94 8tpI'G.
FBDERALREPORTER, vol. 45. Mr. Justice MdvER,'.speaking .for 'the .cottrll in ;A880ciation . v; supra, thus:
, ..It must be regal'dpd'aSsettied that when a married woman, either directly 'orthtough her agent. bOrrows money from another; the money so borrowed becomes at once part of her separate estate, and her contrllot to repay the BROW ill a contract with reference to. her. separate estate, w:1deh. may be enher; aud that the lender, ill tbe .of notice to the conbas a right to assume that toe money was borrowed for the use of the JDarriedwoman; and sbe is estopped from denying tb61'act, unless it is shown that the lendl'lr had notice to the contrary. These cases determine that the busband may, if so authorized by the wife, act ,as her agent, and that tbe disposition which may be made of the money after it bas been borrowed cannot affect the question." If money can be borrowed, so may goods be borrowed. If a married woman can layout moneys on her separate estate for the purpose of producing crops and selling them; she can purchase property and sell it for the purpose of profit. If she buys a stock of goods on credit, either to add to or to create a separate estate, it beromes "at once a part of her separate estate, and her contract to pay for it is an enforceable contract against her." If she can acquire property by this way, she has all the rights of ownership over it, and can 'sell it how and when she pleases, and can authorize anyone to do so. If she devotes her thne and skill and intelligence in effecting such sale, under the act of 1887 her earnings are her own separate estate. If· she prefers to aet through an agent, she can, under the decisions, do so, and appoint even her husband as such agent. There is nothing in the constitution orstatttte law, or in the decisions of the supreme court of South Carolina, which forbid a m'arried woman from engaging by herself in trade. It would seein that she cannot be a member of a firm. Gwynn v. Gwynn, 27 S. C. 526,4 S. E. Rep. 229. It is unnecessary to discuss any other question made in the case, The rule to show cause is discharged.
Jones; 32 S. C., andl0 S. E.
HULL 11. PrrRAT
et ale January S4, 189L)
(Of,rcuU court, B. D. Ohio,
w: D.
L
&I.E-WilEN TITLE PASSlllB.
The owner of certain patents agreed in writing "to sell and does hereby sell them, " fOr··a designated !lum in cash, and another sum to be paid a year from date. The purchaser, as part of the purchase price bound. himself to convey to the seller 200 lots within SO days, with an abstract shOwing clear title, and also to convey to a trustee the title to other lands to secure the deferred purchase money. The conveyance of the patents was to be placed in ellorow with the same trustee, to be delivered to the purchaser on the payment of the entire money oonside1"&tion. Held, that the conveyance of the lots to the seller, the execution of the trustdeed, and the payment of the entire money consideration, were.conditions precede ent to the vesting' of the title to the patents in the purchaser, and that therefore the oontract was only an executory contract of sale. and did not operate to paas lihe title.
HULL V. PITRAT· .. CoNTRACT-SUBSEQUENT PAROL :M:ODIFIOATION-EvIDENOB.
95
-.
Whenthll contract was made, there was a small mortgage on the 200 lots to be conveyed with a clear title as' part of the purchase price for the patents. In an action by the purchaser for the specific performance of the contract bis testimony confiicted with that of the seller aa to asubsequent parol modification of the con· /lnder ;whicb the amount of the mortg,age was to be paid to the seller, and he subject to the incumbrance. He1it, tbat the acceptance of the deed of the Idts by tbe seller without objecting to the incumbrance, and the receipt by him, of lIeveral sums stated by the purchaser to be on account of the mortg8l{e, were suftioient to establish the modiftcation of the contract as telitifted to by the purohll,llEll'. I Hefore the contract was executed, the purchaaer, with others, had obtained. an option on'the patents, for which tbepurcbaser had paid tbe seller $1,000. This sum was to be .forfeited if the purchase was ,not completed by a certain time. After the time so limited had elapsed, the selle/Waived tbe forfeiture, and agreed to extend tbe time in favor of tbe purcbaser.Pending such extension, the contract in question was entered into, which provided for a cash payment of $1,500. The purchaser admitted tbat he had paid only $500 in cash on the last contract, but testifted that it was understood that the $1,000 previously paid formed a part of the cash payment.: He1it, that 'an unequivocal acknowledgment by the seller, in the contract of sale, of the receipt of $1,500 in cash, was sufticient to establish the purchaser's version of the affair, th"ugh denied by the seller. The fact.tl1at the land to be held as security for the payment of the deferred purchase m.Qneywas never conveyed to a trustee, as provic;led in the contract, is no ground for the rescission of tbe sale by the seller, who is himself in default as to tbe tran$fer of the patents, and to whom the land was. afterwards conveyed di· rectly. . ,."'< A depoilition by the seller, in an action bv third persons against the purchaser, that the latter is indebted to him in a certain sum on the of sale, is a recognition by the seller that the contract"ls tben in full force aud effect, and he can· not subsequently rescind the contract for an alleged default of the purcbaser occurring be,fore that time. . ' Bl'EClI'IO PERFORMANCE-SALB Oll' PATENTS. · Oll' CONTRAOT. PAYMENT-EVIDENOE.
