FEDERAL REPORTER,
vol. 62.
tionbe more shoW'n tpan it therein appears? We conclude that c();r;Lveyance to. tb.e ,defendant in error, through the trustee, must beheld to be ane:x;ecution of the power declared in the of Mary E. Henderson, and the judgment of the circuit court is therefore affirmed. == .== CASK;EY et al. v. ·CHENOWETH. (Clrcult Court of, Appeals, Fifth Circuit. No.l50.
May 1, 1894.)
1.
ApPEARANCIIl-WAIVER OF OBJECTION
Defendants in 'an acti()n in a state court, in which an attachment was levied on their property, being nonresidents of the state, removed the cause to the United States .circuit cOUl;t, and again to the circuit court at another, place. 'l'hereafter they filed an answer, raising aU the merits, but asserting that they reserved their rights as nonresidents, and also tlledanaotion to quash the attachment, asserting that they appeared for the purpose.of the motion only, whereupon the attachment was quashed. Held. that they could not afterwards question the sufficiency of the on theij! of the citation in the. suit. FECTS IN VENDOR'S TITLE.
'ro
SERVICE OF PROCESS.
2. VENDOR AND PURCHASER-REPUDIATION OF CONTRACT BY PURCHASER-DE-
In an action for breach of a contract by which plaintiff agreed, in payment for merchandise bought of defendants, to pay $1,000 and convey certain lands,. it appeared that he could not give title to the lands, but there was evidence that defendants had repudiated the contract before actual default on plaintiff's part, and also evidence to the contrary. Held, that it was error. without submitting to the jury the question as to default on Part:. to dir,ect a verdict fOr plaintiff for the $1,000 which he had paid.
Oil September 24, 1891, the plaintifffi in error, John Oasltey andW. J. Wilkes, composing the firm of Casl{ey & Wilkes, then engaged in mercantile bUsiness in Ft. i Worth, Tex., contracted in writing with defendant in error, J. W. Chenoweth, t() sell him their stock of merchandise at invoice prideS, with 5 per cent. and Chenoweth agreed to pay for !'lame as follows: $1,000 cash when stock was tendered for invoice; "also, to convey, by good and sufficient warranty deed, sections 13, 15, 23, 53, and the north 229 .acres of section 55, .all block 16, Texas & Pacific reservation lands in Taylor county, Texas." The contract also provided: "Said Chenoweth also represents that he has good title to said land, and that the same is clear and free from any lien or incumbrance whatever, except a lien of $3,746.20, and'that at least 00 per cent. of said land is substantially free from breaks and ,gravel; and said Chep,oweth agrees to furnish complete abstracts of title to said land, bringing title down to time of conveyance herein agreed to be made." It was provided in contract that Caskey & Wilkes should take the land hereinbefore described, as a payment upon the stock of goods, at the sum of $8,094, and subject to the lien of $3,746.20. It was further provided that the invoice sbould. be commenced September 28, 1891. Detailed pro-
In Error to Circuit Oourt of the United States for the Northern District of Texas,at Dallas. This was an action by W. Chenoweth against John Caskey and W. J. Wilkes fordamages for breach of contract, brought in a court of the state of Texas, arid removed therefrom by defendants. At the trial in the circuit court, the judge directed the jury to find for plaintiff. Judgment for plaintiff was entered on the verdict. Defendants brought error.
OASKEY tI. CHENOWETH.
