CONTRACT-continued. quently comply with the condition as to diligence, etc. Suit was brought by A. and B. to have the right acquired by F. declared forfeited. Held, that, as it appeared that the plaintiffs had received the full value of their patent-right, and were stockholders in E., which they had caused to be formed, and that as there was a failure on their part to comply with their promises as to making the business a success, no right of reverter or forfeiture existed. Buckley and others v. Sawyer Manufacturing Company, 350 2. CONTRACT ENTIRETY.- No precise rule can be given by which the question whether a contract is entire or separable can be determined. Like most other questions of construction, it depends upon the intention of the parties to be gathered from what appears upon the face of the contract and surrounding circumstances. Gray v. Hinton et al. 167 3. SAME SAME.- Where certain parties signed an agreement declaring that they would pay to a railroad company or its assigns $60,000, to be paid in installments, one portion when a railroad should be graded through two precincts named, and another portion when the road should be finished, the consideration for the promise being declared to be the construction of the road through said precincts: Held, that the parties signing the agreement were not liable on the contract for the first installment, without an allegation in the petition that the company have finished or offered to finish the road. Id. 4. CONTRACT-MUTUALITY.-The contract above described shows no mutuality. The railroad company was not bound by it. It amounted to a proposition by defendants, which could be made mutual and obligatory only by an acceptance on the part of the company. Id. 5. SAME SAME WHAT AMOUNTS TO AN ACCEPTANCE.-The performance of the contract by the railroad company would amount to an acceptance, and avoid the objection of want of mutuality; but part performance and a failure or refusal to complete the performance did not have that effect. ld. USURY.- The law will not so construe a contract as to make it void if it will reasonably bear a different construction making it valid; and the defense of usury, especially where the penalty is the forfeiture of the whole debt, must be established by a clear preponderance of testimony. Kellogg v. Miller, 395 7. SAME-SAME-CONTRACT MADE WITH REFERENCE TO LAW OF A PARTICULAR STATE.-A contract fairly and honestly made between a citizen of Nebraska and a citizen of New York, whereby the latter agrees to loan to the former a sum of money at a rate of interest lawful in Nebraska, to be secured by mortgage on lands in Nebraska, is a valid contract, even if actually executed in New York, where the rate of interest named is unlawful. 6. CONSTRUCTION OF CONTRACT · - Id. CONTRACT-continued. 8. SAME-SAME-PLACE OF PERFORMANCE.-The general rule is that the law of the place where the contract is made is to govern in ́expounding and enforcing it; but an exception to this rule arises where a citizen of one state loans money to a citizen of another state, and the parties in good faith contract for the rate of interest allowed by the law of the latter; and especially where the money is to be used in the latter and is secured by a mortgage upon lands located there. Id. 9. CONTRACT-CONVERSION.- The part owner of a contract for the purchase of a mine cannot use the same for the purpose of obtaining the title to the mine for a third party, without the consent of his associates. Delmonica v. Roudebush and others, 18 10. SAME-SAME.- In such case an associate is entitled to share, in proportion to his interest in the contract, in the property obtained by such part owner for his individual benefit through the use of such contract. Id. 11. SAME-SAME.-Such claim by the associate will not be defeated by the fact that the property obtained by such part owner was not wholly in return for the use of such contract. Id. 12. SAME-SAME.-A. and B. were part owners of a contract for the purchase of a claim to a mine. A. used such contract for the purpose of procuring such claim for C. without the consent of B., and also secured another outstanding title for the benefit of C. In return for these services C. gave A. an interest in the mine. Held, that B. was entitled to an interest in A.'s share of the mine proportionate to B.'s interest in the original contract. 13. CONTRACT BY CORRESPONDENCE Id. ACCEPTANCE OF PROPOSITION.— Where it is alleged that a contract for exchange of property had been consummated by correspondence, and it appeared that the final letter of complainant, in which he claims to have accepted the proposition of respondent, contained a condition to which respondent never assented, held, that there was no consummated contract; that, though the condition might have been of small importance, yet the respondent had a right to an unconditional acceptance of his proposition before being bound. Merriam v. Lapsley, 606 14. ILLEGAL CONTRACT - LIABILITY TO ACCOUNT FOR PROCEEDS.— A joint owner is liable to account to his associates for money paid under an illegal but completed contract. Wann v. Kelly, 628 15. SAME-ACTION AT LAW.