BRIDGES t1. SHELDON.
17
he has paid, from the time he paid it, including the amount paid by him for taxes and assessments, and for permanent improvements upon the premises; Hyman accounting for all rents and profits received by hini from the land, which should be deduoted from the amount so found due him.
BRIDGES
v.
SHELDON
and others.
(Oircuit Court, D. Vet'mont. January 6, 1880.) L STATEMENT OJ' FACTS.
v.7,no.1-2
A., B., and. C. severally held contracts with the 'United States for the supply of head-stones and blocks for soldiers' graves. A.purchased B.'s contract for $20,0011, giving four notes on time for the amount, and also bought C. 's contract, S. & S. becoming security for the payment of the purchase money, upon A. 'softer of a 'bonus, in three propositions, of $3,520.32. A. purchased stone of S: & S. for his own contract and for C.'s contract, at agreed prices. but, on'becoming assignee of all the contracts, A. made a written propo,sltiotl to 8. & 8. that they should furnish the marble for all the contracts, and the means to carry them on, recelving one-third the profits, guarantied to be to them at least $20,000. B. & S. assented in writing: "the price heretofore agreed upon for head-stones and blocks is not to be considered as included in the $20,000 mentioned; · · · full agreement, in accordance, to be hereafter executed;" to which was added, over the signatures of A. and B. & S., that "the full agreement, referred to above, may bc modified and made so as to fix the compensation of S. & S. by a definite price per head-stone and block in addition to the priceberetofore agreed upon; this, in lieu of the one-third interest, but not of the given sum of $20,000." The contract, drawn in pursuance thereof, provided that S. & B. should receive certain increased prices for head-stones and blocks, and" for interest and commissions on advances, 'and for their services ip. and about said business, 9 per cent. per a,nnum" on the advances until repaid, and 9 per cent. per annum on the prices of stones, 60 days &fWr shipment, until paid; that the stones should" be and remain the sole and abSOlute property" of 8. & 8. until setup in the cemeterieS; that B. & B. should furnish the "necessary machinery and machine shops, except said blast machlnllS and They shall alSo keep the same in repair;" that all moneys due from the government should be paid toB. &B., under powers of attorney from A., and that, "as soon after final settlement and' payment with and by the government as reasonably'may be," S. & B. should pay over to A. the balance remaining in their hands after deducting their com-
18
.J'BDlllUr.
pensatif)n, advances.. Suit in equity was brnught by A. against S. & 8. for such balance, and. upon exceptions to the master'. rl'port to whom the cause was referred, it washelli:
t.
EFFECT OF NEW UPON OLD .CONTRACT.
'fhe defendants cannot retain the bonus of $3,520.32 for Indorsing A.'s paper. The contract subsequently drawn up between the parties, while embracing several of the sul,jects of the former contract, made no provision as to its effect on this item, and to that extent superseded it.
I.
AMOUNT OF RECOVERY BY PuRCHASER OF NOTE AT DISCOUNT.
The defendants having purchasEld for themselvell, and being now holders in their own right of the notes of A. to B., are entitled to be allowed their face value, $20,000, aahough they paid B. but $13,000 for them, and although A. supposed that the purchase was made in the service of their mutual and respective inter\lSts, and that only what was paid for them would, be charged all an advance under the contract. Even if the defendants had expressly told A.. that they would buy the notes and let him have them for what they cost, it is to see wher.e there is any consideration to bind them to do it. .. C'-ONCLueroN OF MASTER NOT WARRANTED BY THE FINDING-REvI&ION OF FINDING BY COURT.
The master having disallowed the defendants' claim of $20,000 stipulated profit, exceptions thereto were sustained, it appearfngthat, although thiJ master found tht! fact that the full agreement, in fiXing the pricl'S for stone, provided an increase large enough to cover the '2(1,000, he did not find any agreement of the parties to so include it. On recommitment the master found that the parties so agreed". and the court refuqed to revie*his finding. The court will not revise a finding of the master, upon disputed qnestions of fact, determined u matters of fact upon conflicting testimcony.
CoNSTRUOTION OF CONTRACT.
The defendants are not entitled to any allowance for' repain on machinery furnished and operated by the orator. The contract 'that defendants AbU' furnish necessary machinery and machine shops, except blast machines and rUbbers, and keep the 8atrnl in 'repair, Con. atrues itself further on, in the sameconnectiop, by declaring that the orator shall only be liable to pay for certain specified things, not including repairs. 'i
t. 1.0...
A cargo of the stone having been lost.. while in transit to itii l:ikstithelosa must rail on the orator, the equitll.ble vwnero,( the stOne i not on the defendants, who were owners for their()wn security merely, and beyond that helclthe legal title for the orator'. OF INTEREsT DETERMlNBD 'BY THE LEx LOCI OtlNTRAOTUslR'fEREST NOT DqE ON MONEY DETAINED UNDlIHl TRUSTJ£B PROCESS.
MUST FALL mt Eq,UITABUc()WNER OF THE PROPERTY
L6slr.
T. RATE
'rhe contract being made in Vermont, the orator could' recover at mest onl16 per cent., tho legal rate of interest in that state: and it
:I3RIDGES V. SHELDON.
"
"tppearing t.hat after payment byihe government, and during attempts ",:at settlement between the pllorties, the balance due the orator from def;en9-/Ults was attached oIl trustee process, and still remains under , the attachment, the defendants are not liable for any interest, since ;the detention was not wrongful, and the money due did not constitute an interest-bearing debt at the time of the attachment. INTEREST," AS COMPENSATION FOR SERVICRS, VALID THOUGH USURIOUS.
S.' EFFECT OF
The question of interest having been opened by the exceptions of defendants to the master's allowance of interest to the orator, the question of the allowance of interest at 9 per ront. to the defendants is' opened, though no exceptions were taken thereto by the orator. Such allowance is valid, though interest above per cent. would be usurious and void, because the finding of the master is conclusive that the extra 3 per cent. was a bona :tide compensation for services of defendants not otherwise compensated, and Bot a mere cover for usury.
9. Tum
FOR FlLmG EXCEPTIONS. The month given by the rule of court for flli'ng exceptions does not begin to run until there is a report on file to which exceptions can. properly be addressed.
10. ApPORTIONMENT 01' COSTS-CHARGES OF STENOGRAPHER NOT TAXABLE'
C08T8.