"
0.
A contraet f01'the sale of a patent will be specifically enforced in equity. in favor of the pU11lhaser, on tbe ground that otherwise ne mayauffer irreparable in. jury.
The bill is filed for the specific. performance of a contract, of which the following is a copy: "GALLIPOLIS, October 2, 1889. "It is hereby agreed and unders.tood by and between Julius E. Pitrat, of Gallipolis, Ohio, and Robert E. llull, of Detroit, Michigan: First, that Ju· lius E. Pitrat agrees to sell, and does hereby sell, patent No. 314,717, dated March 31, 1885; patent No. 341,166, dated May 4, 1886; patent No. 344,875, dlited July 6, 1886; patent No. 356,077, dated January 11, 1887; patent No. dated June 26, 1888.-a11 the above patents granted by the United States of America for computing and price scaletl, for $60.GOO; to the said Robert E. Hull, payments to be as follows: $1,500 cash in hand paid, the receipt of which is hereby acknowledged, and the further sum of $8,500 cash, to be paid on or before one year from this date, with interest at six per cent. on all sums; remaining unpaid at the expiration of six months from this date; and all of blocks No. 30, 31, 32, 33, and 34, j:)eing about 200 lots, in R. E. Park, in. Wayne county, Michigan, being at the intersection of what is known as the ·Six-Mile Road' (or ditch road) and the Detroit, Gralld Haven & .Milwaukee R. R.; said Hull to convey this property clear of incumbrance within 30 days, or a reasonable time, with an abstract shOWing a good title. The said Hull also agrees to convey to a trustee to be aglleed, upon 940 acres of land (more or less) in Clay county; Ar){ansas,as guaranty for the payment of the afore&aidsum of money., It iR
In Equity. ,.
FEDERAl, REPORTER, I
vol. 45.
also further agreed that the said Pitrat shall make a full conveyance of the before-mentioned patents to the said Robert E. Hull, an4 place the same in the hands of the same trustee, who shall hold the title to the sRid 940 acres of land, who shall deliver the said patents to the said Robert E. Hull when he shall pay the said Pitrat the balance of money now remaining unpaid as aforesaid. The said patents are now held by J. S.Blackaller, of Gallipolis, Ohio, as trustee for the said Julins E. Pitrat, and the Detroit Computing Scale Co., of Detroit, Michigan, on a contract which is now forfeited; and this is to instruct the said J.S. Blackaller to so hold the same until6therwise instructed. It. is also agreed that the SRid trustee to be agreed upon shall reconvey the said 940 acres of land to the said. R. E. Hull, or bis assigns, as he may direct, when be shall make thebalancp of payments for said patents. before mentioned. "Signed the day and [Signed] "J. E. PITRAT. [Signed] "ROBERT E. HULL." This contract was recorded at the patent-office at Washington on the 6th of February, 1890. The complainant avers full performance on his part, to-wit, the payment of $1,500 cash at the date of the execution of the agreement, as therein recited, and the tender, Thursday, April 10, 1890, to Pitrat, at his residence, at Gallipolis, Ohio"of $9,200 in United States legal-tender notes, commonly called "Greenbacks." This latter sum, he avers, was reached in the followihg way: There was an incumbrance upon the Jerome Park lots of $1,232.75. The complainant conveyed said lots to Pitrat on the 22d of November, 1889, and the deed was duly recorded in the office of register of deeds of Wayne county, which record was placed upon an abstract of title of the said property at the request of said Pitrat, and the abstract was then delivered to him, showing a perfect title except as to the said incumbrance. Pitrat did not object to the title, nor to the incumbrance, but the written agreement above was. by correspondence so modified that Pitrat agreed to receive remittances of money from the complaillaht in lieu of the complainant's applying such moneys to the payment of the incumbrance, and agreed that in the mean time the incumbrance might remain on the complainant's paying interest, as Pitrat preferred to have the use of the money if the incumbrance would be allowed by the party holding it to remain. According to this modification of the written agreement the complainant, on the 17th of October, 1889, sent to Pitrat$500 by draft on New York, instead of paying it upon the incumbrance, and Pitrat received and accepted it in recognition of the modification of the contract, and in part performance thereof. Subsequently, on December 11, 1889, the plainant, in like manner, sent Pitrat$100, and he received it and treated it as he did the first remittance. The amount tendered by complainant to Pitrat on the 10th of April, 1890, as above shown, included the cash payment, $8,500, provided by the written agreeml1nt to be made on or before one year from October 2,1889, and also the balance of$1,232.75 due on the incumbrance upon the Jerome Park property,.and also the Bum of $10.50 rent collected by the complainant for Pitrat from the tenant of a. house upon part of said property, also all interest upon. the incumbrance; and the complainant avers that the amount of said tender exceeded all
. HULL ·11. PITRAT.
