OOLUMBUSOONSTRUC'l'ION 00. II. CRANE 00.
derived from the fact that she. was seised of the land back of the water front, and bounded by the river, when she conveyed by the same metes cm.d bounds the land in pantition acquired, she conveyed, unless the deed made SOme reservaticlD, all the rights, privileges, and appurtenances which title to the ljtnd gave her. By the law of Virginia, the rights of riparian owners extend to low-water mark. Fhmchv. Bankhead, 11 Grat. 136. But whether or nQt the description ()f the land made in the from Mary E. O. Tammt.and her husband, Dashiel,.to Elliot, Martin, Bennett, and McCurdy, corresponded exactly with the ,metes and bounds given iJ;l, the repprt ,of the comm,issioners, the ption in that deed is sufficient to c.oQvey to the grantees all the riparian rights which the ownership of the land could give, incident and appurtenant to' adjacent land. One of the boundaries in this deed is in the following words: "Thence south, 32 degrees west, 12.15 chains," to a stake at high-water mark on the Elizabeth river; thence north, 57 degrees 15' seconds west" 17.90 chains, to the corner of J.W. Brinton's land. The only corner which Brintonls land there makell is with the Elizabeth river. The supreme court in County of St. Clair v. Loving8fQn, 23 Wall. 46, and Railroad 00. v. &hurmeir, 7 Wall. 272, has settled this question for us. "It may be considered," say the court, "a canon in American jurisprudence that where the cans in a conveyance of land are for two corners at, in, or on a stream, or its bank, and there is an intermediate line extending from one such corner to the other, the stream is the boundary, unless there is something which excludes the operation of this rule by showing the intention of the parties was otherwise." There is nothing here, either in the deeds themselves or in the conduct of the polties, who waited 15 years before finding out that they had any claim 10 nparian rights, to show any reason to exclude the operation of this canon of American jurisprudence, or that the grantors in the deed to Elliot, Martin et did not intend to come under it. We have not answered Beriatim the errors assigned, but what we have said answers them all. 'We think the decree of the court below was the proper one to make, and it is a.ffirmed, with costs.
CoLUMBUS CONSTRUCTION Co. II. CRANE
Co.
(CIrcuit Coun Q/ .Appeals, Seuenth. ctrcuu. October 1, 1891.)
No. 98. I. Ooln'BAOTS-BALB-AGBNOT.
PlaintiJ! and defendant entered into a written agreement, in whioh the defendant agreed to purchase in its own name and upon its own credit, as the agent irrevocable of the plaintiff, certain goods, and to deliver the same at,a specified time. HeW, that defendant was liable to plaintiff, as a vendor, for failure to deliver tlle roods according to the agreement. , The fact that there was attached to suoh agreement an exhibit showiug 8 form of contract with a manufacturer for the manufacture and sale of such JI'OOds clOljli SlOt blnd the defendant to procure the goods under such contract.
2.
8A.KB-CONSTBUOTION.
vol. 52. In Error to the Circuit Court of tho United States for the Northern District of Illinois. Action by the Columbus Construction Company against the Crane Company. A demurrer was sustained to the third and fourth counts of the declaration. Plaintiff brings error. Reversed. Statement by WOODS, Circuit Judge: The nature and ground of the ruling upon which error is assigned are well stated in the following brief opinion of the judge who presi<;led in thedrcuit court: "BLODGETT, District JUdge. T'lis is a demurrer to the third and fourth counts of plaintiff's declaration, which charge the defendant with a breach of the contract, attachl<ld to the declaration, and made a part of these counts, while acting as agent of the plaintiff. I have no doubt that this contract is a contract for the employment of. the defendant by the plaintiff as a broker or agent of the plaintiff for the purchase of the wrought-iron· pipe mentioned in the contract.. It is not a contract for the sale of the pipe by the defendant to the plaintiff; nor does it contain any guaranty, expressed or implied, of the quality of the pipe on the. part of the defendant, if defendant was only acting as agent or broker for the plaintiff. The oontract makes the defendant· merely the brOker or agent of the plaintiff to purchase this pipe for the plaintiff. letters attached to the contract, and made a part thereof, and the the contract itsell"exclude any other construction than that this is a contpict for brokerage. And, as there is no allegation in either of these CQUtltscnarging the defendant· with anr breach of duty as a broker or agent oftha 'phUntiff hi the purchase of this pipe, sUch as that the defendant failed topurebasepipe of the required qualitylfor delivery to the plaintiff, I do not see that tllere iBany cause of actionJ!Da<le by these tW'9 counts. The demurrer is, sustained tQ: tllh'4jl: apd fourtb counts." The following' is the agreement·in question,. with the exhibits attached, excep'ting parts omitted, which are not relevant to any question ditcllssed by .ooullsel: . '. . " .. made'this twerity-eighth day of June, A. D. 1890,befWeen' the'Oalubl'busCl:lrnJti!uction Company, a corporation existing under andby,:yirtpe,of the law8',ofthestat$of N{'lw Jersey, patty of tht! first part, and the Crane Company, a under;l,\nd, by virtue oithe laws of the state of Illinois, party of the second part, witnesseth, that for and in consideration of the facilities and representations of the party of the second part, more fully shown .by 'Exhibit A,' hereto attached, and made a part hereof. to effect for the party of the first part. upon desirable terms, the purchase of the standard wrought.iron line pipe hel einafter specified, and the sum of oneRQHar in hand paid by each of the parties1;lereto. the one to the other, the receipt whereof is hereby mutually acknowledged, it is R/{reed between hereto as follows, to wit: Thepal'ty of the second part will purchase in its own name and upon its own credit, as the agent irrevocable of the party of the first part, aJld the delivery to the party of the first part during the months of July, August, and September, as herE'inafter as be designated herpafte1" by the party of the first practICable dates, but not lateJ.: than October 1, 1890, barring Btrikell·and causea·, beyond control, for the lowest obtainable price, (Which price shall 'include freights to ,the points of deli very, same not to exceed the current rate of freight from point of shipment to Chicago,) and the Pllrtyof the lirsj;,part will take aU standard line pipe hereinafter specified in conformity with tbe specifications, and subject to the conditions
COLUMBUS CONSTRUCTION CO.
1).
CRANE CO.
637
and tests. more fully set forth and specified in the contract and specifications for standard eight-inch line pipe, hereunto attached, (subject, however, to change 88 to size and weight as hereinafter stated,) marked · Exhibit B,' hereunto attached, and made a part hereof, at a price, including commissions to be paid party of the second part of two and one-half (21') per cent., not exceeding ninetyoOne cents (91) per lineal foot for eight (8) inch standard line pipe, and price on the following sizes to be in propol'tion to price given on eight-inch as above and as hereinafter specified: ,.. ,.. ,.. The party of the second part will, barring strikes and causes beyond their control, delivet all the eight-inch pipe before mentioned in amount not less than thirty-seven miles in July, not less than 123 miles in August, and all remaining undeliv. ered in September, 1890, prior to the 15th of September, if possible. The party of the first part agrees to pay the party of the second part, upon deli veryof each and every invoice of pipe at such delivery points as the party of the first part shall designate, spot cash therefor, including commission of two and one-half (21') per cent. over and above the amount of each original invoice rendered party of the second part by the manufacturer, but in no case agreeing to pay any sum or sums in excess of (including pipe, freight, and commission or other charge) the prices hereinbefore fixed for each size of pipe. In witness whereof, the parties hereto have cau13ed this instrument to be executed in duplicate by their respective presidents and attested by their respective secretaries, under their respecti li'e corporate seals, this 30th day of June,1890. COLUMBUS CoNSTRUCTION COMPANY. "By C. E. HEQUEMBOURG, President· .. Attest: C. K. WOOSTER, Secretary Crane Company. "R. T. CRANE, President. "EXHIBIT
"CHICAGO, June 20. 1890. Hequembourg, Esq.-DEAR SIR: As members of the Pipe Association, with a representative on the board of we feel contident of our ability, in fact know that we can purchase the pipe in question at least 5 per cent. less than.any outsider. .Especiallyis·this true in the face of the legislation enacted by theooard of managers at a meeting held in Pittsburg on Wednesday, the 18th inst., at which meeting it was agreed that cash for· in the event of the feits of lat:ge amounts be put up, the same to agreed price being cut. It will be necessary for the board of managers to take special legislation, in effect, to throw the market open in the interest of our compat;1y, to enable us to secure the material wanted at a pl'ice satisfactory to yon, and, acting merely as your agent, the price made us would naturally be yours. Our position in the association is such that we feel confi. dent of bringing this about. Sbould you have s,ufficient confidence in our company to appoint us your agents in this matter, the actual placing of the itself qUite a task, to our minds-woul!l,only be the beginning of a large line of work that we would be necessarily called upon to do for you in the handling of a dozen mills, more 01' less, that would have to participate in the completion of such an order. In consequence of which, we think, in tendering our services to you, as we do, that 2t per cent. brokerage would only be a reasonable charge. Should you decide to accept our offer, your wishes will be our instructions. Very respectfully, yours, "CRANE COMPANY. [Signed] "GEORGE L. FORMAN, Secretary.
