330
FEDERAL REPORTER,
vol. 45.;, ,; ;;,
show that ho applied to the board of equalization of: Custer county to correct the wrongsit complained It was urged by,counsel for defendant that plaintiff ought not to have paid the tax, but should have reaortedto a court of equity to have enjoined its collection. There is nothing presented in this case which wpuld' have warranted phiintiff in resorting to such a forum. In the cases ofDoW8v; Oily o/Ohicago, 11 Wall. 108, and Hannewinkle v. Georgetown, 15 Wall. ,547, the United, States supreme court held that a suit to enjoin an or void tax: ,would not lie "miless,there were;sorne special circumstancesbringingthe case under some recognized head of equity ju'risdiction, such as that the enforcement ,of the tax would lead to a multiplicityofauits or produce irr.epanible injury, or, where the property is real estate, throw a cloud upon the title of the complainant.'" No circumstancessuch as wonldbring this,case under tlw head of any recognized rule : awarding equitable relief appear in the record. The only remedy left for plaintiff; then, was to allow its property. to be ,seized and sold, and, then bring an action against ,the collector in trespass, or to pay the tax daimed when the legal compulsion was presented under protest, and bring its, action to recover the·same' back. l!thinkenvugh appears in.the complaint that the paymimt of what.was claimed asatax was made under compulsion. A :warrant ,had been issued for its colle<>. ·tion,and the ,eollectol'had;atteniptedto seize the property of plaintiff thereunder,an:dpaYn;ll:lutwasm'!ide with the view of preventing this. When a tax is ,paid involuntarily,+that·is, under'legal compulsion,..... it may be recovered back in an action at law, and from the county who hasreceh'edand holds the tax. iNelJYfMn v. Supervi801'8,45 N. Y.67&j 2: Desty, Tax'n, p;, 795; Detroil, v. Martin, 22 Anler.Rep. (notes} 519... 520. Numerous authoritiesmightbe.cited tosustllin the above proposition. For the above xeasoJ'lsit.is,orpered .that the oemurrer to the complaint be,and the, same is herebYi Qverruled.;
;
SEARLES;". MANN :aoPPOIR
Co·. 5.1891.)
(CwcuUOourl,. s. b;
WD·. ..
L 'OJ.1lRJ8RB '. i . . . Allleeping-ca.r company has the to se!!, a whole sectiOn to and no cause of aotton ariseB from the refuaal of its conductor to Bell the uppet berth in llUch seotion to anotber,:pusenger\ though that berthwaB in fact unoccupied.,'" I. SAllIB. ' , i ;,; Where a berth in a sleeping-oar has been Bold for occupancy to a certain point, cause arises ,for the refus¥qfthe conductor, that is -," ,'reached, to sell' another person a ticket entItling- him to such' berth froin there to ·,·;,theell;d,of,thejourney.: .' ','".:'..
'" .n"
, l ;
i
" At Law. ·;Action to recoverda.magesfor alleged wrongful refusal of defendant's conductor to sell plaintiff a berth ini Ii,slet:ping.car.\ On the 30th day
SEARL:ES
f1.
MANN BOUDOIl'FCAB:CO.
