REPUBLICAN
NEWSPAPER CO. v. NORTHWESTERN ASSOCIATED tI.
PRESS.
377
NEWSPAPER CO. OF OMAHA PRESS.
NORTHWESTERN ASSOCIATED
(Circuit Cowrt Qf Appeals, Ef.ghth. Ctrcuit. No. 1M.
Juq
lll, 181la.:
1.
EVIDENCE-MATERIALITY-PRoolJ' Oil' VALUE.
In an action by a newspaper company against an association organized to procure and distribute news, for the allep;ed wrongfUl canoellation of its membership therein, evidence as to the number of proposed purohasers of the membership and the amounts offered was admissible, as showing the value thereof. The damages soup;ht being limited by the pleadings to the value of the oanoeled membership, the faot that tne paper suspended publication shortly after the canoellation was immaterial,and it was error, therefore, to admit evidence of want of business ability in the manager and of the causes of the suspension.
111. SUIE-PLEADINGS AND EVIDENOE.
In Error to the Circuit Court of the United States for the District of Nebraska. Action by the Republican Newspaper Company of Omaha against the Northwestern Associated Press to recover damages for an alleged wrongful cancellation of plaintiff's membership therein. Verdict and judgment for plaintiff for $802.50, from which it appeals on the grounds of inadequacy of the verdict, and of improper admission and rejection of evidence. Reversed. Ralph W. Breckenridge, for plaintiff in error. E. W. Simeral, R. S. Hall, and O. J. Green, for defendant in error. Before CALDWELl, and SANBORN, Circuit Judges, and SHIRAS, District Judge. SHIRAS, District Judge. The Republican Newspaper Company, a corporation organized under the laws of the state of Nebraska, became, about the 1st of July, 1890, the owner of the plant and property ofthe Omaha Republican, a newspaper founded in 1858, and published in the -city of Omaha, by purchase from J ..C. Wilcox, the former owner thereof, who became the president of the corporation, and continued in the active 'control of the publication of the newspaper. As part of the property included in the transfer, there passed to the corporation a membership .or one share in the Northwestern Associated Press, a corporation created under the laws of the state of Illinois, and formed mainly for the purpose of procuring and distributing telegraphic and other news reports. Shortly after the transfer above stated. and about the 30th of July, 1890, the publication of the Republican was Ruspended until December 12, 1890, when it was renewed, and continued until January 8, 1891, when it again ceased, and has not been since resumed. On September 24, 1890, the executive committee of the Associated Press held a meeting at <Jhicago, Ill., and, without notice to the Republican Newspaper Company, canceled the stock of the Omaha Republican, upon the theory that the suspension of the publication of the newspaper terminated the rights
:FEDERALREPOJW:ER.;
voL 51.
of the shareholder, and justified the cancellation of the stock; and this acti0noftbe,committeeWllS approvediata oalled meetillg'Qf ,t.\:Ie tion held in Chicago, December 19,.1J890. Since the action taken by the executive committee in September, 1890, no telegraphic dispatches or other neWs 'Jle.Po$ have beenfumis,hed:to:theRepuhli9l\!:\Com pany , and its right to be considered a member of the Associated Press has been wholly denied. On the 10th of Jimuary, 1891, this action was brought in the United States circuit court for the district of Nebraska by the ReCqm,pallY to valueqf fr.anchise or Press,?: it claimed ,it hacibeendeprlvei1, daIlfs,ged,Jn:,the sU Ill of $50,000. was beard before the court and jury at thli, Novem.ber term" 1891, and a ?f the· ip. the, the damages at $802.00. /1'heplamtiff forl:tnew trIal on the ,grol,lnd that the were wholly 'illadeqnate and without support in the evidence, and that the court had erred in admitting improper eviden'c'ei in rejireting'eomp'etent'evidellceiQft'ered by plaintiff,on the subject of the damages. The motion for new trial was overruled,and judg_ ment entered on the verdict,' and tbeplaintiff brings the case to this error, as reversal the ruling of thecoort' in admitting and upon the question of the .damages cau,sed:to plaintifi' bythewl'ougful action ofdefendant. As the case stands,upon the record in this oou!rt, it is settled by t.he verdict and judgment that the plaintiff was deprived oHts membership in the defendant company, and by the cancellation of the share of stock owned 'by it plaintiff has been damaged to the value of the stock, ol'dftanehise," as it is called: in the testimony. Under these circumstances, it was incumbent on the plaintiff to pro\?e the value of the stock or franchise of which it had been deprived, and to that end: ,it was sought 'to introduC(j evidence showiog' ,that' after the Btispensionofthenewspaper in July,1r890, offers had been made for the pUl'chaseoflhe franchise, and showing'the number of proposed purchasers and amounts offered: by them, which testimony was rejected, and exceptions to the ruling were duly taken, As we understand the issues ,'in' the case, it was error to reject this By the instructions the jury, they Were required to find the value of the property of which the plaintiff had: been wrongfully deprived, and therefore any and :all facts fairly tending to show the actual value of the property should have been admitted as 'aids in enablirigthe jury to reach a correct conclusion on this issue. Whilll an article like wheat or cattle is freely sold upon an open market, the price paid is deemed to be not only competent, hut the best, evidence ofthe value ofthearticle. The price paid, how,ever; consists, aftetall,of:bidstnade and accepted;,and if it should ap,POOl' that ona 'given day:no sales had been actua11y concluded on the Itla;tket, but that offerstG sellandotfers to buy had been made, these offers would he competientiQs 'aids in arriving at the probable market ·Iniegal'd to property of the peculiar kind ,of value on the day that involved in the prt:lSeptcontroversy, it does not possess what is CODl-
CO, V{ NORTHWESTERN ASSOCIATED PRESS.