A.
"a.
"EXHIBIT B. "This agreement, made and entered into the - - - of -,- - by and between - - . , part- of the first part, and the - - - part- of the second the said party of the first part, for and in consideration
638 part, :h:ereby "and' ,pasmentshereinafter·menti6!ted ;'tdtbe!made. by the'sldd of:thefseoonu, part, by these present&does covenant'antlagree: ' F'i,;ift, to flirnishand 'tleH\Ycr:tothe said party OfL 'miles(j1\J eight-inch standartl'(Mininal weight line pipe, made from so!l'h'lm,free from·blistersand other imperfections, and guarantied' Ito stand a"wd!'kirigline pressure of one thousand' pounds to the square fnch\vllen pFoved ana tested illUMS as hereinafter provided; *. * Btlventh, that i1nvillpay:t6 the party of the second part all damages and exp('nse8 of every klndw second partysball sustain b}' reaSOn of any defect or defects in the: pipe delivered, up to and inclUding the tittle ·whensaid pipe istest6d;b,ythe:sl:!condpal·ty under working pressure not· in excess of one thousand'(l,OOO) poundS to the square inch, and proved tight in the line, and which working t,eBtshall promptness; and, eighth; that it wHIpsy to the1partyofthe second part. as liquidation damages, the sum of fiftY'($o(1)doUars per day, for each and every day after said ... ... ... and untilttiealribuntol' pipe agreed' to··be furnished, as above provided, has second '{larty may deduct the amount OfSllCh damages been from any money itl'its hands due first party for pipe furnished under this contl'act. In considel'ation ·(If. the premises the said party of the seCOnd part oovenantsRlldlagreesto pay to the party of the first partthe,sum of .... per foot for each and every foot of pipe received 'by it under this contract. said paymimts" to be made on each car load of pipe within fifteen days after the receipt of the same,unleils:oounterbalanced by due to second party. It is expressly understood and agreed by and between the parties hereto that the representative of the second party at first party's mill is there only for the purpose of seeing that the said pipe comes up to the guarantied weight, and that the threads and sockets are not manifestly defective, and said pipe shall !:lot be construed to, be accepted by second' party by reason ot any paymentamade therefor,. so as to relieve first party from liability on ao· .countaf itg defective character until the same has been laid and tested in the line andp.roved. In the parties to this agreement have hereunto set their hands and seals, the day and year first above written. " In each paragraph ofthe declaration it is alleged that under this can· tract the defendant company furnished to the plaintiff a statement show· the pipe so agreed ing the prices .at which it would deliver to the to be bought and delivered, and naming the companies by which specified quantities thereof, of sizes and at prices stated, would be manufactured; and that thereafter, at 'times and places stated, the defendant did deliver and cause pipe to be delivered, "asihcOlhpliance with the contract," but that thedefl;lodant hadfll.i1ed of full performance of the contract, in this: "thll.t ,all of pipEl wll.8 no't delivered within the times limited b)' thecontrl;lct forthEl dEllivery thereof," of which failure 8 specific statement is, made, "and that· said pipe was not made from 80ft iron, free from blisters and other imperfections, and sufficiently strong and of a quality such as to stand a working line pressure of one thousandpo\mds to ,the square inch when proved and tested in lines, but on the contrary, was of a weak, imperfect, poor, and defective quality, and wholly unable to stand apres8ure not in excess of one thousand pounds to the square inch, and was not such pipe, nor was any of it, as when subjected to such pressure would prove tight." The difference between the two counts is that one drawn upon the theory of a reScission Of.i ohe'db'nl\tFtd'_ ana· trtlly't'laid' by'the party, /;ttl ,tibelr4em,lnWiilnd the
COLUMBUS.
C!), .,.
CO.
639
the ,moneys paid thereon,while brf,laches alleged.. Tbe addi· eap4. to the;theory on which it proceeds. The other counts ,W'E!re w.ith9,rnwnjand j\ldgment ren4e.red against the plaintiff.. . ' . '.' " .' ,', , ,William' W. Booth, and S. S. Gregrrry, for plaintur in other is for OIl. account "Before
f)f the.contrllCt, .{lnd
.'
