MATTHEWS V. WARNER.
369
MATTHEWS V. WARNER
et al.
(Oin'cuit Oourt, D. Ma88achusetts. MORTGAGES-ASSIGNMENT-EFFECT-ESTOPPEL.
December 14,1887.)
The plaintiff gave his brother a mortgage to secure a loan. This brother informed hiI1l that he wished to assign the mortgage to a creditor whom he owed; to this plaintiff made no objection. Held, that the plaintiff is estopped from denying that the mortgage was held to secure his brother's. debts to the creditor. 1 .
In Equity. On motion to dismiss. John Lowell. John F. Dillon, and W. A. Abbott, for complainant. J. B. Warner, for defendants. COLT, J. The main issue involved in this case has been before this court, in a suit brought by Virginia B. Matthews, wife of the plaintiff, against.thesedefendants. 6 Fed. Rep. 461, 112U. S. 600,5 Sup. Ct. Rep. 312. The pill is brought to recover the proceeds of certain mortgage bonds, which were delivered by the plaintiff to the defendants, Warner and Smith, trustees, in substitution for a certain bond ior $250,000, made by the plaintiff to his brother Nathan Matthews, bearing date May 8, 1875, secured by mortgage on real estate in New York city. The bond and mortgage were assigned May 13, 1875, by Nathan Matthews to 'thomas Upham, who, having become insolvent, transferred them to the defendants, Warner and Smith, in trust for the benefit of his The contention of the plaintiff is that the bond and mortgage were given by him to his brother Nathan, to secure certain loans Nathan made to him, and that the assignment by Nathan to Upham was intended to se.cure only the payment of the plaintiff's indebtedness to Upham, and was not intended to secure whatever debts Nathan owed Upham. Vpop. substantially the same evidence (except that Nathan Matthews was. not called as a witness in this case) this court, in the 'Ch8e of Virginia ,B. Matthews, says:
"It is clear that Upham had let a great deal of money to Nathan Matthews, and that he ,held valuable securities for its repayment, which he surrendered in exchange'for the bond and mortgage of Edward Matthews; and that he had no notice or knowledge of any dealings between the brothers which would injuriouslyaffl!ct his title. Upon the preponderance of evidence, I find that Edward made the mortgage with knowledge that it ,was to be used to secure whatever debts! Nathan owed Upham; or that it was so.made and assigned that Upham against Edward. the right to believe so."
The supreme court. in their opinion in that case, placed their decision on the ground that Mrs. Matthews had no real /)wnership in the bonds. At the same time, the court make use of the following language as to the assignment to Upham: "It seems to be clear that this assign1 The protection of an estoppel extends to anyone claiming under the person to whom the declarations or admissions were made. Griffiths v. Sears, (Pa.) 4 Atl. Rep. 493; Wardlaw v. Rayford, (S. C.) 8 S. E. Rep. 71.
v.33F.no.6-24
.370
E'EDEBAL REPORTER·.
