659 broker for the at the)est pnce he could get. If the proceeds' were insufficient to pay advances arid expenses of salet then defendants are liable for· the balance;' It is not, perhaps, llecessary to pass upon the question as to plaintiff's the goods did not answer obligation to accept and pay the drafts in the contract, although I incline to the opinion that under this contract it waS his duty to do so. . He certainly had the right to accept and pay defendants'drafts drllwnupoIl him, and on which drafts defendants had obtained the money, upon the faith that they. would be so accepted and paid; and his refusal to do 80 might have worked most serious injury to defendl1ritil'crerlit, by dishonoring their paper in a market where it was ofthe utmost importance to them to keep their credit good. 'laID, therefore, of opinion that plaintiff bas made a clear case of right to reco'Vel',8nd should have judgmetit 'for the amount due; being the ditferenrqebetween the price paid for the under the contract and.' the net proceeds of the aale. Judgment for plainti1f.
SHIPPEN tI. BOWEN.
(Oh'cuit Court, D. Colorado. AND PROOPS-SoJBNTEB.
1888..) . '
a declaration ex delicto, chargtnA' that defendant, to induce plaintiff to purCihBBe eertain bonda, repreBllnted them to be genuine and valid, whereastbey 'Wete iD fQ(lt 'WortbJeaa forgerlea, tbere can be no recovel'yexcept upon proof that defendant, knew them to be forgeries, or that he expressly represented them to be genuine; ,
At 'Law.
Action of
MoCRARy,.J. Although this case was tried before the district judge, at his request, and with the consent of! the parties, the motion for anew trialbasb¢en submitted to me. It is an.action ex, delicto in the usual formoC a declaration for deceit. The com.plaint charges that, to induce plaintiff to, purchase certain bOIirls t the defendllnt re"presented that they were genuine and valid bonds, whereaS, in truth and in fact, they Iwere worthless'{orgerip,s. The court charged.the jury that it was necessary for plaintiff to show tbiltthe defendant, at, the time of the sale· of the bonds to plaintiff, misrepresented the facts concerning their genuineness. In other words, the court was of the opinion. and so charged the jury, that plaintiff could not recover in this action by merely proving a sale of the bonds to him by defendant. and that the bonds were forgeries. It was held to be necessary to prove knowledge on the part of the defendant of the forged character of the bonds, or an express misrepresentation concerning the fact of their genuineness. The counsel for plaintiff insists that in such a case as this no 8cienter need be alleged, nor, if alleged, need be proved. I am unable to concur in the soundness of this
FEDEEA.L
vol. 48.
proposition. The contention: of the plaintiff's counselia that,bect\use the. mere sale of the bonds; rendered the seller liable upon,iJ,n implied warranty of their genuineness, he is equally liable for an' implied tort. But ,this argument fails to, note the dlstil1ction between an Retial) upon an implied contract of warranty of the genuineness of the bonds sold and an actitm for deceit or misrepresentation sounding in tott.: It is impoasible to conceive the idea"of a tort as separate and apart from an intentionalwrong and .injury,or such, negligence or, other misCQnd uct as neeessarily-Ltc imply such Wl:OD.g or injury. A scienter is the ,very gist of a tort. To 'Say that one maty reCOver in tort without proving a llcienter, is to say. that he may omit from hisp.roQf .the chief element of ,his case. No doubt there may be cases, of e:x.presswarranty upon which an artion of tQrtmay be founded. Of such a. character was the case.,of,f3chuchaJ'dt v.,Alleri&)'bi:f;ed by the .in 1 Wall.- ltt page 359; That VIlftll;an, action for false';WfU'tallty of the quality ,of sold by the and it was .held for the plaintiff to prove the warranty, and that it was false, without proof of a scienter. There are doubtless numerous cases to be found in the books in which it is asserted that the holder of 'negotiable paper, by the mere fact of offering it for sale, confirms its genuineness, and represents that it is duly executed, as it PJi'l'ports t.o qe--,!, this is not the sort of confirmation or misrepresentation that amounts to a tort. It is a misrepresentation within thelaWlof contracts; ,ulild in the purview of that law it is immaterial whether it be true or false, because there is an opt, Within themeanang :ofthe law ot,to.rts, upon.whwh be not,t,Nnk of the by plai!ltiff's counsel su'pport the proposition that it is not necessary to injure or defraud in such a case as the one now under consideration, A party cannot be guilty of a tort, within the 'proper signification. of'.that term, who is innocent of all intent to injure or defraud. If the present plaintiff, sftef,hiS purcMse of,the bonds in question from. defendant,;l\nd in perfect igoorance of their fraudulent, character, believing them to be valid and germilie, had' in good faith, sold them to a third party, he would have been liable upontheeontract because of the warrantybLgenuineness which the law implies,but not, in: my judgment, iil'tortf,for having knowingly, intentionally; and willfully injured and defmuded the party to whom he sold. Such being my view of the law, the emotion for a new trial must be overruled, and it is so ordered.
