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terials to be paid. Upon this understanding, as it is alleged, the agreement in suit was executed, but through accident or mistake the provision with regard to the building being completed by the school board within the original price of $38,300 was omitted, as was also that with regard to the $1,700 payment. Assuming, however, that this was sufficiently indicated in the agreement, or implied from its terms, the defendant executed it; but, if it is not to be so interpreted, it is charged that it does not correctly represent the intention and understanding of the parties, and would not have been executed by the defendant without first laving been so corrected. Whereupon the defendant claims that there is nothing due to the plaintiff, and that the rule for judgment should be discharged.
The immediate facts which are relied on to establish the alleged accident or mistake by which, as it is claimed, the writing does not express the real agreement, are not given. But, passing this by, the defense rests, as it will be noted, on something outside of the writing, which the defendant seeks to have incorporated into it and enforced. Unless this can be done, it has no defense, being plainly liable for the amount demanded as the agreement stands. The suggestion that the latter is capable of being interpreted to mean that the school board were to keep within the contract price has nothing whatever to sustain it. It may be that the defendant company could have availed itself of the $1,700 improperly advanced to the contractor as a departure from the contract, even to the extent of avoiding it (Shelton v. American Surety Co. [C. C.] 127 Fed. 736), and could also have repudiated the debts due to local materialmen for what they had furnished to the building, there being no right of lien on public property. But the time to use these as a leverage to secure advantage was when the agreement was being made. The school board were entitled, under the terms of the original contract, to go on and finish the work at the expense of the defendant, whatever it cost. If they succeeded in doing so within the original contract price, there would be no occasion for calling on the defendant; but if they did not the defendant was liable for the excess, this being one of the purposes for which the contractor gave bond. The idea that under the new agreement the contract price was not to be exceeded-which would practically mean that in no event was the defendant to be held liable-could hardly have been contemplated. But, if any such unlikely bargain was discussed, there is no trace of it to be found in the writing, and by that the defendant must abide. If anything was omitted which would make it speak otherwise, it cannot be corrected here. As was said in Pitcairn v. Hiss (C. C. A.) 125 Fed. 110: "Whatever be the case in other jurisdictions, in a federal court a written contract cannot be reformed in an action at law." Such a proceeding is essentially equitable in its nature, and must, therefore, be pursued by bill, the state practice to the contrary notwithstanding. It is not necessary to consider what would be the result if fraud in the procurement of the contract was relied upon, for there is nothing of that kind set up.
Finding no defense, therefore, to the action, the rule is made absolute, and judgment directed to be entered in favor of the plaintiff for the amount clairned in the statement.
JACKSON et ux. v. DELAWARE RIVER AMUSEMENT CO.
(Circuit Court, E. D. Pennsylvania. July 8, 1904.)
1. FEDERAL COURTS-CORPORATIONS-PROCESS-SERVICE-RETURN. Where in an action in the federal courts against a corporation neither the statement, summons, præcipe, nor the return of the marshal recited that the corporation was transacting business in the state in which the court was sitting, and the process was served, a return of the marshal that he served the writ within his district on the corporation by giving a true and attested copy thereof to T., president of the corporation, and making known the contents of the same to him, was insufficient on its face.
2. SAME-VACATION OF SERVICE-RULE-PLEA IN ABATEMENT.
While a marshal's return of service on a corporation is conclusive on the parties, and cannot be contradicted, yet, where the return did not show that the corporation was doing business in the state in which the court was sitting, and in fact the corporation transacted no business in such state, service being made on its president while he was engaged in private business therein, an application to set aside such service might be made by a rule to show cause, instead of by plea in abatement.
Myles Higgins, for plaintiffs.
Mark W. Collet and Michael J. Ryan, for defendant.
HOLLAND, District Judge. This is a suit to recover for a personal injury to Clara Jackson against the defendant, a New Jersey corporation, which was instituted in this district, and service of the writ of summons was made upon Mr. Thompson, the president of the company, while engaged in business in Philadelphia not connected with the said corporation, and at an office of another and different corporation, totally distinct from the one named above. It nowhere appears that the defendant corporation was engaged in business in the state of Pennsylvania; in fact it is denied by the affidavit that it is so engaged. The return is as follows:
"At Philadelphia, in my district, served the within writ upon the Delaware River Amusement Company by giving a true and attested copy thereof to William J. Thompson, president of said company, and making known the contents of the same to him. So answers John B. Robinson, U. S. Marshal."