713
vision was also made as to the execution of notes for the balance of the amount for which stock should invoice, but this is not deemed' material here. Chenoweth not being ready on the 28th, invoice was not commenced until October 1st, at which time he paid the $1,000 cash provided in the contract. The invoice was completed October 9th, and the amount was found to be $22,116.65. Both parties assisted in the invoice, and both were at considerable expense therein, which fully appears in the evidence. At the close of the invoice, Chenoweth banded Caskey & Wilkes five abstracts of title, one for each of the tracts named in the contract. They were certified, of date September 21, 1891, as being complete abstracts of the records of Taylor county, Tex., affecting the title to said lands. These abstracts (except for missing deeds, patents, and other matters hereinafter specified) brought the title down to the Interstate Railway & Construction Company, subject to a vendor's lien on each tract in favor of the Franco-Texan Land Company. At the same time, Chenoweth handed to Caskey & Willws five instruments, not recorded, and not shown in the abstract, releasing the liens of the FrancoTexan Land Company; also, five warranty deeds from the Interstate Railway &; Construction Company to Chenoweth, dated in June, 1891, but not recorded, and not shown in the abstracts. It appears from Chenoweth's evidence that these deeds were delivered to him in June, 1891. The abstracts were in the usual form, but contained no abstract of the patents to these lands, the patents not haVing been recorded. One of the instruments shown in each of said abstracts was a deed of trust from the Texas & Pacific Rallway Company to the Fidelity Insurance, Trust & Safe-Deposit Company, dated prior to the date of the patents. In this deed of trust it apears that said railway company had, for one dollar and other considerations (not named in the abstract), conveyed to the Fidelity, etc., Company all lands said railway company had or should acquire from the state of Texas for building the Rio Grande division of said road; the abstracts stating "that the conditions and stipulations of said trust deed cover twelve pages, and are too voluminous to set out." The abstracts also showed that there were two deeds missing to complete the chain of title, even down to the Interstate, etc., Company. One of the lacking deeds was from the Fidelity, etc., Company to Duncan Sherman & Grain, and this Chenoweth handed to defendants next day. This deed,though not appearing in the "complete abstracts," showed that It had been recorded prior to September 21, 1891, the date abstracts were certified. The other lacking deed, which had not been recorded, and did not appear in the abstracts, was from Duncan Sherman & Grain to the Franco-Texan Land Company. This latter deed, Chenoweth informed defendants, was in possession of Robertson & Coke, attorneys at Dallas, to be used as evidence in a. snit in the federal court, but Chenoweth furnished no proof or statement showing that said snit did not affect the title to said lands. Chenoweth procured this deed on October 13th. On October 14th, Chenoweth made another tender to defendants, tendering them the following: (1) The five abstracts already described; (2) the five patents from the state to the Fidelity, etc., Company for the lands in contract, "as assignee for the Texas & Pacific Railway Company;" (3) the five releases of liens by the Franco-Texan Land Company; (4) the five deeds from the Interstate Railway & Construction Company to Chenoweth; (5) the deed from Duncan Sherman & Grain to the Franco-Texan Land Company; (6) the deed from the, Fidelity Insurance, etc., Co. to Duncan Sherman & Grain; (7) warranty deed from Chenoweth to lands in contract; (8) notes according to contract, and money enough to pay for recording instruments not recorded. Caskey and Wilkes declined to accept the tender, and did not pay back to Chenoweth the $1,000 cash he had paid on the contract. About 200 acres of the land was not in Taylor but in Jones county, and Chenoweth furnished no abstract from Jones county records. It appears from the evidence of Wilkes that defendants requested Chenoweth to procure from Robertson & Coke a certificate concerning the unrecorded deed held by them for use as in a lawsuit, showing that titles to lands In contract were not affected by said SUit, but this Chenoweth failed to do. rn December, 1891, Chenoweth brought suit on the contract in the district court of Wise county, Tex., alleging performance on his part and breach by defendants, and claiming $6,158 damages, and caused a large amount of
