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the 320,000 cards delivered, but not accepted, or for the 832,000 tendered on December 18, 1911, but not accepted by defendant, or for the 933,000 cards ready for delivery. The contract was an Illinois contract. Under the decisions of that state (Bagley v. Findlay, 82 Ill. 524; Osgood v. Skinner, 211 Ill. 229, 71 N. E. 869) plaintiff had the option, under the facts of this case, to sue for the contract pricein effect, to vest defendant with title, notwithstanding his dissent. This the plaintiff did. The cards had all been appropriated to defendant. In Star Brewery Co. v. Horst, 120 Fed. 246, 58 C. C. A. 362, there had been no appropriation, or order for delivery, and the contracts of purchase differed in other respects. But, if this case were not distinguishable, we should nevertheless apply the principle laid down in the state court.

There is a strong conflict in the authorities as to the right to recover the contract price, instead of the difference between the contract price and the market value. Williston, Sales, § 562; Habeler v. Rogers, 131 Fed. 43, 65 C. C. A. 281; Leyner Co. v. Mohawk Consol. Leasing Co. (C. C.) 193 Fed. 745. Contra, Malcomson v. Reeves Pulley Co., 167 Fed. 939, 93 C. C. A. 339; Fisher v. Newark City Ice Co., 62 Fed. 569, 10 C. C. A. 546; Denver Engineering Wks. v. Elkins (C. C.) 179 Fed. 922; River Spinning Co. v. Atlantic Mills (C. C.) 155 Fed. 466. See, too, where goods are not readily resalable, or where specially manufactured, Manhattan City Ry. Co. v. General Electric Co., 226 Fed. 173, 141 C. C. A. 171; Kinkead v. Lynch (C. C.) 132 Fed. 692; Fisher Hydraulic Stone Co. v. Warner, 233 Fed. 527, 147 C. C. A. 413.

[13] Under the Illinois decisions, the basis of recovery, in our judgment, is that the vendor may at his option vest title in the vendee, despite the latter's repudiation; it is therefore the duty of a federal court, sitting in Illinois and adjudicating an Illinois agreement, to follow the state decisions on matters of personal as well as real property. Dooley v. Pease, 180 U. S. 126, 21 Sup. Ct. 329, 45 L. Ed. 457; In re Richheimer, 221 Fed. 16, 23, 136 C. C. A. 542.

[14, 15] But, even if recovery of the purchase price were deemed in Illinois merely the proper measure of damages for breach of the contract, and if title vested, not on plaintiff's exercise of the option, but only on satisfaction of a judgment, the federal courts, while not bound to follow the state decisions, nevertheless, "for the sake of harmony and to avoid confusion, will lean towards an agreement of views with the state court, if the question seems to them balanced with doubt." Burgess v. Seligman, 107 U. S. 20, 2 Sup. Ct. 10, 27 L. Ed 359; Sin v. Edenborn, 242 U. S. 135, 37 Sup. Ct. 36, 61 L. Ed. 199. And for the reasons so well stated in Fisher Hydraulic Stone Co. v. Warner, 233 Fed. 527, 147 C. C. A. 413, we have no doubt that at least in such a case as this, in which the cards are at best marketable in any real sense only long after the breach, justice requires that the plaintiff be not compelled to keep them and to recover merely the difference between the contract price and a highly uncertain market value.

[16] There is no merit in defendant's contention that the purchase price could not be recovered under the common counts. When a contract has been fully performed by a plaintiff "and nothing remains.

to be done under it but the payment of the compensation in money by the defendant, which is nothing more than the law will imply against him, the plaintiff may declare specially on the original contract, or generally in indebitatus assumpsit, at his election." Throop v. Sherwood, 9 Ill. (4 Gilman) 92. To the same effect are Lane v. Adams, 19 Ill. 167; Tunnison v. Field, 21 Ill. 108; Adlard v. Muldoon, 45 Ill. 193; Gibson v. O'Gara Coal Co., 151 Ill. App. 424; Shepard v. Mills, 173 Ill. 223, 50 N. E. 709.

