PEELER V. LATHROP.

787

jurisdiction of the court; but a short consideration tnay be necessary. The objection to the jurisdiction was not well taken, as we have hereinbefore shown. The bill was subsequently dismissed in so far as it claimed damages for lands sold for taxes, so that the third ground of demurrer need not be considered. There remains the second ground, charging that the allegations of the bill in regard to the demand for rents lost through the failure and negligence of Peeler in his life-time to collect, are insufficient, vague, indefinite, and uncertain. This ground of demurrer should have been sustained. The bill merely states in this regard" that said Peeler had neglected said business, and hence had Jailed to collent rents that, with diligence, he might have collected," and was clearly insufficient as the basis of a liability. As, however, no testimony appears to have been taken on account of failure to collect rents, and as such charge was totally disregarded in the court below by the judge deciding the case, it does not appear that the demurrer needeut much figure in the consideration of the appeal in this court. This brings us to. the main complaint of appellant, substantially that on thebBl, answer, and proof as made in the circuit court the appellee is not entitled to a decree for any sum whatever, appellant contending that under the agreements made by Peeler no trust relation was created, 80 far as the lands and the rents thereof were concerned, and that the agreement with Mrs. Butler to credit rents in the contract of 1873 was without consideration, and that claiins for rent under it are barred by the statute of limitations. The view we take of the case is this: The original transactions between B. J. Butler and Peeler created a trust in Javor of Butler for the two acceptances translerred by Butler to Peeler as collateral security for the payment of Butler, Terry & Co.'s debt to Peeler, and by the express terms of the documents in writing passed between the parties the trust and covered the mortgaged real estute when the mQrtgage securing the acceptances was foreclosed by Peeler, and he bought in the mortgaged property. From the date of purchase under the foreclosure the lands bought by Peeler thereunder took the place of the acceptances, and Peeler's title thereto was that of trustee for thesecurity of his debt against Butler, Terry & Co. He fully acknowledged the trust in the agreement entered into in 1873 with Mrs. Butler, and again when he made the settlement in 1888 with the complainant. In the agreement of 1873 his rights as trustee were more clearly defined. and his liabilities enlarged, than in the original agreement. The made in 1888 seems to have been on the basis of the agreement ofl873, and the settlement W8$ to the effect that the rents Peeler had received were sufficient to extinguish the debt due him by Butler, Terry & Co., as welll!.s the taxes paid, by him, and his outlays, charges, and expenses, in<.lluding Qompensation. No account was stated, nor vouchers exhibited; in fact, no account could have been stated, as Peeler's papers .and accounts had been destroyed by fire. The case shows that Peeler represented that he had received rent about equal to paying the debt, and

788'

FEDERAL REPORTER,

vol. 48.

then offered to and did convey the Jands in question to the com1"Iainant, w:hoaccepted the same, giving full acquittance. Underthepleadingsand prooftnere are two serious difficulties intheway of a recovery by the appellee: (1) Although a full account of the trust is prayed for in the bill, on the theory that the settlement of 1888 should be avoided on account of Peeler's misrepresentations in making the said settlemt;mt; yet no account has been taken, or sufficient proof offered, to show that ona full account Peeler's estate would be indebted in any sum. The case, in this respect, at best, for appellee, only shows that Peeler said that he had not collected any rents at all from the Upper place, when in truth and in fact he had collected about $1,200. It seems clear that appellee:cannot recover solely on the ground that Peeler made false representations which appellee believed, and that he collected rents from the Upperiplace. Unless Peeler collected rents from all the lands, sufficient to more than pay the Butler, Terry & Co. debt, with interest, costs, outlays;(andcharges, appellee cannot recover. (2) The proofas to false representations by Peeler is not sufficient to overthrow the !!leWement of 1888. The bill· alleged the false representation in terms, and called on the defendU;TIt to answer under oath. The defendant answered, on oath, deny'" ingfully and specifically that Peeler made the representations alleged in the bitl,tobefalse and untrue.' The appellee's proof on the point consists oithe testimony of only one' witness,--that of her attorney and solicitor, Mr; Marshallj and there are np corroborating ciroumstancessbown sufficient to defeat the sworn answer. The only corroboration claimed is that Marshall also testified that he sent Peeler a letter,in which he said that Peeler bad represented in the settlement that he had received no rents-from the Upper place, lind Peeler had not answel'edthe letter. We notice; however, that the letter of Marshllll referred to was one in answer to a previous letter of Peeler in regard to seizing some cotton from the Upper place, and apparently required no answer, In our opinion, no presumption arises against Peeler from neglecting fua'llswer. When the answer to a' bill is required to be made, and is made, undet oath, and is responsive to the allegations of the bill, such allegations must, to entitle complainant ta relief, be sustained by the testimony of two witnesses, or of one witness corroborated byciroumstances which are equivalent in weight ,to the testimony of another witness. See 2 Story, Eq. Jill'. § 1528jVigelv. Hopp,104U. S. 441; Railroad Co. v. Dull, 124 U. S0'175, 8 Sup. Ct. Develnpment Co. \T. Silva, 125 U:S. 249, 8 Sup; Ot; Rep. 88l;Bea18 v. Railroad Co., 133 U. S. 295, lo-Sup. Ct. Rep. Our judgment is that the complainant in the court below failed to establish'RcaSefar equitable relief, and that the decree:in her favor was erroneous"and should bereversedj and that, on the case as made, the defendant should have had a deoreedismissing the bill, The decree ap:pealed from ,is therefore reversed, with costs, and the remanded, with instructions to dismiss the bBl.

