GRISWOLD V.
HAZARD.
135
profits of his bargain. Then a contest arising as to what was a rea· sonable compensation for the work of construction he had actually performed, the railroad company succeeded'in reducing his claim. Moreover, the appointment of the receiver for the preservation of the property pending this litigation was made at the instance of Simpson, and under the prayers of his cross-bill, despite the opposition of the railroad company. Thus does it appear that from first to las' the services of the company's solicitors have been adverse to Simpson, and without the slightest advantage to him. For the work of construction done by Simpson, he claims, and I think rightfully claims, the contractor's lien given by the Pennsylvania statute,-the resolution of January 21, 1843. Purd.lIS; Foxv. Seal, 22 Wall. 424; Tyrone et C. Ry. Co. v. Jones, 79 Pa. St. 60. So that, by force of the statute, as well as upon general equitable principles, his rif{ht to payment out of the property, which exists by virtue of his services and expenditures, is superior to the claims of adverse counsel for fees subsequently earned in this litigation. The exceptions which go to the amount of the master's allowances to the railroad company's solicitors (and also the special exceptions filed by A. C. Weaver) need not at present be considered; for, unless the railroad should go to sale, and a surplus over Simpson's claim be realized, the court, in the view we have taken, will not be called on to deal with the question of the reasonableness of those allowances, or, indeed, to deal at all with the subject of said fees. And now, January 2,1886, so much of the master's report as relates to the receiver's compensation and the fee of his counsel is firmed; but all the exceptions filed by Thomas P. Simpson to said report, touching' the preference given by the master to the claims of the solicitors of the Newcastle Northern Railway Company for fees, are sustained; and all other questions are reserved for furthe:t consideration hereafter.
GRISWOLD v. HAZARD and others. «()ircuit Oourt. D. Rhode I8land.
January 14, 1886.)
EQUITY-REFORMATION OF BOND-FRAUD-MISTAKE.
In order to justify the reformation of a bond on the gronnd of fraud or mutual mistake such fraud or mistake must be most clearly proved. Refol" mation of bond refused.
In Equity. Heard by COLT and CARPENTER, JJ. Samuel R. Honey and Arnold Green, for complainant. Edwin Metcalf and Elias Merwin, for respondents. CARPENTER, J. This is a bill to cancel or in the alternative to re· form a bond'given by Thomas C. Durant, aS1>rincipal, and John N.
°136
REPORTER.
GRISWOLD V. HAZARD.
137
At the conversation on Saturday evening, at which the bond was agreed to be given, there were present Mr. Bradley and Mr. Peckham, who were counsel for Isaac P. Hazard; and also Thomas C. Durant; John N. A. Griswold; S. Dexter Bradford; Henry W. Gray, who was a friend of Durant; William D. Lake, the sheriff of the county; and Mr. Van Zandt, who was counsel for Durant. Mr. Bradley and Mr. Peckham both testify in distinct terms that the nature of the bond to be given was fully discussed; that Durant said that he could not give the bond required by the writ, which was a bond not to depa.J;t out of the jurisdiction without leave of the court; and also stated it was impracticable for him to apply to the court to discharge. the writ on giving bond as usual in such cases,---,giving as the reasonfOJ; both statements that his business required him to leave Newport on the Monday following; and that they, on behalf of the complainant, then offered to discharge the writ of ne exea,t by an agreement to be filed in court, provided Durant and his sureties would undertake to execute a bond conditioned that Durant should abide and .perform the decrees of the court. Mr. Peckham testifies: "The nature of these proposed bonds was freely discussed by Judge Bradley, Mr. Van Zandt, and Mr. Durant, and the fact that they were bonds would hold the principal and sureties liable to pay money, in case Du;rant should not perform any decree made by the court, ·was commented on by Mr. Van Zandt and Mr. Durant. During all this interView .Judge Bradley did all the talking for the complainants, and Mr. Van Zandt and Mr. Durant spoke about equally for their side. Noone else said anything, that I remember with one exception. The sureties were near enough to hear all that was said, and couldn't help hearing, if they paid any attention; but they took no part in the discussion." . Gray testifies, when first called: "Mr. Griswold was asked to sign the bond, that Durant might and he agreed to do so. ... ... * The whole idea that I had was that a bailbond was to be given to replace him within the jurisdiction of the court when wanted, the same as he was when released from jail on Saturday night." On being recalled in rebuttal, he explicitly denies that there was such conversation as is detailed by Mr. Peckham. Durant testifies that"Griswold signed a bond for my appearance at court, as I understood. ... ... ... The character of the bond was not discussed, to my recollection, but merely spoken of as a bond for my appearance. ... ... ... I supposed self that that was the extent of the bond." Griswold testifies: "I told them, if they would release Durant, I would meet them at Mr. Peckham's office on Monday morning early, and sign a bond for his appearance when wanted. ... ... * I went to Mr. Peckham's office and signed what I supposed was a bail-bond for Durant's appearance when wanted. * * * I did not understand, nor did anyone explain to me, that the bond I was to sign was anything but a bond for Durant's appearance when wanted.'·
138
FEDERAL REPORTER.
He also explicitly denies the conversation as detailed by Mr. Peck· ham. Van Zandt testifies that it was agreed "that Durant would personally appear on Monday morning and give a bond, as I understood it, to appeal' and answer to the writ;" that on Monday "a bond, pre· pared by Messrs. Peckham and Bradley, was handed to me as counsel for Mr. Durant. * ' I told Mr. Durant that, in myopinion, ,it was a proper bond to secure his appearance in the suit, and the bond was then executed. * · I myself told Mr. Durant that, in my opinion, the instrument was, in effect, a bail-bond." He also contradicts the testimony of Mr. Peckham and of Mr. Bradley. This is substantially all the testimony bearing directly on the question as to what was said at the conversation on Baturday night. We cannot find, on this testimony, that there was either fraud or mutual mistake. Where fraud is charged, it must be most clearly proved, and the same rule, with equal reason as it seems to us, has been held to apply to an allegation of mutual mistake. Hearne v. Marine Insurance Go., 20 Wall. 488. In this case the witnesses for the repondents were placed in a position where it was their duty clearly to understand the nature of the security they were to accept, and to see that it was clearly understood by all parties, so that no dispute might arise when the bond came to be executed. They say explicitly that they did so understand, and that they did fully explain the nature of the bond to all who were present; and they detail the substance of the conversation at length, and, in the case of Mr. Peckham, with careful particularity. If their testimony be true, there was no fraud, and there was equally no mistake, unless the complainant made a mistake in relying, as his bill says he did, on his own judgment in signing the bond. We are not prepared to say that their testimony is not true. We think it more likely that the memory of the other witnesses is unreliable. The bill will therefore be dismissed, with costs.
CHRIST
and others v.
SCHELL.
((J(,reuit Court, S. D. Nf/IJ) York.
October term, 1885.)
TRIAL-STRIKING CASE FROM CALENDAR-ERRONEOUS ENTRIES BY CLERK.
Case struck from trial calendar, because the entries of the clerk show that no issue remains for trial.
At Law. Almon W. Griswold, for plaintiff. Thomas Greenwood, Asst. U. S. Atty., for defendant. WHEELER, J. This suit was commenced in the state court, March 4, 1861, was removed to this court, March 20, 1861, and entered in