[17] It is insisted by defendant that it was error to reimpanel the jury after it had rendered a sealed verdict, correct in substance, but irregular in form, for the purpose of correcting the technical irregularity of the first verdict. The jury made no change in the result of their verdict. The error, if such it might be called, was a mere formality, and it did not furnish good ground for a new trial. Practically the same practice was approved in Moore v. Loan & Trust Co., 70 III. App. 210, and is supported by the citation of authorities to the text shown at page 1893, 38 Cyc., and also by Nolan v. East, 132 Ill. App. 634-636.

[18] Defendant insists that it was error for plaintiff to conclude its replication to defendant's third plea to the country, instead of with a verification. The replication sets up no new matter by way of inducement. The matters set out in the inducement constitute merely an admission of the matters of inducement alleged in defendant's third plea. Had the replication concluded with a verification, defendant would have been required to file a rejoinder, which it could not have done without a departure from its plea or rejoining the same matter as alleged in the plea. In Chitty's Pleading, *621, it is said:

"The conclusion must, before the recent rules, in general have been with a verification unless where no new matter was stated by way of inducement, or where the traverse comprised the whole matter of the plea, in which case it might be to the country."

This rule is reinforced by Mr. Sergeant Williams, 1 Saunders, 103, cited at *1211 of Chitty's Pleading.

Finding no substantial error in the record, the judgment is affirmed.

(243 Fed. 324)

ROBERTSON et al. v. SCHLOTZHAUER.

(Circuit Court of Appeals, Seventh Circuit. April 10, 1917.)

No. 2379.

1. FRAUDULENT CONVEYANCES 162(1)—WHAT CONSTITUTE.

Where a deed is executed for a valuable and adequate consideration, without knowledge of the grantee of any fraudulent intent of the grantor, it will be upheld, however fraudulent his purpose; hence a conveyance made under an antenuptial settlement, fraudulently designed by the husband to defeat his creditors, will not be annulled without proof of the wife's participation in the fraud.

2. FRAUDULENT CONVEYANCES

301(2)-ACTIONS-EVIDENCE-SUFFICIENCY. In a suit by a husband's trustee in bankruptcy to set aside, as a fraud upon creditors, a deed executed by the husband pursuant to an antenuptial For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

agreement, evidence held insufficient to show the wife's participation in the fraud.

3. FRAUDULENT CONVEYANCES 76(2)-CONSIDERATION-VALUABLE CONSIDER

ATION.

Marriage is a most valuable consideration, and a conveyance made pursuant to an antenuptial settlement, the consideration of which was marriage, cannot be set aside as fraudulent as to creditors on the ground of want of consideration.

4. FRAUDULENT CONVEYANCES

120(1)-TRUSTS-CREATION.

Where a husband entered into an antenuptial agreement to convey specific property to his wife, and the marriage was consummated in consideration of such agreement, a trust in favor of the wife was created, and a deed subsequently executed by the husband to effectuate such trust is not subject to attack on the ground that the wife was only a creditor and such conveyance preferred her.

5. BANKRUPTCY

172-FRAUDULENT CONVEYANCES-RECORD OF CONVEYANCES. Bankruptcy Act July 1, 1898, c. 541, § 47a, 30 Stat. 557 (Comp. St. 1916, § 9631), declares that trustees, as to all property coming into the custody of the bankruptcy court, shall be deemed vested with all rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings, and as to all property not in the custody of the bankruptcy court shall be deemed vested with all the rights, remedies, and powers of a judg ment creditor. A husband, pursuant to an antenuptial agreement, executed a deed conveying the property to his wife as agreed, which deed was executed only shortly before the filing of an involuntary petition in bankruptcy against the husband, and was not recorded until after the petition had been filed. The land was located in Indiana, in which state the parties resided. Burns' Ann. St. Ind. 1914, § 3962, declares that every conveyance or mortgage of lands shall be recorded in the recorder's office of the county where such lands shall be situated, and shall take priority according to the time of filing thereof, and that such conveyance or mortgage shall be fraudulent and void against any subsequent purchaser or mortgagee in good faith and for valuable consideration, having his deed or mortgage first recorded. Held that, while the trustee in bankruptcy is deemed a judgment creditor, his rights as such did not, a judgment creditor not being a subsequent purchaser or mortgagee in good faith for a valuable consideration, take priority over the rights of the wife under the deed.