IlABLAN,
Circuit. J1;1stioo, and ' ' .. ' ..
.' .....
.
GR:E8HAM
and' WOODS, Ci,rcujt
,.'
. WOODS, Judge, The 'decision <)ftbe circuit court reetsup01'1 that the defendant was merely the agent of the plaintiffralid'/. if that be conceded, the ruling1s,of course, that, while the contract right. It seemstous; it did more. It ,the defendant an agent'with special obligations beyond the d1;1ties which, in the .absence of express stipulation, .are attributed: by law to, that relation·. It was, of course', cotnpetep.t for the 'parties to' 10 frame their contract,and, in our opinion, theysd framed this one, by, whatever nanie it should ,be called, that the defendant became an agent in tespectto the proposed purchases; bUt, in respect to'tpe subsequent transfer and deliYery of the goods to the p]jliptiff itqbecame obligated SUbstantially asa::yendor. Ari apt illustration is found in the v. LivingstoniL. R. 5 H. L. 395, in respect . ·toan:actioh by a commission merchant against his principal to recover on aoont1'8ct for the purchase of sugar, which the defendant, had refused to accept because the quantity was .less than the amount ordered, Lord BLACKBURN s a i d : . . "My opinion is. tor the reasons I have indicated, that when the order was accepted by the plaintiffs there was a contractot agency by which the plaintiffs undertook to use reasonable skill and diligence to procure the goods ordered at .or below the limit. given, to be followed np by a tr/lnsfer of the propeJ1;yat the actual cost, with the addition of the commission; but thllt this superadded sale is not in any way inconsistent with of agency eXisting betwpen the parties. by virtue of which the plaintiffs were under the obligation to make reasonable exertions to procure the goods ordered as mucb below the limit 8S they could." Andso,under the contract before us, the defendant, thOugh required to purcha.se in its own name and upon its own credit, became bound to use reasonablediligence to procure the pipe to be purchased at the lowest obtainable price not hi exceSs of the maximum limit;tbis to be followed by a transfer of the property to the plaintiff at actual cost and commission, which the plaintiff Was to pay in "spot cash" to the defendno ant. And the fact that the agency is declared irrevocable inconsistency. On the cop.trary, the two phases of the contract are in distinct harmony, and by reason of their connection were doubtless, foi' all the purposes of the agreement, incapable of revocation or'termination by one pint)" without the consent of the other, even though notbing had been expressed to that effect. The stipulation, which in effect binds :the defendant as a vendot,is unequivocal and occurs twice in the con-
I'EDERAL REPOR'l'ER,
voL 52.
ti-a6t':first, thai "it will seoure the delivery;" and, second, tbat "it will delivlft"} rthe pipe'·sp.ooified in conformity with the specifications, and the conditii5ns and tests more fully set forthll"iIi the.exhibit ettaOhed to the agreement. This does not tuean, and cannot reasonably be that,. in respect to the transfer arid delivers of the pipe tbthe plaintiff, the defendant was an agent merely, and bound to than reasonablt) diligence to pro<)ure of manufacdo no, turers 'cooiprising the pipe association (of which defendant was itself. a member) contracts for the delivery of such pipe as was required. That the parties, whep"settling the tel'PlS.of is indicated by the saving clause, "strikes, and causes beyond control,"-a which, emploY'i'd in respect to an agency, is superfluous and meaningless, because in no event could a mere agent be responsible for the CQqseqqences of a strike, or other cause beyond . control. It is an. unwarranted ,assumption, often or implied in the argum,ent made in. support of the. ruling below, that by force of the coo· tract, .the .defen,dant was required to obtain of the manufaC,turers contracts in the form of the exhi'bit.a,nd that for the matters complained of the plaintiff's remedy shQuld, and, as to the is averred, presumably cO,uld be sOllg'J;lt I;lf the manufacturers upon those contracts, and not of t1,1e defen,q.ant upon the Contract in suit. There is no support for this proposition, in . the fact that anexhilJit showing a forJ;ll of contract with a ml\nufactureris attached to and made a part of the contract between But manifestly thltt was done only for the purpose of defining the specifications, conditions, and tests under to plake deliverY9f pipe tothe plaintiff. ThatistQe purpose stated. and no other is fairly inferable. In respect to its own purchases, therefore, the ,defendant was at liberty to buy on <:redit odor cash, and with or without w!il'ranty,exptessotimplied, as ,it chose. It could buy ,or bargain:for the quantities of pipe necessary tqsupply plaintifr, pI: ;tcould pt;lrchase in larger quantities, and for the supply of other cPlltQmers. bein,g hound to the plaintiff, whatever the con tract made with the manufactUl'er, to produce no evidence of the transaction except tbfil.manufactql'er'fl original jnvoice, showing the pur,cbase price. And (}f g is difficult to See how the plai,ntiff if they Mppened to contain provisions which, could.take advantage, if available,. would afford relief. :Oo11nsel have discussed with exhaustiv,e research and learning the questionwbether or not, in the cOntracts of purchase made by the defendant forthe purpose of complying with this Qontract, there was privity of contract between an original vendor and the plaintiff,by reason of which eitht)r ofthem mig-ht have an action against #le other for any breach to its injury., We do not deem it necessary to of the proposition were conconsider tbat questiop,. If the <leded, there .could be no right of actioJ;l except for an infraction of the contract actually made by the agent; and that, as we have seen, might or might not.extend to the, subject ofoomplaint. The <)ontract of these parties, as we view it, instead of leaving the plaintiff to a circuitous and
REED
'V.
