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authorized agent of the Provident Life Assurance Society. If considered as issued by a duly-authorized agent, and to be a binding receipt of the company, still it must be construed in connection with the application and the statements therein, and held to effect insurance upon the life of the applicant only in case the application was thereafter accepted by the society.

The decree of the circuit court seems to be in accordance with the law and the facts of the case, and it is affirmed.

(113 Fed. 23.) COLUMBIAN EQUIPMENT CO. v. MERCANTILD TRUST & DEPOSIT CO. (Circuit Court of Appeals, Fifth Circuit. January 7, 1902.)


A complainant is not entitled to a reference for an accounting, where the allegations of the bill are denied in the answer, until there is at least sufficient evidence to show the right to an accounting. An order for an accounting will not be made to enable him to make out his case

before the master. 2. CONTRACTS-Right to RESCISSION-CONTRACT with TRUSTEE.

Complainant corporation purchased a street railroad from defendant, which held it as trustee for certain bondholders. Some time after complainant had made its first payment, and had gone into possession of the property, its board of directors passed a resolution assenting to the distribution by defendant of the payment made, and complainant subsequently made another payment. Held that, in the absence of evidence that defendant still had in its possession any of the money, which it received solely as trustee, it was not subject to a suit by complainant to rescind the contract and recover the money paid thereon.

Appeal from the Circuit Court of the United States for the Northern District of Alabama.

This is a suit in equity by the appellant, a corporation under the laws of West Virginia, against the appellee, a corporation under the laws of Maryland. In the year of 1888 the East Birmingham Land Company executed a mortgage on its property to the appellee, as trustee, to secure $50,000 of bonds. In 1891 the same land company, after changing its name under an act of the legislature, executed a second mortgage, covering its railway property, to secure an indebtedness of $37,500, subject, however, to the first mortgage. Default was made in the payment of the second mortgage, and the trustee therein named sold the property in July, 1891. Webb and Tompkins became the purchasers, and under an act of the legislature of Alabama they organized a corporation known as the “Birmingham & Gate City Street Railway Company.” The latter company then held the property subject to the first mortgage. The Birmingham & Gate City Street Railway Company made a contract with the appellee whereby the former company, in consideration of the appellee's refraining from making a sale of the property for default under the first mortgage, agreed to convey its railway property to the trust company on the 1st day of August, 1894. On the 29th of October, 1894, the appellant and appellee made an agreement by which the appellant purchased the said property from the appellee for the sum of $51,000. This agreement was made by the appellee with the consent and for the benefit of the bondholders under the first mortgage. Later, on February 11, 1895, the appellant and appellee made a more formal agreement of purchase and sale, and the appellant thereupon went into possession of the property. The sale, as stated in the first agreement, was on the following terms: Caslı. payable November 15, 1894, $3,000; cash payable February 15, 1895, $3,000; and cash payable within 18 months from November 15, 1894, $15,000,-in all, $51,000; the deferred payments to bear interest at the rate of 6 per cent. from November 15, 1894. The entire purchase money was not in excess of a sum sufficient to pay off the bonds with interest secured by the first mortgage. The appellant paid $6,000 of the purchase money. When the last payment of the purchase money became due, amounting to $15,000, the appellant failed to pay it. It claimed to have discovered defects in appellee's title, and that it had been deceived, etc. The appellee filed its original bill to foreclose the first mortgage, and caused the property to be placed in the hands of a receiver. The appellant, the Columbian Equipment Com. pany, was made a party defendant to the bill. A final decree was rendered foreclosing the mortgage, and the property was sold under that decree. In the meantime the cross bill under consideration had been filed, and the decree on the original bill foreclosing the mortgage was without prejudice to the rights asserted in the cross bill. The claims asserted in the cross bill were left for future consideration. The cross bill sought a rescission of the agreement between the parties whereby it purchased the property, because the contract was void as beyond the corporate powers of the contracting parties and upon allegations of fraud. The appellee, as defendant to the cross bill, filed an answer thereto admitting the contract of sale, but denying the other averments of the bill. The case was tried on its merits, and on May 28, 1901, a final decree was rendered dismissing the cross bill. Thereupon the Columbian Equipment Company appealed to this court, and assigns nine errors, all based on the action of the court in dismissing the cross bill, and asserting that, the agreements between the appellee and appellant having been ultra vires, the cross complainant was entitled to relief.

