JAFFEE V. JACOBSON.
21
was a case fn which the liability of a shareholder for debts contracted by the corporation before and after he ceased to be a stockholder was involved. The principles upon which the decision turned have no appli. cation to the case at bar. Motions overruled.
JAFFEE (C1.rcuft Court
et al. v.
JACOBSON
et al.
0/
Appeals, Ei{Jhth Circuit. Octol>er Term, 1891.)
BPEOIFIO PERFORMANCE-CONTRACTS ENFOROEABLE-FAILUll1l ,Oll'CoNS1DERATIONADOPTION OF CHILDREN. '
AJ:.Ul, for specific performance of a contract alleged that Complainants' nncle, a man large means living in Denver, Colo., being married and childless, expressed a desire to adopt complainants, the two children of his deceased siswr, who were then living with their father in Posen, Prussia, and opened a correllPondence with their guardian expressing this desire and purpose, and asking the guardian to se-" cure ,the< consent of their father that complainants,should be surrendered to him with full dominion and control, as if he were in fact their father; the guardian did open negotiations with the father, who refused to consent unless some pending litigation between him' and complainants in regard to the interastof the latter in their mother's estate ,wasfiTStsettled; ,that thereupon the uncle procured the guardian to settle the s8llle by relinquishing all of complainants' Qlaims, promising that in consideration thereoft and of the father's consent, he WOUld, upon his death, ' leave to complainants one-half of his estate,; that, the settlement l;Ieing completed, the guardian received charge of complainants, and remo-ved them from their father's ,011S,t,Od,'" le.a-vin,g" one of th\IDl with its grandmother i,n anOther ,town, there to remain 'until the grandmother's death, and taking the othllrto his o}v/l homet aU all directed by the uncle in America; that, on hearing of the settlement, the uncle directed: bis brother to proceed from America to bring over the other complainant, ' whom he 'desired as soon as possible to come to DeI;lver; that before bis brother's departure from America the uncle died; ,and that the defendant, his widoW', took possession of, bis entire estate, and refu!!led to recognize complainants' interest therein. Belli, that no case for specific performance was stated, as it was apparent that tbe main consideration for the uncle's agreement was the pleasure and mutual benefits which he expected to result from the establishment of the relation of parent and cbild between himself and complainants as members of his housebold, which' consideration was never realized. ,
of
Appeal from Circuit Court of the United States for the District of Colorado. Suit by ,Regina Jaffee and Helena Jaffee against Annie W. Jacobson and others for the specific performance of a contract made by her husband, Eugene P. Jacobson. Bill dismissed. Affirmed. STATEMENT BY THAYER, J. In this case the circuit court for the district of Colorado sustained a general demurrer both to an original and amended bill ofcomplaint, and subsequently dismissed the cause, complainants having declined to plead further. The substantial averments ,husband of the bin may be stated as follows: Eugene P. Jacobson, ,of Annie W. Jacobson, the appellee, in August, 1878, was a lawyer of large means residing at Denver, Colo. Though married for many years, be was at, the time childlesEl. The complainants, Regina and Helena J"affee,were his nieces, being children ora deceased sister. They were then quite young, and resided at Posen, in the kingdom of Prussia, un<ler the 'care, as it seems, of a guardian by the name of Samuel Bernstein, '" . '
.'
22
FEDERAL
:48.