Both parties having prevailed and .failed to SOUl.e extent, Upon the items disputed and ,litigated, costs will be apportioned according to the relative importance of the lfems in dispute won and lost by the respective parties, and the time and expense spent upon each. The charges of the stenographer procured by the master, to take down the oral testimony of witnesses UP9n the hearing before him, are not pari. of the taxable costs of suit. 11. SERVICE OF SUMMONS UPON LITIGANT, WHILE UNDER PnOTECTION , OF AN ORDER OF THE MASTER, A CoNTEMPT OF COURT,
One of the defendants having gone to Iowa to attend the taking ot a deposition, under order of the master, the orator caused service of summons to be made upon him, a suit in the state court, for same cause of action involved in ihis suit. Held, such action was a. contempt of court, whether so intended or. not, arid the suit having been removed to the federal courts, a stay of execution in this suit, until evidence of the discontinuance of the Iowa suit was filed, was granted the defendants, and they were allowed the expenses of such suit, including reasonable counsel fees, imposed as a fine against the orator"
In 'Equity. A suit'in equity for an account against the defendants for . complainant claimed respondents had collected . for liis' t18e from the government of the United States, for
20
FEDERAL REPORTER·
.work done under contracts with the United States, whereby Bridges, as contractor, and as assignee of other contractors, had agreed to erect marble head-stones for soldiers' graves. The contracts were let by the secretary of war, in December, 1873, to four contractors: Samuel G. Bridges, Thomas P. Morgan, and C. S. Jones, each about one-third of the headstones for the graves of known soldiers, and to De Witt C. Sage, blocks for the graves of unknown soldiers. Jones refused to perform the part of the contract let to him, and it was again let to Morgan. After the contracts were let, and before December 18,1874, Bridges became the assignee of the contracts of Sa,ge, had purchased a pl;\rt of Morgan's, and had made a conditional contract with Morgan for the purchase of the balance of Morgan's and Jones' contracts. Bridges began purchasing stone from Sheldons· & Slason, Qf Rutbirid', Vermont, to nUhis contract, in ApriI,1874, at $1.25 per stone; and in October, 1874, upqn assignee of, Sa.ge's. J;llade an & Slason to furnish stone for that contract at 8,1 per 'St'OMV r In 'ollIe'!' to theeClntra:ct he ·hnid'··to give 'for · .the S(lcurityupon an to. give ,a .bonus in propositions of $3;520.82. He agreed to' payfm-. stone, under the Morgan ahd J6Jies contracts;'$1:80 per stone. (,)nDecember 18, 1874, Bridges'made' a proposItion in writing to Sheldons. &Sl'asqn, proposing should furnish ,the marble for all thecontractB.l and the means to carry' 'them on; and proposing to give them one-third the profits-guarantying profits to ,them to be 'at least' $20,000. 8heldons & Sla,son thepropositlon in writing as fol. ' . .' ' l·
"The price heretofore agreed upon for head-stones and blocks is not to be considered as included in the $20,000 mentioned in this as above. We assent to this proposition; full agreement, in accordance, to be hereafter executed. "SHELDONS
& SLASON.
"The understanding is that the full agreement referred to above may be modified and made so as to fix the compens&.-
SHELDON.
tion of, S. &8. by a definite price per 4ea,d-stone and block, in addition to the agreed upon. This, in lieu of the one-third interest, but not of the given sum of $20,000. S. G. BRIDGES. , "SHELDONS
&;
Bridges, in purchasing Morgan's contracts, gave him four notes, of $5,000 each, payable five, seyen, nine, and eleven months after December 24, 1874, respectively, secured by an order on the for. payment out of four of the cemeteries assigned. ,These cemElteries,were not:oompleted, and tb:f:lTe iwaSno possibility of oompletion,at ,the times·;the notes'wersiduej aud:in May, 1875"Morgan,having,proposed for the J$2:0,OOOof notes, ;B.t:idges Sheldons&:SlasOJ;dor the adv&nae:'9ful.o mU9h. ' .,Cha,rles:,sh,eldpll :went to. Washingionj:awi uponiseeingliorganotIered Wigive $10.{)OOfol the notesdnstead.of $15.000,.whiQh MQ,!{gal\!. refused to. n.ooept.... S:heldon inarea.Bed ., .", the IWQllld more.ii ,!,E)'le.r.elilpoh Bridges, of nn.be,fjo Morgan by ,}I()r,;g$Jl; :81ason: giring":notes .. $2,500, $4.,OO.Q,;,liLn!l ;$,4;,000,: MOJ.!gan'gave up the·!notes \o,Hheld0J11 Bridges not,:baing,pr$se'nt.",iS'heldon required Mprgan ,to indorse the .ootea iloSheldolia &Sluon. , On drawn' up in pursu'lince .ofthe of Deoember 18, 1&74, ,{Bridges meantiJile having completed his contract.with .Morgan 60 that he had all the contraots tofUl,) between Bridges and 8heldons& Slason, back to December 18, 1874, ;wherein Sheldons & Slason agreed to furnish marble, means, power, and ma.chinery necessary tofulfU the contracts; Bridges to do the work necessary to finish the stone, and ereot them in the cemeteries. And under the contract the prices for head-stones were increased so that. SheldonB & 8lason were to receive for head-stones furnished under Bridges' contract, $1.41 per stone; under Morgan's and Jones.' contracts, $1.46 per stone i and under Sage's oontracts, 90 oents per block, and six cents commission upon eaoh stone purchased from others, and to
'. I'IlDBBJ.L BJllPOBTh.
receive 9 per cent. interest on advances until repaid; and 9 pe!' cent. interest on the price of Istones, 60 days after shipment, until paid. . . It was agreed that moneys paid by the government under the contracts should be paid to Sheldons & Slason under powers of attorney from Bridges. After paying themselves, compensation for stone, advances and commissions, they were to pay the balance remaining in their hands to Bridges, and until the stone were set in the cemeteries they were to remain the sole and absolute property of Sheldons & Slason. The contracts were completed in June, 1877. In June, 1875, a cargo of stone loaded in the schooner Almaretta was lost off the Bahama islands. cargo was inpa.rt loaded on deck. The p01icy of insuranct' was an ordinary marine policy. No extra premium had been paid .for deck loading. After the loss .the insurance company returned the premium and refused to pay any insurance. The cargo was a total loss. Complainants claimed the loss shauldfallon respondents under the contract, and respondents claimed the loss should fall on complainant. The cause was referred to a master to hear and determine. The other necessary facts appear in the opinion. Gillmore cf Andef'lOn and Prout II Walker, for orator. Daniel Roberu and W. H. Smith, ror defendants. WHEBLEB, D. J. This cause has been heard on the report. of the master, evidence returned therewith, exceptions by the. orator and the defendants respectively, and arguments at counsel. ,The exceptions, especially those of the defendants,. are too numerous to. be conveniently treated and understood' by. their several numbers or in numerical order. The items. to which they apply, so far as separate reference to them is either neQessary or deemed to be proper, are taken up somewhat in the order in which they are presented by the report; 1. As to the item of $3,520.82 for indorsing paper and meeting liabilities, presented for allowance by the defendants. This item is made,up of three sums, severally offered in writing by.the orator torthe defendants, for indorsing some and guarantying other of his paper, and furnishing him stone
·. SBJllLDON.