51 C.C.A.-3

H. D. Hotchkiss (John F. Martin, on the brief), for appellant.

A. H. Taylor (Albert Latady and J. Peirce Bruns, on the brief), for appellee.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. The cross complainant and appellant asserts two claims against the appellee: (1) A claim for $6,000 purchase money, which it paid on the contract of purchase; and (2) $3,500, which it alleges it expended in improvements and betterments on the property. We first consider the latter claim.

It is alleged in the cross bill that "while in possession of said railway property" the cross complainant “expended in improvements and betterments thereon the sum of $3,500.” The answer of the appellee denies this averment. No evidence is offered on the subject. It prayed that a lien may be declared on the property mentioned in the cross bill for the amount so expended, and for a reference to a master to ascertain the amount, and for a personal decree against the appellee. The bill does not show how the $3,500 was spent; that is, what improvements were made, or what investment of it was made. Conceding that it is sufficiently alleged that it was used in "improvements or betterments" without stating the facts, there should have been some evidence offered to sustain the averment. A reference will not be made to state an account without some evidence to show the necessity for the accounting. An order for an accounting is not made to enable the complainant to make out his case before the master. There must be, at least, sufficient evidence to show the right to demand the accounting. Railroad Co. v. Williams, 94 Va. 422, 26 S. E. 841. There not being sufficient evidence as to this claim to require the court to make a reference, there was certainly not enough to authorize a decree for this sum in favor of the cross complainants.

The other claim in the cross bill is for the sum of $6,000 paid on the purchase money. Three thousand dollars, it is alleged, was paid "at or about the date of said contract, and the further sum of $3,000 principal, with interest accrued, upon the 15th day of February, 1895." A written agreement is in evidence that the cross complainant earned $5,604 through the operation of the property while in its possession." It is not stated in the agreement whether these earnings were gross or net. Allowing a credit on the $6,000 for these earnings would leave a balance of $396.

The appellee received this purchase money in trust for distribution. It had no claim to the money except as trustee. The board of directors of the appellant, at an adjourned meeting on February 9, 1895, “resolved that the Mercantile Trust & Deposit Company are hereby authorized to make such disposition of $3,000 heretofore paid by this company as a part purchase price upon said property, and held in trust by them, as they may see fit in accordance with said agreement." It is not shown that the appellee has not made a legal disposition of the money. It is not shown that it retained any part of the $6,000 of purchase money. The appellee, we think, was authorized by the conduct of the appellant to distribute the funds. On the pleadings and evidence we could not presume that it was holding the money at the time this litigation began. These considerations would dispose of the case, we think, even if it be conceded that the contract was ultra vires,-a question we do not decide.

After a careful consideration of the oral and printed arguments in behalf of the appellant, we are of opinion that the circuit court did not err in dismissing the cross bill. The decree is affirmed.

(113 Fed. 48.)


(Circuit Court of Appeals, Second Circuit. January 14, 1902.).


The refusal to postpone a trial is within the discretion of the c urt,

and will not be reviewed on error unless the discretion has been abused. 2. SAME.

A refusal to reinstate a cause after dismissal is in the discretion of the court, and not reviewable on writ of error. In Error to the Circuit Court of the United States for the Northern District of New York.

William A. Sutherland, for plaintiff in error.
Charles W. Mathewson, for defendant in error.
Before WALLACE and LACOMBE, Circuit Judges.

PER CURIAM. This is a writ of error by the plaintiff in the court below to review a judgment for the defendant taken by default because of the failure of the plaintiff to appear at the time the cause was moved for trial. The assignments of error challenge the action of the court below in refusing the application of the plaintiff to postpone the cause, and denying a motion made by him subsequently to the dismissal of the complaint to open his default.

A writ of error will not reach rulings involving an exercise of discretion unless the discretion has been abused. The refusal to postpone a trial is within the rule. Means v. Bank, 146 U. S. 620, 13 Sup. Ct. 186, 36 L. Ed. 1107; Isaacs v. U. S., 159 U. S. 487, 16 Sup. Ct. 51, 40 L. Ed. 229; Goldsby v. U. S., 160 U. S. 70, 16 Sup. Ct. 216, 40 L. Ed. 343. So, also, is the refusal to reinstate a cause. Welch v. Mandeville, 7 Cranch, 152, 3 L. Ed. 299. Upon the facts in the record, so far from there having been an abuse of sound discretion by the court below, its rulings were amply justified.

The judgment is affirmed, with costs.

(113 Fed. 49.)


(Circuit Court of Appeals, Fifth Circuit. January 7, 1902.)