6. HUSBAND AND WIFE 129(3)—WIFE'S PROPERTY-ESTOPPEL TO CLAIM. In such case, though the husband continued to control the land from the date of the marriage down to the date of the conveyance, which was less than a month before petition in involuntary bankruptcy against him was filed, the wife is not, though the husband continued to carry the lands conveyed as an asset belonging to him, estopped from setting up her rights, for, while she was charged with knowledge that the record title was in her husband, that fact alone furnished no basis for an estoppel on the theory that she consented to the husband's holding himself out to the world as owner of the property.

Appeal from the District Court of the United States for the District of Indiana.

Suit by Harry A. Schlotzhauer, trustee in bankruptcy of Lane Robertson, a bankrupt, against Alma Maud Robertson and Lane Robertson. From a decree for complainant, defendants appeal. Reversed, with directions to dismiss the bill.

Appeal from decree setting aside, as in fraud of creditors of the bankrupt, antenuptial contract between appellants, and a deed made in pursuance of the contract. The contract is as follows:

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

"This agreement, made and entered into this 9th day of October, 1913, by and between Lane Robertson, party of the first part, and Alma Maud Smith, party of the second part, witnesseth: That whereas, the parties hereto desire to become husband and wife: Now, therefore, in consideration of the said party of the second part becoming the wife of the first party, the said first party agrees upon demand to convey to said second party the following described real estate in the county of Vigo, and state of Indiana: Forty (40) acres more or less in the northwest part of east fractional section five (5), township ten (10) north, range ten (10) west, commencing on the north line of said fractional section and the point where the levee and Darwin Road diverges to the southwest from said line; thence west, following said levee to the Wabash river; thence north with the meanderings of said river to the north line of said fractional section; thence east with said line to the place of beginning. Also south fractional section thirty-two (32), township eleven (11) north, range ten west, excepting eighteen (18) rods wide off the east end of said fractional section. Also lot number seven (7) in Hulman's subdivision of part of out-lot sixty-four (64) of the original out-lots of the town (now city) of Terre Haute. Also forty (40) by one hundred and forty-two (142) feet in the southeast corner of block one (1) of Freeman's subdivision of a part of out-lot sixty-five (65) of the original out-lots of the town (now city) of Terre Haute.

"In witness whereof," etc. "[Signed]

Lane Robertson. "Alma Maud Smith."

"Acknowledged same date before Daniel V. Miller, notary public."

For about 20 years the bankrupt, Lane Robertson, was engaged in the business of selling at retail pianos and other general music merchandise. His main store was at Terre Haute, Ind., and he had five branch stores in different nearby cities; the business being carried on by him under the trade name of Indiana Music Company. For a number of years his business ranged from $150,000 to $175,000 annually. He carried a considerable stock, had many outstanding accounts, largely in the shape of piano leases, and his liabilities were likewise large. From time to time he acquired various pieces of real estate, consisting mainly of a home in Terre Haute, several houses and lots there, and a farm in the same county; the farm, home, and another piece of real estate in Terre Haute constituting the subject-matter of this controversy, and being alleged in the bill of complaint to have a value of $22,000, subject to mortgage liens thereon aggregating about $6,000.