97
of said last-named sums, and fully discharged all obligations upon the part of complainant to Pitrat arising out of said written agreement. The bill further sets forth that Pitrat was sworn as a witness on behalf of the complainant in a suit in chancery in the Wayne circuit court, Detroit, Mich., in which Fleetward Ward was complainant and this complainant was a defendant, and on January 29, 1890, having been sworn before a competent officer, gave and signed his deposition, wherein he testified that he had sold said patent to complainant, and was satisfied with the sale, and that complainant owed him $7,900; that is to say, the 38,500 payment, less the balance on the incumbrance. Between said date, which is the 29th day of January, 1890, when Pitrat admitted complainant's rights, under oath, as above stated, and the 29th day of March, 1890, two months afterwards, when he deliberately violated complainant's rights by nndertaking to sell to the defendant the Dayton AUlographic Register Company, wHh notice as is set forth in that part of the bill, nothing whatever occurred to affect the relations between complainant and Pitrat. . The bill further sets forth that Pitrat did not make a full conveyance of the before-mentioned patents to the complainant, and place the in the hands of a trustee, according to said agreement, although, after its executiou, the complainant nominated to Pitrat as such truslee Alfred F. Moore, of Gallipolis, who hadbeeri recommended for that position by Pitrat. In the mean time, however, and after the execution of the agreement; Blackaller, trustee, mentioned in the agreement as holding the legal title to such patents,· reconveyed the same to Pitrat, under the latter's instructions so to do, so that Pitrat was fully enabled to per. form his contract to convey said legal title to complainant. After complainant nominated Moore as trustee, as aforesaid, he apto Pitrat, requesting him to procure Blackaller to reconplied in vey the 940 acres ofland in Clay county, Ark., to the complainant, that complainant might convey the same to Moore, as trustee, or to such trustee as might be agreed upon, the conveyance to be as a guaranty for the payment of the consideration money for said patents remaining unpaid. Complainant did this because Pitrat requested a reconveyance from Blackaller,:as above stated. Pitrat answered complainant's request by writing to him that Blackaller was not a resident of Gallipolis. On the 31st of March, 1890, Pitrat, by Thomas S. Jerome, of De-; troit, his agent, tendered to complainant a deed of said Clay county lands, executed by Blackaller, trustee, and also a deed of the same lands executed by Pitrat. Jerom,e at the same time exhibited to complainant a power of attorney from Pitrat, authorizing him to revoke the written agreement of October 2, 1889, above set forth, and at the same time displayed a sealed envelope, and tore open the end·of it, saying, "Here is a deed of your Wayne county property, and here is $1,132," but did take out or produce or exhibit any money. Complainant answered that he had always been ready, and was then ready, to carry out his contract with Pitrat, and that he should carry it out, and that he 80 notified Pitrat through him (Jerome.) v.45F.no.2-7
98,
FEDERAJ,.'REP9RTER,
vol.. 45.
On ,thfl 10th of April, 1890; Pitrat, when complainant tendered to him $9,200, as above set forth, and admitted to the complainant that two days before Jerome ,called upon complainant, as stated above, that is to say, on Saturday, the 29th of March, 1890, he had conveyed the legal title to said patents by written deed to the defendant the Dayton Autogl'aphic Register Company, and that the said company had full knowledge of the written agreement of October 2, 1889, between complainant and Pitrat, and all doings under it, and that, nevertheless, said register company had paid him (Pitrat) for said patents, and witho,ut recourse and without any warranty of title from him (Pitrat) to said company, to whom Pitrat stated he had delivered the patents them:selves. The bill charges that the defendant the autographic register company. had full notice of all the complainant's rights, and that he was the equitableowner of said patents by virtue of said written agreement, when it accepted and received, as above stated, a conveyance of the legal title of said patents. The complainant avers that said company holds said title in trust for complainant, and that the conveyance to it was by quitclaim only, and therefore that said company is not a bonafide purchaser witho'\1t notice. The complainant further. avers that the defendant Pitrat ,is financially irresponsible, and that said: patents possess a special and peculiar value, and thattheJo"s of the Same would entail a damage to the complainant which no,authorized measure at the common law would come near satisadvised and submits that he has no plain, adefying, and :tOat he quate, .and·complete remedy,at law; wherefore he prays for a preliminary injunctiQn, which WaS granted, and upon final hearing for perpetual the Autographic Register Company, forbidding said company from claiming any. title under and by reason of any conveyance from Pitrat as alleged in tQe bill, and from making or selling the patented article, or doing any business under said patents. The defendants, by their answer, admit the execution of the contract of October 2, 1889, but deny that the complainant has performed the , contract; that he has paid Pitrat $1,500 cash, as stated in the contract; that Pitrat accepted the deed of the Jerome Parklotsj that said deed conformed to or was in Moordance with the terms of the contract: that Pitrat delivered, ,or authorized or consented to the delivery of, the deed 89 imperfectly executed,and made subject to said incumbrance to be recorded; and that he fully accepted said deed. They deny tbat said written agreement was modifi,ed as averred in the bill, or that any modification or. change of anykindv.vas ever made in said. contract, or that the sums of $pOQ or $100,or either of them, was paid to or received and accepted by Pitrat in recognition of, or. in part performance of, any modification of said contract. . The defendants further deny that Pitrat testified in his deposition, referred to in complainant's bill, that he made an absolute sale of his ents to the complainant. pr that the complainant had performed or plied with said contract) and that he (Pitrat) was satisfied therewith,
