FEDERAL REPORTER,

vol. 51.

Bimilar:rulings have been made,' hs where ::;etvice was made another in which the suit was brought, (Parrott v, Insurance Co., state Wilson v. 36 Fed. Rep. 154,) or upon a nonresident while upon compulsory attendance UPOrl a court of the state, as defendant in a 'criminal prosecution, (Blair v. Turtle, 5 Fed. Rep. 394,) or as a witness, (Atchison v. Morris, 11 Fed. Rep. 582; Small v. Montgornery, 17 Fed. Rep. 865,) or was temporarily in the state on his way to the national capitol, as a member. of congresS. The authorities are well summarized in a late work on judgments. Black, Judgm. §§ 220-222, 906, 997. But it is Ilot proper to dismiss this suit because of this void service. The most thrtfshould be done is to set aside and vacate the service. The plaintiff has aright to sue anywhere he may choose. Whether he can get service of process may be another matter. If he does, he may go OIl. If he does not. he may dismiss until he can find the defendant within the jurisdiction. There is no penalty attached to defective service that the suit shall be dismissed. It is enough to'set it aside. Whether the defendant, who may, as we have seen, specially appear to vacate a void service, may also specially appear to move to dismiss for want of prosecution, or because the plaintiff has been unable to find him within the jurisdiction, or because it is shown that he is a nonresident, need not be nowdecid.ed. Possibly he cannot. If he specially appear and move to dismiss when he should only have moved to set aside the proper service, the court will not treat him as waiving service by his improper motion, but will vacate the service. That was precisely the case in HarkneB8 v. Hyde, Bupra, and the supreme court went no further than to order that. the service be set aside. The Jsame order will be entered in this case, and the three other cases just like it, depending upon the same illegal service. So ordered.

in

DAVIS

&

RANKIN'BLDG.

&

MANUF'G

Co. ".

BARBER

et at.

(Circuit Court, D. Indiana. June 28. 1892.)
1.

CONTRACTS-CONSTRUCTION-JoINT AND SEVERAL.

9.

Plaintiff entered into a written contract Whereby it agreed to erect and equip a bntter and cheese factory for $4,500; the party of the second part stipnlating that "we, undersigned subscribers hereto, agree to pay the above amount for said butter and cheese factory When completed.'" The subscribers also agreed to incorporatewith a capital $tockofnot less tban ,$4,500, the shares "to be issued to the subscribers hereto in propol'tion to their paid-up interests herein; and itis further agreed that each stookholder shall be liable only for the amount 'subscribed by him. "'1'0 this was attachEld a heading for, subscribers, thus: "Names of Subscrib:ers. No. of Sbares. 4mount of Stock ,after Incorporation." Sixty-one persons severally subscribed this contl'act, for amounts val'yingfrom $25 to $100. Held, that, notwitbstanding thl'luseof the wonfs, "We agl'ee to pay." the contrac.t was several. and not joint.. Dwvi8 v. Sha!er,50 Fed. Rep. 764. disapproved.
. '.

SAME.

The prOVision ,that "each stockholder shall be 'liable only for the amount subhim, that the contract several, and it cannot be regarded as merely reg'ulating the rights of the stockholders among themselves.

DAVffi & RANKIN BLDG. &
8.

SAME-BREAOK-DEOLARATION.

CO. V. BARBER.

149

A declaration for breach of co.ntract alleged that plaintift entered upon its performance. and expended large Bums of money therein, and was willIng to do everything required by it, but that defendants, the subscribers, refused to allow it to build the factory; that defendants' acts were wrongful. and caused damage to the plaintift in the sum of $4,500. Held, that, as all plaintift's rights grew out of the several contract, these allegations could not be considered as making out a joint cause of action.

