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Defendants filed an affidavit of defence setting forth inter alia
“Before the tender of the delivery of the goods for which this action is brought the defendants had ascertained that the plaintiffs did not intend to comply with their contract, a copy of which is filed in the cause, in this: that the residue of the 700 tons old T rails mentioned in the contract had never been shipped by plaintiffs, nor were ever intended by them to be shipped or delivered to defendants; and they knew this when they sought to make defendants accept and pay for a part of the goods agreed to be bought and sold for this rea
When the delivery was tendered of the goods for the price of which this action was brought, the same were rejected and refused by the defendants."
Samuel C. Perkins, for the rule.
The contract is severable, and plaintiffs are entitled to recover the price of the cargo for which suit is brought. Scott v. Kittanning Coal Co. 89 Pa. St. 231; Morgan v. McKee, 77 Pa. St. 228; Lucesco Oil Co. v. Brewer, 66 Pa. St. 351; note to Cutter v. Powell, 2 Smith's Lead Cas. (5th Am. Ed.) 45; P., W. & B. R. Co. y. Howard, 13 How. 307; Perkins v. Hart, 11 Wheat. 237; Sickels v. Pattison, 14 Wend. 257.
R. C. McMurtrie, contra, was not called upon.
MCKENNAN, C. J. Beyond all question this is an entire contract, and to hold that tender of a part takes away the right of rescission, when the affidavit says that there was not only an impossibility of delivery as respects the balance but an intention not to deliver, would be to go beyond anything that the English courts have held.
DOUGLASS v. LINCOLN COUNTY, IN THE STATE OF MISSOURI.
(Circuit Court, E. D. Missouri. December, 1880.)
1. MUNICIPAL BONDS—" ISSUED" -MISSOURI,
Municipal bonds are not duly“ issued,” under the laws of Missouri, unless the same have been duly registered in the office of the state auditor.- ED.
Defendant requests the court to instruct the jury as follows: “The jury are instructed that the bonds from which coupons sued on are alleged to have been detached were not executed or issued by the defendant until the same were countersigned, before delivery, by an agent of Lincoln county. If, therefore, the jury find from the evidence that either of the bonds sued on was thus countersigned and delivered after March 30, 1872, by James M. McClellan, claiming to act as agent of Lincoln county under and by virtue of an order of the county court of said county, made May 16, 1872, the jury are instructed that as to such bonds, and as to any coupons from such bonds detached, plaintiff cannot recover unless the jury further find from the evidence that said bonds and coupons have been registered in the office of the state auditor of the state of Missouri."
John B. Henderson and John H. Overall, for plaintiff.
TREAT, D. J., (orally.) The question presented is very clear. It is as to the meaning of the term “issued,” as found in the act of the general assembly of the state of Missouri, entitled “An act to provide for the registration of bonds issued by counties, cities, and incorporated towns, and to limit the issue thereof." Section 4 provides: “Before any bond hereafter issued by any county, city, or incorporated town, for any purpose whatever, shall obtain validity or be negotiated, such bond shall first be presented to the auditor, who shall register the same in a book or books provided for that purpose, in the same manner as the state bonds are now registered, and who shall certify, by indorsement on such bond, that all the conditions of the law have been complied with in
its issue, if that be the case, and also that the conditions of the contract under which they were ordered to be issued have also been complied with, and the evidence of that fact shall be filed and preserved by the auditor,” etc. It seems from the evidence that the county court, on the twenty-first of June, 1870, ordered that these bonds be issued, and that the presiding judge of the county court and the clerk of the court signed the same, and that the seal of the county court was affixed thereto on said day, and that on the following day the bonds were placed in the hands of D. S. Waddy, as agent of Lincoln county; that afterwards, on the sixteenth of May, 1872, said Waddy resigned, and surrendered into the custody of the court all bonds numbered above a certain number; that on said day the court appointed James M. McClellan agent of Lincoln county, and that the bonds above said number are countersigned only by said James M. McClellan as agent of Lincoln county. Upon the face of each of these bonds it is declared that “this bond shall be countersigned by the agent of said county before the delivery thereof." I cannot hold that these bonds were properly executed or issued by Lin.. coln county before the same were countersigned and delivered or negotiated by the agent of Lincoln county, as required upon the face of each of said bonds. Until these acts were duly performed by a duly authorized agent of Lincoln county, the bonds were neither executed nor issued, within the meaning of the aforesaid registration act, and I shall therefore give the instruction asked by defendant.