23
\Upon .credit, to be retained out of .theavl\i1s 9£ his contracts with the .government received into their hands. Each sum' was offered in connection with the furnishing stone by the {iefendants, or by others, at stipulated prices, for filling hia .contracts, and was accepted in that oonneotion. Aftel'wards made between them,. by which the defenda new .ants were to receive a larger sum for the stone furnished. by them, and a commission on the stone furnished by others in ihe same oonnection, and by which an appropriation waa made of the avails so received by the defendants from tbe government. This advance in price exceeded one of the 8ums, .and the advance and commi$sion probably nearly equa.l.led .and perhaps each of the others, although exaQtly how the others would oompare is not easily ascertainable. However they might {Jompare, the parties took ,several of tile subjects of the former contract and embraced them int\le latter upon new terms, without expressly providing wJ:,.at the ·effect upon the subjects of the former. not embraced in t1:,le latter should be. The latter must stand because it is the the latter contract standing, later act of· the parties. the former cannot be carried Qutas it was made in respect 1;0 those sums composing this item. So the new contract The d;efendants c.ould not, ,superseded the old to that {Jonsistently with the new contract, retain those sums out of the money received from the govel'nment, and they are. not now entitled to have it allowed to them out of the balance of . that or other money of the orator in their hands. Theexcep-tions to the disallowance of this item are overruled. . 2. As to ite:m of Morgan notes, $20,000, admitted $13,000. Morgan held four of the orator's notes, of $5;000 each. They were given upon gooq consideration, negotiable,. and1 so far as appears, just. 'Before they were matured the defendants pur{Jhased them, and they were indorsed to the defendants. The :defendants paid $13,000 for them. brought into orilyquestion i. this accounting without 9bjection, and whether the defendants shall be . ' . . . their face or only allowe4 .., I..., what was paid fOr As were negotiable, . .
,
·
..'
i
.
. :'
'.
'
l
I
....
24:
PEDHRAL REPORTER.
the defendants, or anyone, had good right to purchase them . on any terms they could agree upon with Morgan, and to hold them for their full amount against the orator, and by so doing they would infringe upon no right of his. He owed them, and all the right he had was the right to pay them according to their terms when due, so long as they should be outstanding. He could purchase them himself, or procure anyone else to do it for hIm, upon any terms he could make. He did not purchase them himself for himself: the defendants purchased and took them. If the defendants purchased them for him, he has the right to stand upon their purchase according to its terms, as if he had done it himself. If they purchased them fot themselves they had the same right to hold the notes for their full face after the purchase that Morgan had before. And if they had it then they have it yet, for there is no pretence that the notes have been paid since, otherwise than by being charged in this account. So the question is whether the defendants purchased them for themselves or for the orator. The defendants became interested to purchase them because they wished to. avoid the consequences of the efforts Morgan would make to collect them; but their interest to get control of them has no tendency to show that they did not buy for themselves.. It would rather show the contrary. They did not hold out to the orator that they were purchasing to hold for themselves at their full face, and it was not necessary that they should. There was no duty resting upon them, nor would there be upon any purchaser, to consult or inform him at all. Nor were the intentions of the defendants, or of the member of their firm doing the business, of importance, unless made known to the orator, and in some way acted upon to his detriment, if not carried out. The master finds that the orator supposed that the purchase was made in the service of their mutual and respective interests; that what was paid for them would be charged as an advance under thecontiact, and that he was warranted and justified in so supposing from the circumstances, and: the
25
course and consummation of the transaction. If this should mean that he was given to so upd!W'ltand .by, the then they would be bound by therepresenta.tion sofar a.s it would bind ,them j Qut the master does not sa.y tha.t, nqr that they were responsible for the circumstances, course, and consummation from which he so unlierstood. What they gave him to understand is afterwards expressly; stated in thereport to have been, that they were buying the note.s to a;dand favor him, and that he would realize saving tpe result. This, apparently, Wa!J ,true. The .notes in the hands of Morga.n were a great e)ll.bapoassment to the orator, and to have them transferred to the defendants, who would be. interested not to .embarrass him with doubtless a Javor of to him, and a saving from peguniaryloss. The the report is .oareful and. exact, .and it nowhere goes so far as to say that. the defendants undertook to buy these notes for to the orator the orator. But, even if they hlLd expressly that they would buy the. notes and let have theD;l, for what they.cost, it is difficult tp see where. there is any, confor sideration to bind them to do it. He gave them buying the notes. He exerted himself to. bring about the result, but he was at work. for himself, and not for them. He gave his own note for $2,OOP to Morgan to induce him to sell to the defendants, but he did. not do it at the request or by the procurement of the defendants.. He did that to procure Morgan to sell. Nor was he deceived into giving this note by by the conduct of the defendants. He deceived keeping that fact from them, not they him. It is argued that the orator has a right to the notes for what they cost, because, it is said, that the defendants paid them with his money. But this is not true in fact. The defendants paid for the notes with their notes, and paid their notes with th:ir own money.. They had no money pf the ,()rator's then, nor have they had since, to apply on payment for these notes, except that now in controversy. The very i}uestion here is about how that money shall be applied, because it has not been applied before. Considerable stress
26
ftVEIU.L BEPORTER.
..
is laid of keeping the boob,as the payment; of the note of- the defendahtsflrst due, given' for these, was entered: as an advance. "But! the others were not .entered so, and, when further entries were made, ,the amounts of theorator's notes were entered as 'advances. These entries were all apparently irregular. But the irregularity of book-keeping ,should not vary the rights of the parties; nor affect them otherwise than as evidence' of' how the matter was llnderstood by th,ose making or'directing the entries. In this (Jase themaking' these entriel! is explained by the evidence. As this itetItstands upon the' report and evidence, these were valid notes against the orator. They are now held by the defendants in their own right. ' The orator, has never paid them, and they are entitled to hold them and have them reckoned at their face. The exception's to the disallowance Of the balance of $7,000 are sustained, and the whole item is allowed. 3.' As to the item of $20,000; stipulated profit, presented for allowance by the defendants. The claim for this item grew out of a proposal in writing made by the orator and accepted in writing by the defendants. The effect of the proposa.! and acceptance is a matter of law 'arising upon the instruments. There is no question but that the defendants were to have, in some manner, $20,000 as an inducement for their undertakings. They had been furnishing stone at stipulated prices. 'l'he orator proposed that they should continue to furnish stone, and also that they shouldft1nrish buildings and power for finishing and handling them, and meanEl for carrying on the business, and offered them one-third of the profits, which he would guaranty would be $20,000. They said thereupon that the price theretofore agreed upon for stone was not to be considered 'as included in the $20,000, and assented, and provided that a full agreement in accordance should be thereafter ex cuted. Then theyadded that the understanding was that the full agreement might be modified and made so as to fix the compensation of the defendants by a definite price for stone, in addition to the prices theretofore agreed upon, "this in lieu of the one-third interest, but not of the given sum of
97'
$20,000." The parties afterwards fixed an increased price to he allowed to thede{endants for stone, and inserted them in a full agreement. The master ·has oonsidered that,hy the terms of the writings of acceptance, "upon such increased prices the defendants were to realize $20,POO as profits,in addition to what they would get for the stones furnished at said original prices; and, if such increased prices should give said $20,000 as such profit, that would l\nswer their entire right as to profits. " .And he has found that, when the parties fixed thEl increasen price for the stone, they provided an increase large enough to cover this $20,000, and has disallowed the item, the stone being reckoned at the increased plice. If these conclusions are correct, or if the fact is that the parties provided for the $20,000 by the increased price, the item was properly disallowed, whether the construction put upon the writings is the true one or not. But this construction does not seem to be the true one. The acceptance is, expressly, that the compensation of the defendants was to he fixed hy a definite price in addition to the former price, to be in .lieu of the third interest, hut not of the $20,000 which they were to have. They were not to have any third interest, hut were to have the increased prices as compensation for the increase of their undertakings, and the $20,000 as profit. This is the construction put upon these writings in the orator's hill of complaint. Upon the construction of the master, his finding of fact as to providing for this profit in the increased price is manifestly correct. If it was to he provided for' in the in{lreased price, it would follow directly that when they increased the price they provided for it. In the view here taken the question of fact would he different. The starting point is different, and there would he more space to cover to reach the same result. Proof sufficient toestahlish that the parties agreed to distribute the $20,000 to the prices of the stone, or to substitute an increased price of stone for that gross sum, would be necessary, in addition to proof of the fact that increased prices were fixed. The master has not found such agreement. The fact. that they made such dis-
28
FEDERAL REPORTER.
