ST. LOUIS, I. M. ,&s, KY. cd. ".
v.
ntDHAM.
371
.-:."
!fouls, I. If.·& S.Ry.Co. v. NEEDHAM. (Oircuit Court of Appeals, Eighth Circuit.
October 3,
Ko.106.
1.
Dl!IATlI BY WRONGl'tl'L AOT-WROMAY SUE-"HEJRS AT LAW" DEPINED.
Tile widow and all other persons entitled under the Arkansas statutes to share in ,the distribution of. the personal estate of persons dying intestate are "heirs at law," within the meaning of Mansf. Dig. Ark. §§ 5225, 5226, giving a right of action to the heirs at law (if there be no personal representatives) of any person whose death is caused by the wrongful act, neglect, or default of another. Manst. Dig. Ark. §§ 6225, 6226, give only one right of action against the Jlerson or corporation whose. wrongful act, neglect. or default causes the death of another; and when the widow brings such action she must join all persons having an interest in the subject thereof, including a half-brother, Who is entitled to a share of the damages recovered, though he suffered no direct pecuniary loss. This rule is not changed by se!ltioll; 4988, which provides that every action must be brought in the name of the real paJ;ty in interest.
2. SAME-NEl:lilsSARY PARTms.
8. SUU!l'--MllIA,STJRB OF DAMAGllIS-INsTRUOTJONS.
In an action by a widow for wrongful death of her husband uuder Mansf. Dig. Ark. §§,0226, 5226, it 'is error to positively instruct the jury. to measure the plain. tiff's damages by a mathematical calculation based upon the yielding power of money when invested in an annUity; for, while it is proper for the jury to consider ,this ,method of investment. they should not be confined thereto, but may consider other safe investments, such as government bonds, real-estate mortgages. etc., alid in caSe 'they find diffiCUlty in reaching a conclusion 'by any mathematical calculation, they are authorized to estimate the damages by thelr own good sense and sound judgment. "
4. SAME.
his death, and that his wages up to that time had been entire}y consumed in the expeDsesof his household, it'was error to ch'arge that, in case t.he jury believed the widow's expectancy of life was· greater than her hU'3band's, they should add to the amount required to purchase the ,annuity tbe present value of any property she would probably have received,'l'r6m her husband as dower if he had not bee'u 'killed. for the .realization of any: sum as dower depended on too many contingEln. cies, such as life and deatb."health, divorce, birth rearing of children. 6. SAME-EmwNEous IXSTJ\UOTIONS-O\TRATIVE CRARGE.'
It appearing that the widow was 00 years old and her husbllond 22 at the time of
Where, in an action for wrongfui death, the court, at plaintiff's request, erroneousW gives positive directions for .ascertaining tnedamages by certain OlatheJDatica\calculations, the error is not cured by the SUbsequent statement of the court 'on , Its own motion that in the end the whole matter of damages is left entirely to the sound judgment of the jury as to what is proper under ail the circumstances.
In Error to the Circuit Court of the United States for the Eastern D,istrict of Arkansas. . Action by Mrs. D. L. Needham against the St. Louis, Iron Mountain & Southern Railway Company to recover for the death of her husband. Verdict and judgment for plaintiff. Defendant brings error. Reversed. Statement by SANBORN, Circuit Judge: This is>a writ of error t(}reverse a judgment against the plaintiff in error fot its negligence in causing the death of thehusbund of the defendant in error, who was tbe 'plaintiff below, .aud will hereafter be so The statute of Arkansas under which ,this action was as follows:
, J'J:DEJUl.,RE;t'ORTER, ,vol. 52. "Sec. 5225. Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the .,et, neglect. or defau,lt is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover daplages in respect thereof, then, and in every such case, the person who, or company which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under sllch circumstances as amount in law to a felony. Sec. 5226. Every such actionsball be brought by and: in the name of the personal representatives of person, and if, tberehe no personal representatives, then the same may brought by tM heirs at law of such deceased person; and the amount reoovered in every,8uq1}, action shall he for the exclusive benefit of the widow and next of kin ofsueh deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to personaiprollerty left by persons dying intestate; and in,eYEWysu4h, action ,the jUcl'y.maygive such damages as they shall deem a fair,andj\.lBt compensation, with reference ,to the pecuniary injuries r,esulting from 'such deathtothe wife and:uex:tofkin of such deceased person: provided. Wilt every snch actionsbalFbe comrnenced,w,itbin twoyears after the death of such person. Act Marcr, 6, 1883." Mansf. Dig. Ark. §§ 5225, 5226.,. '1" 1,' c e " , .·