admitted complainant'srights.on:contrary ,they aver that the complainant refused and neglected to perform said contract.',! .. ' ; .. They, further aver that the reassignm:ei:J.fof Baid patents by Blackaller was received by Pitrat,arid' by him forwarded-to the patent-office' at Washirigton for record, and when Pittat; in February:,1890, lie being dissatisfied with the negligence and ihdifference of complainant for his own to the performance of his 'part of said protection, not t6 place said patents in the handf!l' pf another truste'e until complainant should perform his part of contract by releasing the incumbrance upon the Jerome P:ark lots; and' accordingly he retaineif possession otsaid patents. '. , On the 29th of March, 1890, constituted Thomas S. Jerome'his rescind and revoke said contract ofOetober 2, 1889, and said rescission was made by said Jerome on the 31st of March, 1890; and a tender then made by said Jerome on the 31st of March, 1890, and a tender then made 'to complainant of all that Pitrat had received from him, to-wit, a quitclaim deed for the Jerome Park lots, a deed from Blackaller, as trustee for the Arkansas lands, 'and the sum of $1,130.55 in money, the sum of $500 paid toPitrat at the date of the contract,$500 sent by complainant to Pitmt October 17, 1889, $100 sent to Pitrat December 11, together with interest on each of said sums from the respeotive dates stated to March 31, 1890. The defendants further answer that Pitrat, on March 1, 189U, notified complainant by letter that he had not made any agreement to receive any payment upon the amount of the incumbrance of the Jerome Park lots, and had not agreed that said incumbrance should, remain thereon, and in lieu of its removal the money should be sent hy complainant to Pitrat, and then notified complainant that he should like him to remove said incumbrance as he had agreed to do. They further aver that Pitrat had unsuccessfully urged Hull to remove said incumbrance from said lots, and on February 13, 1890, haa notified complainant that his deed for said lots was not acceptable, and would not be received by him; thatfrom and after the 22d of February, 1890, Pitrat received no communication of any kind from the complainant in reference to said agreement, and, having no answer to his letter of March 1, 1890, he regarded the agreement as abandoned by complainant, and that he (Pitrat) was entitled to the rescission thereof, and accordingly that on the 31stof March, 1890, after said rescission, sold said patents to the defendant the Dayton Autographic Register pany; that, the sale was consummated and closed up after said notice of rescission and tender, and the purchase money therefor was paid by the defendant the Dayton Autographic Register Company to Pitrat, The defendants further aver that complainant utterly disregarded the notice fromPitrat contained in his lettin'of March 1,1890, above referred to, and· no of, any kind was received from complainant until April 10, 1890,'whenhemade the tender to Pitrat as alleged in the 1?ill; but defendants deny that Pitrat admitted that he had conveyed the legal title to Said patent'to the' Dayton Autographic Regis-
100
J'EDERAL REPORTER,
Company on 29, 1890, and had delivered the patents to said .. company. The answer admits that the defendant the Dayton Autographic Register Company, having knowledge of the agreement of Oc.tober 2, 1889, between complainant and Pitrat, and full knowledge of complainant's default in the performance thereof, and believing that he had abandoned it, and that Pitrat could rescind it, rlid, on March 31, 1890, after said notice of rescission and tender by Pitrat, pay to him a part of the consideration for said pll.tents and take an assignment thereof, and is now the owner and holder of the same. The defendants further deny that complainant is the equitable owner, or has any interest in said .patents. There are other averments, which may be referred to in the opinion, but it is not necessary to set them forth in the statement of the case. Alfred RusseU and Young Young, for complainant. John A. McMahon and GottschaU Brown, for defendants. SAGE, J., (after IJtating the/acts as above.) The first contention between the parties is whether the contract of October 2, 1889, is an executed or an executory contract. Pitrat agreed "to sell, and does hereby sell," to Hull the patents, which are the subject of controversy, for $60,000, payments to be made by Hull, as agreed by him in the contract, of $1,500 cash in hand, the receipt of which is acknowledged, and the further snm of $8,500 on or before one year from the date of the contract, with 6 per cent. interest" on all sums remaining unpaid at the expiration of six months from this date," also 200 lots at Jerome Park, within 30 days, or a reasonable time, with an abstract showing a good title. Hull also agreed to convey the Arkansas lands to a trustee as a guaranty for the money payments. It was also I1greed thl1tPitrat should make a full conveyance of the patents to Hull, and place the same in the hands of the trustee, to whom the Arkansas lands should be conveyed, to be delivered by him to Hull, when he should pay Pitrat the entire money;consideration. Upon the authority of the Elgee Cotton CaseB, 22 Wall. 180, 194, this must be regarded as an executory contract. The court, in that case, approve and adopt the statement of the law by Benjamin in his treatise on Sales, at section 320, as follows: "Where the buyer is by the. contract bound to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer." The contract required Hull to remove a mortgage incumbrance of $1,232.75 from the Jerome Park lots. It is claimed onbehal£ of the complainant that the contract was in this respect modified, Pitrat agreeing that, if the holders of the mortgage were willing to let it remain, the money might be paid to him, and he would accept the deed subject to the incumbrance. Pitrat and Hull are in conflict with reference to this modification. It is not disputed that Hull,. on the 17th of October,
ter
HULL 'V. PITRAT.