Under date of May 21, 1914, Robertson made a deed of this real estate to bis wife, Alma Maud Robertson, one of appellants, which deed was filed for record June 16, 1914, two days after the filing of the involuntary petition to have Lane Robertson declared a bankrupt. The contract was never recorded. The bill charged invalidity of the conveyance for want of consideration, and because made for the purpose of hindering, delaying, and defrauding the creditors of the bankrupt. February 16, 1915, defendants filed answer, setting up that the conveyance was made pursuant to the antenuptial contract, and denying the alleged fraud. On November 9, 1915, on motion that day made, the bill of complaint was by leave of court amended by adding another clause, wherein the complainant alleged the making of the antenuptial contract on the day it bears date, and charged that at the time of its making and continuously thereafter Robertson was insolvent, and that the conveyance to her of May 21, 1914, was made to defraud Robertson's other creditors, and for the purpose of preferring Mrs. Robertson as one of his creditors by thus paying her in full, and that she then well knew that thereby she would be preferred, to the detriment of other unsecured creditors. Appellants were married October 12, 1913, three days after the date of the contract.

Bingham & Bingham, of Indianapolis, Ind., for appellants.
Martin M. Hugg, of Indianapolis, Ind., for appellee.

Before BAKER, MACK, and ALSCHULER, Circuit Judges.

ALSCHULER, Circuit Judge (after stating the facts as above). The District Court found in its decree that the contract and the deed made in pursuance of it "were both made and executed with the intent to hinder, delay, and defraud the creditors of said defendant Lane Robertson." If this be so, the relief awarded was proper. But does the record support the finding that the contract was entered into for such purpose?

The bill was filed evidently without knowledge on the part of the trustee that there was any such antenuptial contract. The salient facts then appearing, viz. a deed to the wife conveying a substantial part of the husband's estate, then manifestly insufficient if forced to sale, to discharge his debts, made a couple of days before petition in bankruptcy is filed, and recorded some weeks thereafter, for a recited consideration of "one dollar and other valuable consideration," invited closest scrutiny of the transaction, and clearly justified judicial inquiry to determine whether or not the transaction was free from that taint which these facts of themselves might tend to lend it. And when the existence of the antenuptial contract was discovered, it became the duty of the trustee to test the good faith of that transaction-primarily to know whether the instrument was what it purports to be—an antenuptial contract, made in fact before the marriage, or was part of a subsequently devised plan whereby such an instrument, antedated, was to be made a basis for rescuing this real estate from the creditors of the bankrupt, and, if in fact made before the marriage, whether or not it was a mere instrumentality then devised, and intended by the parties to it, eventually to cheat and defraud the creditors.

[1] If this contract was not in fact made before the marriage, the rankest perjury would be attributable to the four persons who testified in detail to its then making-Robertson, his wife, Mrs. Smith (his mother-in-law), and Daniel V. Miller, the lawyer who advised the parties who drew it. All these testified fully on the subject; and from their testimony, if true, it would follow that Mrs. Smith insisted on provision being made for her daughter before she would finally consent to her marriage, and that Robertson promised to convey the real estate to her, that they procured the license to marry, went to Miller's office, and that Miller drew the antenuptial contract, which they signed, and that she took it away and showed it to her mother a couple of days before the marriage. Nothing appears in the testimony of these witnesses to raise a suspicion of its falsity in this regard, and there is no contradictory evidence. Indeed the amendment to the bill charges as a fact that the contract was made and entered into before the marriage, and no one contends that the truth is otherwise. Was, then, this contract entered into for the purpose of defrauding Robertson's creditors, or, more accurately did Mrs. Robertson have such fraudulent purpose? For as stated in Prewit v. Wilson, 103 U. S. 22, 26 L. Ed. 360, where, as here, an antenuptial contract was in issue:

"When a deed is executed for a valuable and adequate consideration, without knowledge by the grantee of any fraudulent intent of the grantor, it will be upheld, however fraudulent his purpose. To vitiate the transfer in such case, the grantee also must be chargeable with knowledge of the intention of the grantor. And an antenuptial settlement, though made with a fraudu

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