FOWL1!: V. PARK.

789

et 01.

FOWLE

et al.

tI. PARK

(Circuit Court, S. D. Ohio, W. D. January 22,.1892.,

1.

BREAOH OF CONTRAOT-SALE OF PATENT MEDIOINE-DAMAGES.

Where one advertises and sells a proprietary article in a speciil.ed territory in violation of contract the other party cannot recover as damages any moneys spent by him in advertisinl'( for the purpose of counteracting the effect thereof, since he might, in the first instance, have resorted to the courts for the protection of his rights. In a suit for injunction and an accounting for violation of a contract not to sell a proprietary article in a specified territory, belonging to complainant, equity cannot decree an accounting for losses suffered by complainant b;V reason of reducing the price to meet defendant's competition. The IS limited to profits. .' "
'

2.

SAME-AocOUNTING.

&

SAME-'-REMOTE DAMAGES.

Even if such damages were allowable generally, losses incurred by continued sales at the reduced prices after defendant had withdrawn from the territory would be too remote to merit consideration.
SAME-CALCULATION OF PROFITS.

4.

formUla, the profits for which an accounting can be allowed must bflcomputed

Each party having manufactured the article for himself according to the same

upon the basis of the actual. cost to defendant, and not to plaintiff, of making and selling the article; since the selling of nostrums of this character depends less upon intrinsic merits than the expedients used to recommend them to the public, which fact renders the cost of selling by one party no criterion of the cost to an· other.

5.

SAME-INTEREST,

In an accounting forprofits.made by selling a proprietary medicine in a specified territory contrary to a contract, interest should be allowed, for though the liability is ex deUctu, it arises upon a contract.

06.

LAOHES-ExcUSE.

One who knows that another is selling a proprietary article in a certain territory in , violation of a contract between them, cannot justify a prolonged sleeping upon his rights on the ground that he has not sufficient knowledge of the details to bring suit, since he could bring suit by stating the facts generololly according to hisknowledge, and by means of interrogatories have a discovery of the details from the other party. The delay in bringing suit should only operate to reduce the time for which an accountiIlg.could be had to the time fixed by the state statute of limitations for actions on written contracts.

1.

8.

SAME-STAtUTE OF LunTATJONs.

JUDIOIAL NOTICE-SELLING NOSTRUMS.

The fact that the selling of proprietary medicines and nostrums depends less upon the merits olthe medicines themselves than upon the expedients used to recom· mend them to the public is so notorious that the court will take jUdicial notice thereof. A discharge in bankruptcy releases the bankrupt from,liabUty for' breach ofa contract with l\ creditor who assented to the composition, although the creditor had no knowledge of the breach at the time of giving his asseIlt.· , A debtor who fails to plead his discharge in bankl')lptcy waives the benefit thereof.

'9.

BANKRU1'TCy-EFFECT OF DISOHARGE.

10.

SAME-PLEADING DISOHARGE.

In Equity. Bill by Seth A. Fowle and Horace S.Fowle against John D. Park,Ambro R. Park, and Godfrey F. Park for an injunction and accounting. The defendants filed an answer and a cross-bill for an injunction.Both the bill and were originally dismissed by .the .circuit court. On appeal by complainant the decree was reversed. 9 Sup. Ct. Rep. 658.Subseqnently a perpetual injunctionw.as allowed :against· defendants; and the' cause waS· relimed to a master for an ;ao- .