Co., 147 Fed. Rep. 83, 86; Broadway Ins. Co. v. Railway Co., 101 Fed. Rep. 510.

Plaintiffs in error, Barrett and Reed, were vice-principals. Rev. Stat. Missouri, § 5435.

Plaintiff in error, Railway Company, waived its petition for removal by filing a separate demurrer to the petition of the plaintiff below, before any order was made by the state court with reference to the petition for removal..

MR. JUSTICE HOLMES delivered the opinion of the court.

This is an action for personal injuries brought by Schwyhart against the railway company and those of its servants to whose immediate negligence the injuries were alleged to have been due. There was a verdict and judgment against the company and the defendant Barrett, but at the proper time a petition had been filed by the railway company for the removal of the action to the Circuit Court of the United States, and it now contends that all subsequent proceedings in the state courts were void. 145 Mo. App. 332.

The declaration alleged that the plaintiff was employed by the company as hostler under Barrett as foreman; that it was his duty under Barrett's direction to uncouple the air brake and signal hose from between the ends of the cars on a specified train; that Barrett ordered him to do so, and that while he was between the cars, owing to their proceeding in an unusual manner that is stated, he was crushed; and further that Barrett negligently ordered him into the dangerous situation without giving him warning of the danger, and by his order and presence assured the plaintiff that the work could be proceeded with safely, when by the exercise of ordinary care on Barrett's part the injury could have been avoided. After the petition

for removal had been overruled the declaration was amended by inserting as to Barrett 'although he well knew of plaintiff's danger and the unusual way by which the said Pullman car was to be switched.'

The defendants other than the railway were residents of Missouri, and the petition for removal charged that they were joined for the sole and fraudulent purpose of preventing a removal. The grounds stated for the charge of fraudulent joinder were that the declaration disclosed no cause of action against those defendants, that the company and they were not jointly liable, and that they were persons of little or no property, while the company was fully able to pay. It will be sufficient to consider these grounds with reference to Barrett alone, the party that ultimately was held.

The joint liability of the defendants under the declaration as amended is a matter of state law, and upon that we shall not attempt to go behind the decision of the highest court of the State before which the question could come. Southern Ry. Co. v. Miller, 217 U. S. 209, 215, 216. That court might hold that the declaration averred the plaintiff to have been led by Barrett into a trap that was set and snapped by the company, the latter being also liable for Barrett's share in the deed. Again, the motive of the plaintiff, taken by itself, does not affect the right to remove. If there is a joint liability he has an absolute right to enforce it, whatever the reason that makes him wish to assert the right. Chicago, Burlington & Quincy Ry. Co. v. Willard, 220 U. S. 413, 427. Illinois Central R. R. Co. v. Sheegog, 215 U. S. 308, 316. Hence the fact that the company is rich and Barrett poor does not affect the

case.

The remaining justification for the charge of fraudulent intent is that no cause of action was stated against Barrett. That again is a question of state law, and that the plaintiff had such a cause of action in fact must be taken VOL. CCXXVII-13

now to be established. The suggestion that mere nonfeasance is alleged is shown to be unfounded by the statement that we have made. It is true that the declaration was amended after the petition to remove had been denied, but the amendment if not unnecessary merely made the original cause of action more precise. On the question of removal we have not to consider more than whether there was a real intention to get a joint judgment and whether there was a colorable ground for it shown as the record stood when the removal was denied. We are not to decide whether a flaw could be picked in the declaration on special demurrer. As the record stood Barrett was alleged negligently to have ordered the plaintiff into a dangerous place and by his conduct to have assured the plaintiff of safety, when if Barrett had used ordinary care the plaintiff need not have been hurt. To add that Barrett knew the specific source of the danger is merely to make plainer what evidently was meant before.

Judgment affirmed.

BROOKLYN MINING AND MILLING COMPANY v. MILLER.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF ARIZONA.

No. 144. Argued January 23, 24, 1913.-Decided February 3, 1913.

Suit for specific performance dismissed by the courts below for failure of the vendors to comply with the terms of the agreement and judgment affirmed by this court.

The court below properly held appellant to an agreement made in open court as consideration for a continuance that no judgment that might meanwhile be obtained in another State on the same cause of action should be pleaded.