This return, in view of the record in this case, would be insufficient upon its face upon the authority of Earl v. Chesapeake Railroad Company (decided by Judge McPherson, in this court, Feb. 8, 1904) 127 Fed. 235, for the reason that neither the statement, summons, præcipe therefor, nor the return of the marshal recites that the said defendant corporation was transacting business in Pennsylvania; and, while this may not be necessary in the local courts, in the federal courts, which are courts of limited jurisdiction, it is necessary that every jurisdictional fact must appear upon the record. This view is supported by the case of St. Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. 354, 27 L. Ed. 222. Other
¶ 1. Service of process on foreign corporations, see note to Eldred v. Palace Car Co., 45 C. C. A. 3.
cases in point decided in this district, are Scott v. Oil Company (C. C.) 120 Fed. 698, and Id., 122 Fed. 835.
A question of practice, however, is raised as to the proper method of bringing the matter before the court. A rule was granted upon the plaintiff to show cause why the summons should not be set aside upon affidavit made (not in the shape of a petition) by William J. Thompson, the president of the company, alleging that the defendant was engaged solely in business in New Jersey, and that it transacted no business in the state of Pennsylvania, and that service was made upon him, the deponent, while engaged in Philadelphia on private business not connected with that of the defendant corporation. It is contended by the plaintiff in this case that the marshal's return is conclusive of the facts therein stated, and that the question should have been raised by plea in abatement, instead of a rule to set aside the service. In answer to the first question, it is sufficient to say that it will be noted from the facts stated in the defendant's affidavit, which are not contradicted by the plaintiff, that there is no issue raised there with the statement of facts in the marshal's return. It is not denied by Mr. Thompson that he is president of the defendant corporation, or that notice was served upon him in Philadelphia. These facts are admitted; but it is asserted. that the service is illegal for the reason that the defendant company carried on no business in this district, and that its president was not in this district in a representative capacity at the time of service. Even if we follow the practice in the local courts in considering the return conclusive, this case is controlled by the recent decision of Chief Justice Mitchell in Park Bros., etc., Co. v. Oil City Boiler Works, 204 Pa. 453, 54 Atl. 334, wherein it is stated that, while it is still the law that the sheriff's return is conclusive on the parties, and cannot be contradicted, yet modern practice is liberal in allowing inquiry into the actual facts, where the return itself is not full or explicit. A plea in abatement will not be required. It is the more ancient and formal way, but not necessarily exclusive now. It has been held that the enlarged operation of rules is a somewhat peculiar and admirable feature of Pennsylvania jurisprudence, growing largely out of the administration of equity through common-law forms, and that the practice of setting aside service on rules has the sanction of precedents sufficient to save it from being pronounced irregular in cases where it reaches the desired end without inconvenience or injustice to either party. Park Bros., etc., Co. v. Oil City Boiler Works, supra, and cases there cited. The same view has been taken in this court in the case of Scott v. Oil City, supra, where the question was directly raised. In fact, the practice of setting aside service on rule has been adopted in many of the districts, even where the local practice requires a plea in abatement, and there is no reason why the more inconvenient method should be employed in this district. Wall v. Chesapeake & Ohio Railroad Company, 95 Fed. 398, 37 C. C. A. 129.
THE WILLIAM POWER.'
(District Court, E. D. New York. January 4, 1904.)
1. SHIPPING-DAMAGE TO CARGO-UNSEAWORTHINESS.
Damage to a cargo of hay from water held, under the evidence, to have been due to leakage, owing to the inability of the vessel to carry the cargo for which she was chartered without straining, which rendered her unseaworthy.
In Admiralty. Suit for damage to cargo.
William J. Cleary, for claimant.
Simpson, Thacher, Barnum & Bartlett (Dean Sage and Mark Hyman, of counsel), for libelant.