At Law. Action by the Davis & Rankin Building & Manufacturing Company against William W. Barber and others for breach of contract. Heard on demurrer to the declaration for want of jurisdiction. Demurrer sustained. Shirts &; Kilbourne and J. B. Cockrum, for plaintiff. Jas. A. McNutt and Geo. A. Knight, for defendants. BAKER, District Judge. The declaration is in: a single count against ihe subscribers to a contract to recover damages for its breach. Following proper allegations as to citizenship, it is alleged, in subs' _'nee, that on the 20th day of July, 1891, the plaintiff's assignors, Da\'J:;& Ran.; kin, entered into a written contract with the defendants to build and equip for them a combined butter and cheese factory at Saline City, Clay county, Ind., according to agreed plans and specifications j that lJlaintiff entered upon the performance of the contract, and expended thereunder .a large sum of money for labor and material, and was ready and willing to complete everything required by the terms of the contract jthat the defendants refused to allow plaintiff to build and equip the factory j that the acts of the .defendants were wrongful, and caused damage to the plaintiff in the sum of $4,500. The parts of the contract, which are made part of the declaration, material to the present inquiry ,are as follows: "We, Davis and Hankin, party of the first part, hereby agree with the un· .dersigned subscribers hereto, party of the second part, to build, erect, complete, .and eqUip for said party of the second part a combined butter and cpeese at Saline City, Indiana. * * * 'fhe parties of the second part hereby agree to select and furnish suitable lands for said building, together with well, spring, or reservoir ou said lot, for the use of the business; and it is further understood that, in case said second party shall fail to furnish said land and water within ten days after the execution of this contract, then Davis and Rankin, at their option, may select and furnish land and water in behalf and. at the expense of the subscribers. * * * Said Davis and Ranki.nagree to erect said butter and cheese factory. as set forth by the above ,specifications, for four th()usand five hllndred dollars, payable when factory is completed, or one half cash, and balance in ninety days, with secured notes, bearing six per cent. interest from date. We, the subscribers hereto, agree to pay the above amount for said butter and chllese factory when completed. Said building to be completed within ninety days or thereabout, .after the above amount of four thousand five hundred dollars is subscribed. Any portion of the amount subscribed not paid according to cOntract shall bear legal rate of interest. As soon as the above amount of foui: thousand five hundred dollars is subscribed, or in a reasonable time thereafter, said ;subscribers agree to incorporate under the laws of the state, as therein provided, fixing the aggregate amount of stock not less than four thousand five

180'

FEDERALREFORTER,

:voL 51. '

hundred doIhus, tobe divided into shares of one hundred dollars ,each. Said above,st1Jied, iS$uedtothe subscriuets Aeret;<!in, prointerests 'bltre$n;; and it is herein agl'!!e.atbat each stockbolder·shall be liable only for the amount subscribed by him;" severally,subscribed this contract for amounts varying from $25 to $100 each, as follows: Names of Subscribers. No. of Shares. Amount of Stock after Incorporation. $100 00 Wm. W. Barber,

