85 F. 924 -

924

85 FEDERAL REPORTER. JEFFE'RSON v. BURHANS. (Circuit Court of Appeals, Eighth CIrcuit. No. 1,005. AprIl 4, 1898.)

1.

2.

ADMISSIBILITY OF EVIDENCE-PAPERS USED IN REACHING SETTLEMENT.

Papers used by the parties in an accounting and settlement between them are admissible in an action at law to recover the amount due.
It Is in the discretion of the court to refuse to permit an amendment during theconrse of the trial which' would interpose an entirely new defense, not suggested by the original answer, though it n;lUst have been well known to defendant when the original answer was filed.
be excluded, for want of sufficient evidence that the bank was authorized

Pr,EADING-AMENDMEl'iT-DrsCRETION OF COURT.

8.

EVIDENCE-SATISFACTION T'IECE-POWER TO EXECUTE.

A satisfaction piece of certain mortgages, executed by a bank, will not

to execute It, when it appears that the notes and mortgages were in its possession, that it had SUfficient title to authorize it to make valld releases, and that the satisfaction piece has never beencilallenged by anyone claiming'superior title to the mortgages.
4.

ApPEAL AND ERROR-REVIEW-BILL OF EXCEPTIONS.

Alleged error in the overruling of a motion made by defendant, at the conclusion of plaintiff's evIdence, to dismiss because a, prima facIe case had not been made out, is not reviewable whenJt is apparent that the bill of exceptions does not contain all the testimony. The introduction of evidence by defendant after the overruling of his motion to dismiss at the conclusion of plaintiff's evidence is a waiver of his exception thereto.
,

fit

SAME-WAIVER OF OBJECTIONS.

In EI'ror to the Circuit CouI't of the United States for the District of Minnesota.' ;'
This Is, a companion case to the one between the same parties which has just 85 Fed. 949. It relates to another real-estate transaction in which the parties were concerned. Ira 'V.' Burhans, the defendant in error here, brought an action against Rufus C. Jefferson, the plaintiff in error, who was the defendant below. The defendant in enol' will be hereafter designated as the plaintiff, and the plaintiff in error as the defendant; such being the relation which they occupied at nisi prius. The plabHiff's cause of action, as stated in his complaint, is as follows: On June 2, 1800, he and the defendant entered into an for the purchase of certain real property Situated at Superior, Douglas county, Wis. For the purchase of this property the defendant agreed to advance $50,000. The title to the property, however, was to be vested in the plaintlff;and' he engaged to plat and sell the property as soon as possible, and, as fast as Sales thereof were made, to assign and turn over to the defendant all lllortgagesand notes that were received in payment for property sold, until the defendant was reimbursed the of money which he had expended in making the purchase, togetber with 8 per cent. interest thereon. After he had been thus reimbursed, the balance that' might be received from sales of the property, consisting of money, notes, or mortgages, was to he equally divided between the plaintiff and the defendant. It was further agreed that, after the title to the property had lJeen vested in the plaintiff, he should execute a quitclaim deed therefor in favor of the defendant, and deliver it to him, but the same was not to be recorded by the defendant unless he found it necessary to do se for his own protection. The defendant did not in fact furnish the sum of $50,000 to purchase the tract of land in qnestion, as he had agreed to do, but only advanCed the sum of $17,000. The balance of the purchalle price, to Wit, $Cl3,OOO, was raised by the plaintiff by executing his notes for that amount, which were secured by mortgages on the land. He also advanced $2,875 in money to cover certain expenses incurred in the transaction. Afterwards, on or about August 1, 1890, the plaintiff and the defendant had a settlement with

JEFFERSON V.BURHAI\'S.