RDERA;I,. 'itEI'ORTER,
to 4 :9,nunder W'1!,it ,Of attlWAwent. Tbe attacbupOn the, tMt that defendants were, nonresidents of the ;Februa.iYi,,1892, Caskey&: Wilkes filed a petlti0,n in the ot Wise county, ,and, therein, asserting that they specIally appUJ\pose!l,set fohh in the petition, alleged as ,follows: "That the controversy In said sujt is,between pf different states, and that the petitione,rl'l" :betn,g,' all the ,a,nts in above-entitled S,'UitS, were at the time of theconimencement o,f saId SUit, and stilt are, citizens. of the state of Missouri, and ,Q(}nresidents of the state of Texas, and the plaintiff in the suit was at the ti,me ,ot the commencement of said, suit, and stillis, a citizen of the state of 'l'exas;and, tendering bond and security, prayed for an order of removal of tlle s!lid Clluse Into ,the circuit court of the United States for the northerh distrlcl;, at Dal1as.", ·On the same day the state court, on the petition, and on i.W. agreement between thep,arties. In writing, that the cause the same to be transferred to the United might be States court at ,pallas. It seems, upon tb{j; order of removal, the transcript pf the record was filed in theci,rcuit c01ll't tor the northern district, of 'rexas. at Graham, Graham being where ,the next term of the circuit court for the norther,ndlstrict of was to be held. On the 15th day of March. 1892, the followlugentry,wlls ,made at Graham: "This cause corning on to be heard to to Dallas, it Is ordered that the same be and is hereby, transferred tQ D,allasby agr!.\elllent filed." On the 17th of May, Caskey & Wilkes filed In the ctrcult court for the northern district of Texas, at Dallas, defen411nts' after preamble as follows: ":Now their rigbts as nonresidents of this state, and ,ltPtsupmitting t!:jemselvesto :the jurIsdiction of the court, but appearing o}lly 'fQr't!J..E:pul·po;se, hereinafter set out,"-theyspecially and generally uem,urred and,'excepted to 1Jle sufficiency of the plaintiff's original petition, and on, sucla ,deillWrerspl'ayel1. tpe judgment of ,the co]J1't. On the same day, Qaskey & Wilk¢s);Ued a motio}l to quash, tbe attachment 011 various grounds assigned, lj.llll t1).erein again asserted an 'appearance for the purpose of the motion Qnly"nnll jurIsdiction of the court over their persons. On JanUll,ry lluiJ,se came on to be heard before the circuit court on motion the attaChJllent, and the same on argument was granted, an(l. orderell that the att;achment be quashed and set aside, and" held (or :l).tlug1;It. On tM 17th day of January, 1893, again came the defendants; by "for the pUl,'pose alone of resistIng the jurisdiction of the court herein, and no other,and say that this court cannot exercise jurisdIction over these thIs clluse, for that both of these defendants reside now, and did resl<le; lf1 the, state of MissourI; at the time of the institution of this sUit, and t;Mtnocitlltion In (1).ls case was ever served upon them, except in the state Of,MiSIl\lurl, and by a private person therein, who delivered to these def¢ndlltlts,' in saidstatEi, certified c9pies of plaintiff's petition; that writs, of were sued out, in t):lis ,state, and levied upon property of ,tMsfJ defendan1$; tIl-at these defendants appeared specIally, as appears by Plotion ftledMay 17, 3-892; and that said motIon to quash said attachmenthal;! this day been sustained, and said attachment proceedIngs quashedand 'held for naught;, wlJ,erefore, they pray the judgment of the court whether they ought further, to answer therein." At the time of filing this motion for ,& WIlkes, reciting the special appearanees tllereinbefor¢ maUe in the case, asked leave to wIthdraw their answer, and tor leave t() 'file plea to the, jurisdiction, whereupon the court refused to grlint defendants'Jeave to with,draw their, answer, to which the defendants excepted.· j)efendiUIts below then filed theIr first amended origInal answer, alleging nonperformance on the part of plaintiff, and claIming damages therement, state On the trial of t:pf> case, ,after the conclusion of the evIdence, the court chl1rged the' jws as "In thIs case tpe jury, ,are Instructed that the plaintiff has fMled to. showt;i!1e in himself ,in October, 1891, to the lands he was to ptiLip.'trl\.de with defendants. Xou will therefore find for plaIntiff one thousand 'dollars, the amount he ptlld defendants, with 6 per cent. interest per a,.nnum from the date it was, paId," the same being the only instructlon, given by the courtJ to the jury; and the defendants, then and there, before 1;I;I,e duly excepted: W 1;begiving: of that part of said for.",";',