tribution or· substitntion would show that they agreed to make it, and the master has found that faot. But this finding rests upon the supposition that they had agreed to make it, and, with that supposition removed, the finding might not follow. It will not do to infer the faot from the agreement, and the agreement from the· faot. This case in this respeot is similar to B1iggs v. Briggs, 46 Vt. 571. There the auditor appears to have supposed that a sister could not recover, for servioes rendered to her brother, without an express promise to pay, .01' its equivalent, and thereupon, from the faot, that the services charged for were rendered without request or claim of oompensation at the time, to have found that they were performed without expectation of payment, and to have disallowed the charges. But the court disregarded this finding as springing from an erroneous supposition, and, as the servioes were valuable, and were rendered within the knowledge of, and without objectionby, the brother, she was allowed to reoover for them. Here it is not at all olear'{;hat, had the master prooeededupon the basis that the court does, he would have oome to the conolusion that he did. That he might not is the more obvious from a. oonsideration of the evidenoe. There is no pretence that the substitution was made· at any time except on the ocoasion when the full agreement was filled up and executed. What was done, then, as to this $20,000, rests wholly in the parol testimony of the orator and J. B. Smith, his clerk, and that of the·defendants Charles Sheldon and John A. Sheldon, except some figures on 100s6 pieces of paper. Neither the testimony of the orator nor of Smith tends to show any proposal to change what had been done about the $20,000, nor any negotiation in the direction of distributing it upon the prices of the stone instead of leaving it in a gross sum; and the testimony of the Sheldons is that no allusiou whatever was made to it. The figures have among them $20,000, and show oalculations upon the number of stones to be furnished at rates producing about $20,00.0. But this can only be de. duced from them by examination and study, and thetesti.
BRIDGES 'lJ. SHELDON.
mony of the orator and Smith is that the figures were not made in the presence of the Sheldons, and that they were not ,examined and studied by either. So, while there was ample evidence to show that the $20,000 was put 'on to the prices of the atone, if that had been agreed to be dbne, there is far less. evidence to show it was then agreed to be done. The . exceptions to the disallowance of this ,item are Bustained. 4. As to item for machine repairs-$1,071.93. These repairs were made by the defendants to machinery furnished and by the orator to Eerform work that he was to perform. The question made, as stated by the master, is whether, by the terms of the contract between the orator and the defendants, he or they were to make snch repairs. There is not enough reported, or that appears, to vary the provisions of the contract in regard 'to them. The defendants were to furnish the necessary machinery and machine shops, except said blast machines and rubbers, and also keep the same in repair. If this were all, the plain meaning would be that they were to keep the same machines they furnished in repair. But the contract proceeds further in the same tion, and C(;)llstrues itself by declaring the meaning to be that the orator should pay only for certain specified things, not includ,ing repairs. Taken altogether, the contract seems to require the defendants to make these repairs. The orator's exceptions to the pro forma allowance of this item are sustained, and the item is disallowed. 5. As to item upon the Almaretta loss-$2,320.20. Some of the stone were shipped for their destination on the schooner Almaretta. The orator undertook to get them insured, but failed to perfect any valid insurance. The vessel and cargo, , including the stone, were lost. The question is as to which of these parties should bear the 10s'8 of the stone. By the provisions of the contract the defendants were to be the legal owners of all the stone until they should become the property of the government under the contract with the government. But, according to the spirit of the whole contract, they were owners for their own security, merely, and beyond that held
30
FEDERAL REPORTER
the legal title for the orator's_ benefit. He was the equitable o.wne1', subject to their claim. Their security is made good otherwise. The loss fell upoI;L his equitable right, and not upon their legal'title. It came without their fault, and he has no just claim that they should make it up; It. must be borp.e where it fell. The exceptions to the disallowance of this item are overruled. 6. As to interest. The master pro forma allowed interesli at the rate of 9 per cent., according to a computation made for the orator. The defendants have excepted to' this allowance. The contract was made in the state of Vermont, and the business between the parties was transacted in Vermont, and the laws of Vermont are to govern. According to these laws the rate is 6 per cent. No more than that can be collected, and if more is paId the excess can be recovered back. No agreement for more adds anything to the right, however strongly it zpay be expressed, for it is unlawful. It is clear that the allowance of 9 per cent. in favor of the orator is contrary to law and cannot stand. There was not even any agreement that he should have 9 per cent., or interest at any rate at all. The money in the hands of the defendants was held in a fiduciary capacity, and was not, by the terms of the contract, to be paid over until as soop. after final settlement with and payment by the government as reasonably might be. rt would not bear interest until after that reasonable time had elapsed, and perhaps not then, before demand. Haswell v. Farmers' ct Mechanics' Bank, 26 Vt. 100; Hauxhurst v. Hovey, Id.544. No demand is found, and the allowance of 6 per cent. for some of the time for which interest at 9 was computed would seem to be improper. The exceptions of defendant to the allowance of interest, as it was allowed, are sustained. The orator has not excepted at all to the allowance of est, and insists that it should stand without variation except as the items are varied. It is insisted in argument in behalf of the orator that if the subject is opened on thA exceptions of the defendants, and a different method is adopted, giving only 6 per cent. to the orator, the legal rate should be applied to
the 'defendants.' This seems to be his right. 'He .might'be satisfied and not wish to except' if tM' whole should stand, -and not if it should be It is usual, is opened on exceptionsby one patty,to 'render 'judgment, if one is rendered, according to a1'though it may be favorable to a ' party who has not excepted. , , I· . . , This opens the question as' 'to what interest the defendants entitled to.. By the. contract they were to have 9 per cent. upon advances from the time made; and upon ,the price of stone furnished after 60 days, until re-imbursed. This is expressed to be for their services; but compensation was provided for them in the increased price for the Ashefore remarked, and as was held by the master, the property was held by the defendants for their seohrity merely, and so were'the assignments and powers of attorney under which they acqrtired the right to the money from' the government, and their money 'when that was obtained. Their advarioes 'Were for, and their sales were to the orator,and there was no contingency about their right to repayment for the risk of which the extra interest could be taken. Besides, it was not expressed to be for any such thing. It was' for the' forbearance of money, really, and mingling it with other things would not deprive it of that character. Under the law of Vermont, as construed by the highest court of the state, 'extra interest on advancefi made by the treasurer of a cor'poration, under a'contract that he was to have it in connection with other compensation for his services, was l1.surious. Wa#e v:. Windham Co. Mining 00. 37 Vt. 608. The defendants are entitled to interest on their advances, and on the price of the stone furnished, after 60 days, because it was so agreed, but the rate must be at 6 per cent., for that is all the law allows. The other exceptions are either to the findiugs or failure to find in respect to circumstances not directly affecting the results, or are not well founded in view of the evidence and findings thereupon, or are wholly immaterial, so that none of them are sustained. They are too numerous to warrant