theii' mother 'hafing died but a then' proceeds'to'8vet as follows: " , "T,hat, soon after the death of their mother! their uncle Eugene P. J ncoh-son expressed a strong desire to adopt these complainants,as his own children, he being childless and without expectation of ever having any children of his own blood; and to that end the said Eugene P. Jacobson personally solicited their gnardian, Samuel Bern!ttein. and father, while in Enrope in 1!:l79. to procure these complainants for him. and immediately thereafter, for said purpose, did enter into correspondence with said t;all1uel Bernstein, the uncle of complainants, and their guardian urider the Will of complainants' mother, which said correspondence covered a period from the month of September, 1879, to late ,in the, montll of, ,,March, 1881; that in said <:olTespondence said Jacobson represented to said Bernstein, compJainallts' gnardlan, that he, the said Jacobson, was. veJ:'y desirous of adopting these complainants as his own, chiidre'o, because he and his wife, the defendant Annie, Were childless,and beoauslt of the Jove he bore to the dect'asedlllother, his sister, and constantly urged said :Hemstein to obtahi the consent of complainants' father to sur· to hin!>so tbat he, said JacobsoI\. might have the control ,and dominion of as though he were their father, and provide for and take care of" them itS his own children: that in the last letter written by the said the said Bernstein, which was on the 24th day of February. 4,. D. 1l:l8I,.aaid Jacobson requested said :Hernslein, if he procure<Ube consent of the fatber, of these complainants asaforellaid, to take said · chiidrenfl'OlD ,the care and, control of their said father. and place the complalnallt Relpna, who Was then an Infant (inly three years old. with her grandmother,lhe mother ofilald EugeneF. Jacobson, Itnd leave said com· plainant-with hel' 88idgl'androother Ilntll the death of her the said complainant HeJenli'sgrandm'other, or until he, the said Jacobson, direcled; and to ta,ke from andoontrol of her father. if he ,so consented,' and p\'t'pare her for the voyage to America which hI', the said. Jacobson, was, then arranj{ing,or about to arrange, for .haVing the said Heginacome )Jenver as soon as possible after her father bad so as aforesald." It stated, in that in the year 1879, at the time of Col. Jacobson's visit to the old country, litigation had arisen between the complainants and their father, relative to the division of the mother's estate, ofwbich thechiltlren claimed a portion eqllal in value to $4,000, and that the lather was not willing to relinquish his parental control over' the complainants, or consent to their cOllling to America, until such litigation was settled to the father's satisfaction. It is next averred: "That In about the month of February, 1881, said Jacobson, in order to procure ,the Cl>llltlmt of the father of complainants in the matters and things aforesaid, directed and the said guardian, Bpl"nstein, tv settle and compromise tbtlsuit between the, &nd t,bt'se complainants, by waiving and slirrendel'ing all which the:$e complainants had ,had or might have in their dt'ceased mothel"$estate,or which they had or might have against their said father, to him, tlte father, at the 'same time he, the said Jacobson, promising andagreeillg t111lt if. by settling the said litigation in the m:inner aforesaid, saic,t" ·}Jel'llstein shall obtain the consent of complainants' father to ghe comphlinants into and billl, th\:lsaid Jacobson, he would,upon hisdealh, leav;el;o complainants his, eI\tjre aRtate, except that portion the undivided one-half interest" wh,ich under the laws ofihe state of Colortl.do at'that tlrne was and ever ilincehithertoblld been the widow'a,absoluteiiltel;est in the estate of her deceased husband i
.':' oIA}'FEE V. JAQOB$GN.