f.",tP ,
CASKEY' ··
715,
chars::e whfchread as tollows: "Ycm. wlll therefore find tor plalnti1r thousand dollars, the amount he paid defendants, with 6 per cent. interes1: per annum from the date It, was paid,"-and defendants then and there stated the grounds of their said exceptions to be as follows: "(1) Plaintiff's failure to prove title was In Itself a breach ot the contract, such as to prevent him from any recovery on the case made by his petition. (2) Because, under the undisputed evidence, plaintiff had failed to comply with the CQntract sued on; hence, defendant!i were entitled to have their claim for damages submitted to the jury. (3) Because the abstracts of title were not complete,they not showing the condition of Jones county records as to lands in Jones county; not fully showing the deed of trust to the Fidelity Company; not being brought down to date; not showing any of the seventeen instruments referred to in plaintl:tr's testimony. (4) Because of the grave doubt left upon the title In the matter of the deed in the hands of Robertson & Coke, without any explanation whatever. (5) Because plaintiff was not ready to comply at the close of the invoice, and it was not shown that he could not, by the use of have been ready at that time. (6) Because contract contemplated performance at the close of the invoice, and plaintiff, by his own acts, had thus construed It, and had used no diligence; and having failed, and shown no legal excuse, he must be held to have broken the contract. (7) Because the court should have instructed the jury as to what constituted compliance by the respective parties, and left the question of compliance and damages to the jury. (8) Because, even though defendants may have declared the contract off on October 12th, and though it should be held that they had not waited a reasonable time, yet as plaintiff afterwards demanded compliance, and himself atteI11pted to comply, such declaration was no waiver on the part of defendants, and gave plaintiff no rights as against defendants; and, the plainti:tr having failed to fully comply on the 14th of October, he committed a breach of the cO,ntract, which entitled defendants to have their claim for damages submitted on the evidence introduced." In the bill showIng these facts the court said: "In this case it was the opinion of the court that the defendants had repudiated the contract, and kept the $1,000, when the plaintiff was trying to carry it out, and that too after he had substantially furnished abstracts of his title. But the plaintiff failed on trial to show title to himself, at the date of the contract, to 'the lands he was to con· vey, from the sovereignty of the soil; hence the above Instruction. With this explanation the above exception is .approved and allowed, this March 23, 1893." And ,it further, appears that the following Instruction was asked by the defendants: "If the jury believe from the evidence, under the instructions given, that the plaintiff failed to comply with the contract on his part, and if you further believe from the evidence that the defendants were ready, able, and willing to comply with the contract at anyone time when plaintiff should comply with the contract on his part, then your verdict must be for the defendants,"-which instruction was refused by the court, to which refusal the defendants then and there duly excepted.
J. R. Robinson, for Before PARDE:m and LOCKE, District Judge.
in error. McCORMICK, Circuit
Judges,
and
PARDEE, Circuit Judge (after statlng the facts). 'l'he first matter for consideration is the jurisdiction of the circuit court over the plaintiffs in error. If the cause had remained in the state court, then, under the provisions of articles Rev. St. Tex., as construed by the supreme court of that state, the appearance of the plaintiffs in error specially for the purpose of moving to quash the service upon them, or to quash the attachment issued in case, would have been properly taken as a general appearance, fully conferring jurisdiction upon the court. See Yorkv. 137 U.S. 15, 11 Sup. Ct. 9; Kauffman v. 138 U. So 285, 11. Sup. Ct.298. Irrespective' of this, there is excellent
716
FEDEJtALREPORTEB;
vol·. 62.