ment .was made by consent of Edward or by his directions." Upon careful consideration of the evidence,.1 ,am of opinion that the conclusion reached by this court in the former suit was correct. It seemsto me that, by a of evidence, the assignment to Upham was made to secure the debts of Nathan Matthews, or that it was so made !lnd assigned that Upham had, as against Edward, the right to believe S(>', Edward had at'this time full confidence in his brother, and he was also much pressed for money. He appeared to be willing to do Nathan suggested in the belief that, upon an accounting, Nathan would deal fairly by him. The letter of Nathan to Edward, of May 6, 1875, about the assignment of the bond and mortgage, is significant. Nathan there says: "AI\d Iwant you to write me a letter authorizing me to assign it to Thomas"Upham, 1, of course, giving you my agreement that 1 hold it as collateral." Edward in reply said:' "You are herel:;lyauthorized to assigI:\ 1;0 Thomas UphaPl, Esq., the mortgage for two hundred and fifty thol,1$iiq$l dollars, which 1 have given you as col"lateral security for loans made to ·me. I' The piltintiffin this letter annexed no eonditions to the proposed assignll1'ent. Owing to preSSure for money, he was undoubtedly willing to ,doanything Nathan desired to enable him to get money from Upham, otanyone else; Uphainreleased to Nathan 'valuable securities, and took,the $250,OO{f bonda.ndmortgage. Other documentary evidence indicates the position of the defendants to be correct, and' in accordance with' toe in.tent of the parties. The agreement of March 6, 1877, under which the bond and mortgage were surrendered, and certain bonds and a note of H. J. Furber expressly states, that on receipt of said assignment, "said bonds,shall be imtp.e. diate}yheld, together with the said note, when it shall be -delivered as a substitute, for the said mortgage in the hands of the saidWarner and Smith,and'may be ,dealt with by them in every way' as the mortgage . might have been, and shall oe:collateral security for the claims now held by the said Warner and SniitbagainstNathanMatthews." The position, now taken by the plaintiff;'as to the real' characWr of the assignnHlnt ofthe bond and mortgagEdb 'Upham, seems to hq;yeb,een an afterthought, and it is inconsistent with the situation and surrounding circumstances .of the parties 'at the time, .with .the documentary evidence now adduyed, and with the co¥rse of conc\uct of the .:rlaintiffforsome years :tJie Jrl\nsal?tion took pJace.· .,,' .', Upon tpe, merits of the case, therefore,and,without examining the , other and more technical grounds of defense raised, lam of opinion that the plaintiff,asagainst Upham, or his trustees, iserstopped from setting up that the bond and mortgage were not assignedfl.s'sectirityfor the debts of, his brother Nathan. The billshould:b.edismissed. Bill'dismissed.
J'BANKLE' t1. JACKSON.
371
FRANKLE 11. JACKSON. (Ot1'euU (lOW1'e,
D. Colorado. January 9,1888.)
TmcSPAIl8-0mGIlUL ENTRY-SUBSEQUENT USER-LnUTATION OJ!' ACTION8.
In an action against a railroad company for damages to plaintiff's hotel property, caused by a main and side track on the street in front thereof, and for loading and unloading cars; and allowinp; them to stand on the tracks, held, where the damages, as to the main track, are barred by the statute of limit· ations, plaintifi' may recover, for the side track, such damages as are not due to the main track.
At Law. Action for damages. :plaintiff, FrankIe, sueu defendant, Jackson, receiver of the Denver & Rio Grande Railroad Company, for damages to her property caused by laying of tracks on the stre<>t in front of her property, and the use of them. Trial to the court, and judgment for plaintiff for 8300. B1'O'U1T&e &: Putnam, for plaintiff. , E. O. Walcott, for defendant. BREWER, J. This case, which is an action for damages to plaintiff's lots and buildings in this city, caused by placing a railroad track and side track on the street in front thereof, and by the loading and unloading of coal cars, and permitting them to stand an unreasonable length of time, thus converting the street into a coal-yard, came before me last spring on a demurrer to the answer. 30' Fed. Rep. 398. I then ruled that so much of the complaint as counts on for the unlawful entry in respect to the main track, was barred by the statute of limitations, that having been made in 1871, which left the case one simply for damages for the construction of the side track, and for improperly permitting cars to remain on the track', and for using the street as a coal-yard. The case on its merits was tried last Friday, and tried before me without a jury, and, in order that I might be thoroughly advised, I was taken to the premises and examined them with counsel. The sidetrack in front oftheplaintitrs premises deflects from the main track but and yet it is an additional track, which, of course, in the management of the railroad, brings more cars, induces the leaving ofstanding cars more often, and for a greater length of time, so that it is fair to say that there is some damage caused by the putting in of that side track; Arid, for at least five or six months ofevery year, according to the testimony ,it is not' an uncommon thing to switch cars onto this side track, and leave them there while coal is being unloaded for purposes of delivery to customers. Indeed, when we visited the premises, two cars were ,thus lltanding on the side track while coal was being unloaded into wagons. ,It is one ofthose cases where it is hard to reaSOll out exactly what the' damages are. It is a good deal as when you cutoff a man's handr,,-:,"you ctmnot 'b:ran:ymathematical processes demonstrate the val ae ." 6f 'that, harid; and, the court, sitting as a Jury, has only to exercise its discretion