BROWN V. MESERVE.
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to uncouple. A contrary construction of the act would permit a brakeman to take the risk of coupling or uncoupling cars not supplied with hand holds under circumstances of extreme and well-understood danger, with the conscious purpose of holding the company responsible for the result. The judgment is reversed, with direction to grant a new trial. SHOWALTER, Circuit Judge, did not participate in this decision.
BROWN v. MESERVE. (Circuit Court of Appeals, Seventh. Circuit. January 3, 1899.) No. 507. L ApPEAL-RECORD IN CIRCUIT COURT OF ApPEALS-AsSIGNME:KT OF ERROR.
When an instruction Is given which does not In terms withdraw evidence from the jury, but which regulates, controls, or forbids Its application to the issues, or to particular issues, In the case, error may be. assigned in the circuit court of appeals upon the instruction alone, without setting out the substance of the evidence referred to as Is required by the rules where the assignment is based on the exclusion of the evidence. By a provisioll of a deed, the grantee assumed a mortgage on the property conveyed. Under the law of the state, the grantor only, with whom the contract was made, could maintain an action thereon; and, even after he had given his consent to the bringing of such an action in his name for the benefit of the mortgagee, the action remained subject to his control. Pending such a suit the grantor executed to the mortgagee an assignment of all causes of action which he had against the defendant, though whether fora consideration did not appear, and afterwards executed to the defendant a release of the contract of assumption. Held that, on the trial, evidence offered by defendant to show a parol agreement between himself and the grantor, at the time of the delivery of the deed, that in a certain contingency, which had happened, he should not be bound by the contract of assumption, was admissible, as tending to establish an equitable and sufficient consideration for the release by the grantor, even if not competent to vary the terms of the deed.
2.
EVIDENCE-CONSIDERATION FOR REI,EASE.
In Error to the Circuit Court of the United States for the Northern District of DIinois, Northern Division. S. A. Lynde, for plaintiff in error. George Burry, for in error. Before WOODS, JENKINS, and SHOWALTER, Circuit Judges. WOODS, Circuit Judge. The Episcopal City Mission recovered in the name of George W. Meserve a judgment against John B. Brown, the plaintiff. in error, for the sum of $14,051.44,-an alleged deficiency remaining after foreclosure of a mortgage made to the mission on March 1, 1877, upon lot 2 Purchase street, in the city of Boston, to secure the payment of a promissory note of Meserve to the mission for $19,500. On May 4,1877, Meserve had conveyed the mortgaged premises to Brown by a deed poll, which contained a stipulation or recital that Brown should assume and pay the mortgage. The action was brought in the name of the.mission, but afterwards the name of :::\Ieserve for the use of the mission was substituted, to enforce the obligation
230
91 FEDERAL REPORTER.
which Brown incurred by accepting the deed. The court sustained a demurrer to a special plea, but the matter of the plea, if a good defense, was provable under the general issue, which was joined, and the error assigned on the ruling is therefore not available. At the time of the delivery of the deed Meserve and Brown executed a written agreement, which it is now contended amounted to a release of Brown's assumption of the mortgage; and error is assigned upon an instruction to the contrary which the court gave to the jury. That contention cannot be considered, because the record shows that in the court below counsel for the defendant disavowed any such interpretation or construction of the agreement, saying that it had no bearing upon the question. Pending the suit, Meserve ex-ecuted to the mission an assignment of all causes of action which he had against Brown, and later executed to Brown a release of the contract of assumption. The assignment and the release were put in evidence. Evidence was also offered and admitted, subject to objection and to final control by instruction, which tended to show an agreement or understanding between Meserve and Brown at the time of the delivery of the deed that in certain contingencies, which afterwards turned out as anticipated, Brown should not be bound by the contract of assumption, and tbat they both intended and supposed that understanding to be E;mbodied in the written agreement then signed by tbem. The evidence also tended to show Meserve to be insolvent.1 The court instructed the jury to the effect that parol evidence was not admissible to vary the terms of the deed in respect to the contract of assumption, nor to vary tbe terms of the contemporaneous written agreement, and that if tbe whole contract of tbe parties "was put into tbe two agreements, as they say they tbought it was, tben those two agreements should govern tbe rights of the parties"; that the release made to Brown by Meserve did not constitute a defense to the action, if Meserve was insolvent at the time of its execution; and finally, that the question of Meserve's solvency at tbat time was the only question which the jury need consider. Error has been assigned· upon these parts of the charge, but it is objected that the effect of the charge was to exclude the evidence admitted as stated, and that error should have been assigned, not upon the charge, but upon the exclusion of the evidence, setting out the substance thereof in the specification of error, as required by our rules 11 and 24 (31 C. C. A. cxlvi., cxvi.). Those rules provide also for the assignment of error upon the charge of tbe court, and when an instruction is given which does not in terms withdraw evidence, but regulates, controls, or forbids its application to the issues, or to particular issues, of the case, we are not willing to say that error may not be assigned upon the instruction alone, witbout setting out the substance of the evidence to wbich the instruction referred. It is conceded that by the law of Massachusetts, wbere the transactions in question occurred, an action at law upon Brown's contract of assumption could be maintained only by Meserve, witb whom it was made. Even after his consent to the bringing or to the prosecution of the suit in his name for the benefit of the mission, he bad the
231