The modern tendency is to extend, rather than to narrow, the rule as to the admission of declaratia ns as part of the res gestæ, especially in view of the fact that the parties are now generally permitted to testify in their own behalf, and to consider the grounds which formerly ex

cluded such declarations as affecting their weight only. 2. SAME.

In an action on a life insurance policy by one Jack, as assignee, it was shown that the insured was a young man, recently married, and poor, who had been employed as a la borer by plaintiff for a number of years; that within a few months prior to his death his life had been insured in all for $21,000, all the policies having been assigned to plaintiff, who paid the premiums thereon; that he died from poison, and one Dr. Lipscomb had been convicted of his murder, for which offense also plaintiff had been tried and acquitted; that on the day preceding his death he was in town, and in and around plaintiff's store, as was also Dr. Lipscomb, who had conversations with plaintiff; that about 4 in the afternoon the doctor gave deceased a box, containing a single capsule, and told him to take it before going to bed, which he did; that within a few minutes thereafter he began to have convulsions, which followed each other at short intervals, and in the third of which he died; that between the second and third convulsions, with the consciousness of impending death, he made to his wife the following statement: "I am going to die.

Dr. Lipscomb killed me with a capsule he gave me to-night, and Guy Jack had my life insured, and hired Dr. Lipscomb to kill me." Held, that such statement as a whole, and each part of it, was admissible in evidence on the part of defendant, under the circumstances shown and as against the objections made, as a part of the res


Defendant in such action, in support of a defense that plaintiff had fraudulently procured the insurance and had murdered the insured, and for the purpose of connecting plaintiff with the acts of Lipscomb, was entitled to prove any fact which tended to show that they were acting in concert; and evidence that they had been engaged together in obtaining fraudulent insurance on the lives of others was not inadmissible

because it tended to show the commissi n of other crimes by plaintiff. 4. SAME-PROOF OF CONSPIRACY-DECLARATIONS OR ACTS OF CONSPIRATOR.

In support of an allegation of a conspiracy between plaintiff and an. other to defraud a life insurance company by procuring the issuance of the policy sued on on the life of the insured and then murdering him, statements, declarations, or acts of the co-conspirator are not inadmissible because made or occurring after the death of the insured, on the ground that the object of the conspiracy had been accomplished, since it was not in fact accomplished, under such allegations, until the col


A general exception to the charge of the court, covering many matters and issues, is insufficient to raise any question thereon which can be

considered in an appellate court. 6. APPEAL-REVIEW-INSUFFICIENCY OF RECORD.

An appellate court cannot consider statements of fact in the assign

ments of error not shown by the bill of exceptions. 7. EVIDENCE — MEASURE OF PROOF – ALLEGATION OF CRIME IN Civil ACTION.

In an action on a life insurance policy, a defense that the plaintiff aided and abetted or procured another to murder the insured need not be proved beyond a reasonable doubt; but it is sufficient if the jury, by

all the evidence, are satisfied and convinced that the plea is true. 8. APPEAL-REVIEW-INSTRUCTIONS.

The failure of the trial court to give instructions requested cannot be assigned for error or considered by the appellate court unless it appears from the bill of exceptions that such instructions were requested and

refused, and exceptions to such refusal were duly taken. 9. LIFE INSURANCE-ACTION ON POLICY-PARTIES.

The widow of an insured has no interest in a policy made payable to his legal representatives, and which had also been assigned by him to another, which will enable her to maintain an action thereon, where it appears that the deceased owed debts at the time of his death, and that his estate has not been settled.

In Error to the Circuit Court of the United States for the Southern District of Mississippi.

W. E. Baskin and T. W. Brame (C. C. Miller, on the brief), for plaintiffs in error.

R. F. Cochran, for defendant in error.

Before PARDEE and SHELBY, Circuit Judges, and BOARMAN, District Judge.

SHELBY, Circuit Judge. This is an action on a life insurance policy. It was brought in the circuit court of Noxubee county, Miss., and duly removed to the court below. Plaintiff Guy Jack sued as the assignee of the policy, and Lillie A. Stewart, the other plaintiff, sued as the widow and sole surviving heir of Charles T. Stewart, the insured. The policy was for $10,000, and had been issued by the defendant in error on the life of Charles T. Stewart. It was made payable to the executors or administrators of the insured. It had been assigned to Guy Jack with the consent of the defendant. After the case had been removed to the United States court, the defendant filed a plea denying the allegations of the declarations,-a plea of a general issue. Defendant, under the Mississippi practice, gave notice of special defenses that would be made. One

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