101
1889, sent Pitrat $500, and on the 11th of December $100, by draft on New York. Hull testifies that those remittances were made under the modification of the contract, instead of applying them towards the ment of the incumbrance. Pitrat's testimony is that he understood that the money was paid on account of the $8,500, which was to be paid within one year from the date of the contract. The complail1ant's state,ment is, llntitled to the stronger. weight, because it is in harmony with the correspondence between him and Pitrat, and with other undisputed facts in evidence. He testifies that before he left Gallipolis, Ohio, where the agreement was drawn and executed, at Pitrat's home, it was understood, after it was signed, that it should be modified as above, provided the mortgage could remain. Almost immediately after his return to Detroit,he wrote to Pitrat, under date October 5, 1889: "1 got here Thursday night about eight o'clock, the train being late. Yes. terday I looked up interest on Jerome Park matters. TlJe interest on the part lam to convey to you is not due until the 1st of November, but I shall pay it to-day. They at the bank said they would prefer to have the incumbrance on that property remain, as the security was desirable. I will have the abstract brought down to date as soon as I cau, (in a short time,) and send to you. 1 will also make a deed to the property, and get our business closed." It appears from the testimony that the bank held the mortgage on the Jerome Park lots. On the 7th of October, Hull wrote to Pitrat that he could send him $500 at any time. No objection was made by Pitrat to either of these statements. On the contrary" in his letter, acknowledging the offer of tnA $500, he stated that it would prove very acceptable, for it would "fill up a hole that I have been in a quandary to know how to fill." Pitrat, in a letter to Hull under date January 6, 1890, referring to his desire to adjust matters with persons to whom he had agreed to convey a part of Jerome Park lots free of incumbrance, requests Hull to obtain a release of the incumbrance from the bank, saying that it would greatly oblige him, and "put him on his feet," but he makes this rather as are.. quest than as a demand as of right under the contract. Hull, in a)etter to Pitrat, dated February 22, 1890, recalls to him t,hat he stated to him on the day of the date of the contract that the incumbrance was drawing only 6 per cent. interest, and could remain as Jong as desired, and that if he preferred to use the money to having the mortgage paid he WQuid pay it to and would pay the interest on his return to Detroit, which he did before it was due, and that Pitrat eaid that he would prefer the money, and then goes on to recite the facts substantially as stated above, and adds: "Now, Mr.Pitrat, I was not by our contract to pay you any more money until one year from October 2, 1889. I have paid you some, and will pay you tile balance of the amount, $1,232.75, or you may return what I have paid, and I will pay the mortgage. It is immaterial which way I may do. It is so much money either way." . '
Pitrat did not accept Hull's proposition, nor return the money I and . '. the mortgage incumbrance was not paid.
102
j More than this. Hull mailll<l the abstrapt of title to the J:el'ome lots to Pitrat on the 25th of NQveUlber, 1889. Counsel for Pitratcallsat· -tention to the fact that in that letter Hull stated that the title was" all right, except we may wanta quitclaim deed from the Detroit Savings Bank, which they will give." But what follows immediately makes the meaning perfectly clear:
"This to release a tax-deed which was taken in the interest of George Jerome. of whOm I purchased the property, who gives warranty deed, and is worth $1,000.000." On the 10th of Decem ber Pitrat writes to Hull, pointing out errors in the abstract, but t1).ereis nothing in that letter·inreference to the failure to have the lots released from the shown by the abstract. In passing it may be remarked with reference to the suggestion that Pitrat is an old and infirm man,subject to be easily dUPlld"that his letter is sufficient evidence of the clearness and strength of his mind, as well as of his business sagaoity. These characteristics appear in all his ll:'tters, and completely dispose of any suggestion that he was not fully able to take care of his own interests. . On the 13th of December Hull wrote, inclosing his deed for the lots, which he had caused to be recorded. In the same letters he answers Pitrat's suggestion about the errors in the abstract. On the 16th Pitrat wrote to HuH, acknowledging'the receipt of the letter last above. Counsel for the defense say that in this letter Pitrat requested the release of the mortgage incumbrance on'the lots. I do not so understand it. He says: "In my last letter I aUuned to release deed from the Detroit Savings Bank." He further states that one of his reasons for desiring to have that release at an early date was that he was under contract to convey a certain number of lots, clear of incumbrance. The reference is clearly to the tax-title held by the bank, for that was the matter referred to in his previous letter. He said nothing about the release of the mortgage claim. As his vendee would have the right to insist that every other lot of the 200 should be first sold, and the proceeds applied to its discharge,it was not probably regarded as practically any incumbrance, so far as he was concerned, but the taxdeed was for all the lots, a.nd may have been regarded as a very serious incumbrance. If he had not modified the contract in respect to the mortgage, it was his duty to decline to receive the deed. But he did receive it, and retain· it, until he presented it and had it attached to his deposition given in this cause. n appears from the testimony of Hull that when he made the contract with Pitrat he had money in bank more than suffioient to pay the mort;. gage on the Jots. I cannot understand why, if the mortgage was not to remain, he should pay the interest upon it in advance. He could save time the nothing in the way of interest by anticipating at of any portion of the 88,500, because interest on that sum was not to begin to run until six months after the contract. My conclusion is, therefore, that the contract was so modified as to substitute the payment of , '
HULL 11. PITRAT.