right to withdraw his consent and have the action dismissed. Coffin v. Adams, 131 Mass. 133. It does not appear that Meserve received any consideration for the assignment which he made to the mission of his demands against Brown, and if that assignment did not operate as an irrevocable transfer of the equitable rights of Meserve in the contract of assumption, as seems to have been assumed at the trial, we do not perceive on what ground the fact of his insolvency could be deemed to affect his control over the suit. His insolvency may have antedated the execution of the deed and contract of assumption. It would be more important if it had occurred after the execution of the assignment. Brown, too, may ha ve been insolvent; and, besides, if there were equit· able considerations on which the mission was entitled to recourse on Brown, should not resort have been had to a court of equity to establish and protect the right, instead of asking a court of law to control or deny on equitable grounds the recognized legal right of a plaintiff at law to prosecute or dismiss his action according to his own pleasure? Nothing, however, need be decided on these points. We assume it to be true, for the present purJl{)se, that the court was right in holding that the parol evidence admitted could not be allowed to affect the contract of assumption as defined in the deed or the contemporaneous written agreement of the parties; but, that conceded, it does not fol· low that the evidence was without important Bignificance in the case. If there was in fact a parol understanding between Meserve and Brown, which the courts could not recognize and enforce because it was inconsistent with the written agreements of the same date, the parties nevertheless had the right, in good conBcience, to abide by it; and if, in fulfillment of that understanding, Meserve chose to execute the release in question, resting on that consideration the release was valid and should have been given effect. The mission acquired, and without Brown's consent could have acquired, no superior right by force of Meserve's assignment. Moreover, if the intention or understanding between Meserve and Brown was that the contract of assumption should not be binding in a certain event, and they supposed that intention to be expressed in their written agreement, but it turned out that the written agreement did not have that meaning, a court of equity probably would have decreed a reformation of the contract, and Meserve, to say the least, was at liberty to accomplish the same result by the voluntary execution of a release of the contract of assumption. The evidence was competent, and the question whether there was consideration or justification for the release in such an understanding between the parties, outside of the deed and written contract, should have been submitted to the jury. The instruction limiting the inquiry of the jury to the single question of Meserve's insolvency at the time of the execution of his assignment of his claims against Brown to the mission was erroneous. Upon the question whether evidence was admissible in behalf of Brown to show that the assignment made by Meserve to the mission was not intended to include the contract sued on, we express no opinion. The judgment below is reversed, with di. rection to grant a new trial. . SHOWALTER, Circuit Judge, did not participate in this decision.
WORTHINGTON v. BEEMAN. (Circuit Court of Appeals, Seventh Circuit. January 8, 1899.) No. 496.
1. TRY.
OF JUDGMENT .:.... SEPARATE JuDGMENTS IN SAME EN-
Where there are two or more counts In a, declaratlonalleging distinctly dUferent causes of actlon, there maY be more than one final judgment on w,rlts of error may be taken, and the fact that. such distinct judgmellts are contained In the same entry, and that one In favor of the plaintiff on one count has been satisfied, w1ll not prevent his maintaining a . writ of error to review another In favor of defendant 'on differeet counts to which demurrers were sustained. '. Sl. SAME-WAIVER OF RWlIT-SATISFACTrONOF JUDGMENT.
A; plaintiff, by receiving payment and satisfaction' of a judgment In his favor on. one count of his declaration, doeS not waive his right to review on error a:' separate judgment against him, though contained In the same entry and rendered In the same case, but on different counts of the declaratlonplellding a separate and distinct :cause of action. A. though too uncertain In its terms to be specifically enforced In eqUity, may still be'tl:1.e basis of a remedy at law in favor of a party who has performed either Wholly or partially.
I.
CONTftAqT-UtmERTAINTy-SUFFICIENCYTO SUPPORT ACTION.
"
SAME.
A written contract by which defendant gave plaintiff the exclusive sale ofl'j. manufactured In a certain territory during a specified term, and which provided that In case plaintiff succ('!eded In doing such a business as defendant· might "reasonably expect" it should be renewed for a further term, Is not so indefinite or uncertain In its terms that it w1ll not suppo!:'t an action for damages for a refusal Of defendant to renew at the of the first term, the amount of business which defendant could reasonably expect being a matter which may pl"Qperly and with sufficlentcertalnty be determined bya jury, to which tribunal the parties by their contract In effect referred It In case of .thelr disagreement.
. In E:rror to the Circuit Oourt of the United States for the Northern Districfof TIlinois, Northern Division.. This action was brought by Edward E. Worthington, the plaintiff In error, against E. llJ...Beeman, the defendant In error, and others not served with process, Who, it Is alleged, had been partners In business. at Cleveland, Ohio, under the firm name Beeman Chemical Company, in the manufacture and sale of pepsin gum, and on November 18, 1890, had made to the plalntifr In error /l written proposition, which he accepted, to give him the exclusive sale of their products In. Chicago, on conditions stated, with a stipulation for renewal in the following words: "This agreement to continue to January 1,1892, It being understood that you are to push the sale of these goods and do all you can to further our Interests, and, should you succeed In doing stich a business as we may reasonably expect, then this agreement shall be renewed for two years more." On December 29, 1800, a second agreement was made, Whereby the plaIntiff In error was given a 1Il,e agency. for one year In territory outside of Chicago. The plaintiff was denied a renewal of the contract of November 18, 1890, and brought the action to recover damages on that account, and also to recover commissions earned and expenses incurred under both contracts while In force. The declaration contains common counts, on which the plaintiff recovered judgment for $700 for .commlsslons and expenses, and special counts for damages on account of the refusal to renew. To these counts demurrers on the general ground of insufficiency were filed, Which. the court sustained. This ruling was made on NovembE'r 2, 1896, and on the ensuing 13th by a written stipulation of the parties a jury was waived. and the cause . was "submltted to the court to be tried on the undisposed-of counts in the