of proof was upon the plaintiff to prove that both parties knew of and consented to such double employment. It is alleged in the answer, as one defense to the action, that Gibson was to receive compensation from the owner of the Broadwater group of mines, as well as from the defendant, for his services as broker in the matter of effecting a sale thereof, and that neither of his principals knew that Gibson was acting in such dual capacity. The plaintiff in his replication admits that Gibson was to receive compensation from both the defendant and the owner of the Broadwater group of mines, in the event that the defendant should become the purchaser thereof, but in this connection alleges: "That in the effecting of the said sale the said Charles S. Gibson merely acted as agent in bringing the said parties together and in keeping them informed as to the condition of the property, and that he had nothing whatever to do with the fixing of the price for which the property was to be sold, or in determining as to whether or not either of the parties would accept the proposition so made by the other." It will be seen from this that the replication in effect denies that Gibson's agency was one which gave him any discretion in the matter of negotiating a sale of the Broadwater group of mines, or imposed upon him any other duty in relation to such sale than that of a middleman, and keeping the parties "informed as to the condition of the property." The admission of the double agency being thus qualified, we think the burden was upon the defendant, under the authorities, to offer some proof to sustain the broad allegation of his answer in relation to the scope of Gibson's agency. In the absence of evidence tending to show that Gibson's agency was one which vested him with some discretion in the matter of negotiating the sale of the Broadwater group of mines plaintiff's replication is to be taken as true, and the case is thus brought within the rule of Knauss v. Brewing Co., 142 N. Y. 70, 36 N. E. 867, in which case it was said: "It is undeniable that where the broker or agent is invested with the least discretion, or where the party had the right to rely on the broker for the benefit of his skill or judgment in any such case, an employment of the broker by the other side in a similar capacity, or in one where, by possibility, his duty and his interests might clash, would avoid all his right to compensation. The whole matter depends upon the character of his employment. If A. is employed by B. to find him a purchaser for his house upon terms and conditions to be determined by B. when he meets the purchaser, I can see nothing improper or inconsistent with any duty he owes B. for A. to accept an employment from C. to find one who will sell his house to C. apon terms which they may agree upon when they meet; and there is no violation of duty, in such case, in agreeing for commissions' from each party upon a bargain being struck, or in failing to notify each party of his employment by the other." The fact admitted by the replication, that, in addition to his employment as a middleman, Gibson was also employed by the parties to give information as to the condition of the property, does not affect the question before us, as it cannot be said as matter of law that such an employment imposed upon Gibson any inconsistent duty in the matter of the conflicting interests of the vendor and vendee. There certainly is no presumption that Gibson was employed by either of his principals to deceive the other, to suppress facts within his knowl edge, or to give false information to the other as to the condition of the mines. The replication avers that he was to keep them informed as to the condition of the property, and this must be construed as an allegation that his contract with both was to furnish true information as to its condition, and the double employment for such purpose, was not contrary to public policy, as the duty which he owed to one under such contract, was not inconsistent with his duty to the other. The judgment is affirmed. ROSS, Circuit Judge (dissenting). I am unable to agree to the judgment in this case. As stated in the opinion, there is nothing in the evidence to disclose the scope of Gibson's agency. In the answer to the complaint the defendant set up: "That Gibson was to receive compensation from the owner of the Broadwater group of mines, as well as from the defendant. for his services as broker in the matter of effecting a sale thereof, and that neither of his principals knew that Gibson was acting in such dual capacity.” The answer does not allege that Gibson's agency was one which gave him any discretion in the matter of negotiating a sale of the mines, or anything about the scope of that agency. The answer, therefore, contained nothing calling for or admitting of any denial in the replication of the