EDISON t1. GILULAND.
205
tract containing the option for reservation; and it may be that the players have generally acquiesced in the claims of the clubs. However this may be, the players were not in a position to act independently; and, if they had refused to consent to the terms proposed by the clubs, they would have done so at the peril of losing any engagement. The facts, therefore, are not such as to permit any weight to be given to the acts of the parties as evincing their own construction of the contract. It follows that the act of the defendant in refusing to negotiate with the club for an engagement for the season of 1890, while a breach of contract, is not the breach of one which the plaintiff can enforce. The motion for an injunction is denied.
EDISON 'l1. GILLILAND
et ale
(Circuit Court. S. D. New York. April 9,1890.) PRISCIPAL AND AGENT-FRAUD-PLEADING.
A bill which alleges that defendant, as plaintiff's agent for the sale of stock, found a purchaser willing to pay $750,\.00 for the stock and for a claim held by defendant against the corporation issuing it; that defendant's claim was worth only $75,000, but that defendant so arranged the sale that $500,000 represented the price of the . st.ock, and $2.50,000 the value of defendant'!! claim; and that plaintiff, relying on defendant's representation that the purchaser had agreed to pay $500,000 for the stock, and $75,000 for defendant's claim, and ignorant that the price was $750,000 for both, entered into an executpry fill' the sale of his !ltock for $500,000, and that defendant had been paid $250,000 for his claim,-is fatally defective because it does not disclose that plaintiff ever parted with hisstcck, or had other wise been a loser in consequence of defendant's alleged misconduct.
In Equity.
On demurrer to bill.
Eugene H. for plaintiff. Frederick R. Coudert and W. Bourke Cockran, for defendants.
W AL;LACE, J. Briefly stated, the cause of action set forth in the bill of complaint is that the plaintiff, being the owner of certain shares of stock in a corporation, authorized the defendant Gilliland to find a chaser, and .negotiate a sale of the stock; that Gilliland got the defend. ant Tomlinson to assist him in negotiating the sale for a share of the rrofits; that Gilliland had a claim of his own against the growing/out of an agency contract 1 of the value of about 875,000; Gilliland and Tomlinsonfoulld a purchaserin the person of one Lippincott, who was willing to buy the plaintiff's stock; that they represented to the plaintiff that Lippincott was willing to pay $500,000 for the stock and .$75,000 for Gilliland's claim against the corporation; that thereupon into an executory written contract with Lippincott for the sale of the stock at the price of 8500,000, to be paid, at a future day, upon the delivery by plaintiff of the shares to Lippincott; that, in fact, Gilliland and Tomlinson had negotiated with Lippincott for a purchase by which he was to give 8750,000 for the stock and
FEDERA"L REPORTER',
vol. 42.
land's claim"theyb'Othknowingthat the claim was 6nly of the value of $7'5,000, and he being indifferent as to how the $750,000 should be apportioned between the prke of the stock and the claim of Gilliland; that the defendants and Lippincott thereupon fixed the terms of the purchase so that $500,000 should represent the price of the stock, and $250,000 should 'represent the value of Gilliland's claim; that the plaintiff, relying upon the represeiltations of the defendants that Lippincott was to pay $500,000 for the stock and $75,000 for Gilliland's claim,and ignorant that Lippincott was to pay $750,000 for both, enter4d into the executory contract mentioned for the sale of his stock to Lippincott; and that thereafter Lippincott paid to the defendan.ts, and they received from him for themselves, the $250,000. The theory of the bill of complaint is that by their fraudulent conduct the defendants "merged the actual value of Gilliland's claim in the value of the plaintifJ"s stock, and thereby forfeited all claim to receive or have allowed to them in any way" its actual value, and are therefore liable to account for the whole sum of $250,000. Although there is nothing alleged in the bill directly, or from which it can be inferred, to show that Lippincott did not regard the Gilliland claim as of the value of $250,000, or that he would have been $500,000, or any less sum, for the plaintifi"s stock withGilliland's claim, it would not follow that the plaintitJ"oou.l4,pot recover if he really lost anything by the alleged miscon'Qf, bis agents.' It, availing themselves of, their opportunity as tiley llold property of their own, or belonging to Gilliland, for than three times its value, because they were able to control the sale of the plaintiff's property, without informing plaintiff of the facts, they were guilty of disloyalty to him; !!nd, upon the discovery of their misconduct, he could, as to them, repudiate their authority to sell his election, com pel them tOflccount for the profits ilproperty, or, ,at licitly acqtiired by the tranRaction. 