of. June, 1888,: plaintiff entered defendant's sleeping·car at Meridian, Miss. ,and applied to the sleeping-car conductor for a berth. He receivedanswer that all the space was sold, and he could not beaccommodated.. He cla.imed ther.ewas a vacant upper berth that he should have. This upper berth was part of a section that had been bought by a Mr. Watson, to whom plaintiff applied for the upper berth, and was refused. There was a rule of defendant company to the effect that no one party could, !tetain an entire section when there were applicants for berths. Henry «Thompson and M. Marshall, for plaintiff. Birchett « Shelfml, and John S. Runnells, for defendant. HILI>, J., (charging jm·y.) . The issues which you are to determine from the .evidence, are: First. Did the conductor of the sleeping-car then owned and operated by the defendant company unlawfully and wrongfully refuse to sell to the plaintiff a ticket entitling him to the use and occupation of oIleberthin said car from Meridian, in this state, to Cincinnati, in the state of Ohio, as alleged in the declaration, and denied in the plea of defendant? .To entitle the plaintiff to a verdict in his favor the burden is upon him to reasonably satisfy youfrotn the evidence of said car did unlawfully and wrongthat the conductor then in fully refuse to sell plaintiff such ticket, and place him in possession of one berth in said car. The uncontradicted testimony is that soon after the .train to whi.ch the sleeper was attliched lelt Meridian the plaintiff· did apply to the conductor for a berth. in the sleeper from Meridian to Cincinnati, and tendered him the money for the fare; to ·which the conductor replied that he had no vacant berth at his disposal, but that there was one berth in a section, (or room, as they are constructed oh this class ofslaepers,) all of which section had been purchased and paid forin NewOrlesns, and which upper berth was not then oocupiedby the purchaser, and who had only purchased the berth-to Birlningham; Ala.; that if plaintiff wouldapply to Mr. Watson. the purchaser and occupant,he'thought lie\\;ould let plaintiff have it; to which plaintiff replied that he had the right to it, and demanded it on such right; to which the conductor repliedd that Mr. Watson had the right to its use to Birmingham, and that he could not deprive him of it. but that he would ask him for it for the use of the plaintiff. He did so apply, and Watson refused to surrendefth'e use of the berth to the plaintiff. These facts being admitted, you are instru.cted that the defenqantcompany had the right to seli thEl useoftlle whole sac'tion or room to Watson, and, having done so, and received the pay lorit, Watson was entitled to theme'of the entire' section for himself 'and such other he')llight cb"ose, and 'to occupy the ,sleeper to Binningham,41a.,and that the.condudtor was gnUty of refusing tosell plaintiff, and,puthim in possession of it; and therefore you are instructed to return your verdict III favo: Qf the defendant on the issue on the first count in the·declaration. J
332
FEDERAL REPORTER.
vol. 45.
The second issue which you will deHmnine from the evidence is: Did the conductor unlawfully and wrongfully refuse to sell the plaintiff a ticket entitling him to the use of one berth on the sleeper from Birmingham to Cincinnati, as alleged in the second count in the declaration, and denied by the plea of the defendant? The burden of proving this allegation in the plaintiff's declaration is on him. There being some conflict in the testimony on this point, you are instructed that, while the conductor might have sold to plaintiff a ticket entitling him to the use of this berth from Birmingham to Cincinnati before reaching the former place, he was not under any obligation to do so, and his refusal so to do created no .liability upon the defendant; but that, when the train arrived at Birmingham, and Watson's right of occupancy had ceased, and the plaintiff had applied for this or any other vacant and unoccupied berth in the sleeper, and tendered the usual fare for the use of it, and was refused by the conductor, then such refusaL would have been wrongful, and the finding on this issue should be for the plaintiff, and entitle him to such reasonable. actual damages as in your judgment, from the proof, he has sustained by reason of being deprived of the use of the berth from Birmingham to Cincinnati, less thearnount of the fare. You are further instructed that if the proof shows that application had been made for a berth in the sleeper by another man at Meridian, before the plaintiff made application, then the conductor had the right to sell the ticket for the berth. to him in preference to the plaintiff. You are the sole judges of the weight to be given to the testimony of the witnesses on both sides. You will reconcile any conflict that may exist in the testimony of the witnesses, if you can; if not, then you will determine from all the testimony which most probably gave the fa{;ts truly. In considering the testimony you will consider the interest each witness may have in the result of your verdict, the manner in which they have testified, and the reasonableness of their statements in connection ,with all the testimony. The jury returned a verdict in favor of defendant on both COl,lnts of the declaration.
DARLING ".BUTLER.
(O£reuft Court; So
n. New York. '
February 5, 1891.)
Where vlaintiff exeouted and delivered to defendant a deed of oertain land, the '. legal title passed, although it was i,ntended by both parties tnat the daed should not take effect until defendant made a sale of tne land for plaintiff, but the equitable title still remained in VlaintUf, and a BubsequeI!t oral sale thereof to defendant was within the statute of frauds and void, and in an action for a balance of tne purchase money a demurrer to the petition was properly sustained.
oll' FRA.UDs-EQUITABLB TITLB.
At Law.
,I
O. F. Hibbard, for plaintiff.