CONDIT'll. BERGMEIER.
937
dist.urbed, but the judgment dismissing the plaintiffs' suit is reversed, without the allowance of costs to either party, and the cause is remanded to the circuit court for further proceedings not inconsistent with this opinion.
.
CONDIT et aI. v. BERGMEIER at aI. December 26, 1891.)
(Circuit Court, D. Minnesota. CONTRACT-NuDUM PACTUM.
A contract relating to an agency for the sale of books lleld not to be nudum pactum.
This was an action by Condit & Co. against Bergmeier & Co. to recover for breach of a contract. J. B. & E. P. Sanborn, for plaintiffs. Warner, Richardson & Lawrence, for defendants.. NELSON, District Judge. It is claimed that the complaint does not state facts sufficient to constitute a cause of action, and that the contract set forth therein is void, for want of consideration and lack of mutuality. The contract is designated "Canvassing Agr.ee· ment and Bond." The defendants F. W. B. & Co., in the agreement, recite that they accept the agency from plaintiffs, Condit & Co., for the sale by subscription of a certain book to be published by Scribner's Sons, and the terms of the agency are stated therein. ThE' plaintiffs allege also that they formed the agency, and appointed the defendants F. W. B. & Co. their exclusive agents for the territory mentioned in the contract for procuring a sale of the book by subscription under the terms thereof, and allege performance on their part. The defendants agreed to take not less than 4,200 copies, and make requisition and remit for the same at a fixed price before June 28, 1891; and the plaintiffs consented to allow them 42:1 per cent. as a commission. In case of a breach on· the part of the defendants, liquidated damages were to be paid. The plaintiffs allege that the defendants· failed to make requisition and remit under the terms of the contract, and that 3,048 copies of the wo.rk were not taken, and allege a breach for that and other reasons. other defendants in the suit guarantied the faithful performance of the contract by F. W. B. & Co., and the punctual payment of the sums that should become due thereon. We think, on examination of the contract, that the point made that it is a nudum pactum is not well taken, and that the complaint sufficiently sets forth a breach of the same.
938 , P, I i '
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OF ST. PAUI,
TY. No. 449.
mST. NO. 26. BARNES COUN-
(CIrcUit Court of Appeals, Eighth OircUit. October 15, 11l94.) FEDERAL COURTS-FOLLOWING STATE DECISIONS-CONSTRUCTION OF TERRITORIAL STATUTE BY STATEOOURT.
A of the supreme court of a state construing a statute of the territorytrom which the state·wlls··formed (Laws Dak. 1879, c. 14), on the question of the amount of indebtedness which a school board might the ere(Jtion andfu.rnisp.ing of a schoolhouse, even if not absolutely binding upon the federal courts within the state, should be followed by them, unless imperative reasons exist for dlSl'egardlng It.
In the Circuit Court' of the United States for the District of North Dakota. Action by the Capital Bank' of'St. Paul, Minn., against school district No. 26, BariiE!'s county, .N. D. Judgment for defendant, brings ... Affirmed. and WiIljani1I. Jones: (paniel V.Samuels and W. Irving Culver, on the ,brief),.forplain,tUl;41 error,.. .... ' in. error. , .Ge<?rlire oK.. Andl;'ul:l, 10r BeforeOALDWELL, SANBORNjandTHAYER,Oircuit Judges. J",
THA.YER, Circuit J.udge. Thilil iil suit which . was brought by tM.plaihtiff in' error, the Oapital. Bank of St. Paul,Minn., against the: defendantin error, 8chooldi$tvietNo. 26, N. D., amount due on nine!s.chool warrants., were aIlegedito>havebeen delivered by said school district in the month of Decembar, 1881, for the building. ,of a school house. 'The school district in substance, and by way of defemre W the action, ·that .the warrants were fraudulently issued and put emulation by certain persons who pretended to be officers of said school district,but not such in point of fact; secoud,tnatthe warran'tsin suit were barred by the statute of limitations of the staterof North Dakota; and, third, that the warrants were void when jssued,becanse each of them amounted to more tban lper cent of the "tiixaQlevaIue of ;all the property in said school ilistrictfor the year 1881; also, because ,the inhabitants of said' district· had never authOrized the school· board to build a school· h<luse at any meeting of the· .inhabitants called for that purpose, .and ·because .· the ,inhabitants of the district hlld J;lever selected a site for 8,. school honse. The case was tried to Ii jury, and at the conclusion of the plaintiff's evidence the court directed a verdict for the defendant, which was accordingly returned. The facts disclosed by the record, on which the circuit court appears to have predicated its action. in directing a verdict for the defendant, are substantially as follows: On the 29th day of November, 1881, the superintendent of schools for the coun.ty of Barnes, in the then territory of Dakota, formed a new school district, consisting of township 139 N., of range 59 W., and township 139