92&

reference to sales of said property that had been made up to that date, at which settlement the defendant received from the plaintiff the sum of $17,000, with 111terest thereon, which he had advanced to consummate the purchase; and on or about August 1, 1891, i:qey had a further final accounting and settlement with reference to the same transaction. At the latter'settlement in August, 1891, $11,000 In cash and mortgages, which had been received from sales of the property, were equally divided between the plaintiff and the defendant. The residue of the land which remained unsold was also divided between the respective par.ties. At the time of the division of the unsold property, which had then been, platted and subdivided Into lots, the several lots assigned to the respective parties were subject to incumbrances for various sums, which had been executed by the plaintiff to raise the sum of $33,000, which the plaintiff had been compelled to I,'aise In making the original purchase, ,because the defendant had failed to advance the full amount, of the purchase money as he had agreed to do. In view of this fact, the defendant, at the time of the division of the property last aforesaid, undertook and agreed to pay and cancel all notes which had been executed by the plaintiff' for the purpose last aforesaid, that were secured by mortgage upon lots that were set apart and conveyed to the defendant. The defendant also agreed to carry the mortgages existing upon that part of the property which was assigned and set apart to the plaintiff, which the plaintiff had executed for the purpose of raising the aforesaid sum of $33,000, until the plail'ltiff should be able to sell and dispose of the property, and thereby cancel 14e incumbrances existillg on his own property. The defendant, however, failed to pay the mortgages existIJlg on that part of the property which had been set apart to himself; and in conseqUlnce of such failure the plaintiff was compelled to pay the same, and expended for that purpose the sum of $8,032.07. The pres· ent action was brought to, recover, the latter sum, which was expended by the plaintiff in paying his own notes that were secured by mortgages on the lots set apart to the defendant, as well as to recover a balance of certain expenses which he had incurred. The defendant, while admitting, in substance, the purchase of the property in question for the sum of $50,000, for the jOint account of himself and the plaintiff, and his agreement to advance the purchase money, and while admitting the, division of the, unsold part thereof between hlmse\f and the defendant, on or about August 1, i891, denied that he had undertaken to discharge the executed 'by the piaintitT, Which existed thoSe lots that had been set apal't'and conveyed to himself. ·He avelTed that James Kasson was jointly interested with himself and the plaintiff in the purchase of the property in, question, and, that said Kasson was a necessary party to the suit. He also averred that the plaintiff a.nd himself had been concerned in the purchase of numeroUs other tracts or parcels of land situated in or about Superior, on joint account, an of which traIlS'actions were particularly described.in his answer; and he prayed ,that an account might be taken and stated, which included all of their dealings, that the partnership existing between them might be dissolved, liquidated. 'To the answer, containing the aforesaid denial, and and its setting up substantiallY the aforesaid defenses, the plaintiff replied, in SUbstance, that James Kasson was in no wise interested or concerned in the transaction described In the complaint, and that all the transactions and agreements with reference to other purchases of real property which were set forth in the defendant's answer were "Wholly .foreign to,. and disconnected from, the agreement and caUSe of action set forth and pleaded in his [the plaintiff's] complaint." The plaintiff also denied that any partnership, general or special, had ever existed at any. time between the plaintiff, and the defendant, or between the plaintiff and the defendant and the said James Kasson, in connection with any of the transaction;; ,referred to in the complaint or in the defendant's answer. There was a trial to a jury, resulting in a verdict and judgment in favor of the plaintiff for the sum of $9,381.43. To obtain a reversal of such judgment, the defendant sued out the present writ of error.

on

W.P. Warner (Owen Morris, Harris Richardson, and O. G. Lawrence, on brief), for plaintiff in error. John B. Sanborn and George P. Knowles (E. P. Sanborn, on brief)r for defendantiD error. .

&fl..

FEDERAL, R;EPOETER.