82
,FEDERAL ,
specific to them in q.etail, and are all of them overruled. these considerations and 'conclusions furnish a basis for disposing of all the items and questions in this case, except those remaining in r!'lspect to, or resting upon, the item of $20,000, and the computation of interest, when all ., items are settled. ,The answer admits and of the proposal acceptances to be that the .defendants. were to have S1ilzn for entering into the arrangement, as alleged in the bill; but denies that the payment of it was provided. for ,the iI;l,crease of prices agreed ,upo:g.. ,The traverse of, the answer raises an issue of fact as to, :whether or not of it was so provided for., Issues of: fa:ct made by the pleadings in equity are usually triable by the court, upon evidence taken for that purpose. In this (jase,by consent of the parties, an aQcountwas ordered to be taken by the master,andreturned with the without any trial by the court of that. or any issue. Taking the account would include trying, questions of fact involved with the items. This $20,000 is ap item of the account, and this. question of fact was directly involved in adjusting it. As before shown, this wa,s not tried by the master upon so broad ap. issue as the pleadings, and the construction of the writings adopted left open; and as the case now stands it is still open and :UQdetflrmi:g.ed. As .the question was one proper to be determine4 by him on the evidence taken before him, it would probably be withiJ;). the province of the court, in the exercise of its power of revision over the report, to determine it now, upon the evidence returned by him. But the parties provided for sending the case to the master in a manner which would carry this question of fact there for trial, with others. The master has heard the evidence upon it thus far adduced, and can take more, if necessary, in order to determine the question properly. It is more usual to send such questions, so situated, back to the master, than for the court to determine them upon the evidence returned. And then the proof, in some degree, tends to show that the parties never came to
in
BBII>a1lS V. SHELDON.
any mutual and full agreement as to whether the $20,00; should be, or was, eovered· by the increase in prices, or was left to stand by and that the orator supposed it was so covered, and the defendants that it was not. If in any event it should be found that the parties failed to agree about that, then a further account would become necessary, which would require sending it to the master again. It would leave the defendants entitled to that sum aside from the increase of prices, because they were entitled to it by,the terms of the proposal and acceptances, and they would never have parted with that right, nor have agreed to accept, 'Ilot' accepted, anything else in place of it. It would also leave the matter of the increase of prices without being fixed by any agreement of the parties in which their minds met, for the orator would suppose they were agreeing to one thing and the defendants to another, and they would not mutually agree at all to the same thing. The defendants, when they started to agree about this, were entitled to the $20,000, and an increase of prices besides, sufficient to cover their increased outlay for labor, machinery, power, and space, and whatever else they were to and did furnish, that they were not to at the former prices. If the new prices covered both, vayment of them pays both. If the defendants did not agree that it should cover both, they are entitled to the $20,000, and an increase of prices to cover their increased outlay now. If the increased prices were agreed upon to cover the increased outlay only, then they are entitled to them as agreed, and the $20,000. If they understood the increased prices excluded the $20,000, and the orator that they included it, then there was no of minds, and consel}uently no agreement that waS binding upon either, as to the increase. In that event the defendants would be enti. tIed to that sum as an item by itself, and to such an increase of former prices as would justly and fairly compensate them for their additional undertakings and performances under to the contract by which the prices were _ be increased. This increase could only be determined by taking an account of v.7,no.1-3
84:
these additional matters and things, and what the defendants would reasonably deserve to have for furnishing them. Thus the. Case might have to go to the ;if the court should undertake to find that issue made by the pleadings. It seems better to send all these questions to the master, to be acted upon by him as shall be found necessary in completing the account, which will be more in accordance with· the consent of the parties ani'. the practice of the court The report, in respect to the item of $20,000, and the mat. ter8,connected therewith, and the evidence thereupon, and the computation of interest, is recommitted to the master.
((Jircuit (Jourt, D. Vermont. May Term, 1880.)
D. J. The master has now, pursuant to the reo commitment of his report to him, found, .without further hearing, that the parties did agree to divide up the $20,000 presented as an item for allowance by the defendants, and distributed it to the price of such stone in making· the con· tract executed May 20, 1875, and filed an amendment to his report accordingly. The orator insisted that the report, as it stood before, showed such a finding, and the defendants that it did not; but the defendants filed exceptions applicable to it in that aspect, and the questions arising upon those exceptions have been fully argued. The amendment is considered to be a part of the report, as if it had been made before the exceptions were filed, and the questions arising in respect to it, as argued, are considered to be open for determination now. These questions depend upon whether the finding of the master upon the issue in respect to that item shall stand as found, or be reviewed by the court upon the evidence taken before the master. There is no doubt about the power of a court of equity to revise the report of a master by supplying facts material which are shown by the evidence, but not stated in the report, WHEELER,
BRIDGEs V. SHELDON.
35
by'setting aside the findings of faots not shown by any evi.dence, or which are' contrary to the evidence, and when errors in law have controlled m: influenced the finding. of 'material facts; but this revisory power of the court has never been considered as covering a right for a party to appeal from the master to the court upon disputed questions of fact, determined by the master as matters of fact upon conflicting testimony. Green v. Bishop, 1, Cliff. 186. The question here is purely one of fact; it arose upon the pleadings, and either party might have had it tried and determined upon evidence taken, according to the usual course, before the cause went to the master. The cause went to the master by consent, withoat this issue being tried; it has now been tried and determined as a question of fact, arising upon conflicting testimony, by him. To review his decision upon it now would be a rehearing of it upon, in effect, an appeal; and more, it would be allowing the party to come back to the court for the trial of a question voluntarily taken from the court to the master. Such a course is not according to the well-settled practice in such cases. The parties have had a full trial and decision of the question by the master, after his attention had been directly called to its controlling importance in the views of the court. To disturb his conclusion would be a departure from the usual course, which the court would not be warranted in taking, and to which neither party would be entitled. The exceptions to the disallowance of this item are overruled. The computation of interest upon the items and balances, as they now stand allowed and disallowed, at the rate allowed, remains to be made. It must be made uuder the supervision of the master, or of the court. The reports do not furnish means for causing it to be made by the court readily. The cause is, therefore, recommitted to the master for the purpose of having the computation made. No order has yet been made as to costs. If any question is to be made about costs, upon auy questions before the master, as at the hearing it was suggested there might be, the cause is also recom-
36
mitted for the finding of such facts as may be applicable to such questions in respect to costs before the master, 8S may be made before him. Reports recommitted accordingly.