103
the amount of the incumbrance to Pitratforthe payment of the inc"ilmbrance itself. See Railroad 00. v. Trimble, 10 Wall. 376, 383, where the court, by Justice SWAYNE, says: "The most solemn contracts under seal, where the statute of frauds is not involved, may be changed or abrogated bya new parol agreement, express or implied; and a contract within the statute maY,be taken out of it by the conduct of the parties." The bill is for specific performance. Although generally equity will not decree specific performance of contracts relating to personal property, forthe reason that an action for damages affords an adequate remedy; agreements for the assignment of patents, for the delivery of chattels which can be obtained only from the vendors, and for the renewals of leases, will be enforced, on the ground that otherwise irreparahle injury may be inflicted. Hapgood v. R08fJIUJtock, 23 Fed. Rep. 86; Ne:w York, etc., 00. v. Union, etc., Co., 32 Fed. Rep. 783; Pennsylvania R. (Jo. v. St. Louis,· etc" R. (Jo., 118 U. S. 290, 298, 305, 6 Sup. Ct. Rep. 1094; 3 Rob. Pat. § 1228; Adams v. Messinger, 147 Mass. 185, 17 N. E. Rep. 491; Sauerthwait v. Marshall, 4 Del. Ch. 337; Reese's Appeal, 122 Pa. St. 392, 15 At!. Rep. 807. But it is urged that the contract was rescinded. It appears in testimony that on the 29th of March, 1890, Pitrat gave to Thomas S. Jerome, of Detroit, a power of attorney: in which he expressed his desire and intention to rescind and annul the contract, to renounce all rights, claims, and obligations under it, or in any way out of it, and to return to Hull every part of the consideration received from him, on the ground that he had utterly failed neglected and refused to carry out his part of the contract. He therefore gave to Jarome full power to return and tender to Hull deeds for the lands conveyed by him, being the Jerome Park lots; also for the lands in Clay county, Ark., which Blackaller had conveyed to him, (at precisely what date does not appear,) and also all the money received from Hull, giving Jerome full power to act for him and do everything necessary in the premises, including the execution , of deeds and indentures. On the 31st of March, 1890, Jerome called on Hull at his office in Detroit,and, having shown him the power of attorney, stated that by virtue thereof-he had certain deeds and some money to tender him on behalf of Pitrat, who, he wished to announce, utterly rescinded and annulled the contract of October 2, 1889. Then Jerome handed Hull two deeds, one from Blackallerto Pitrat and one from Pitrat to Hull, of the lands in Clay county, Ark. Hull received these, saying that they were what he wanted, and that he had written for them. Then Jerome handed Hull a deed from Pitrat for the Jerome Park lots, which Hull declined to receive. Jerome then produced an envelope, containing $1,130.55, in legal-tender greenbacks and coin, tearing open the end of the en velope, bringing the bills part way out, and sayin'g, "Mr. Pitrat wishes to return to you the money he has received from you in this matteI', with in- , terest to date, "and handed him the envelope with the money, stating the amount as above. Hull said he did not question that Jerome had
104
FEDERAL REPORTER,
stated the amount correctly, but declined to receive it, remarking that he did not want it; that it belonged to Pitrat. He claimed also that he had paid Pitrat $2,100. Jerome l!-sked if he included in his $1,000 paid Pitrat in June, 1888, on an option for the purchase of the patents, then held by Mr. Ward and Mr. Wilson. Hull said that he did, and notified Jerome that he Was ready to carry out his contract with Pitrat. This notice Jerome declined to receive, on the ground that he was not authorized by Pitrat to receive any notice. Hull, on the other hand, expressly declined to receive the Jerome Park deed and the money, and stated that his contract with Pitrat was in force, and that he should insist upon it. Jerome then deposited the money with McLellan and Anderson, bankers, of Detroit, to the order of Hull, as he notified Hull he would do, to be delivered to him upon his request, and gave him notice thereof. Jerome in his deposition that at the time of the tender referred to he did not demand from Hull a performance of his conand in answer to the question whether he called Hull's tract with attention to any respect in whichPitrat claimed he had not performed" and asked him to perform in that respect, stated that according to his reC'ollection he said that Mr. Pitrat considered that the contract of October 2<3, had not been qarried out by him. On the same day he telegraphed the substance of his interview with Hull to Mr. Gottschall, of Dayton, who was counsel for the defendant the Dayton Autographic Register Company , which company, Jerome testified, intended to buy Pitrat's