'rhe bill however, fatally defective because the facts set forth do not discMsethat the plaintiff has parted with his stock, or otherwise been aloser, inconsequence'of the alleged misconduct of the defendants. He'h!ls entered into an agreement to sell and deliver his stock, at a future day:, upon receiving the purchase money; but that day had long expired beI6re the bill WllS filed, and it does not appear that the contract wasevetconRummated. ForaH thatappears, he hasthe stock now. and nothing evet came from the contract. Whether is Lippin'Ctitt repudiated H, iVhether the plaintiff did; or whether it was left whollytoconjee.ture. It tnustbe assumed, upon demUrrer;!that the pleader has stated his case as favorably as the facls will perulit.'!! Ttmust be inferred, therefore, that the contract, for some uneXplained reason, has fullen through, and that the plaintiff is in the sarile position' he was bero,re it was made. The case as stated by the bill is,at best, !oue;in which a principal hits employed agents to sell property for him, and they :havetaken advantage of their agency to sell their own property:at aprica largely in excesS of its real value. The case is not
, . TOJtREY ,
'D,
UNITED STATES·
207
one .w:he.l'ethe principal has lostthe sale of his own, property by cohduCtof his agents. But the theory of the bill is that the property was actually sold, while the facts show that the sale has never been ,cOlppletc;ld, and, consequently, that the plaintiff has lost nothing by,ih,e transaction. The demurrer is sustained. '
TORREY
'IJ.
UNITED STATES.
(01rtmit Oourt, E. D. Missouri, E. D. April 22, 1800.) 1,., A,<lCORD A:ND SATISFACTIO:N-CO:NSIDERATION.
In action to recover a balance on a contraCt to deUver beef,defendant plea.ded that the agreement, as understood by both partias, was $3.50 per hundred for steers, witl,l20, per cent. deduction for all cows delivllnld, which lattElr clause was acciaentallr omitted from the contra.ct, and that pla.intiff had accepted a settlement on that basis in full satisfaction of all claims thereunder. 'On plaintiff's motion to strij{e'out, heLd, treating the plea as one of accord and astisfaction, the allegation mistake was necessary, as showing a consideration, for the settlement, alid it constituted a lellal defense. ' , , ' under,ihe,' Practice Act of MiSSOUri, (Rev. St. 1879, § 3461,) providing that -there one form of civil actiOn. Smith. v.Canning Co., 14 Mo. ApI!. 522, ' ,Tbe,actioll being ,broughiunder Act 'Cong. March ,8, 1887,c. 859, §, 2, providing tl!l1t the circuit courts shall have concurrent jurisdiction with'the court of claims in: cettial.u c'ases against the Uilited States, and that the 'udge shall be the trier of thirflLetsia such cases, tlIe,question of the right of parties to a trial by jury is not
an
",'
,2. CODE
, Treating the plea as an equitable defense td an' action at law, it was permissible,
DEl'E:NSE.
"
followed. '8.
CLAnlS'AGAINST U:NITE:oSTATES"'-JURISDICTION.
At .. On motion to strike out ' .. PlaintifI:spetition contains two counts"the first laying the damages at ,$525. alid, the second at $3,000, for other violations of the contract. 'Act Congo ¥arch 3, 1887, 359, § 2, providesthat the circuit coul"tsshall have conc#rrent jurisdiction with the court of claims in all actions pnited States where the amount involved exceeds &1,000, against and does ,'Ilot exceed $10,000. . ' Jay L:Torreyand E. W. Pattison, for plaintiff in error. Geo. D.lleynolds, U. S. Atty. . THAYER, J. In this case the plaintiff .8ues in the first count'to recover a balance alleged to be due on a contract with. the governirtent'to deliver '475,000 pounds of beef cattle (either steers or cows) at theSllosl10ne Indian agency. It is alleged in the petition that the price agre'ed to be paid was $3.50 per hundred on the hoof, but that the govlmiment only allowed and paid $2:80 per hundred for such cows as were delivered, and that, in consequence of its failure to pay for the cows at the price stipulated in the contract, there is a balance still due in the sum of $525. The government answers the complaint, first, by a general denial of all the allegations, as it is permitted to do under the code of