of which the statute has declared the instrument void. 1 Story, Eq. Jur. §§ 96, 177. If there be any exceptions to the rule, clearly this case is not one. Here was neither fraud nor accident, and, if there 'was mistake, it was on the part of the plaintiff only, and was, too, a mistake merely as to the legaleffect of the instrument signed by Bonnell; but such mistake is noground for the reformation ofa written instrument. Adams, Eq. *171; Cooperv. Illstwance Co., 50 Pa.' St. 299; Snellv. Insurance Co., 98 U. S. 85. Besides, strangers dealing with a limited partnership or· ganized under the act of June 2, 1874, are bound by the limitations imposed upon the powers of the individual members. .Melting Co. v. Reese, supra. The plaintiff was bound to take notice of the legislative restriction expressed in the fifth section of the act. ld.; Pearce v. Railroad Co., 21 H9W. 443 If the requirements of the statute of frauds are not complied with, a contract falling within its scope, so long as it remains in fieri, cannot be enforced, either at law or in equity. Adams, Eq. *86. Now, under the facts of this case there can be no pretense that there was such part performance as would perfect the contract in equity. Williams v. .Morris, 95 :U. S. 457. To a bill in equity to reform an instrument in writing,if the 'proposed reformlltion invol,ves the specific enforcement of an oral'agreement within the statute of frauds, or the term sought to be wUlso modify the instrument as to make it operate to convey an interest or secure a right which can only be conveyed or secured through an instrument in writing, and fqr which no writing has ever existed, the statute is a sufficient answer, unless the defendant is estopped to plead it. Glass v. Hulbert, 102 Mass. 24. But no ground of estoppel appears here. Enough has been said to show that the plaintiff is not entitled to equitable relief. I may add, however, that it appears from the evidence that the contract whiohKeighley agreed to was not only improvident, as respects the defendant, and, in the length of time it had to run, Ullusual, but it had not been authorized by the defendant's board of managers. The instrument which Bonnell signed had not been submitted to any other member of thel:>oarq., and he signed it under the belief that it expired on July 1, 1889,and also upon the supposition that its terms had beell approved by Mr: another manager, which was a mistake. Let a decree be drawn dismissing the plaintiff's bill, with costs.
.UNITED S':I;AT:J!:S V. TERRY.
UNITED STATES
v.
TERRY
et al.
(District Oourt, N. D. Oalifornia.
May 24, 1889.)
1.
INDICTMENT AND INFORMATION-PLEA IN ABATEMENT-DEMURRER.
Where a plea in abat!3ment to an indictment alle/{es facts contrary to the record, or which could be proven only by the testimony of the grand jurors disclosing their proceedings or impeaching their findings, a demurrer to the pica cannot be regarded as admitting the truth of such allegatious, but will be considered as an objection or e:x:ception to the filing or allowance of the plea. SAME-IMPEACHING RECORD BY PLEA.
Such allegations cannot properly be inquired into by plea in abatement. but the inquiry must be f,ddressed to the discretion of the court, by suggestion or motion, and it will be allowed only in rare and e:x:traordinary cases, where the matters, if true, work a manifest and substantial injury to the defendant. The fact·that after a large number of witnesses had been examined by the grand jury, and the district attorney had been instructed to prepare indictments. against defendants, the jury dispensed with the reading of the indictments. and returned them into court without knowing their exact contents, because of the statement made to them by the attorney that it would take three hours to read them, aud that the supreme court justice wanted to leave, and "\yanted the indictments found before he left, affords no ground for setting aside the indictments. In the United States district court, the mere fact that the district attorney was present during the e:x:pression of opinion of the graud jury upon the charge in the indictment. and during their voting thereon. is at most an irregularity, which, in the absence of averment of injury or prejudice to defendant, is a matter of form, and not of substance. In the United States district court, the mere refusal of the district attorney to summon witnesses for the accused at the request of the grand jury fur' nishes no ground for settingaside the indictment.
S. SA¥E-CONDUCT OF GRAND JURy-OMISSION TO READ INDJCT)1El\T.
4.
SAME-PRESENCE OF DISTRICT ATTORNEY IN .JURY ROOM.
5.
SAME-REFUSAl, TO SUPB<ENA WITNESSES FOR ACCUSED.
Indictments against D. S. Terry for an assault with a deadly weapon; attempting to obstruct justice; obstructing United States marshal; and displaying deadly wrapon in a threatening manner. Also against Sarah A. Terry for attempting to obstruct justice and obstructing United States marshal. On demurrer to plea in abatement. HOFFMAN, J. The first four articles of the plea were abandoned at the hearing. It is urged in support of the remaining articles that the matters therein set up show, if true, that the indictment was not legally found by the grand jury, and that the suit must therefore abate. It is further urged that the demurrer admits, for the purp0se of this argument, the truth of the mutters so alleged. The district attorney contends-First, that the plea alleges matters contrary to the record, and, therefore, that the truth of those matters cannot be inquired into; and, second, that the inquiry can from its own nature be made only by taking the testimony of the grand jurors, who by law and the terms of their oaths are forbidden to disclose their proceedings or to impeach their finding. It would seem that the more regullJ,l' course would have been to object to the allowance of the plea. The court would have ruled it out as a formal plea in abatement, for a plea