379
monly called a market value, in tpe sense ofa,pl'ice fixed hy,salesmade in open nlarketi but the fact that when such property iR for sale parties are ready to. buy itshowa that it a value, and the: pr:ice offered· tends to prove what such value is. In other words, pr()Of Qf offers to purchase at given prices, made in good ,is. some evidence of the; actual value of the article sought to be purchased, as well as of its. salability. Thus, in Champagne, 3 Wall. 114, in which wasinvolved the question of the value of certain wineS. imported into this country from Franca, the trial court admitted in certain so-called "prices current,." furniElhed tothe agent of the United States by parties in the wines at.Paris, .and which containeq tlleprices at which these dealers offered the for· sale. It; was objected thereto, among other things, that no actual tranllRctions or sales, based thereon had been proved. The suprellle court held; that the evidence was admissible, as tending to throw some light upon the matter .ltt, ililsue. See, also, Fennerstein's Champagne, 3 Wall. 145. In HarruOJl v. Glover, 72 N. Y. 451, it was hahl that the value of an article may be determined by offers to sell in the ordinary course of business, as well as by actual sales, and that "a price list stating the price at which a manufacturer will sell, or statements of dealers in answer to inquiries, are competent evidence of the market price of a marketable commodity, and is a common way of ascertaining or establishing a market price." Before a jury should give weight to testimony of the kind in question it must appear that the offers to purchase were made in good faith, by parties able to complete the same in case of acctlptancej or, in other words, that the same are not mere straw bids, or made for the purpo&e of manufacturing evidence for the particular case. But if the circumstances are such as to show that such offerd were made in good faith, then, in our judgment, evidence thereofis admissible in a case like the present, wherein, owing to the peculiar nature of the property involved, evidence showing the market value cannot be adduced. In all such cases the jury are entitled to have given them all the aids possible in determining the value of the property in question, and certainly the fact that third parties were desirous of purchasing the property. and to that end offered certain "lums therefor, does throw some light upon the value of the property thus sought to be purchased, and the refusal of the circuit court to permit the introduction of this class of evidence was therefore errOr., to the substantial prejudice of the plaintiff. on the trial, and error is assigned thereon, Exceptions were also to the admission of testimony tending to show the causes of the suspension of the Republican newspaperi that the publication thereof was at a 10SSi and touching the alleged want of business capacity of J. C. Wilcox. We infer that the trial court was unquestionaLly induced to admit this evidence by reason of the ambiguous language used in plaintiff's petition, wherein it is averred, in substance, that a news franchise is indispensable to the successful publication of a newspaper in the city of Omaha, and that the action of the defendant in depriving the plaintiff of the rights and privileges conferred by the ownership of the stock wrongfully canceled had utterly wrecked the newspaper and the plant con-
FEDERALBEPORTEa,
vol. 51.