(Oircuit Oourt, D. V61'mont. December 21,1880.) WHEELER, D. J. This cause has been further heard upon the second additional report of the master, the motion of the orator to dismiss the defendants' eXlleptions thereto, the questions raised by the exceptions, and the questions pre· sented as to interest. The motion to dismiss the exceptions is founded upon the fact that they were filed more than one month after this report was filed. The report as filed, however, was not completed so that any final decree could be made upon it. There were still open questions in regard to interest for the master to act upon, and it was immediately recommitted to the ma,ster for completion. The parties supplied the facts necessary to complete the report by stipulation, which was filed to take the place of a further report. The exceptions were filed within one month after this stipulation, by its terms, became a part of the files in lieu of the requisite report. After the report was recommitted it was in suspense, and there was no report on file to which exceptions could properly be addressed. The month given by the rule for filing exceptions would not begin to run until there was such a report, or something equal to it, to take its place. The stipulation took its place when, by its terms, it was to, and not before. The month began to run when that time came, but did not run out before the exceptions were filed. They were filed within the rule, and could not properly be dismissed. The exceptions relate to the item of $20,000, and to interest. The only question as to the former is whether the find. ing of fact by the master shall stand. He has found the fact, upon which the allowance of that item depends, lJ;Q·
BRIDGES V. SHELDON.
37
tinctly against the defendants. He has done this upon conflicting direct evidence of witnesses taking part in the transaction in question, and upon like conflicting evidence as to circumstances transpiring afterwards bearing upon the same question. Two witnesses state, under circumstances bear.ing more or less upon their credibility, that this item was ditlposed of in a way that it should not remain to be allowed to the defendants, and two others that it was not; witnesses testify that after the business was done the parties adjusted so much of it between themselves that there was not room left for this $20,000 as an existing claim, and that the defendants agreed to pay the balance, so far as adjusted, at the rate, of $1,000 per week, and entered upon such payments; while others, with equal knowledge and positiveness, deny that what was agreed to and done would exclude the $20,000. It is upon such evidence that the finding has been made. The defendants could not, with plausibility, and do not, claim that the finding is wholly without evidence to support it, but do claim that it is against the great weight of the evidence bearing upon it. Neither do they show or claim to show that the master was actuated by partiality, or other wrong motive, otherwise than by showing that, upon the evidence before him, his conclusions were wrong. They insist that the finding is clearlywrong, and that the court should, for that cause, retry the question, or send it to another master to be retried. It is not thought to be necessary to say more about the power and duty of the court in such cases than has already been said in this case. The power of the court to set aside a report of a master is unquestioned, but it is not to be exercised capriciously, or otherwise, but for good cause; and mere differences of opinion as to the weight of evidence, when they exist, do not constitute good cause. Perhaps other masters or the court, if charged with the duty of finding' this fact, would find it differently, but that does not furnish sufficient ground for setting aside, the report and essaying such a trial to see what the res'<1lt would be. That would be a mere appeal from the master to the court, or another master, which is clearly not allowable. There is no warrant in authority
88
or practice for such a course in this case. The question was brought properly before this master. He has decided it upon such grounds that the court cannot, without .the exercise of unusual or extraordinary powers, disturb his decision. The responsibility of it was, by consent of the parties, cast upon him, and must with him, and they must abide the result. Harding v. Handy, 11 Wheat. 103. The questions in respect to interest relate to the rate at which interest is to be reckoned in favor of the defendants, and to whether they are to be charged with interest, and, if so, from what time. These questions have been somewhat under consideration before, but without the aid of much argument of counsel, and without attention being drawn to important facts bearing upon the subject stated in other parts of the report than that devoted expressly to it. By the terms of the contract between the orator and defendants they were to advance money, and furnish marble slabs and blocks, to enable him to fulfil his contracts with the government, and were to draw the money on the contracts by powers of attorney from him, and were to be allowed and to retain out of the money so received sufficient to repay themselves for their cash advances, and to pay for the slabs and blocks with commissions, and for their services 9 per cent. interest on advances, and on the price of slabs and blocks, after 60 days. The orator insists that this is, on its face, usurious, and that only 6 per cent. should be allowed. The defendants claim that the effect of this contract is such that there was no debt from the orator to the defendants which could be enforced, and that therefore there was no forbearance of money, and nothing that could properly be called interest j and that the fltipulation for 9 per cent. was a mere mode of fixing their share in the adventure, or that it was a provision for compensation to some extent for what they were to do; and that if its character was doubtful its allowance by the master is, in effect, a finding as a matter of fact that it was not unlawful interest, but a compensation for something else. The contract makes no provision for payment to the defendants but by the money drawn from the government j but.
., BRIDGES V. SHELDON.
39
still, what the defendants were to do in furnishing money and materials was to be done for the orator, and to be paid for by money drawn in his name, and if payment from that source13hould, for any cause not attributable to the defend· ants, fail, upon common principles underlying the whole transaction the orator would be liable as upon an implied promise for what the defendants had done for him. It was upon this ground, that all was done for the orator upon such security as the powers of attorney and the retention of title to the property afforded, that the orator was made to bear the Almaretta loss. But, by attending carefully to what the master says about the item of $3,520.32 for indorsing paper and meeting liabilities for the orator, and the item of $5,000 for services of Charles Sheldon, as well as what he says about the item of interest specifically, it is plain that he regarded the extra 3 per cent. as a compensation to that extent for many things to be done by the defendants for which no compensation was otherwise provided. As to the latter, he finds expressly that if what Sheldon did was within the prerogative and scope of the contract, compensation therefor is provided in the 9 per cent.; and elsewhere, under the item of overpayment of Jacobs, he finds that the course taken by the defendants involving these services was adopted in good faith, to avoid danger of loss to both parties. In Cockle v. Flack, 93 U. S. 344, 10 per cent. interest was stipulated for on money advances to move products to be sold bj one party or the other, on commission to be paid to the party making the advances. It was held that the contract was not necessarily usurious on its face, and still might be a mere cover for usury on the advances, and that it was properly submitted to the jury to find what its real character was. So, here, this contract is not necessarily usurious. The extra 3 per cent. may be a cover for usury, and may be for just compensation. To determine which it is, involves a question of fact. The master, after finding as stated, has allowed the 9 per cent., and no exception has been taken to this finding. His finding, as conclusive. under these circnmstances, must be The defendants were to pay over to the orator what might
4:0
DDERAL REPORTER.