patents as soon as he was in position to sell them. Jerome further testifies that the power of attorney was made and delivered by Pitrat to him at Gallipolis, Ohio, on the 29th of March, 1890, Mr·. Gottschall being present, as attorney for the register company, with Mr. Crume and Mr. Kirby, both interested in anel also representing that eompany, and that the $1,130.55 tendered to Hull was·furnished Pitrat by that company, which then had an agreeement in writing with Pitrat for the purchase orthe patents. To make the statement of the case complete, it is now necessary to reo fer to certain other contracts made by Pitrat prior to October 2, 1889. The first was dated June 1, 1889, and was with Ward and Wilson, for the sale of these same patents. It provided for a consideration of $1,000 to be paid within 30 days. That money was paid. It further provided that Pitrat should transfer the full and complete ownership of the patents by deed to Blackaller, as trustee, and that upon the performance of the conditions by Ward and Wilson, Blackaller should assign them to John T. Mulheron, Hull, Ward, and Wilson. The contract further provided that if Ward and. Wilson (who stmted themselves and Hull and Mulheron) should fail to perform the agreement, the $1,000 should belong wholly to PHrat. On the 24th of October, 1888, a new agreement was entered into by . Pitrat with the Detroit Computing Scale Company. It recited the execution of the agreement of June 1, 1888, and that, on June 29, 1888, Pitrathad executed a deed of trust for the patents to Blackaller, he to
HULL tI. PITRAT.
105
convey, if the contract was complied with, to Mulheron, Rull, Ward, anti Wilson, who subsequently associated themselves together and formed an incorporated company under the name of the "Detroit Computing Scale Company," and transferred to said company their rights in the patents; wherefore it was agreed that the scale company should buy and Pitrat should sell all his right, title, and interest in the patents, subject to the provisions of the Mntract of June 1,1888, with Ward and Wilson, excepting that the time for payment and performance on the part of the Rcale company was extended for six months from December 1. 1888, and it was agreed that Blackaller should convey to the scale company instead of to the parties named in the first agreement. The time fortha expiration of this contract was fixed at June 1,1889. It was signed by Pitrat and by the scale company, per Hull, vice-president and general manager. On Mayll, 1889, an agreement was entered into between Pitrat a.nd the Detroit Computing Scale Company that Hull should within 10 days convey to Blackaller in trust the Arkansas land, and that Pitrat would then extend the time for payment and performance of the contract by the scale company to October 1,1889. This contract; which was signed by Pitratand by Hull, further provided that if the scale company should then be in default, Blackallershould convey the Arkansas lands to Pitrat, and the same should be his sole property. On the 17th of May, 1889, Pitrat, Without any cOilsideration, agreed with Hull. that in the event of the failure of the scale company to carry out its agreement on or before October 1,1889, Hull, for himself, shoUld have 10 days within which to carry it out for his own benefit, subject to the conditions and stipulations binding upon the scale company. The conditions of the contract with the seale company were not performed by that company, and on the 2d of October, 1889, Hull made the contract upon which this suit is based. . The nextfailure alleged against· Hull i8that hedid not pay the 81;500 in cash, the' receipt of which is acknowledged in the contract of October 2d. Hull testifies that the 81,000 which he had paid on account of the previous contract was included in and by consent made part of the $1,500. He is undoubtedly right in this claim. That there is no consideration for his agreement with ,Pitrat of May 19th iilof no consequence. had individually paid the $1,000. That contract was' effective as's waiver of the forfeitures under the previous contract, and the rights of the parties now rest upon the contract of October 2, 1889, which was upon a new and different consideration.. ''['he previous contracts called for the conveyance of 150Jerome Park lots.. The contract of October 2d called for the conveyance of 200 Jerome Park lots. The acknowledgmeLt in the contract of October 2, 1889, of the receipt of 81,500 by Pitrat, over his own signature, is so strongly corroborated as to settle it, in my opinion, that Hull's account of the transaction is correct. The objection that Hull did not remove the mortgage incumbrance upon the Jerome Park lots has already been disposed of. lt is also objected that hedid not convey the Arkansas property as he
106
FEDERA.L RE('ORTEa, vol.