Before SAN;ijQRN and THAYER, Oircuit Judges, and PHILIPS, District Judge. THAYER, Circuit Judge, after stating the case as above, delivered the opinion of the court; . Confining ourselves to'thealleged errors which have been argued in the brief of counsel for the ,below, the first erro.r assigned is that the trial court should/have susta.iJ1.ed a motion to strike out eel,'tain testimony which was offered by the plaintiff relative to an item of indebtedness,amounfing to $391.53, which the plaintiff testified was due to him from the defendant. The motion to suppress this testimony was based solely on the ground that the item of indebtedness in question was not sued, for in the complaint. The trial court ruled to the contrary; holding, in substance, that the averments of the complaint were sufficient to warrant a recovery of the sum claimed. Upon a fair con,struction .of the 'complaint, it appears, we think, that the plaintiff alleged that the defendant was indebted to hhn, not only for the sum of $8;032.07, being the sum which the plaintiff had expended in paying off mortgages on lots that had been conveyed to the defendant, put that he was also indebteq to him to' a certain amount for money actually advanced by the plaintiff, either for expenses incurred in negotiating the purchase of the land in controversy, or in making sale!! thereof. The plaintiff demanded a judgment for the of $920, hI.' addition to the sum of $8,032.07 expended in lifting the mortgages, which former sum, as we understand, was a balance which he claimed,tobe due to him for moneys actually 'paid out iuconducting the joint transaction,' The proof offered tended to show that, at. asettlemellt:which the parties in the year 1891, it was mutually agreed tbatthe sum of $391.53 was due to the plaintiff on the account above stated, and we perceive no reason why such proof have bee'n excluded. , The allegations of the complaint, in our judgment, were sufficient to warrant its admission. "What we 'have said on the last point will also serve to dispose of an objection that was made to the admission of three exhibits. These exhibits, it seems, were papers which were used by the parties afthe accounting when the item of indebtedness last mentioned was ascertained to be due to the plaintiff. After being: duly identified as papers which figured at that settlement, they were offered by the plaintiff, and were received in evidence, as formillg a part' of that transaction. In this there was no error of which the defendant is, jU,stly entitled to complain. It is further urged that the trial court abused its discretionary powers in refusing to permit thedefendant"to amend, his answer during the progress of the. trial, anq after the case had. been on, for some time. We think that the reason assigned by the trial ,court forrefusing such leave, which is disclosed by the bill 'of exceptions, is fully adeqnate to justify its actiQn,-:-at all events, that we would not be justified in holding that it abused its discretion. The' reason, so assigJled w:l!'l, in substaIH)e, that tlle proposed amendment ought not to be allo,ved, because by permitting it an entirelyl)ew;defl;ijse ,would

JEFFEttSON V.BURHANS.

927

be interp(}sed,which' was' not· 'l'l'l:lggested by the original 'answer, al· though the new defense tnusthavebeen as well known to the defendant when the originalanswerwal:rflled·asitwas·when leave to amend the same was asked. That such w(}uld have been the effect of allowing the proposed amendment admits of no controversy, and where leave t() amend ,an answer is sought under s:uch cir:cumstances, anI! denied, this court will not undertake to overrule the action of the trial . . .., judge. . Another exception was taken to the introduction of a paper purport· ing to be a satisfactiOn piece of certain mortgages, which was executed, 'as it seems, by the Bank of West Superior. This was objected to because there was no eviden,ce, ,as itis claimed, that the bank by whom the satisfaction piece enGuted was the owner of the mortgages. It appears, we think, wIth suffiCient certainty, that the notes and mort· were in the possession of the bank when the release thereof was executed, and that the bank had a sufficient title to the notes and mort· gMes tile time to to execute valid releases. It does not of thel'eleasehas ever challenged by any appear that one claiming a 8uperiortitle t(} the mortgages. .This excepti(}n is wholly without merit . three' exce:p!ions to which our. atten,ion is d,irected by the brief of counsel do not· seem to be of sufficient importance to merit ·special notice, lWd we pass them by with the remark that.in no event could. the matters referred' to in those exceptions be regarded as of sufficient moment to justify a reversal Of the judgment. The Illst exception which we shall notice relates to an alleged error in overruling a motion, which was.made by the defendant, at the can· elusion of the plaintiff's evidence, to dismiss the action because the plaintiff "had notiJIlade out a prima facie case." An insuperable ob· to. any notice being taken of this assigIiIllent is-First, that the biIIof exceptions does not state that it contains all of the plain. tiff'.g evidence, while it is apparent, we think, that the bill does not contain,'all of such testimony; and, second, that the defendant did not stand upon such motion after it was overruled, but introduced his at considerable length, and at the conclusion of the case did not renew his former motion. It i8too weUsettled to admit of serious controversy that under these circumstances the action of the trial court upon the motion to dismiss the case is not open for review by an appellate court. Village of Alexandria v. Stabler, 4 U. S. App. 616, and 50 Fed. 689; Taylor-Oraig Corp. v. Hage, 32 324, 1 O. U. S. App.548, 16 O. C. A. 339, and 69 Fed. 581; Insurance Co. v. Crandal, 120 U. S. 527,7 Sup. Ot. 685; RaiIroadOo.v. Mares, 123 U. S. 710, 8 Sup. Ct. 321; Insurance Co. v. Smith, 124 U. S. 405, 424, 8 Sup. Ot. 534; Insurance Co. v. Unsell, 144 U. S. 4a9, 12 Sup. Ot. 671; Casualty Co. v. Schwerin, 26 O. O. A. 45, 80 Fed. 638. In this case, as in the one between the same parties which was heretofore decided, the bill of exceptions does not contain the charge of the trial judge, and in other respects it would seem to have been very much abbreviated. It must be presumed, therefore, that the issues which are presented by the pleadings were submitted to the jury under instructions that af-