Pl/lilltiif in, her amended corqplaint alleged the citizenship of the parties to tbesuitj her marriage with D. L. Needbam; that he was killed through.defeh,qapt's negligence.j,,,,nd then averred that there had never been any administration of his estate; that he left no issue or father or mother, but did leave a brother of the half blood, a son of mother, who was a minor, and his next of kin. The Arkansas statutes provided that in such a case the personal property should be distributed to the widow and. next ofkh). ill. shares. Sections. 2522, 2533, 2592, Mansf. Dig. To this complaint a demurrer was interposed by the railroaP company, and by the. court. Thelfompany then answered, and, for a second pleaded the statute set forth above, (secti6h'5226, Mansf. averred that the plaintiff could not maintain the action under this stntute.The pljLintiff interposed a demurrer this second defensej and this demurrer was sustained. The rulings of the court upon demurrers and various rulings during the trial which followed are assigned as error. George E. Dodge and B. S. Johnson, for plaintiff in error. J. C. Marshall, C. T. Cojfmftn, and James P. Clarke, for defendant in error. . , , Before and SANBORN, Circuit Judges, ,ahd SHIRAS, District Judge. . . .J
SANBOltN; CirouitJudge, (after 8tating the facts.) Inthedetermination of this case it has' been necessary to decide but a single question, and that is: When a cause of action for the negligent killing of a'deceased person is given by statute to ihis heirs at law for the exclusive benefit of hiswidow and 'next of kin\ can the widow or anyone of the heirs at law maintain the actiolHvithout joining other heirs who' are in existence, and entitled to a share of the amount recovered? The contention of the defendant that the words" heirs at law 11 in this statute do not
ST. LOUIS, I. M. &: S. RY. CO. t1. NEEDHAM.
373
include the. widow, and hence that she may not he a party to this ac.tion, cannot he sustained. It is true that at common law the technical meaning of the term "heir at law" is one upon whom the law casts an estate in real property immediately upon the death of the ancestor intestate; but, in view of the facts that under the statutes of Arkansas the inheritors of the real estate also inherit the personal estate in the same proportions, (section 2522, Mansf. Dig.;) that the widow receives a larger share in the personal than in the real property, (sections 2571, 2591, 2592, Mansf. Dig.;) that, if there are no children or their descendants, father, mother, nor their descendants, or any paternal or maternal kindred, capable of inheriting, the whole estate of the deceased husband descends to her by operation of law, (section 2528, Mansf. Dig. ,) (and in the latter case, if the widow could not maintain the suit, there would be no heir at law to bring it, although the widow would be entitled to the entire amount to be recovered i) and the further fact that the evident purpose of the statute in question in permitting the action to be brought by the heirs at law when there were no personalrepresenta-. tives of the deceased was to give the .action in that event to those beneficially interested,-we are constrained to hold that these words in this statute were intended to have a broader signification; that they were used in contradistinction to devisees, and include aIL those entitled to a share, in the distribution of the personal estate of persons dying intestate, under the Arkansas statute. The question then recurs, can one of these heirs at law maintain this action without joining others in being, who are entitled to a share of the amount recovered? The statute in question was passed March 6, 1883. At common law no one could maintain an action for the negligent killing of a deceased person, and, in the absence of this or some similar statute, this action could not be maintained. Railway Co. v. Barker, 33 Ark. 353; Wood v. Blackwood, 41 Ark. 299; Nash v. TOW3ley, 28 Minn. 5, 8 N. W. Rep. 875; Wilson v. Bumstead, 12 Neb. 3, 10 N. W. Rep. 411. Since the right of action and the remedy for the wrongful