45.
to d,o. This objection is not tenable. That property 'was to be copv:eyed to a trustee. llull nominated. a trustee, AlbertF. Moore, of Ga-llipolis, who had heeJ;l suggested by Pitrab Hull's son saw Moore, who signUiedhis willingness to accept the trust, and Pitrat was so notified. It appears from .Pitrat?s, own testimony that he obtained from Blackaller a reOO,J;lyeyance of the patents about. December 16, 1889. There seems to been no good reason :why he did not at the, same time obtain the reconveyance of the Arkansas lands. He did in fact obtain that reconveyanGtl later, but did not offer to convey to Hull, nor to Moore, as neither did ,he tranafer the patents to Moore in trust. Pitrat's agreel;l1ent to so the patents in order that they,might be transHull was concurrent with, Hull's agreement. to convey the Arltanaas. bod to the sametrqstee, and so long as he was in default in respect to the transfer of the patents, and did not offer to make that transfef. 1J.Q; l1ad no complain of Hull's failure to convey the land. More especially had he: no such right when in fa.ct,.before he undertook to ref;lciQd j .Blackaller hadconveyed.the land to hini,andhe himself held thetitJ,e. . ' . :. : , Right here it .may be remarked that equity, undedhe:provision of the req1,1iring Pitrat to transfer the patents tof'l1 trustee, as above, would reg4rd Pitrat;/upon his failure to make that'transfer, as himself holding the patents in trust for theJ>enefitofHull.subject to the provisions 004e: Gop,tract. This'consideration alone would. be ample to maintain the:equitablejurisdiction of thiscourt,tb enforce the.contract. rhere another item of testimony bearing upon the .question of the must not be lost sight of, for it condemns right o£l;>itrat to rescind him out of his own mouth; In his deposition given on the 29th of J anQf,Ward v. Detroit Computing Scale Compq,nyet al. , uary, J890, in the he testified .that HuUowedhim upon this very contract the sum of $7,900, thereby recognizing it as in full force and effect long after the for which:he subsequently claimed to rescind it. As to alleged the effector this testiU).ony in that suit, see Olough v. Railway Co., L. R. 7 Exch. 26, and Gray v:. Fowler,L. R 8 Exch. 249, 280. There is :Qocase here f()t rescission. Theoontract contains no provisionJor re5cil\8ion. No fI,'aud is shown. Hull,w,ll,s not in default. If be hll,d beenfl;>itratwould'have had no right to complain, for the rea· lion that he was at least equally in default, and that after he was fully aware of Hull's default he affirmed the contractby,his testimony in a suit relating.to these same patents, to which Hull was a party. It is not. denied that On. the 10th of April, 1890, Hull tendered to Pitmt full performance of all the terms of the contract. 'fhat the defendant the. payton Al;l,tographic Register Company became a purchaser with llotice of Hull's eql;lities is.an admitted fact. . Indeed, it may be fairly .(lpI).<;luded from :thetestimony that Pitmt's desire to his contract.with Hull, and the. steps taken to accomplish that end, were suggested and stimulll.tedby that cOnlpany and its agents in their eagerness to secure the patents. The objection that Hull han no title to the Jeroxpe,Park lots is not; in. my opiniou., sustained.. . 1 am clearlyofthe
is
107 opiniofl;,thatthe equityof.ihis case with the oomplainant, and the decree will be in his favor, according to the prayer of the bill, with costs.
UNITED STATES 'V. GAYLE.
(DtBtrlct Court, E. D. South. CGh'olina. January 80,1891.) 1. SERVJOI!l OJ' PRoCEss-EvIDENOE.
An affidavit by a deputy-marshal, indorsed on an original writ of personal service thereof on the defendant, prevails over the defendant's denial that the writ was eVer served, where the occurrence took place 18 years before.
AOTIONS ON JUD&),(ENTS-RBS ADJUDICATA.
In an actiOn on a judgment, where the order for judgment recites that "this writ , having' been peliBonally Berved on the defendant, and no appearance having been entered," etc., defendant cannot contend that she had no notice of the original suit, and that the bond on which it, was brought against her as surety was void as to her because of her coverture at the time she executed it.
At Law. Action by the, United States against Mittie Gayle. Abial Lathrop,D. S. Atty. T. J. Kirkland and a. B. Narthrop, for defendant. SIMONTON,J. The plaintiff sues upon a judgment obtained by de.: fault against the defendant in this court, entered 3d August, 1872, in the sum of $532.58,and offers the record in evidence. The defendant in her answer denies that she was ever served with the writ in the original case, or that she had any notice whatever of the suit. She also av,era that the cause of action was the bond of her hushand as postmaster, dated in 1867, that her nameappea-rsas his surety, but that she was then a married woman, under disability as such; and that the bond was void. The record in evidence has indorsed, on the writ the affidavit of the deputy-marshal that he served the defendant personally. There is excellent authority for the position that the return is conclusive as to the parties to the action. Mudree; Sher. §8G8, and cases quoted in note 2 Crock. Sher. § 44, p. 30., decidiqgthis question as a matter of fact, the contemporl1n'etitis entry'made by the deputy-marshal of an occurrence 18 years ago prevails with me ove,r the recollection of the de-' fendant. I am ofthe opinion that she was properly in court. The order for 3d Atigust, 1872, "This writ herein havbecn personally served on the defendant, and no appearance having been entered," etc. This being so, and the action being on a judgment, her defense cannot avail her. " " When it appears upon the record that, the court had jurisdiction',of the person of the defendant, it cannot be'controverted.'We8terweltv. LewiJJ, :2 McLean, 514·. It isa maxim in law that there can no in Of,lf. there maybe, agafnsfitsJoperatioIC' Therefore no matterea-n be plt:aded which existed