928

80 FEDERAl. REPORTER,

forded no cause for complaint. Such being the case, we are satislled that np other errors were committed which would justify a retrial, and the judgment below is accordingly affirmed.
UNITED STATES ex ret COQUARD v. INDIAN GRAVE DRAINAGE DIST. et al. (Circuit of Appeals, Seventh Circuit. March 23, 1898.) No. 444. 1.
FEDERAL COURTS-FoLLOWING STATE STATUTES-TRIALS AT LAW WITHOUT JURY.

The Illinois statute, prOViding that, in all. action at law tried without a jury, proposItions of law may be submItted' to the court, and a ruling required, in order to lay a foundatIon for a of errol', Is not made applicable to trials In the federal courts by Rev., St. § 914, since the practice in such cases is prescribed by sections 649, 700.

wnt

la. APPEAr. AND ERROR-ASSIGNMEN'l'S OF ERROR"

8.

Under rule 11 of the cIrcuit court of lippeals, assignmeni;sot errol' upon admission and rejectIon of evIdence must Set l forth the'full· substance of the evidence admItted and of documentary evldEmce rejected. 'Where a witness is not permitted to answer a question, the full sub,stance ot tbe'e:x;pected answer should be set: out. .Thls be done before the conclusion of the trIal, If not requIred at the time, the question was overruled: '
' , ' ,

SAME.

Every separate exception Intended to be urged as error shoUld be made the .subject of a distinct specificatIon in the assignment of'errors"and no specification should embrace more than one exception.

4"

MANDAMUS-PAYMENT OF MONEY BY PUBLIC OFFICER.

To entitle a judgment creditor to mandamus against the treasurer of a draInage district for the payment to hIm of' a sum of DlOney, there must be in the hands of the treasurer an amount legally due, and there must have been a specific demand therefor by the creditor. and a refusal to pay It.
' '. ' .

G.

SAME-EQUITABLE R I G H T . '

A holder of a judgment recovereq ,on bonqs and coupons agaInst a dralnage dIstrict of Illinois claImed. that money in the hands oithe district treasurer was applicable to his judgment, becallse, in.previous years, the treasurer had receIved coupons from other bondholders in .payment of assessments, whereby plaintiff alleged that he became. entitled tv the whole of the of subsequent years until he had received payment proportional to those of the other bondholders. HWl, that thIs, claiI'n was founded on an equitable, rather than a legal, rIght, and therefore could not be enforced by mandamus.

In Error to the Circuit Court of the United States for the Southern District of Illinois. Tills proceeding was commenced by petition for a writ of mandamus, filed on April 16, 1896, after the decision of this court in the case of Coquard v. Drainage Dist., 34 U. So App. 169, 16 C.C. A. 530, and 69 Fed. 867. The facts there stated aresnbstantially the same as those disclosed in this record.
The original petition in this case alleged the recovery by the relator, on April 24, 1892, of a judgment against the Indian Grave Drainage District for the sum of $10,709.73, based upon bonds and coupons from bonds issued by the commissioners of the district, the failure and neglect of the dIstrict to provIde from time to time by taxation for the payment of Interest as it became due on the bonds, the possessIon by the treasurer of the dIstrict of a sum of money excee(llug $1,500, which had been in ,his hands for the past two years, and which ought