STAPP.
641
uncertain quest for relief, affords for the breaches alleged, and upon the theory of either paragraph, a right of action directly against the defendant. The judgment of the circuit court is therefore reversed, and the cause remanded, with instructions to overrule the demurrer to the third and fourth paragraphs of the declaration respectively, and for further proceedings.
REED L
t1.
(Circuit Oourt oJ Appeals, Seventh. OirauAt. Ootober I, 1m.) RBVIlIlw ON ApPB.u.-J"URISDIOTION Oil' CIROUIT COURT Oil' APPEALS.
Under Rev. St. § 700, which provides that, where there is a special linding of facts, the review on appeal may extend to the sufficiency of the facts found to support the judgment, the oircuit court of appeals cannot examine the evidence to ascertain whether it justifies the finding. Where there is a special finding of faots sufticient to snpport the the admission of immaterial evidence, not affecting such finding,is harmless error. Where one pays the note of another to a bank, and has the bank cancel the note, and deliver to him a dishonored certificate of deposit held by it as oollateral seourity, which certificate he takes as collateral secnrity for a Dew Dote given to him by the debtor, he takes such certificate SUbject to eqUities existing against the original payee, even though the bank was an innocent holder for value before dishonor.
I. 8.
SAlIIE-HARlIILESS ERROR.
NEGOTIABLE INSTRUMENTS-TRANSFER AFTER DISHONOR.
In Error to the Circuit Court of the United States for the Northern District of Illinois. Assumpsit by Willet B. Jenks against Guy Stapp, receiver of th" First National Bank of Monmouth, Ill. Plaintiff died pending suit., and his administrator, Frank F. Reed, was substituted as party plain. tiff. Defendant obtained judgment. Plaintiff brings error. Affirmed. F. F. Reed, for plaintiff in error. Kirkpatrick Alexander, for defendantin error. Before HARLAN, Circuit Justice, WOODS, Circuit Judge, and JENKINfI" District Judge. JENKINS, District Judge. This suit was brought at law by Willet B. Jenks, since deceased, to recover the amount of a certificate of deposit, of which a copy follows: "No. 26,161. THE FmsT NATIONAL BANK OF MONMOUTH, ILL. "$10.000. Nov. 5th, 1881. "Wm. M. Gregg has deposited in this bank ten thousand dollars. payable to t he order of himself six months after date. on return of this certificate. "B. T. D. HUBBARD, Cashier." Endorsed: "Pay to bearer. W. M. GREGG." The case, as disclosed by the record, was this: The First National Bank of Monmouth was organized under the national banking law in the year 1863. The period of legal existence granted by law was about to expire, and could not be extended. Thereupon, in June, 1882, the bank went into voluntary liquidation, and adopted the necessary legal v.52F.no.7-41
642
FEDERAl; ·}tEPOR:rER,
vol. 52.