killing exist only by virtue of the a,tatute. they exist for the benefit of the persons there specified, and of such persons only; and where, as in this case, such a statute expressly specifies the parties who may bring the action, those parties, and those parties only, can maintain it. Thus in Nash v. Tousley. supra, where the statutes of Minnesota provided that "where death is caused by the wrongful act or omission of any party, the personal representative of the deceased may maintain an action, * * * and the amount recovered is to be for the. exclusive benefit of the widow and next of kin, to be distributed to them in the same proportions as the personal property of the deceased person," an by a father for, the negligent, killing of his son was disaction missed, and it was held that such an action could be maintained only by the executor or administrator of the son's estate. To the same effect are Wilson v. Bumstead, 12 Neb. 1, 10 N. W. Rep. 411; Miller v. Railway Co., 55 Ga. 144; Books v. Danville, 95 Pa. St. 159, 166; Wood;ward v. Railway Co., 23 Wis. 404; Kramer v. Railway Co., 25 Cal. 436;
874
FEDERAL REPORT)l:R;
vol. 52·
Bailwa'!J Vt. 304'iHmbmv. Oityoj''lhpe1c(1Jl134 Fed. :510. ,The' oftliis' statute: provides that dtbeperson or corporittiohwhose wrongful act, neglect, or'default causes 'the death of II l perstltfshlillM liable'U:l'an action ioall cases wharehe or it would have'be>etrUable to the persbn killed if the injury had not resulted in death., ''l'hesecond sectiohprovidesthat every such action shall be in the darti,e 'of the personal representatives -of such deceasEid ,verson, and, if thete be no personal representatives, then the satlie may be brought by the heirs at law of such deceased person; that the aD'iourit recovered ,sha1i be for the exclusive benefit of the widow and next ofkin, shall' 'be' distributed to them in the proportions providedby Iawfor the distrlb\1tioh of the personal property of persons dying intestateiandthattlie' jfirymay give such damages as they shall deem afair and just compensation for the pecuniary injuries resulting from such death to the widow 'and next of kin. Obviously the! purpoBe6f the legislature was to provide for the recovery inone:action ofa single amount,which should, as nearly 'as possiaggregate llIDolint of pecuniary loss the widow and next ofJiill'lmsta.ined. The statute does hot'provide, and nothing in it evinces ariyintention to that each Of the'heirs shall receive by a separate actio.n, Or by distribution of the amount recovered in a single action, such Iln amount as him for the pecuniary loss which he has from the _ the other hand, it does provide that On the alIiountBhllll be to the same persons, and in the same, proporti()us, 'as the J>,ersofllli estates of intestates are distributed, although: it isperfe<!tly obvious mat under this provision it must often happen that thedistri'buti()nwillgive large shares to those wbo suffer little pecuniarylos8, alid inadequate compensation to those who are grievously injured. 'Thull, in the ,case at bar, it is' alleged that the half-brother, who is ofkin:t<)' deceased, s'tdfered no pecuniary loss by his death; wbilethe widow, who brings this action, was' dependent upon him for support, and ,suffered all the pecuniaryloss' sustained by any onei nevertheless, under this statute,:the haH-brother is entitled to one half of theambunt recovered in the' acfion, since it is provided by the statutes Of Arka.nsas that: the personal property ofthe intestate shall, in such a case, be distributed.'in this proportion. In other words, no one of the bemlficiaries named in the statute is entitled to measure his recovery by thepecnniary loss hehassnffered, but he must taketMtshare oftheaggregateamO\lnt recovered for1:he'pecuniaryil'ljury to the widow and next of kin which tlite statute would give bim in the personal estate of the deceased dying intestate. From these provisions of the statute, from the basis of distribution there fixed, it Clearly appears that noneoFtheheirs a separate dction, or a separable interest in tbe actiOfljagainst the 'Wrong-doer; until after the judgment is recovered, but tliat0all are Jointly interes'te,din the cause of action until distribution of: th.eprooeeds is adjudgjeci.- In' this case the half-brother had 11 joint and equal interest with the plaintiff in the action and the recovery, and..it is well 'settled that .when the action is for the asser-
ST. LOUlB, 1. M. &: S. RY. CO, V. NEEDHAM.
