CENTRAL TRUSTicl>. OF
NEW YORK
IOWA' CENT. BY. 00.
sn',
of such . order is necessary, requiring the'defend. ant to admit ariioustetonthe trial, for the claim of the defendant of sole title and exclusive adverse possession amount to an ouster for the purposes of tlicnlctiQn at! law, which will be tried on the law side of this court.
CENTRAL TRUST Co. OF NEW YORK e. IOWA CENT.
Ry.
CO. tC
al.
(Circw£t Cowrt, N. D. ntinof.8. December, 1889.) B.iQ-CONDlTION-FORPEl'l'URE-REB ADJUDIOATA.
The intervenors, being the owners of certain railroad property, sold the same to thefailway company, taking in payment tral1sportation certillcates of said road. The agreement of sale provided that the road. so purchased should be completed within' two years; otherwise, the agreement. to 'be void. The road was not com· pleted within that time, intervenors gave notio,e of their election to declsre the agrejlment void. Meal1time' the rights of'the company had passed to the defeildant,who brought suit. agBinst the intervenor$, in the state court, to compel a , performance, ,11ringing into court the transportation certificates. The intervenors filed a crosB-bill, asking for a forfeiture of theagteement of sale; which bill was,dismissed, the decree reciting that it was without prejudice, except. as to the rigM to clsim or assert, & forfeiture of the agreement. Thls decree was not appealed 'from. Held, in aUBCtion to foreclose a mortgage upon defendant's property. that:the right :of,the intervenors tociaim a forfeiture of the agreement was OODc;llu<W4by the decree Qf the which is stUI in full force and effect, and their petition, asking for'such forfeiture, must be dismlssed. ,,
Bill to foreclose· .In the matter of the intervening petition of Thomas B. Cabeen, Robert 1. Capee,n, and George Senton. H. :Bigelow and J. a,Fepper, for inter,'enors. A,ftthOrtY C. DalYiand Gardner, McFadon « Gardner, for Iowa Central Railway Company. GBESllAM, J. . The Keithsburg &: Eastern Railroad Company was organized to construct and operate a railroad between Keithsburg, in Mer· cercounty, Ill., and Monmouth, in Warren county. It acquired right of way, depot grounds,aild some terminal facilities, mainly in Mercer county. The company became embarrassed. Judgments were entered against it,and its property was bought by the intervenors, in 1878, at sherjff's The Peoria & Farmington Raihvay Company was organized to build and operate a railroad from Peoria to a point on the Mississippi river,and on February 22, :1881, this company had extended its road tq point near Monmouth, and, desiring to still further extend it to Keithsburg, on the Mississippi river, bought through its officers, E. P. Phelps and William' Hanna, from the. intervenorslill ,of the property they had purchased at sheriff's sale, in consideration of 825,000 in transportation certificates Of the Peoria & Farmington' Company, to be deliveredtipdn the completion of the line from Peoria to Keithsburg. THe of sale provided that the. purchaser ,should take immedt'that the 1ii1e shol11d be completed by Februnry· 22, 1883,
vol. 4,0. ' and, if not 80 completed, the entireap;reement should be :void. A copy of the transportation certificates was attached to the. agreement, and reads thus: "OFFIOE PEoRIA &:; FARMINGTON RAILWAY COMPANY.
"The holder hereof is entitled to freight transportation over the line of the Peoria & Farmington Rail way, at regular tariff or contract rates, to the amount of $25. on presentation of this certificate: provided, that said certificate shall be good and receivable in payment of but one-fourth of any single bill of freight. but may also be used in payment of one-fourth the price of one thousand mile tickets. "
The Peoria & Farmington Company at once went into po,;session of the property so purchased by it and proceeded to fulfill its' contract, but did not complete its road to Keithsburg until March 25, 1883, which was one mOl1tl;lbeyond the time prescribed in the contract. ' While the work was progressing, but before the road was completed to Keithsb'urg, the Peoria & Farmington Company changed its name to the Iowa Central Railway Company of IllinoIs. At the expiration of the tWo years provided in the contract, the intervenors notified the Iowa Central Company of their election to declare the agreement void, 'becanseit was not performed within the time specified. In March, 1883, and. a few days before the completion of the road, .the Iowa Central Company and Hanna and Phelps commenced a suit in the circuit court of Warren county against the intervenors, for specific performance of th,e agreement of February 22, 1881, and brought into court, for the intervenors, transportation certificates amounting to $25,000. The intervenor,s an answer and cross-bill, in both ofwl;lich they averred that the agreement had not been completed within two years, and that it .had been forfeited. The cross-bill prayed for a decree declaring the agreement forfeited· and void, and that the property be to the intervenors. This suit was heard on the bill and cross-bill on the 11th of July, 1885, The bill was dismissed without prejudice, and the cross-bill was dismisseu "without prejudice, so far as any action at law upon the contract is concerned, and without prejudice to any equitable rights or defens6$ the defendants may have in any case hereafter between the parties hereto, .011" or growing out of, the contract set up 'ill this case, e:ll:. cept the right to claim or assert a fqrfeiture of said pontract." Neither party appealed from this decree, and it rC;lmains ifl full force, and the transportation still in the state ,where the Intervenors can. at any thne receive them. On December 1,1886. the Central ,Trust Company of New York tlUit in this co.urt against the Central Iowa Railway Company to foreclQ8,e mortgages by it upon its line of milway, after the. of theagreerpent of February 22, 1881; and. in that suit areeeiver was. appointed, tqok possession of the property. A <ieoree· of foreclosure: was entered, and the property em·braced in the mortgages was sold, 8l\d $25,000 pf the purchase money was paid into the registry: ,of the c\>urt, to abide the result of the issue raised by the intervenors; In June, 1887. the inter.venors filed their petition of intervention, iJ;l whiQh they, set up of Feb-
OENTRAL TRUST CO. OF NEW YORE V. IOWA CENT.RY.
co.