THOMAS, District Judge. This action is by a shipper against the canal boat William Power for such injury to 376 bales of hay in transit as to render it valueless. The hay was ruined at the time of its arrival by contact with water. One of the libelant's witnesses states that he
"Long seams that were wet, and stains trickling down from them. I did not see the water trickling through, but the indications were there of there being leaks. Q. Was the inside of the boat-the side of the boat on the inside, around the seams you mentioned-damp? A. Wet just where the bales came from under the decks. * ** How many wet seams did you observe? A. Some of the seams were quite long. I should say I saw three or four probably 10 feet long. Q. On both sides of the boat, or on one? A. Mostly on the off side. Q. Do you know or did you observe any of the bales of hay which were afterwards rejected being removed from such a position on the side of the canal boat where it would be in contact with the damp seams that you have mentioned? A. It came from right along the side of the boat. They were taken right from those places."
The claimant states that before entering St. Johns on his outward journey, and before taking the hay, there was a shower, and his canal boat, which had open hatches, was damp therefrom, and that, against his advice or protest, the shippers scattered a quantity of fine chaff along the bottom, and that this absorbed the moisture and communicated it to the hay. The ruined hay was baled in such a way as to be best guarded against water. The tiers next to the bottom and the sides of the vessel in a particular section of the hold were in the condition stated by the witness. It is highly improbable that such condition of wetting and molding could have come from so slight a cause to such a quantity of hay so baled, from mere dampness arising through chaff, and also rising above the wooden dunnage over the chaff. The claimant is also understood to contend that the boat was overloaded, or the load improperly distributed, and hence sprung a leak. The charter party did not require the shipper to load or to distribute the cargo, although the expense of it was to be borne by him. The master contends that he objected to the manner of distributing the load, but it is doubtful if he carried his protest to the shipper. In any case, his remonstrance was feeble. However, it was his duty to attend to the distribution of the cargo. It seems to be further objected that the boat was overloaded. The shipper was entitled to the cargo spaces, and it was the duty of the carrier to furnish a vessel that was seaworthy for
a full load. If he thought that she was being overloaded, he should have stopped it. It is considered, however, that the leak was caused from her inability to carry, without straining, the load demanded by the
On a motion to quash an indictment, the court will consider only such propositions as raise clear points of law.
2. CONSPIRACY-INDICTMENT-ALLEGATION OF MEANS INTENded to be Used. An indictment for conspiracy to defraud the United States of sums to become due to it as customs duties must allege, to some extent at least, the means intended to be used to defraud-as that it was by smuggling, or by forged or false invoices, or the like-although the details of the plan need not be set out, since they may not have been known to the grand jury or to the conspirators themselves.
In an indictment in a federal court, it is not necessary to allege the tenor of an instrument unless it touches the very pith of the crime itself, as in forgery, or counterfeiting. An indictment for conspiracy to defraud the United States by obtaining the entry of imported merchandise without payment of the legal duty thereon need not allege the tenor of an instrument by means of which, as charged, it was intended to accomplish the fraudulent entry.
On Motion to Quash Indictment.
The following is the motion to quash the indictment:
Now comes John W. Trafton, one of the defendants in the above-entitled case, and moves to quash the above indictment, and each and every count thereof:
First. Because the same nowhere charges him with any offense under the laws of the United States, set forth plainly, formally, and substantially, as required by the laws of criminal pleading.
Second. Because said indictment does not set forth plainly, formally, and substantially, and in such a manner as to reasonably inform the defendant, the nature, character, form, and contents of the alleged false and fraudulent papers to be used pursuant to and in promotion of said conspiracy, as alleged in said indictment.
Third. Because said indictment does not set forth plainly, formally, and substantially, and in such a manner as to reasonably inform the defendant, the nature and details of the alleged conspiracy-particularly as to what is intended to be charged by the allegation that, as a part of said conspiracy, one or more of the defendants should and would present and cause to be presented certain false and fraudulent entries.
Fourth. Because that in said indictment, and each and every count thereof, no overt act is alleged, the performance of which would have amounted to or resulted in a defrauding of the United States, so far as appears from the allegations in said indictment.
Fifth. Because in other respects the said indictment is insufficient and void.
12. See Conspiracy, vol. 10, Cent. Dig. §§ 85, 96.