375
tion of a joint, and .not 8,' several, interest, all persOnS having An interest in the subject of thea9!;jon or the relief demanded m,ust be joined. Any other rule would lead to endless confusion, and great injustice. under this, statute, there are 20 heirs entitled Suppose, ina to share the personal estate in proportions varying from one twentieth to one tbird, and tl1at each may maint!l-in a separate action fpr the wrongful killing of a deceased person. The aggregate damages to the widow and next of kin must, in reality, be the same in each case, but how the estimates of 20 juries would differ. The amount recovered in each case must be distrib\lted among the 20 heirs in the same proportions, and 20 trials must be endured to, determine the rights ,of these litigants. No such practice or result was intended by the legislature or provided for by tbis statute.' It gives '.'an action """:"'""asingle action, not several. actions-for the wrongful killing. It provides that every such action must be brought in the name of tbepersonal representatives, if there are such; otherwise by theheirs at law 1 It will n.ot be gravely insisted that the personal representatives could maintain m.ore than l o single action, or that,where there were several adtninistrators, all; 'and· it is one of them could maintain' the action without Clear that when· the action is brought by the heirs there· 'must be but single action, l.lOd all the heirs must be made parties to it,so that the entire controversy may be determined and the entire a11)ount recovered, and distributed in the single action given by tbe statute. The simplicity andeffecth:eness of such an action, the inconvenience and injustice to and defendants alik;e resulting from any otherprac.. tice, tliei,;ule of distribution of the amount recovered, based, not on the, injury to each pers<)ll entitled to receive a share, but upon the stat-ute of descent, the settled rule of law as to parties jointly interested in a cause of action 1 and the plain reading of the statute, compel the conclusion thll.tsuch was the intention of the legislature, and that the court below erl'ed in proceeding to the trial of this action' in the absence of the half-brother as a party thereto. . That the statutes of Arkansas provide that "l'lvery action must be brought in the name of the real party in interest, except as provided in sections 4935,4936, and 4938," (Mansf. Dig. § 4933,) in no way tates against this, conclusion, because, as we have shown, the half-brother, though he may have suffered no pecunial'yloss, was entitled to one half of the amoUIltrecovered, and therefore was a real party in interest; and because section 4936 expressly provides that a trustee of an express trust, or any person, expref>sly authorized by statute so to 00, may bring an action without joining the real parties in interest, and by the act of 1883 (section 5226, Mansf. Dig.) the heirs of the person wrongfully killed are expressly authorized to bring this action. . The contention that the action on behalf of the half-brother, though he was a minor, was barred by the limitation contained ill the act of 1883 before the answer in this action was filed, will not now beconsidered, beCfluse the question on which tbiscnse turns was fairly presented by the 'demurrer to the complaint within the two-years limitation pre-
876
FEDERAL REPORTER,
vol. 52.
that statute, was renewed and insisted :upon by the second forth in the and throughout .thetrial, and ought not to heais:i:egardqd now; and for the further reason that any opinion we as to the effect of this limitation on the rights of this half-brother would not bind him, (since he is not in court,) and ought not. to be formed or expressed until he is heard. The result is that, whetean actibti that had no existence at common law is given by statute to'the heiTs at law of a deceased person for a wrongful act for the benetitof the widow and, next of kin, all the heirs at law are indispensable parties the mainteriunce of the action. In VleWof the fact that there may be another trial of this ease, we ootid:! an,6thet error assigned. It is tbat the court below gave the following instruction to the jury:. . .. that tpe de!\th of of p.laintiff was caused by the ,negl1gent acts of the defendant, as tlefined Ih these lUstructions, then they 'wiU'l'eth't'ti'a verdict for plaintiff IOl·such sum as will compensate her as widl'!lwiOfiSaid deceased for 'the pecuniary injury which she bas sustained by the. deatbof her said husbatld. To this. jury will consider the of deceasl'll had his death not been caused at the .well 35 the probable dllratipn of the life of plaintiff, and for this purp?sereference may be had to introduced in evidence, not gUides on the SUbject, bUt as important and authentic informaas tion '6n" tlliS point, to be considered with .the other evidence in the case in reaching 'a' conclusion ontbis point; the habits of the deceased with reference to hisill.ttention· to businesS. aO,d his sobriety. and other respects which capacitYfol" earning money; his prl:Jbable earpings, and the a!Dount tllatl).e would hl,l,ve probably devoted to the support .and maintenance of this ascertained" you will allow plaintiff 'stich not of deceased, nor the amount named 10 the to exceed the comjllaint, 'ItS will purchase an annuity for such sum as will yield annually during the.term of the.expectancyofdeceased an a.mount equal ,to the annual pecuniary benelits plaintiff would have received from her said pusQ1\nd during sllid term. But if the jury find that the probable duration of plaintiff's life is shorter than that of her said husband, then she· should oply be allowed such sum as will equal the val ue of the benefits she would have received during the term of her life. ' And if the jury believe t'hat plaintiff"fleix:pectancy of life is greater than that of her said husband, tlhen t1)eywill add SUllia as will equal the present value of any property. that she .probably receive from her said husband as dower in the event ,lilP<luld so survive him, the jury find that the said deauy such property .in excess of what was reqUired for 'the support and:maintenance of himselfaJid family. In plaintiff's. case the'amolll1t of Iiuch dGwer intevest would be one half of any personal property and! A life estate one half r,ealty 'which her husband would own at his, dell-t4if. no children survived hiIP-and, 1f. he left children, her inhalf." . terest would'1;!e( .one third instead of one_ , ,, 'i': f :' .:, C' : Aside from the errors arising from the unsuccessful attempt to divide"tlwC!Wse of. aetion given pythe statute,one vice of this in'stru,ction,iMhat it jury to measure the. plaintiff's. upontbe yielding power of an It was undoubtedly proper for the jurY ,to consider under the what amount of money so in,
to
W
i
,
ST. LOUIS, 1. M. & S. BY. CO. V. NEEDHAM.