853
ruary 22, 1881, the failure of the railway company to fulfill the contract within two years, and prayed that it might be declared forfeited and void, and the property returned to them, or that the receiver be directed to pay them $25,000 and interest. Pleas and answers were filed setting up the decree in the state court, and the case was referred to a master, who took testimony and reported, recommending that the intervenors be. paid $25,000 in cash. The purchasers at the foreclosure sale assigned the certificate of purchase which they received from the master to the Iowa Central Railway Company of Illinois, to which the master executed a deed of conveyance. The receiver surrendered possession to the railway company; and, in passing his accounts and discharging him, the court ordered "that all claims against said receiver pending in this court, whether debts or other liabilities, shall be sented to the said Iowa Central Railway Company for adjustment and settlement; andl Jor the purpose of enforcing payment thereof, if need be, the courp l-wreby' retains jurisdiction and full power to enforce such \Vithout other action orindependent proceedings." The Iowa exceptions to the master's report, which have been a;rglled by c9unsel. state c()urt against the intervenors the conThe tinued existence and validity of the agreement of February 22, 1881; record showing, or tending to show, that and there is. 11\> evidence in, the intervenors wereden.ied the right to receive and use the transportation certificates in partpayment of freight bills and 1,000-mile tickets. The described in the agreement for transportaintervenors tion certificates, t{) b.e used upon the completion of the road, in part payment of freight and 1,0.00-mile passenger tickets, Certificates in form £lgreedupo,q..:.and,amounting to $25,000, were deposited in the state court, for the ihtervenors, as soon as they were entitled to use them j and· they still re,main at their disposal. There isno'iwid,ence in the record showing, or tending to show, that the railway company, before or after it changed its name, refused, on dema,nd of the intervenors, to carry freight or passengers over its road or.any part of it, and receive in part payment therefor transportation certificates. The;intervenors cannot now assert that, because the railroad was not completed within two years after February 22, 1881, the agreement of that date became void, and that they are entitled to. recover the property sold, cor its value in money. That question was settled again!:'t the. intervenpri;l.by the decree of the state court, which disQ:lissed, for want of equhy, so nlUch of their cross-bill as counted upon forfeiture of the for failure to complete the road within two years. For .allYthing in the the intervenors have been denied nothing thaithe,l;lgreement entitled. them to; and their petition must be dismissed., without prEtiudice, however, to, their right to seek redress by any .appropriateprqceeding at law or in equity, should the Iowa Central Rail-way Compimy hereafter refuse to comply with the agreement.
8S' COLEMANetal.17. }l'LAVELet ltV (Otrcuit Court, D. Oregon. December 26,1886.) TRADII REPRESENTATIONS-INJUNCTION.
Where complainants have built up a business as agentsfortne sale of ,eanned &almon, and in such business have been in the habit of usil;1/1: a printed label placed, on the cans, giving their firm name and a'statement that they were the sole agents for such :brand of canneds!l<imon, injunction will lie to restraiJl the false and fraud, ulent use 1>Y defendants of that part 9f a label which represents that complainants are tbe sole agents for defendants' salmon, whether defendants' salmon be of an equal or inferior quality to those 801d by COJJ1plainants.
W. ,FUlton, for .' , Robert L. McKee and George, W. Yocum, for
In
a.
bill for; ihJuIlction.
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DEADY,'J. This suit was commenced on 8, 1886. It is prosecuted by the plaintiffs, William T. Coleman,F. S. Johnson, C. C. Coleman, and Richard Delll.field, citizens of California, to have the defendants, George 1j'laveland'Samuel Elmore, citizens: Sf Oregon, enjoined from using a certain label On salmon packed by thein, or'so much of the' same as repre$erits that the plaintiffs ,are the agents fot' the dispositioll of such article. ' On the filing 'of the billarii order was made requiring the defendants to show cause, 'wlly a provisional injunction. shoUld not issue, and that in the mean ', the defEmdants be The matterwll.s subse411ent1y heard on the bill and' sundry affidavits ' produced by the plaintiffs arid one by' the defendants. .i The materi14 facts appea.r to be as follows: , ', That long prior to the year 1881, and ever sin'ce, the plaintiffs have been, and no\V'are,"engaged;at San FranciscO,: urider thE! firm bame()f Wm. T. Coleman & Co., in the. of selling Colum.oia. river canned salmon, as the agents of It large number of persons 'enga'ged in packing said salmon. That in the conduct of said business the plaintiffs are accustomed to guaranty the. good packing and merchantable quality of' said. salmon to the purchasers thereof, and to have printed on a. laQel' piacedthereQn the said firm name,ofWm. T. Coleman &Co., as the sale agElnts of such brand' of camied salmon. .That during said time the plaintiffs have disposed of Such salmon in all the markets of the woHdj and at great expense to themselves in establishing agencies, advertising, by fair and honorable dealings, have introduced into such markets and established there a demand for tbebrands of salmon represented by thanl. That what is kIiown as the "Columbia riyer spring salmon.": which istaken between April 1st and August 1st of eachyear,is the m6stb demand,and cotrirnandsthe highest price in the markets; and aU iswmon taken after that time on said river, or at any time elsetrhere, is' inferior in quality, and less in demand, and commands less price, than . '. said spring salmon." On August 1, 1881, a corporation, the Union Packing Company, was formed under the of Oregon, to engage in canning and packing