- When, in a single adventure, which is closed, a person, jointly interested therein with others, appropriates the proceeds to his own use, he becomes a debtor to his associates, and an action at law gives adequate relief. Id. CONTRIBUTORY NEGLIGENCE. See Negligence, 15, etc. Verdict, 2, 3. Pleadings, 2. CONTROVERSY. See Removal, 7. CONVERSION. See Contract, 9. 1. FACTOR-PLEDGE OF GOODS-STATUTES OF MISSOURI.-Under the statutes of Missouri a factor is not authorized to pledge the consignor's goods for an amount beyond the sum of the advances and charges thereon. Steiger and others v. Third National Bank, 2. SAME CONVERSION-TENDER. 494 In such case a tender of the advances and charges must first be made by the consignor before suit can be maintained for the conversion of the goods. Id. CONVEYANCE. See Mortgage, 1, 2, 3. Removal, 14. Grantor, 1. 1. FRAUDULENT CONVEYANCE-PRESUMPTION OF FRAUD.- Fraud will be presumed where a voluntary conveyance to a wife is followed within a short time by the fraudulent disposition of the remaining estate of the grantor. Burdick, Assignee, v. Gill and Wife, 486 2. SAME-SUBsequent CredITORS.-Such conveyance will be void as to all subsequent as well as all prior creditors of the grantor. Id. 3. SAME-PROOF OF INJURY.-It does not seem to be necessary to show injury to the creditors, in addition to a fraudulent intent, in order to avoid a conveyance upon the ground of fraud. Id. 4. SAME-SAME.-If, however, a person, when about to contract debts, makes a voluntary conveyance, with the actual intent to deprive his future creditors of the means of enforcing collections of their debts, and this purpose is accomplished, such subsequent creditors are unquestionably thereby injured. Id. CORPORATION. See Bill of Review, 6,7. Election Precinct, 1. Constitutionality, 1. 1. CORPORATION - JURISDICTION CITIZENSHIP. A corporation is, for jurisdictional purposes, to be regarded as a citizen of the state under the laws of which it is organized. Eaton v. St. Louis Shakspear Mining and Smelting Co. and others, 362 2. FOREIGN CORPORATIONS SERVICE OF PROCESS.- Where, by the local law, a foreign corporation is amenable to suits in the courts of the state, service being made upon an agent within the state, the federal courts may be regarded as courts of the state, and may take jurisdiction upon such service as would be good in a state court. Id. 3. SAME JURISDICTION. A federal court has no jurisdiction over a foreign corporation, in the absence of local law conferring jurisdiction on the state courts, though the corporation does business through an agent and has an office within the district where the court is held. Id. 4. SAME -CONSTRUCTION OF STATUTE.- Under the Revised Statutes of Missouri, which provide (section 3489) that “a summons shall be executed, except as otherwise provided by law: * fourth, where defendant is a corporation or joint-stock company, organized under the laws of any other state or country, and having an office or doing business in this state, by delivering a copy of the writ and petition to any officer or agent of such corporation or company in charge * CORPORATION - continued. of any office or place of business; or, if it have no office or place of - 5. JOINDER OF PARTIES. - A corporation is a necessary party defendant -- 156 6. SAME. — All the stockholders are also proper parties in such a suit, if 7. JURISDICTION - WHEN SUIT IS NOT WHOLLY BETWEEN CITIZENS COSTS. See Injunction, 2. COUNTY. See Reward, 1. Statute, 2. Id. 1. COUNTY-RIGHT OF TO SUE IN FEDERAL COURT OF ANOTHER COUNTY BONDS. See Bonds, 5, 6, 7, 8, 11. COUNTY CLERK. See Mandamus, 3. Id. COUNTY COMMISSIONERS. See Election Precinct, 4. Mandamus, 2. COUNTY TREASURER. See Mandamus, 3. COUNTY WARRANTS. See Statute of Limitation, 9. 1. COUNTY WARRANTS-WHEN VOID-STATUTE OF NEBRASKA.County warrants, issued for the purpose of erecting a county courthouse in the state of Nebraska, are void, where their issue was not authorized by a vote of the qualified electors of the county, and no benefit whatever resulted to the county from the issuing of the said warrants. Brown v. Board of County Commissioners of Sherman County, COURT MARTIAL. See Jurisdiction, 1, 2, 3. COURTS. See Statute, 1, 2. Practice, 6, 7, 8. COVERTURE. See Statute of Limitation, 4. · CREDITORS. 469 Attachment, 2. Banks, 1, See Bankruptcy, 1. Removal, 3. Conditional Sale, 2. Mortgage, 2, 3. Jurisdiction, 4, 5. Accounting, 1, 2. Conveyance, 1. CUSTOM-AGENCY-RIGHT TO CHOOSE EITHER OF SEVERAL CUSTOMARY METHODS.- Defendants were directed to place certain money to plaintiff's credit in the Exchange Bank of Denver, and in order to comply were obliged to transmit the money from Kansas City, Missouri, to Denver. Held, that defendants had the right to transmit the money by some usual and ordinary method recognized among business men as proper for that purpose; and where there were several methods of transmitting money between those points, equally in use among business men, and safe, serviceable and economical, they might choose either. Earnest v. Stoller & Hill, 380 2. SAME-USAGE AS TO TRANSMITTING MONEY.-A custom or usage as to transmitting money from one place to another, as from Kansas City, Missouri, to Denver, Colorado, cannot be so unless it extends to the place to which the money is to be sent as well as to that place from which it is sent. Id. |