377
vested would yield the yearly amount the widow and next of kin would probably have received from the deceased if he had lived, but they were not bound to allow damages based upon that method, nor any particular method of investment of money· .It would be. proper for a jury, upon proper evidence, to consider what amount jnvested in government bonds, well-secured mortgages on real estate, or any other safe security, would yield the annual amount the injured parties would probably have received from the deceased had he lived; but it would not be the province of the court to direct them to allow an amount based upon anyone of these methods of investment. Indeed, if, after considering all of the evidence, they found difficulty in arriving at a conclusion by mathematical calculations based on any method of investment, they would be authorized to estimate the loss according to their own good sense and sound judgment. Phillip8 v. Railway Co., 49 Law J. Q. B. 237, 238,5 C. P. Div. 291, 293; Rowley v. Railway 0>., 42 Law J. Exch. 153, L. R. 8 Exch. 221; Railway Co. v. Putnam, 118 U. S. 545,556,7 Sup. Ct. Rep. 1; Railroad Co. v. Barron, 5 Wall. 90. 105. The same vice runs through that portion of this instruction where the jury was directed, in case they believed plaintiff's expectancy of life was greater than that of her husband, to add to the alI).ount that would purchase the annuity referred to the present value of any property that she had would probably have received from her saiq. not been killed. At the death of the husband the plaintiff was 2Q years old, and her expectancy of life, according to the tables, was.4L53 years, while her husband was 22 years old, and his expectancy of life .was 40.85 years. He was a fireman, earning $75 or $80 a month, and the expenses of his household during his lifetime had consumed all his wages. Under this evidence, so many chances and contingencies of life and death, of sickness and health, of accident and injury, of marriage and divorce, of the birth and rearing. of children, conditioned the lives and 'relations of this husband and wife that no court was authorized to instruct the jury that they must allow the widow one third or one half of the present value of the husband's probable future accumulations if they were of the opinion she would probably have outlived him if he had not been killed. In the measure of damages in such· an action as this the constant factor is the practical knowledge, varied experience, and sound judgment of 12 men, and to these very much must be left. The instruction we are considering was given at the request of plaintiff's counsel. It is true that, after giving it, the court,of its own motion, added the following: "However, gentlemen of the jury, the whole matter of the amount which the plaintiff is entitled to recover as damages for the death of her husband, if you find his death was caused by the negligence of defendant, as stated in these instructions, is, in the end, left entirely to your sound judgment as to what is proper to be allowed, after taking into consideration all of the facts .and circumstances of the case as shown in the testimony." This particular portion of the. charge, standing alone, is not objection"bIe; but general remarks of this character in the course of a charge,
while rhaytendto show court really entertains sound view& of theJaw j 'do ,not the vice of an erroneousdustl'l1ction, positive mits terms, whichdii'eots jury; to allow damages,on a wrong basis. The ertor intowhi<:h the zeal .andingenuity of counselled ,the court and'himself resulted ftoma i futile 'endeavor to make fiied and certain that which is in its Mture uhOertain and indefinite. The evidence in such a elise so man1 facts. a.nd circumstances to be considered , thechanciesalid: cOntingenoies of temporary and permanent illness, of accident,: iuJuty,and tlisability; familiar to' the' experience of every to 'be considered in estimating the probable future jUTyman; in(lome of anyttitm,'but sometimes incapable of proof" are so many imd so varied,......thll.t'human' ingenuity seems incapableofformulating a rule ",bich charice, a.nd· .probability that a jury:may that it may ·not, in estimating the earnings hIs death'b!l& depri{reU'his family of; but when to the facts and circumsfunces,to 'tlae challcesandcontingencies thatconditidnthe. probable earnings of one indiVidual for it seties ofyearsj are· added; those that the'prooobilityoftne 'continuance of the domestic relations, the probability :ofthed'tl:ration· of the life of the wife, oLthe, birth and lives of cbilUren\'oft:be'CbntililIeU affection and support of