Q,\lthority :follholdingthat the plaintiffs in error waived any objections to· the of the sum.monsby appearing in the state court, and.filip.ga petition for the remo,val 6f\ the cause to the 1;J'nited States court, and this notwithstanding the appearance was said to be specially for the purposes of removal. Sayles v. Insurance Co., 2 Curt. 212, Fed Cas. No. 12,421 (opinion by Mr. Justice Curtis); West v. Aurora City, 6 WalL 139; Bushnell v. Kennedy, 9 Wall. 3&7; Construction Co. v. Simon, 53 Fed. 1 (opinion by Mr. Justice Jackson). In the instant case, not only did the plaintiffs in error appear in the state court, and there file a peti. tion for the removal of the cause, but the record shows that after the removal there was an appearance in the circuit court at Graham,which (so far as the record shows) was unqualified, for the of having the cause removed .to the circuit court at Dallas for trial, and that in the circuit court at Dallas the plain-· tiffs inerrQr appeared, and filed an answer raising all the merits of the cause at the same time that they specially appeared, and moved to quash the attachment issued in the case. It is true, the answer asserts that the plaintiffs in error reserved their rights as nonresidents of the state, and submitted' themselves to the jurisdiction of the court only for the. purposes of the answer. It is difficult to see how the plaintiffs in error, by appearance in the circuit court, could have hlOre fully submitted themselves and their cause to the jurisdiction of. the court. Submitting themselves to the· jurisdiction of the court for the purposes of the answer was about all that any defendant could do in that behalf. We understand the general rule to be that any appearance of a defendant in ;court, when sued, for any other purpose than to object to the sufficiency of the service upon him, and move to quash therefor, is to betaken· and held as a general appearance in the case. Certainly, when a defendant who has not been strictly served according to law comes into court in such case to obtain relief, or the benefit of a privilege outside of the suffi· ciency of the Se1'Vice, he ought not to be heard thereafter to say that the court ,has no jUrisdiction over the case because he has not been properly notified. In this case it appears that the plaintiffs in error first the removal of the cause from the state court to the circuit court at Grapani, then a removal from the circuit court at Graham to the circuit court at Dallas, then filed an answer, and thereafter procured the attachment in the case to be dissolveq., and yet, ·after all these proceedings, object that the original service of citation upon :them was insufficient in law to bring thex,Jnto court. , On the merita,of the cas;e,:.the plaintiffs in error complain of the ot, the c.out;:, in directing the jury, as a matter of law, below was gntitled to a verdict ·for $1,000, the, amount paid thedefepda,nts below, with 6 per cent. interest per annum from the date it was paid, and in refusing to in!'3truct as follows: ''If the' jtirYbelieve from the evidenCe" under tM Instruttlons glven,that failed to comply With the contract on his part, lUi,d if you further:.
CASKEY fl. CHENoWElTH.
117
believe from the evidence that the defendants were ready, able, and willing to comply with the contract at anyone time 'when plaintiff should comply with the contract on his part, then your verdict must be for the defendants."
It appears that the trial judge was of the opinion-undoubtedly, from his view of the evidence in the case-"That the defendants had repudiated the contract, and kept the $1,000, when the plaIntiff was trying to carry it out; and that too after he had substantially furnished abstracts of his title. But the plaintitf failed on trial to show title in himself, at the, date of the contract, to the lands he was to convey, from the sovereignty of the soll,"
As we understand this, it means that the plaintiff in the court below could not give title to the lands he had agreed to convey, and yet, while he was trying to carry out the contract, the defendants repudiated the same, and therefore the plaintiff below could recover back the amount he had paid under the contract, and the defendants below could recover no damages for the failure of the plaintiff to perform. It is clear that the plaintiff below was not entitled to recover damages from the defendants below for noncompliance with the contract of sale, since he had failed to com· ply with the contract on his part. In this state of the case, whether the plaintiff below was entitled to recover back the moneys paid by him under the contract, and whether the defendants were entitled to recover damages for breach of the contract, depended upon the conduct of the parties, as shown by the evidence in the case. The bill of exceptions recites that substantially all the evidence offered and introduced by either party is therein recited. While there is considerable -evidence in the bill tending to show that the defendants below repudiated the contract, and practically rescinded it, prior to the actual ,pefault of the plaintiff below, yet there is also considerable evidence tending to show the contrary. From this state of the evidence, as we view it, the question of default on the part {)f the defendants below should have been submitted to the jury, with instructions that if they found the defendants in default, or that they had repudiated or'rescinded the contract prior to the actual default of the plaintiff below, then he might recover back the amount paid under the contract (see Sedg. Dam. § 658; Suth, Dam. § 585); if, on the other hand, they should find from the -evidence' that the defendants below were not in default, then they would be entitled to recover such damages as directly flowed from the breach of the contract, and were proved by the evidence in the Weare of the opinion that the assignments of error in relation to the instructions of the court are well taken. The judgment of the circuit court is reversed, and the case remanded, with instructions to grant a new trial.