steps to wind, \1P it$afi'ai'rs. A"Qewbank with:the,sam narnewall> :! formed by' sllbstantiallythe same persons who owned the stock of the formerbabki"andwith. as officers who poSitions in' theQld bank,· The stockholders of the old ,. pl'oQts of this .l:>\lsiness, amounting to 66 per cent. of lts capItal. 1)n the 5th day of July, 1882.the bank transferred to the new bank its bank building, and all the' fixtures,' books, and appurtenances of the bank, its redemption fund with the United States treasurer, its bills receivable as shown by its books, and, in consideration thereof, the in writing to payoff and discharge all the debts and 'ofiha 'old bank to its depositors of all kinds 'upon 'book' account and certificates of deposit "to the extent and amount as showp ,by the, books," whenever and as they should ,1:>e d$Ql&nded. The new bank .cQIltinried,business until April 8; 1884, cI:o,sed its, doors, being compelled thereto by the acts of its cashier; who 'proved a defaulter to the amo\lnt of 'upwards 0£$100,000. ,The ,certifictJ.te of deposit upon which suit is brought was issued by Without consideration, without deposit of the aUlOunt therein stated by Gregg or by any other person, and solely: transactions between Hubbard, the cashier, and the payee, William M. Gregg. or his firm of Gregg, Son & C9;,pfGllicago. ''l''he¢ertificate was not entered upon the books of the old bank. The bank number borne by' the certificate was in fact the p( $ on the 239 'day of February, 1881, to one Langdon, for the sum of $100, and which was dulyelltered upon the, bQ9k't: and paid by! :the: bank: ahorijyafter it.s issue, the date of ,tpe,Gregg certiftc('W. here in question was first plecJged by Gregg, ,S()l1· & Co., on 6, 1883, tQ the Continental of Oh,iQltgo, as ,collaterlil,l to a loan of.$10,OOO. That loan was paid in October, 1883. It was then used on December 27 , 1883, as collateral with the SRme bank for a loan which w.as paid Janulilry It again pledged, by Gregg, Son ,&Co. to the Continental National Bank as collateral to two notes of that firm, each for $5,000, payable on demand; one dated March 7, 1884, and the other dated'March 24, 1884. After the loan' of December 27, 1883, and before its ,payment, the- cashier of the Oontinental National Bank, becom-, ing suspicious of the certificate by reason of its age, had an interview concerQing it. with: Hubbar.d, tbecasbier. He asked Hubbard "if the certificate was good; if it was genuine; and he said it was a genuine certifica.te;"that it wa$a private matter with Gregg, and was" connected with his (Gregg's) fa:tl1ily affairs. Payment of the certificate was demandedOfthe' new bank on the 8th. day of April, 1884,-the date of its failure,-and the certificate protested for nonpayment on the following daY'.i,. GJB the' 11th :dayof April; 1884, a transaction was had by which Willet B: Jenks, the intestate of the plaintiff in error, paid to the Continental National Bank the amount of the indebtedness of Gregg, Son &Co:, and 'received from the bank the certificate of deposit in question.
kEll:D t1. STApP.
64.3
The right to recover,up6hthe'certificate is clairnedupon the ground that the Continental Na.tional Bank was a bonaftdeholder for value of the certificate, and tbat the defendant bank is estopped to assert either the invalidity of the certificate, or its nonliability therefor by reason of the declarations of its cashier to the cashier· of the Continental· National Bank upon the faith of which the loans of' March 7th 'lind Match 27th were made; and that Jenks, by purchase from the bank, although after dishonor of the certificate, stands in the shoes of the bank, and takes its title to the certificate, unaffected by equities as between the maker and Gregg. The contention on the part of the defendant is that the certificate waS issued by the former First National Bank of Monmouth, and not by the defendant bank; that the latter never assumed its payment, the certificate not appearing upon the books of the old bank; that the certificate was .fraudulent in its inception, and of no effect. in the hands of Gregg, the payee; that the Continental National Bank took it after its turity, and charged with the equities attaching to It in the hands of Gregg; that the old bank could not be estopped by the declarations of Hubbard, made after the bank had ceased to exist; that the defendant bank is not estopped, because, among other reasons, the declarations only went to the genuineness of the certificate as the paper of the former bank, and not to the liability of the defendant bank thereon; and that the transaction between the Continental National Bank and Willet B. Jenks was a payment by Jenks of the debt of Gregg, Son & Co. at their request, and not a purchase of that debt and its collateral. The cause was tried by the court without the intervention