the husband. of thecontinuatlce ,of,the livea:and relations of the next of kin, the establishment of 'arty!' tute' Ithat 'will enable· a jury 'by' any arithmetical cOtnpuw.tion to arrive at 'absolute compensation to the widow and next of: kin foritheir pecuniary loss is hopeless. When, in this case, the court, after cautioning the jurY that the only datn8ges. that can· be allowed are such aswiH fairly compensate the widow and next of kin for the pecuniary'loss they have. sustained by the deathj"thatnothingcanbe allowed,forthe pain or suffering of the deceased, or the grief drdistress of any onej and, calling their attention to the salient points of the testimony, and some of the chances and contingencies that encotuplisSed the lives, relations, and probabilities that must be considered in this case in SUCh. wa.y as, in its opinion, will nest elucidate the testimony', and: tend to assist the jury in arriving at a just result, informs them tlial;'they may consider all the facts and circumin evidence, and the proximate chances and contingencies that the evidence and of 1he lives and affairs of men show would intimately .affect the probable amount of pecuniary loss the widow and next ofilun have sustained; and then instructs them that, after careful and ueliberateconsideration of all these matters, it is their province and duty, in the light of their knowledge and experience, to nxthe amount plaintiffs are entitled to recover (if they find they are entitled torecbver at: 8111) atsucn a sum as, in the exercise of their good sense arid careful;'deliberate judgment, they deem a tail' and just cOIrlpepsation for the pecwniary injurfes resulting to the widow and next :or'kin from this is 'toat. the court will have given the Jury as definite a rule for the measure of these damages as will be of service to them br td the due adtnil1istration of the Jaw. This is the establiShed practice in !Imgland. The · reasons for it are forcibly pre-
RICHMON» BAILW;AY & ELECTRIC CO.: t1. DICK.
.nte<tby Lo1;d Justice.BRETT in Phillips v. Rauway, (l)., 238, J;Q. B., Q.P. Div." .this practice Jlnd: the reasoning.of Justice BRIi;TT in of ita.re com· mendi:ldand $,pprovedbythe supreme court in Ra.uway Co. v. 118 U. S., at pages 054,555.,7 Sup. Ct. Rep. 1; and by thespprl;lme court.of in McCants, 51 Ark. 514, 11 S. W. Rep. 694. Th;e judgment below is coats, alld the cause remanded, with instruotions to dismisstbe aotion unless within a reasonable time, to be by the court below, the \iaif-brother named in theoomplaint be made· a party to the action, and in grant a new trial.
, RICHMOND RAILWAY
&: ELECTRIC Co.
t1. DICK
d
at
Oourt qf AppealB, Fourth CircuU. Ootober 11, 1811"
No. 17. L AnBALULE OU'IBs-ConIl'fl1.l.NCE. A motion for a oontinuanoe is addressed to tbe discretion' of tbe eourt, and lullOtlon thereon is not reviewable by the oirouit oourt of appeals. '. .... . a.·8AJl....NBWTBIA.L. The aotion of a federal oourt In disposing of .. motion for a new trial is not re-
viewable in tbe elrouit oollrt of appeals.
8. N'IGOTLUILB INSTRUlIElIlTII-BON.l. FroB HOLDBll8-NO'I!ICE.
AIDanufacturingoorporation ,!tloeived negotiable notes .for The notes were dllloounted by a banking firm, in whicb the presldent of the corporation was a partner, but be had no actual knowledge as to the oonsideration for the notes, or of the. transaction in which they were givj!n. Hfld, that the mere fact of his connection with tbe two oonoerna was not sumoient to affect the firm with constructive notloe of the consideration for the IlOtea and·of an alleged failure thereof.
In Error to the Circuit Court of the United States for the Eastern District of Virginia. . Action by J. R. Dick &: Co. against the Richmond Railway &: Electrio Company on certain promissory notes. Verdict and judgment for plaintiffs. New trial denied. Defendant brings error. Affirmed. Statement by SIMONTON, District Judge: The record discloses these faots: The defendant contracted to purchase two engines from the Phrenix Iron Works Company. The en· gines were to be delivered at Richmond, Va., to be paid for on arrival, one fourth in cash, remainder in notes. They, were delivered at RichIDond, the cash was paid, and three negotiable promissory notes were exeouted, payable to order of the Phrenix Company, and delivered to them. Tbesenotes bore dates and were in theatrtounts following: One for 81,500; dated 23d June, 1891; one for $1,687.50, datedlst July, 1891; one for $1,500, dated 15th July, 1891,-all at four months. The Phrenix Iron Company indorsed before maturity and delivered these notes to plaintiffs, who are a banking firma(Meadville, Pat One Of