7.18' I')
LIFE ,INS. 00. v. (Oircuit Court of Appeals. Sixth .r, ; .' ';., ;. . ,'; ,
'PiEAsANXTP. ::, ,'I 'J ' .-
':r)ine5, 1894.)
l:' t
" No. 164. ,
".':",'
RAILROAD COMPANIEB'-MUNIOIt'AL AID-CONSTITUTIONAL RESTRTCTtoN8.
Laws Ohio 1880, p; 157;rWhlcl1autliorlzes any township having a population ·ot '8,683 to issue bonds; 'In' the sum of' $40,000 to construct a line of railway; seven miles in 'length, between" termini tq be determined by the township in view of the limltell 'amount to be appropriated, and the ,failure or on its face contemplates, a constructed and equlpP,edtailroad, but a', mingling of public aid With private capital, and therefore'vlolates Const. Ohio;' art. 8, § 6, which for,,bids the general asseuiblY. rtoauthorlze a townShip to raise money for, or loanitll credit to aid of, 'any j()lJ;1t-stock corporation, or ass<><:iation.. 11 Sup. C,t" 215, ,138 U. 8.67, followj:)d. 53 Fed. 214, f1hnet1. ., '
In ElTor to the CfrcuitCc:nirt of th.eU11ited States for the Northern District of Ohio, Western Divisieh. ," , ' 'This was an actionbj"the Aetna Life Insurance Company against Pleasant on bonds defendant. The circuit court overruled aderourrer to defendllnt'Sal'lswer, and rendered judgment thereonfor pl1littti1l', but tlieljudgnient'was reversed on appeal to 11 Sup. Ct. 215, 138 Y. '13. 67. Plaintiff then ,filed a reply to ,the answer, and the issues thereon were ttiedby the' jUry'having, been' waived,-and judgment 'wRe 're1idel'ed for, defendant. · Plaintiff brought error. It. and p;J"Bi.\.iley,for,plaintitf in error. Doyle, Scott & .:LErWis, for'd¢fendaht in'tirror. "t, TM'T a:\ld ,LUR,TON, Circuit Judges, and SEVl:RENS, 'Pisttict ,ruqge. t,;: ,", iii.t
1,:)1;):,
:,::'; ,
'::':'
Qireuit Judge. j·Tbiswas:an aetion brought by the Aetna Life Insurance Company to recover upon bonds. iS$ued by Pleasant township,Jn Van Wert county,., Ohio. The defense was that the J!l.Quda bad been issued' by the townslUp under an act of the legislatUfe which WaIiI' in confiictwHh the constitution, of Ohio. The act, passed April ,9,; 1880 (Laws Obi9,' authorized any township haVing a population of3,683, upQn a vote of the people, to issue .bonds in the $um of$4O,QOO to construct a line of railway, seven maes in length, between teronini to be !letermined by a resolution ot the townShip U'ustees. ',Thean'swer, for a second defense, averred of> acts "passed to aut):lOrize the con,that this. was one of sttUction of a raUroadtl;J,Tough a linELOf townships from Ohio into Michigan; that the acts wetftl enable the townships to contribute the amounts named in each act, respectively, to the construction of a railroad, to be owned and operated as a private enterprise by a private corporation; that the act was therefore in violation of article 8, § 6, of the constitution of Ohio, providing that "the general assembly shall never authorize any county, city, town or township by vote of its citizens, or otherwise, to become a stockholder in any joint stock company, corporation, or association what·
"