13 Arizona, 217, affirmed.

227 U.S.

Argument for Appellant.

The facts are stated in the opinion.

Mr. F. S. Howell, with whom Mr. John J. Hawkins, Mr. Thos. C. Job and Mr. A. W. Jefferis were on the brief, for appellant:

Under the issues presented, and the findings of both lower courts that no sale had been consummated of the West Brooklyn claim to the United Verde Copper Company by defendants prior to January 1, 1908, the plaintiff was entitled to specific performance of the contract in suit, without regard to whether it prevented such consummation or not. Beardsley v. Beardsley, 138 U. S. 261; Columbia Nat. Bk. v. Ger. Nat. Bk. (Neb.), 77 N. W. Rep. 346; Keenan v. Sic. (Neb.), 136 N. W. Rep. 841; 2 Kent's Comm. 468; Micks v. Stevenson (Ind.), 51 N. E. Rep. 492, 493; Phillip Schneider Brewing Co. v. Am. Ice Mach. Co., 77 Fed. Rep. 138, 142-144.

Appellant (plaintiff) was guilty of no default, under the terms of the contract set up in its complaint, which would warrant the lower courts in refusing it a decree by way of specific performance ordering a conveyance to it of the West Brooklyn and other mining claims mentioned in its complaint, and the refusal of such relief and the dismissal of plaintiff's (appellant's) complaint was reversible error.

The formal dismissal of the complaint in the case referred to in the contract, the case of the Brooklyn Company v. Miller, was not a condition precedent to be performed before the consummation of a sale of the "West Brooklyn" claim to the United Verde. If it is to be maintained that the contract itself did not operate to dismiss the case, appellant could formally dismiss at any time before decree for specific enforcement. King v. Gsantner, 23 Nebraska, 797; Pom. Con., p. 462, § 390; Seaver v. Hall, 50 Nebraska, 878, 882; Story on Eq. Jur. 777; Whiteman v. Perkins, 56 Nebraska, 181, 185.

Defendants (appellees) made no proper tender of per

Argument for Appellant.

227 U.S.

formance following which plaintiff (appellant) would be obliged to dismiss its suit against Miller et al. according to the terms of the contract. Blight v: Schneck, 10 Pa. St. 285; Fred v. Fred, 50 Atl. Rep. 776; Fitch v. Bunch, 30 California, 208-212; Great Western Tel. Co. v. Lowenthal, 154 Illinois, 261; MacDonald v. Huff, 77 California, 279; Tharaldson v. Evereth, 87 Minnesota, 168; Wittenbrock v. Cass, 110 California, 1.

The undisputed testimony and admissions of appellees (defendants) conclusively show that the failure of appellant to dismiss the suit mentioned in the contract sued on had absolutely nothing to do with and did not cause the failure of appellees to perform the condition precedent of a sale of the West Brooklyn to the United Verde Copper Company. Halsell v. Renfrow, 202 U. S. 287; Davis v. Williams, 54 L. R. A. 749; So. Pine Lumber Co. v. Ward, 208 U. S. 126; Ward v. Sherman, 192 U. S. 168.

The defendants having taken the position, before litigation was started to compel performance, that the West Brooklyn had in fact been sold to the United Verde Copper Company on or before January 1, 1908, cannot, after suit, change front and assert that a failure to sell was for the fault of plaintiff. Columbia Nat. Bk. v. Ger. Nat. Bk. (Neb.), 77 N. W. Rep. 346.

The court erred in refusing to give effect to the Nebraska decree, for the reason that it constituted an adjudication of the rights of the plaintiff and certain of the partics defendant by a court of competent jurisdiction, and was therefore conclusive in this case as to such rights and parties as were involved therein. Bigelow v. Old Dominion Copper Min. & Smelt. Co., 225 U. S. 111; Butterfield v. Nogales Copper Co., 80 Pac. Rep. 345; Deposit Bank v. Frankfort, 191 U. S. 499; Estil v. Embry, 112 Fed. Rep. 882; Fayerweather v. Ritch, 195 U. S. 276; Harris v. Balk, 198 U. S. 215; Hilton v. Guyot, 159 U. S. 113; Heinze v. Butte Min. Co., 129 Fed. Rep. 274; The J. R. Langdon, 163