23
.. '" ,'" that their sl\id guardian performed and carried ont said directions and instruCtions in the given by the said Eugene P. Jacobson, and did settle tpelitigation bereinoe.fol'ereferred to;between complain'ants andthelt father, dismissing said' suit and s.urrendering to complainants' father all claims which these. complaihants had or mignthave against him, and all interest which tbef had or mightbaV"e in theirm:other's estate, and did obtainin consideration:theraof the CQllllent of complainants'father to all apd si ngular ;the matters herein whi!lh by the said, Jacobson required, and did thereby obtainpossessjon of complainants for said Jacobson on the 25th day of March,./\.. D. ll:!8I. and complain!lnts froin :the town of Posen, where they had theretofore tesided,to the tow n 'of Ibowrazlau, where complainants' aaid'g'llarJianresided;and did the con1plainant -Helena in. care and cusrodyof the mother of him, thaaaid Eugene P. Jacobson, as by biIJ,ldiJ·t!cted, until the death I.>t ,said DlPther, in about theyel;lr 1887; anl1, cOloplai nants' said guardillnimJacobsOllOf all his, the premises." portionl'$;(>fthe biUshow that. Col. Jacobson, on being advise4.¢ what hadbeen,done,'directeli his brother,who lived in Wis.c(ltj.sin,..to proceed to the bring thecQmplainant Regina Denverj ,put before hi,9;brotber left,the country on suob mission. ,col. J acobson diEld, ·and neitheI::, of the :cornplainan ts ever in fact beC/lmemembers of his bousehold.. At his death the deceased left an of $U5,POQ, consisting largely oheal estate in G\lnnison countyil·)901o, ,)tIrs.·.JaoobsQo; after tha death of her 9f,p.lllJis estate, and is ,still in possession of it; it ,as her own :tmd"'T"the Jaws of descent QfColoradoj and has still to recognize the .of her husband's to 1611:V6 to, fAa; ,@mplainllnts the .undivided one-hal f thereof. Complai,lluuts,therefore,r pray for the specific enforcement of the alleged that theym,ay each be dec.r,eedto,bethe owners ofan divided of the real estate of which the said Col. Jacobson died seirsed and, possessed, , ' " i: R. S. ;Morrison and <ileo. H. Kohn, fo.r appellants. E.. f.. Wells, M.Fu,f'1T/Al,n, and Thomas MaCl)1l,. fot:appellees. Before CALDWELL, NELSON, and THAYER, JJ.
p,
THAYER, J. We find it necessary to. determine in the first instance upon what consideratioll tlie promilile which the .circuit cO,urt was asked toapecifically an evident /l,ttempt made in the ameqdedbill to make it appear .col. Jacobson promised to leave ,his of his large estate ifEernstein, theirguardiau, merelyobtain,ed their father's consent to into his charge and custody; 111e ohtaining of such consent by the settlement of pending betweep the children and their father, was the sole consideration upon uncle's prm;nis.e was basedj and that, as such consent was oblained pllor to Jayobson's death, th.erefore the wh.ole consideration for the sought to .be enforced duly rendered and received. unable that view of the case, even as it is stated in bilL ',fhe complaint 8bows that the, ise. upon is eJl;tt;acted frowoonversations apd l.etters Qf O9l.J..
24
FEDERA.L REPORTER,
vol. 48.
cobson concerning family matters, and undoubtedly the latter were written. with that freedom which usually characterizes on such subjectS. It also appears that he represented in the course of the same correspondence, that he was desirous of adopting the,complainants as his own children, because he and his wife were childless, and because of the love he;bore thei!' mother, his dMeased sister. We think it manifest,therefore, from the iface of the bill,construing it, hs we must, in the light of these facts, that the considerlj,tion moving Col. Jacobson to promise to leave the complainants his estate, was not merely tp.e obt/lil)ed by the guardian from the father that he might have their custody, but certain benefits and advantages that were to accrue to him after his nieces came into his custody. It must have been obvious to Mt.Berpshiin, the gUllrdian, as it is to us, that'the promise in question was based upon that one or both of the complainants should become members of Col. Jacobson's household, and for a certain period (dependent, of course, upon the duration of his own and assume, 11'ith respect to himself apd.'hiswife, the relation of parents and· children,with all that that relation implies. . It was of no advantage to Col. Jacobsou, as the guardian must have known, that the father'sconseut was obtained that he might have their care and unless one or both 'of them were actually placed; in his custody and became members of his family, yielding to him in the mean time such