scope of the agency; so that the statement in the replication, "that in the effecting of the said sale the said Charles S. Gibson. merely acted as agent in bringing the said parties together, and in keeping them informed as to the condition of the property, and that he had nothing whatever to do with the fixing of the price for which the property was to be sold, or in determining as to whether or not either of the parties would accept the proposition so made by the other," cannot be properly regarded as a denial of anything contained in the answer, but only as an affirmative allegation on the part of the plaintiff, and one to be proved by the plaintiff. In the opinion of the court it is said: "The admission of the double agency being thus qualified, we think the burden was upon the defendant, under the authorities, to offer some proof to sustain the broad allegation of his answer in relation to the scope of Gibson's agency." But the answer does not contain any allegation at all in relation to the scope of Gibson's agency. The effect of the decision, therefore, it seems to me, is that an agent may act for a vendor in the sale of his property, his duty to the vendor being to sell it at the highest price, and at the same time, without knowledge of either of the principals, act as agent for the purchaser, his duty to him being to buy at the lowest price. Yet the law is, as I understand it, and as is stated in the opinion, that this cannot be permitted. MACRUM V. UNITED STATES. MACRUM et al. v. UNITED STATES. (Circuit Court of Appeals, Third Circuit. May 13, 1907.) No. 30. 1. COURTS--JURISDICTION OF CIRCUIT COURT-ENJOINING WRIT OF Error. [Ed. Note.-Enjoining proceedings in federal courts, see note to Clapp v. 2. JUDGMENT SATISFACTION-COMPELLING ENTRY-EQUITY-JURISDICTION. [Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 1707– 1713.] Appeal from the Circuit Court of the United States for the Western District of Pennsylvania. Johns McCleave, for appellants. Nathan S. Williams, for appellee. Before DALLAS and GRAY, Circuit Judges, and HOLLAND, District Judge. DALLAS, Circuit Judge. The United States filed a bill of complaint in the court below, the first five paragraphs whereof set forth that in a proceeding which the complainant had instituted in that court for the condemnation of certain real estate of Nathaniel G. Macrum, trustee, there was a jury trial which resulted in a verdict for said Macrum in the sum of $15,607.17, with interest added from the date of condemnation proceedings, and that upon this verdict a judgment was entered in the sum of $17,526.04. The remainder of the bill, and the decree appealed from, are copied in the margin.1 We know of no precedent for a decree by a Circuit Court of the United States sitting in equity, forbidding a party to a cause upon its law side from suing out a writ of error for review of any reviewThe authorities which maintain that in able decision in such cause. proper cases a chancellor may restrain proceedings at law are related to a chapter in judicial history which has no pertinency to the matter in hand. We are not dealing with a controversy as to the right of courts of equity to enjoin the judgments or other proceedings of The question now to be decided concerns no such courts of law. conflict, but is simply whether a Circuit Court of the United States has any authority whatever to prevent the suing out of a writ of error from a United States Circuit Court of Appeals; and this question we think is answered by the act of March 3, 1891, which, in establishing the last-mentioned courts, required them to exercise their appellate 1See note at end of case. jurisdiction, without vesting elsewhere any power to obstruct it. Therefore a writ of error from a Circuit Court of Appeals, if warranted by the statute, is of right, and its formal allowance, though perhaps desirable, is not requisite. The court of first instance has no more authority to decide upon its propriety in advance of its issuance than it would have thereafter, when, indubitably, all questions affecting its validity or efficacy are for decision by the court from which it issued. Pullman's Palace Car Co. v. Central Transportation Co. (C. C.) 71 Fed. 809; City of Wilmington v. Ricaud, 90 Fed. 212, 32 C. C. A. 578; Louisville Trust Co. v. Stockton, 18 C. C. A. 408, 72 Fed. 1; Ex parte Virginia Commissioners, 112 U. S. 177, 5 Sup. Ct. 421, 28 L. Ed. 691; State v. Farlee, 1 N. J. Law (Coxe) 96. It would, however, "be a waste of time and an unnecessary continuance of litigation to simply enter an order setting aside the injunction and remanding the cause for further proceedings." Ex parte National Enameling Co., 201 U. S. 162, 26 Sup. Ct. 404, 50 L. Ed. 707. The dismissal of the bill must be ordered for lack of equity to support it. Except as it prayed for an injunction, the substance of the only