remain in their hands, after paying themselves, as soon after final settlement with and payment by the government as reasonably might be. Such ,settlement was had, and paym,ept to the defendants made, in Mayor June, 1877. This is as. definite as the report fixes the date. Thereafter efforts were made by the parties to close up the business between themselves. While these attempts at settlement were in progress, trustee processes were commenced against the orator in the state courts, demanding damages in all to the am()Unt of $24,000, with costs, two of which were served July and a third October 9, 1877, by attaching the goods, effects, and credits of the orator in the hands of the defendants, which were pending at the time of hearing. The as to these trustee processes appear from the concession of. counsel in open court and from the answer of the ants. This suit was brought March 23, 1878. The question is .whether the defendants, under these circumstances, are chargeable with interest on the funds in their hands, and, if so, to what extent. There was no provision in the contract between the parties that the defendants pay interest to the orator. The money in their hands belonging to him did not of itself constitute an interest-bearing debt. It would become such only upon their agreement to pay interest for its forbearance, or upon a detention of it, which was wrongful. No agreement to pay for forbearance or request to forbear, from which such agreement might be implied, appears. They have not paid the money, but have detained it. If the detention was wrongful, they are chargeable with interest; if justifiable, not. The money was attached in the state cop.rt, and this court could not interfere with that attachment. The proceeding in the state court, commenced before this suit was, must be respected. Taylor v. Carryl, 20 How. 583. The pendency of the trustee process would not prevent a suit by the orator to have the amount of h'is claim ascertained and adjusted. Gen. St. Vt. 312, § 41; Spicer v. Spicer, 23 Vt. 678; Jones v. Wood, 30 Vt. 268. This court has concurrent jurisdiction with the state court of such a suit on account of the citizenship of the
41
orator. Rev. St. U. S. § 629. But, when brought, the relief to be obtained can be no greater than he would be entitl'ed to in a similar suit in the state court. Ewing v. St. Louis, 5 Wall. 413. In the state court, although thE! orator might proceed to judgment or decree for the amount his due, there would be no enforcement of either while the trustee suits were pending. Morton v. Webb, 7 Vt. 123; Hicks v. Gleason, 20 Vt. 139; Jones v. Wood, 30 Vt. 268. The orator could remove these attachments by satisfying the claims of the plaintiffs and procuring the suits to lJe .discontinued, or by substituting bonds for the attachments, without affecting the claims they were brought to secure, if he preferred that course. Laws of Vt. ,1869, No. 42. The detention of this money from the orator, while he left it to be so held that he had no enforceable claim to it, cannot in any just sense be held to be wrongful. Perhaps they would have continued to hold it if the attachments had been removed; but, if they would, and he wished to cast the responsibility upon them of holding it wrongfully, he. should have taken care that proceedings against himself, which he could control, should not so stand as to enable them to hold it rightfully. Where a debt is attached which is bearing interest at the time of the attachment, the interest may continue to run as an increment of the debt, and be held by the attachment with'the debt, or be recovered by the payee if he removes the attachment. Adams v. Cordis, 8 Pick. 260. But if it does not bear interest at that time, detention of it afterwards, during the pendency of the attachment, will not subject it to interest. Prescott v. Parker, 4 Mass. 170; Oriental Bank v. Tremont Ins. Co. 4 Met. 1; Lyman v. Or1', 26 Vt. 119. At the time of these attachments the parties had neither settled, nor failed in the attempt to settle, the multifarious claims growing out of the transactions involved, and clearly there had been no default then, on the part of the defendants, which would convert this into a debt bearing interest. On principle and authority both the defendants are not yet chargeable with interest. Questions are made about costs, and have been
42
The defendants did not object to a decree for an account, and that_ decree was entered and the'master appointed by consent. Both parties have prevailed and failed to some extent upon the items disputed and litigated, and far enough so that an apportionment of costs seems proper. Upon consideration of the items in dispute won and lost by the respective parties, and the time and expense probably spent upon each, it seems most just that the orator be allowed five-sevenths of his costs, and the defendants two-sevenths of theirs. There is also a question about the charges of a stenographer being a part of the costs. A stenographer was engaged by the parties to take down the oral testimony of witnesses upon the accounting before the master. The master has certified that this was done by his procurement as master, and that the charges should be taxed as costs of the accounting. It does not appear that the parties agreed that these charges should be so taxed. Whether they can be or not depends upon the authority of the master to make such charges taxable. The master has, under the equity rules, very large discretion about the production of testimony and the order of examination of witnesses and of procedure before him, but these charges are not made taxable fees or costs by either the statutes or rules, and the question is whether the master can make such charges taxable when the law has not made them so. The court cannot employ a stenographer at the expense of the government, neither could it at the expense of parties without their consent, nor allow one to do so at the expense of another, by requiring the expense to be treated as taxable costs. The authority of the master cannot exceed that of the court appointing the master. These charges are left to be borne by the parties according to their contract without being taxed. While the accounting was pending before the master, the orator procured an order from the master for the taking the depositions of witnesses before a commissioner named at Keokuk, Iowa, and caused notice to be given to the defendants that the depositions would be taken, under the order, on a day named, at 10 o'clock in the forenoon, at that place.
BRIDGES V. SHELDON. "
43
Pursuant to the order and notice, one of the defendants to Keokuk for the purpose of attending upon the taking the depositions, and was there on the morning 9f the day named, when at 15 minutes before 10 o'clock the orator, by his attqr. neys there, who were also acting as his attorneys in this cause here, caused process by summons to be served upon him in a suit in the state court of Iowa in favor of the orator against these same defendants, upon the same contract and cause of action involved in this suit. The defendants filed in this cause a motion for an attachment as for contempt, to which .the orator appeared and avowed the bringing the suit there, and an intention to prosecute until that cause or this should be ended; but alleges that he had no expectation that any of the defendants would personally attend the taking the testimony, nor intention of bringing the suit there at the time, of procuring the order and giving the notice. This motion has been heard on argument of counsel. This order for thetaking the testimony was one which the master was fully authorized to make by the provisions of equity rule 77. The' privilege to parties to judicial proceedings, as well as others required to attend upon them,. of going to the place where they are held, and remaining so long as is necessau and returning wholly free from the restraint of process in' other civil proceedings, has always been well settled and favorablyenforced. It is mentioned in the Year Book, 20 Henry VI. 10, and enforced to protect not only the body of a suitorfrom arrest, but his horse and other things necessary for his journey, which would otherwise be attachable, by the custom of London, from seizure for debt. Bac. Abr. "Privileges," 4,17, 55; Sellon's Pro 123; Meekinsv. Smith, 1 II. Black. 636; Norris V. Beach, 2 John. 294. It extends to every case where attendance is a duty in conducting any proceeding of a judicial nature, (Bac. Abr. "Privilege," B 2; 1 GreenL Ev. § 317;) to attending upon an arbitrator under a rul 13 of court, (Spence v. Stewart, 3 East, 89;) upon commissioners in (Arding V. Flower, 8 T. R. 534;) to witness giving a deposition under an order of court, (1 Green!. Ev. § 317;U. S. v. Edine, 9 Sergo & Rawle, 147;) and to a party inquiring after
4:4
evidence under leave or court, (Bac. Abr. "Privilege," B 2.) The privilege arises out of the authority and dignity of the court where the caus'e is pending, and protection against any violation of the privilege is to be enforced by that court, and will be respected by others. Hurst's Case, 4: Dall. 387. A writ of protection issued out of that court is proper, but is not necessary, except for convenient and authentic notice to those about to do what would be a violation of the privilege. It neither establishes nor enlarges the privilege, but merely sets it forth, and commands due respect to it. McNeil's Case, 6 Mass. 264; 1 Greeni. Ev. § 216. In .Hall's Case, 1 Tyler, ,274,80 writ was actually issued. It commanded all civil and other persons, to abstain from exeimtingorsarvlnk any civil process upon the' body. The c?liit said. that the of the privilege was that' the per.s'oh not be drawn into a foreign jurisdiction, and exposed to be' entangled in l,itigation" far from his rriust ever be with expense, ,an4, the writsuspended'a;U civil pi'ocess ,against T&e sel.-vice' made in" th,at case was "by arrest, which 'was com.:,.,,··. . ;,,!i,.".: " _:' :.,-, '. ' mon'at'that time; but an exposure to service by summons be"equally to distant: and vexatious litigatWli, an'd withint,he' pientioned by the court. A party who could attend to hls suit without being liable to i sjIcih w6hld be under personal restraint from which thbS8 engaged in of justice have a right to be free. ' Halsey v. Stewart, 1 South. 366. In Miles v. 1 Binn. 77, the defendant, while that court, was served with a summons at the suit of 'the plaintiff, and moved that the service be set aside upon the ground of privilege. The plaintiff contended that he was privileged from arrest alone. The court said that it had been repeatedly ruled that he was equally privileged from the service of a summons, and set the service aside. This service, so near the time of commencement of proceedings, was probably in the constructive presence of the authority acting under the order, which would of itself be a contempt. Blight v. Fisher, 1 Pet. C. C. 41. It was imposing upon the defendants
BRIDGES .". SHBLDON.