of a jury, and the issues found in favor of the defendant. The record declares that at the close of the evidence the plaintiff submitted to the court certain propositions of law, and requested the court to hold them as the law of the case, but the court disregarded and overruled "certain of the same," and found the law and the facts in the case as follows. Then follows the opinion of the presiding judge, reciting certain facts stated to be conceded, and holding that the certificate was fraudulently issued; that the defendant bank was liable for the valid debts of the old bank; that the certificate was a valid security in the hands of the Continental National Bank by reason of the estoppel stated above; and that the transaction between Willet B. Jenks and the Continental National Bank was a payment by the former of the debt of Gregg, Son & Co. at their request, a payment, cancellation, and surrender by that bank of that firm's notes held by it, and that Jenks took a new note from the firm for the money paid by him, and that he did not succeed to the right ofthe Continental National Bank, but held the certificate as collateral to the new note of Gregg, Son & Co., taken by him after payment by him of their debt, after maturity of the certificate, and after its dishonor; and so, in his hands, the certificate stood charged with all the equities attaching to it in the hands of Gregg. . The findings of a trial court, whether general or special, have the ef. fect ofaverdict of a jury. Rev. St. § 649. When the finding is spe-
644
FEDERAL REPORTER,
ci,al,the.-eview ,on I1ppe,u may extend to the sufficiency of the fa:ets found'to support § 7QO. !tmay well be doubted whetbe'r the opinion of the judge which here is said to constitute the special findings of .fact can be so considered. Dickin80n v. Bank, 16 Wall. 250. The opinion states certain concessions of facts. It also advances by way of argument certain other facts said to be proven by ,the evidence, and also certain evidence as grounds for the of the court. The practice adopted by counsel in this case of seeking to have the opinion of the court fulfill the office of a finding is not to be commended. The special finding of the statute is a specifiostatement of the ultimate facts proven by the evidence. determining the' issues, and essential to sustain the judgment. !t corresponds to the. special verdict of a jury, and should be equally specific and comprellensive. It should declare all the ultimate facts established by the evid;ence, so that if they do not in law warrant the judgment, an appellate tribunal may direct such judgment thereon as the law adjudges upon the facts determined, and without the need of a new trial, as was done in Ft. Scott v. Hickman, 112 U. S. 150, 5 Sup. Ct. Rep. 56. Treating the opinion, hpwever, as a special finding of facts, the court below found as, conceded facts that, after dishonor of the certificate in question, the Bank demanded of Gregg, Son & Co. payment of the loan, for:which it held the certificate as collateral; that at the request of Gregg, paid the debt; that the notes of Gregg, Son. & .Co. were canceled and surrendered; that the certificate was delivered to Jenks, who took notes from Gregg, Son & Co. for the amount ofihe principal of the loan paid by him, and held the certificate as collateral to such notes. The court also found as proven by the evidence thjtt ;Jenks waS a brother-in-laW of Gregg, and acted for him, and to protect hiscl,'edit; that Jenks" did not even keep alive the bank paper for ,which the certificate stood as security in the hands of .the Continental National Bank, but allowed that to be canceled, and merely took. Gregg, !3on & Co. paper as a new trllnsaction between himself anll Gregg, ,Son & Co., the transaction being in effect a loan by J anks to Gregg, Son of 810,000, with this certificate of deposit as security." This finding is challenged as not sustained by the evidence, and we,are urged to declare. We have no authority to do that. Treating .the opinion as a speciaJfinding, we are only at liberty to consider whether the fl,l.cts, found in .law support the judgment. The findings of the trial court upon questions of fact are conclusive. We are not permitted to examineth,eevidence to ascertain whether the finding of fact be,thereby justified. v.Insurance Co" 9 Wall. 461, 467; The Abbotsford, 98 S. 44Q, 443; Zeckendorf v. Johnson, 123 U. S. 617, 8 Sup. Ct. Rep. 261. The review pennitted extends only to the question whether the facts found support the judgment rendered. Tyng v. Grinnell, 92 U. S. 467. It cannot be seriously urged that, the facts being as found, the judgment is unwarranted. The, question of the liability of the defendant bank hinged upon the further question whether Jenks stood in the light
REED t1. STAPP.
645
of an innocent purchaser for value.