To which ruling of the court plaintiff's counsel excepted.
LONERGAN v. MISSISSIPPI RIVER BRIDGE Co.
(Circuit Court, E. D. Missouri. February 5, 1881.)
1. ERECTION OF DIKE IN MISSISSIPPI RIVER - OVERFLOWING LANDS
INJURING FERRY FRANCHISE.
Suit to recover damages for injuries alleged to have been done to certain lands, and to a certain ferry franchise, by reason of the construction of a certain dike in the Mississippi river by the defendant. Held, (1) that plaintiff had, under the laws of Illinois, and according to the evidence, no title to the lands, for injury to which the suit was brought; (2) that the act of the general assembly of Illinois, granting a charter for a ferry across the Mississippi river, under which the plaintiff claims, did not give the grantee any right to control the channel of the river, or to prevent its improvement, without compensation to him by the United States.
Mississippi River Bridge Co. v. Lonergan, 91 I11. 508, followed. (Ed.
D. P. Dyer, for plaintiff.
McCRARY, C. J., (orally.) The plaintiff sues the defendant to recover damages for injury alleged to have been done to certain lands and to a certain ferry franchise by reason of the construction of a certain dike in the Mississippi river by defendant. By an act of congress approved March 3, 1871, the erection of a railway bridge across the Mississippi river at Louisiana, Missouri, was authorized, which bridge was to be built under and according to such regulations for the security of the navigation of the river as the secretary of war should prescribe. 16 St. at Large, 473. The secretary of war, in pursuance of the recommendation of a board of engineers, required the erection of the dike in question for the better improvement of the navigation of the river. The bridge connected two great thoroughfares by rail, terminating on the opposite banks of the river.
The plaintiff alleges that the consequence of the erection of the dike was to injure lands belonging to him adjoining the river, and also to impair the value of his ferry franchise, under which he was authorized to run a ferry across the Mississippi river at Louisiana. The question is, can he recover ?
This identical controversy has been before the courts of Illi.
nois, and the supreme court of that state, in an elaborate opinion, hås decided every material question in the case adversely to the plaintiff. Mississippi River Bridge Co.v.Lonergan, 91 Ill. 508. In that case it was held—First, that Lonergan had, under the laws of Illinois, and according to the evidence, (which was the same as now offered,) no title to the lands, for injury to which the suit was brought; second, that the act of the general assembly of Illinois, granting a charter for a ferry across the Mississippi river, under which act the plaintiff claims, did not give the grantee any right to control the channel of the river, or to prevent its improvement, without compensation to him by the United States.
The court said: "The act of the legislature of this state, which established the ferry, gave the plaintiff no right or interest whatever in the flow of the river." Upon these propositions, which are conclusive of the case, I am inclined to the opinion that this court is bound to follow, as a rule of decision, the ruling of the supreme court of Illinois.
The first point decided should, perhaps, be accepted by this court as a rule of property established by a deliberate decision of the supreme court of the state. Henderson v. Griffin, 5 Pet. 151.
The second point comes within the description of a judicial interpretation by the highest court in the state of one of its own statutes, and is therefore binding upon the federal courts.
But it is not material in this case to decide that this court is bound by the ruling of the supreme court of Illinois, for I have examined with care the opinion of that court above cited, and have considered fully the argument of plaintiff's counsel in opposition to the views therein expressed, and my conclusion is that the decision is sound and should be followed upon the merits of the questions discussed.
Judgment for defendant.