relief sought by it was that an entry of satisfaction of the judgment at law should be decreed, upon such terms, if any, as might properly be imposed. But to accomplish this end a resort to equity was not requisite, for courts of law are not incompetent to deal justly with their own judgments. Holt et al. v. Dorsey was a proceeding at law (12 Fed. Cas. 428, No. 6,647), and yet the Circuit Court, upon motion made in that proceeding (16 Fed. Cas. 1309, Nos. 9,389, 9,390), directed an entry of satisfaction of the judgment therein, upon its being made to appear that such entry was warranted. Under ordinary circumstances we would not intimate any opinion of our own in anticipation of possible future proceedings in a lower court; but in view of the manner in which this controversy, in its entirety, has been discussed at bar, we deem it proper to say, as perhaps tending to limit litigation, that, as at present advised, we think the Circuit Court, sitting at law, may properly dispose of this whole matter by simply directing an entry of satisfaction of the judgment in question, upon such terms (if any) as, after hearing, it shall impose, respecting "interest since date of verdict." But at present we decide only that the decree for a preliminary injunction shall be reversed, and that the cause shall be remanded with direction to dismiss the bill. * * * It is so ordered. NOTE. In the Circuit Court of the United States for the Western District of Pennsylvania, Sitting in Equity. No. 6. That afterwards. to wit, on or before the 28th day of August, 1906, your orator notified William Macrum, Esq., one of the defendants, and attorney MACRUM V. UNITED STATES. at law and in fact for all the parties in interest, that it was ready to pay the 7. That in pursuance thereof, your orator through M. C. Gay, of the United August 28/06. Attest H. R. Gamble. 8. Your orator avers that, at the time said money was paid and said receipt taken, it was fully stated and understood between the said Macrum, attorney as aforesaid, and the agent of your orator, that the payment of said sum of seventeen thousand and five hundred and twenty-six 04/100 ($17,526.04) dollars was in full payment and satisfaction of all matters in controversy between the said plaintiff and defendant, except that said attorney for plaintiff contended that plaintiff was entitled to interest to the date of payment, to wit. August 28, 1906, instead of May 16, 1906, the date of the rendition of the verdict, as claimed by defendant, and said attorney excepted said claim from said acknowledgment, as shown by said receipt above set forth. And your orator further saith that it was fully intended and understood between the attorney for the plaintiff and the attorney for the defendant at the time the acknowledgment of payment was entered of record by the plaintiff's attorney that said acknowledgment was a receipt and a release to the defendant of all matters in controversy between said plaintiff and defendant, excepting only plaintiff's claim for interest as aforesaid, and your orator avers that if said acknowledgment on the record is not in law a sufficient acknowledgment of payment and release by plaintiff to defendant of all matters in controversy, excepting plaintiff's claim for interest as aforesaid, that it was omitted from said acknowledgment by accident or mistake, as it was fully intended and understood by the parties thereto at the time of making said acknowledgment that it was in fact a full receipt for payment and a release of all matters in controversy excepting the claim of interest as aforesaid. 9. That your orator refers to and makes part of this bill of complaint the record and proceedings thereon of said suit at No. 69, May term, 1904, of your honorable court above mentioned. 10. That, notwithstanding the payment of said money to said plaintiff and the receipt and acknowledgment therefor by plaintiff, the said plaintiff, for the purpose of harassing, annoying, and injuring your orator, threatens to review said proceedings by appeal or writ of error, and to retain meanwhile the money paid by your orator as aforesaid in payment and satisfaction of said verdict, interest, and costs. 11. That your orator has no plain, adequate, and complete remedy at law in the premises, and therefore needs equitable relief. It therefore prays your honors: I. To enter a decree that the payment by the defendant to the plaintiff of the sum of seventeen thousand five hundred and twenty-six and 04/100 ($17,526.04) dollars on the 28th day of August, 1906, the amount of the verdict and interest to date of rendition, was, in law, payment and satisfaction in full of all matters in controversy between the said plaintiff and defendant. II. Or, that the payment by the defendant to plaintiff of the sum of seventeen thousand five hundred and twenty-six and 04/100 ($17,526.04) dollars on |