The court held that the Continental National Bank was a bona fide holder fOl; value, taking the certificate upon representations of the cashier of the defendant bank, which worked an estoppel. Conceding that a bona fide holder for value of commercial paper can, by endorsement and delivery after maturity of the paper, confer his title upon a third person having knowledge of its inherent imperfections, it is found as a fact that this was not done. It is conclusively determined that Jenks paid Gregg's debt; that the notes were canceled and surrendered, not endorsed or transferred by the Continental National Bank. For the amount paid, Jenks took notes of Gregg, Son & Co. running to himself, with the certificate as collateral. At the time of the payment by him the defendant bank had failed; the certificate had been protested for nonpayment. He took it. therefore, with notice of dishonor, and cannot be held an innocent purchaser. In view of the finding that this certificate was fraudulently issued, and was without consideration to the knowledge of Gregg, who was found by the court to have been "a knowing and willing party to the fraud" sought to be perpetrated by the issuance of this certificate, one taking the certificate from him after dishonor cannot be accounted an innocent holder. The judgment was therefore justified by the finding. In this view it seems unnecessary to consider the other errors assigned. If the exceptions were sustained, the substantial facts would remain unquestioned and unquestionable that this certificate was fraudulently issued, and without any consideration, to Gregg's knowledge, and that Jenks took it as collateral to Gregg's debt after'its dishonor. These facts are sufficient to bar a recovery. The admission of immaterial evidence not affecting that finding could not, therefore, injure the plaintiff, and constitutes no groUIid for reversal, (Mining Co. v. Taylor, 100 U. S. 37; Hornbuckle v. Stafford, 111 U. S. 389, 4 Sup.Ct. Rep. 515;) nor would the reception of incompetent evidence to that finding, when there is competent evidence uncontradicted on the same point, (Cooper v. Coats, 21 Wall. 105.) The judgment is affirmed. Mr. Justice HARLAN was not present when this decision was announced, but he participated in the hearing and decision of the case, and concurs in the opinion.
J'EDERA:L: BEf'QRTEBi
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, " . (Dt8tridl iOOU91, D. Minnuota. October 10,1892.)
1.
9.
An indlotDuint under,the!¥lt ,of congress, "to protect tra,de and commerce against unlawl'Uh'est'aint lind' monopolies," (26 St. at Large, p. 209,) must contain a certain. O;ellCrlptiollof the. olfellae,: and a statement of facts constituting same, and it is not suft!.cletitsimply tocfollo vv the language of the statute. An agreement betwen a numbl!r of lumber dealerS to raise the price of lumber 1$0 cents Perthousand ;in 114va,nceof the market price, cannot operate as a restraint upon trade, Within the me;ming o.f the ailt of "to protect trade and commerce against unlawfUl restraint and monopolies;" (26 ;:;t, at Larll;e, p. 209,) unless such agreement invo\vesan absorption of the entire traffic, and is entered into for the purpose of mOD'Opollzing trade in that commodity ,with the ohject of extortion. TO RAISE PRIOE. ,
()Jl' :W:D1CTMENT-WORDS 011' STATUTE.
'
At Law. Indictment under the act of July 2, 1890, (26 St. at Large, p.209,) C, to, protect trade and commerce against unlawful restraints and monopolies.» Demurl'er to ,all the counts sustained.
The, United States District Auorney. W. E. Hale, for defendants.
NELSON, ·District Judge. In. the case of United States 'IJ. Benjamin F. Nelson, Sumner T. William H. H. Day, et al., a demurrer is interposed tQ the indictment. Pressure of business in court has prevented an earlier decision, and Lean now only give my reasons briefly for sustaining the demurrer. The indictment intends to charge offenses under the act of congress entitledfCAnact to protect trade and commerce against unlawful restraints and monopolies. " This statute declares contracts, combinations in the form of trusts or otherwise, and monopolies to restrain trade or commerce among the several states and foreign nations, illep;al, and makes them offenses, and affixes the punishment. The indictment purports to charge the defendants with violating the law by entering into a contract, and unlawfully engaging in a combination in the form of a trust,;;and confederating together in a conspiracy in restraint of trade among:the several states. There are 12 counts in the indictment. The first 6 counts charge the offensein,the'language of the statute, and the others set forth facts which are claimed to constitute the offense. The federal courts by this act are given jurisdiction to apply remedies in cases where interstate commerce is injuriously affected by combinations and contracts which the state courts had formerly applied to protect local interests. In order to administer the law, the court must determine what is an unreasonable and unlawful restraint of trade or commerce by contracts, trusts. and conspiracies, and whether a contract is injurious to the public. In all cases at common law, it must be made to appear that the acts complained of threatened the interests of the public, and this is true whether the remedy sought to be applied is by civil or criminal proceedings. It is urged by the district attorney that, the offense being statutory, the general rule in such cases, to wit,