,
;'
CITY
OF
LE
MABS
V.
IOWA FALLS
& S. C. Reo.
661
CITY OF LE MARS v. IOWAFAI..I,S & S. C. R. Co.d al., (three cases.) (Circuit Court, D. Iowa. May.1882.) REMOVAL OF CAUSES-SEPARABLE CONTROVERSy-CONDEMNATION PROCEEDINGS.
A proceeding by a city to condomn certain lands, in which a citizen of the same state with plaintiJr owns the fee, while a citizen of a diJrerent state holds a perpetuallease, is not a separable controversy when the main question is as to the right to condemn; and the non.resident defendant cannot' remove his part of the contro· velsy from the state to a federal court.
At Law. Proceeding to condemn lands. On motion to remlln9. the <lause to the state court. Barr:roft &- Gatch and G. W. Ayff1', for plaintiff. John F. Duncombe, for Illinois R. Co. McCRAIW, J. This proceeding was instituted by: the city ofr,Le Mars in the state courtforthepurpose of condemning certaill real estate within the corporate limits of the city for street purposes. ,The ,defendant the Iowa Falls & Sioux City Railroad Company is the ,owner of the fee, of said real estate, and is, with the plaintiff, a citizen of Iowa. The defendant the Illinois Central Railroad Company is the owner of aperpetual lease upon said real estate, and, being a citizen of Illinois.'hasd·e- , moved"the case to this court, claiming that there is a controversy wholly between it and the plaintiff, which can be fully determined as between them. The record shows that the principal contrm'ersyis as to the right of the city to condemn nnd take this particular real, estate fot, street purposes. A secondary controversy will arise, if the right of condemnation is upheld, as to the amount of damages to be awarded;, It is plain that the city has a right to proceed to .condemn land for street purposes against all who have an interest in it, and especially against the owner of the fee. If it were conceded that two separate suits, could be maintained, the one the' owner of the fee, and the other against the lessee, it will scarcely be contended that the city could ,be obliged to divide its action in that way. The la w looks with great disfavor upon any rule that will increase litigation by multiplying suits. It is now settled that so much of the act of.1866 (Rev. St. §639) as expressly authorizes the splitting of a case, and the removal of a part of it to a federal <:ourt for trial, leaving another part in the state court, is repealed by the subsequent act of March, 1875. If any part of a suit is removed, the whole must be removed. The question remains to be determined, in what class of cases, if in any, can a cause be removed, where some of the patties litigant on opposite sides are citizens of the same state, and others are citizens of different states? The rules by which we are to be governed, so far as they have been settled by the supreme court of the States, may be stated as follows: 1. If the parties to the suit can be placed on opposite. sides of the real controversy, disregarding the mere form of the pleadings, so that all on one side are found to be citizens of different states from all on the other,