4:5
the defence of litigation there, from which they had the right to be free, by those who knew all the facts on which the exemption rested. Bac. Abr. "Privilege," B 2. The most difficult question is whether they can have relief here. It is said that this court has no jurisdiction over the proceed. ings in a state court, which is true. The statute regulates this. Rev. St.. U. S. § 720. Watson v. Jones, 13 Wall. 679. But this statute did 'not prevent the United States cir· {Juit court from releasing a defendant from procE'SS ont of the supreme court of Pennsylvania, violating its Hurst'sCase,4: Dall. 387. The objeet is not to restrain proceedings in the state court, but is to prevent abuse of the privi· leges of this court. This proceeding, of itself, has no relation to the subject of litigation in the stateHconrt, but rests upon the faet that a litigant in this court has been drawn into gation'there in violation of the protection which all courts furnish to'litigants before'them, without regard to the subject -of that litigation. That subject: has 'been alhidEtd -to merelji t6 show full knowledge on the part hf'thosEl·engaged.'rhe prMeeding rests'upotl'the idea that what was done was a con-' 1 GreenI.'Ev:§ tempt,' which thecourtBhofiIa McNi31ts Oase;- 6 Mass.' 284. I Still, thIs coart, 'as eral cdlirtsi, is limited'i1Hts powertt> plul1sh for conteIript: Their power extends only to misbehMi6r in pre,serice of -the .colirt, 'or sonear'as to obstrllct'the administration of justice, -or ofofficeJ"softhe court, and to disobedience or resIstancEi to' ,any laWful writ,' process, order, rule, decree, or 'command (1f the courts. Rev. St. U. S. §725. The master was acting under the authority of the'conrt when he made the order. A distutbance of the master's proceedings would have been a contempt of the court; and, had anyone undertaken by force to prevent the defendants from attending the examination of witnesses ordered, prob,ably no one would contend it was not a contempt. This interference was of the same nature; still, it is not punishable as a contempt unless it was done in disobedience of, or resistance to, an order of the court. This does not mean a written order always, but only an exercise of authority, con-
stitutinga requirement. Had a writ of protection issued, as one might, there would have been no question but that there was lion order to be regarded. But, as before shown, the act· ual existence of such a writ neither makes nor adds to the protection. ,The order to take testimony issued under the authority of the court carried with it the protection of the court from the service of foreign process in attending the taking. That protection was an order. McNeil's Case, 6 Mass. 264. The service of the process was a disobedience of the order. The service of the process in Hall's Case denominated a disobedience of the writ, in the opinion of the court. 1 Tyler, 274. The conduct of the orator constituted a contempt of the authority of the court, whether it was so actually intended or not. The spirit and intention of the statute, if not the letter, warrant and allow punishment for it in the manner provided by statute. It is argued that it should extend to requiring that Buit to be discontinued, but the statute only authorizes punishment by fine or imprisonment. It appears that the suit has been removed to the fed. eral courts. Had the service been made of proces8 from those courts, it would, on motion made in 8eason, have been set aside. Steiger v. B'{)nn, 4 FED. REP. 17; Buyar Refinerv v. Matkiesson, 2Cli1l. 304. And perhap8 it would have been in the state court. Whether such proceedings have heen had as to make it too late to make such motion now, not appear of record. It is due to the proper administration of justice that the suit should be ended before the orator has relief here. This can be accomplished now. by stay of execution until that suit is discontinued, withont violating the statute against staying proceedings in a state court. In view of the circumstances, it is deemed proper that the orator should make good to the defendants all expenses incurred by them in consequence of that service of proces8, and that execution in his favor in this case be stayed until evidence of that suit is filed. of the the report is aocepted and oon. The'exceptionsare firmed, and a decree ordered for the orator for the amount due, at 9 .per cent. on balance due the defendants, allowing
EGBERT v. OITIZENS' INS. CO.' OF MISSOURI.
. 47
with five-sevenths of the orator's costs,after denuptingtwo. sevenths of the defendants' costs, and the expenses to the defendants of the suit in Iowa, including reason.able'counsel 'fees, to be taxed by the clerk, which are allowed as a fine against the orator, with a stay of execution until evidence of the discontinuance of that suit is filed.
EGBERT arid others
V.
CITIZENS' INs. CO. OF MISSOURI. March 28, 1881.)
(Oircuit Court, S. D. Missoun
. of May 9,1872, in a case in which there are several parties plaintiff and defendant, it is not necessary to state in the caption the names of all the parties' to the suit. It is sufficient to give the style in the case thus: A. B, p.f al., plaintiffs, v. D. et al., defendants.
a.
2.
SAME-SAMlll.
A caption sufficiently shows tbe reason for taking depositions it it states where the depositions are taken', without giving the distance from the place of taking to the place of trial, if the distance is iD fact, and is well known by aU parties to be, more than 100 miles. 3. SAME-CERTIFICATE.
Where an officer by whom depositions are taken seals them up, marks the style of the ease on tIle envelope, directs them to the'clerk of the court in w\lich the case is pending" alid. writes the usual dorsement across the seal, and the depl;j.llitions are received by the clerk to whom they are addressed, through the mail, 'MId, that the certificate to the depositions should bedecmed sufficient, though it fails to state that the officer delivered the depositions to the court in which the cause was pending, or that pe sealed them up and dep08fted them in the post-office.
Motion to Suppress Depositions.
E. T. Farish, for plaintiff. ' O. B. Sansum, for defendant. TREAT, D. J. The several plaintiffs named in this suitt according to the petition,wer.e copartners' doing> business ·;in San Francisco,'California. The defendant, being a Misgonri corporation, had an established agency in the fontrerphide, and its agents there drew a: bill of eicbtlngeori tbe:dMe-a-aant