service;ll.fl'ection,· and obedience as a dutiful child ordinarily yields to its"parents;' It was the pleasure and mutual benefits which the deceased expected wo:uld resultfrum the establishmentaudcontinuance of that relation until hiS that induced the decoo.sedto promise to leave to his nieces an one-half of his estate·. We are accordingly of the opinionthllt the bill shows that the substantial consideration upon which the alleged promise rests was. not rendered in Col. Jacobson's life-time. He died before either of the children became mem bers bf his famil)', before either of them emigrated to this country, and before he acquired any actual or legal· control over their persons. . Viewing the case in that light, we have next to determine whether a court of equity should specifically enforce the alleged contract, and we are all agreed that this question must be answered in the negative. We concede the law to be that a court of equity will specifically force a ,ptomise to leave to another the whole or a definite. portion of one's estate as a reward for peculiar personal services rendered, or otheracts done by the promisee, which are not sllsceptible of a money valuation, and were not intended to be paid for in money, provided the considerationhas been substantially received at the promisor's death; and it is no objectioh to the enforcement of such a contract that it was en. tered into'witha third party for the promisee's benefit, if the latter has.. acted under 'it and executed it; Suchseellls to be the substance of the rule fairly deduCible· from the authorities cited, and. relied upon by pellants' counsel. Rhodea v. Rhodes, 3 Sandf. Ch. 279; Van Dyne v. Vreeland, 11 N; J. Eq:371; Sutton v. Hayden, 62 Mo. 102jSharkeJj v.
MERCHANTS' & FARMERS' BANK 11. AUSTIN.
25
Dermott, 91 Mo. 648, 4 S. W. Rep. 107; Haineav. Haine.s, 6 Md. 435; Porn. Cont. § 114, and citations. But we are of the opinion that a court would not be justified in decreeing specific performance in a case like the one at bar, where by reason of his untimely death the promisor did not in fact enjoy any of the pleasures; benefits, or advantages which he hoped to realize from the society; companionship, or services of his nieces. We find no precedent for decreeinp; specific perforrl.1ance under such circumstances. In all of the cases called to our attention in which relief was afforded, it appears that the promisees had substantially di.:>charged the obligations which they had severally assumed. In most, if not all, instances they had lived in the promisor's household as members of his family, and had rendered faithful and affectionate services for along period of YE'.ars. It was not possible, therefore, to administer adequate relief, otherwise than by decreeing specific performance. For the res.sons thus indicated, that the bill does not show such a substantial discharge by the during Col. Jacobson's life-time, of the obligations which the agreement contemplated were to be discharged, as will . justify the specific enforcement of the alleged promise, the demurrer was properly sustained, and the decreedismissillp' the bill is affirmed.
-----MERCHANTS' &;
F ARMlllns' BANK
t1. AUSTIN
(Cwcuit Court, N. D. AZabama., N. D. October 27, 1891.) BAND AND BANKING-COLLEOTION 011' DRAFT-OWNER'S RIGHT TO PROOEEDS OEIVER'S HANDS.
m RE-
A bank which collects a draft seI\t to it by another bank for that purpose, with directions to remit the proceeds to a third bank for the owner's accountl does not therllby become a trustee, so that the fund can be followed into the hanasof a receiver, although it had become mixed with the other cash of the bank before his appointment; especially when it appears that the business was carried on, and money paid out, for several days after the collection was probably made.
In Equity. Bill by the Merchants' & Farmers' Bank against Rich,ard W. Austin, as receiver of the First National Bank of SheffielJ, and others, to recover the proceeds of a draft coUected by the latter bank for the former. Heard on submission for final decree. W. H. Bogle, F. EO'I.Ilhac, and Jo. H. Nathan, complainant. David D. Shelby, for defendants. . BRUCE, J. The complainant bank, of Macon, Miss., became the ,owner of certain bills or drafts drawn at sight by one E. D. Slater on Howell & Co., of Sheffield, Ala. These ,bills were sent by the complainant to the First National Bank of Sheffield at Sheffield, Ala., for collection. There were seven of them, dated from the 7th to the 15th of November, 1889, aggregating in nmount the sum of $17 ;412.25. 'These bills were sent to the First National BankoiSheffie1d about-the