nootedtherewith, and had compelled the final suspension of the paper. If the plaintiff Wlls in fact seeking damages on the ground that the ac· -eion of defendant in canceling the stock of plaintiff had wrecked the newspaper and destroyed the value of the entire plant connected therewith, then,it would have been proper for defendant to show' what the causes of the suspension of the paper were, and the value of the business and property belonging thereto; but as we construe the petition of plaintiff, aDd as the trial court in its charge to the jury construed the same, the real cause of action counted on was the cancellation of the stock wrongfully, and· the damages sought was the actual cash value of the stock; and upon these isSues the evidence admitted on the matters above stilted; which we need not set forth in detail, was wholly immaterial. Whether the plaintiff could, in view of the allegations in the petition, demand a reversal of the judgment if the admission of this 'evidence was the only error relied upon, we need not cohsider. As the case must be reversed upon the first point herein decided, it is enough to say that the business ability of J. C. Wilcox, the question ofprofit or loss resulting from the publication of the Republican newspaper, and the causes of its suspension are matters wholly aside from the issues upon which this cause is to be determined, and the same is true of the evidence showing the method ofconducting the business of the other newspapers published in the city of Omaha; The questions upon which evidence was tent and material were: (1) Was the' plaintiff the owner of a share in the defendant company which it could hold or dispose of after the suspension of publication ·0£ the Republican newspaper? (2) Did the defendant wrongfully cancel this share of stock, and thereby deprive plain. tiff of its propl:lrtytherein? (3) What was the value of the share of ' stock so canceled? In order, howeverjthat the defendant should not be placed at a dis· Mvantage before the jury by suggestions in the petition that the Republican was wrecked py the refusal of the defendant to furnish dispatches to:it, we would: suggest that the plail1tiffbe permitted to strike these averments out of the petition, and to confine the statement of the cause of' action to the facts necessary to show ownership of the stock by plaintiff, the wrongful cl11:1cellation thereof by defendant, and the damages caused, to wit, the loss of the value 01 the stock, and thus the allegations of the petition will be limited to a statement of the ultimate facts upon which plaintiff relies as grounds of recovery. The judgment below is reversed, and cause is rem.anded to the circuit court, with instructions. to grant a new trial.
LIGGETT 'V. GLENN.
881
LIGGETT
v.
GLENN.
GLENN 11. LIGGETT. Court of Appeats, Eighth CWeUU. .Tune 18, 1892.)
Nos. 61,611. L STATE AND PBDlIRAL COURTS . IDENTITY. CONCURRENT JURISDICTION-PRIORITY OF SUIT-
A suit in a federal coutt by a stockholder in behalf of himself and other stockholders against a corporation and its officers and directors, seeking by injunction to correct abuses of administration, alleging insolvency, and asking the appointment of a receiver to wind up the business and pay the debts of the corporation, is 'not identical, as to interests of parties, with a subsequent suit in a state court by a judgment creditor in behalf of himself and other creditors to ascertain the validity of a deed of assignment from the corporation to certain trustees, and asking the appointment of a re(',eiver, with power to collect all assessments that may be made on the capital stock, and otherwise care for and collect the assets and credits of the corporation j and the pendency of the former SUit, and the appointment of a receiver thill.·ein, does not deprive the state court of jurisdiction to entertain the latter. .
8.
SAME..,..RECEIVERS.
In such case the general rule that, in cases of concurrent jurisdiction, the jurisdiction of the court first taking control of the property is exclusive, does not apply, it appearing that the receiver appointed by the federal court never had actual possession of the corporation's property, excepting an insignificant portion, Which was sold, and the proceeds applied to the expenses of the receivership, that no assessments were ordered by that court, and that the receiver was discharged and the case. dismissed before any steps were taken in the state court for the acquisition or distribution of any property.
,CORPORATIONS-AsSESSMENT ON STOCK.
In the decree of .the federal court appointing the receiver, a clause providing that, "if there shall be any sums due upon the shares of the capital stock of saili .companY,··the receiver will proceed to colleot and reoover the same," cannot be construed as a call fol" a balance of 80 per cent. of the subscription, not yet called for, but merely as giving-authority to collect any sums not paid on calls already m a d e . . In an:action to l"ecoverassessments on the stock of a corporation, the stock books of tb:ecompany ate competent evidence to show that defendant is a stockholder, When conneoted w.ith other evidence showing that a name contained therein, which is identical with defendant's name, was entered as his name. . ' · AND CLIENT.
.. SAME-STOCKIIOLDERS-E)VIDENCE-STOCK BOOK.
5.
Defendant and other persons signed a written contract with an attorney to pay him certaln fees for defending all suits brought against them to recover assessments on the stock of a corporation, the expense. to be borne "by us pro rata on the of stock subscribed by us as set opposite our names." This contract was subsequently filed by the ljottorney in a probate court as a voucher for a claim for fees the estate of one of the signers. From there it was obtained by another attorney, and, in a suit against another signer, was offered as evidence that the latter was a stOCkholder. Held, that the document fell within the rule protecting confidential communications between attorney and client, and was inadmissible. 47 Fed. Rep. 472,reversed. SAME.
6.
'I.
The admissibility of a paper containing communications between client and attorney is not dependent upon the manner in which possession thereof was ohtained from the attorney, but upon the inherent character of the communication itself. If the communication is privileged, it can only be deprived of that character by some unequivocal act on the part of the client himself. SAMB-STATE LAWS INAPPLICABLE.
In actions in the federal courts, the question whether a communication between client and attorney is admissible in evidence is not dependent upon the statutes of the state in which the court sits. Insurance 00. v. Schaefer, 94 U. S. 457, fol-
loWed;- .