To this declaration the defendants have severally demurred, on the ground that the court hasno jurisdiction of the subject-matter. Whether this court has jurisdiction depends on the proper construction of the contract. If the contract of the defendants isjoint, the amountin controversy gives the court jurisdiction; if it is several, the court has no jurisdiction. "In the construction of contracts, the court will look at all the circumof, the case, the nature of the property, the occupation' and relation of the parties, the usages of the place and of the business to which the contract and ascertain, by reasonahleinfel'ence, what the parties must have understood and mutually expected at the time of the making of the cnntract, and then adopt that construction which will best and most nearly carry the contract into effect a8 they intended and understood it." Dwelley v. Dwelley, 143 Mass. 509,10 N\ E. Rep. 468. The contract must be considered as a whole, and if, upon such cOllsidE'ration, theintelltion of the parties becomes apparent, it must prevail over the literal interpretation of detached words,phrases, and clauses. Bish. Cont. § 575; Landwerlenv. Wheeler, 106 Iud. 523, 5 N. E. Rep. 888. In this ('aSe there are 61 subscribers to the contract. The amounts placed after the subscribers' names vary from $25 to $100. Presumably they were pursuits, sCflttered over a cansidemble ex.tentof territory in Clay county, and 01 varying ages, habits, cii-cumstancea, The amount to be raised was $4',500. and It is apparen;t' frOIn. reading the when one placed his name thereto for. 825. or $100, he diq not intend to become solely liable lor the ",hole$4,500.. And it is equll.llyclear that the first subscriber did not intend to become liahle for the amount subscribed by each additional subscriber,whoever he migot happen to bel That ench subscriber bedame liable for the payment of the amouut subscribed by himself, and not for the 1\Jhole to me to be'the plain intent of the conby,nll the parties to it. leantract. It must .have been so notpersunde myself dellmdll.uts untlerstoud the contract as ulflkingeachHable for the whole amount subscribed. The use of words of,pluraJity, such as "we bind ourselves" will not make the eon tract when the parties engilgeforthe of distinct and severa] . 1 Add. Cont.(Amer. Ed;'byMofgan,) 86. Here each defendant bas.WriUen after his name then,muber of shares subscribed for by him, and the amountto pe paidbyhim',;therefor. Courts ought not toperwitisolated words or phrases, importi.ng a joint obligation, to de-

'" . . *.' . .

III

...

DAVIS &; RANKIN BI,DG. &; YANUF'G 00.' tI. BARBER.

151

feat the manifest intention of the parties as ga.thered from the entire contract. In the case of Price v. Railroad Co., 18 Ind. 137, the sub· scription sued on was in,these words: "We, the undersigned, promise to pay $25.00 tor each share of a stock set opposite each of our names." This contract, though joint in form, was heldio be several. The court said: "These stock subscriptions, though in form joint contracts, are intf'nded to be, and are to be treated as, several, and each stockholder as liable simply for the amount opposite his own name." In the case of Landwerlen v. Wheeler, 106 Ind. 523, 5 N. E. Rep 888, the subscription was in these words: "We, the undersigned, promise to pay the following subscriptions for a new church in honor of St. Vincent de Paul, patron of the church and congregation. II This contract was construed to be several, and not joint. The court said: . .. "The paper and the manner of the subscriptions as clearly indicate the in· tentionby all the parties that each suuscriber should be liable, and only liable,! for the amount by him subscribed, as if the words' opposite each of our names' had been used. It "Where a person signed the paper, and put down! opposite his name the amount subscrilJed,be just as plainly declared that that was the amount for which he was to be liable, as if in the bodyof the paper I it had been stated that each subscriber was to be liable for the amount op, posite his name. .. I 1'he case of Frost v. William8, (S. D.) 50 N. W. Rep. 964, involved the construction of a cOlltract for the erection of' butter and cheese factory, like the one at bat. It was held in a carefully prepared l?pinion that while the words in the. body of the contract, considered alone, would req\lire the contract to be construed as joint, yet, as the amount subscriblld by each was written after the name of ;each subscriber, the contract must be construed as several. In the case of Davis v. 'Belford, 70 Mich. 120, 37 N. W. Rep. 919, the sole question involved was whether a contract identical with the one at bar was joint or several. The court held the contract to be several, and not joint. In Gibbons v. Grinsel, (Wis.) 48 N. W. Rep. 255, a contract similar in all its essential features to the one at uar, received construction. The point involved was whether the contract was joint or several. It was held that the contract was several. It is said' "The manifest purpose was that each such sUbscriQer should thus pay the amount of his particular subscription, and not that· he should become liable jointly with all the other SUbscribers for the aggregate amount of all sub· scriptions. In other words, the amount which each subscriber' thus agreed to pay was limited to the amount which he thus subscribed; otht'rwise a few responsible subscribers might be made liable for numerous irresponsible subscribers." The fact that each subscriber has written after his name the amount suhscribedby him is cogent evidence that he meant to become liable for no more. The stipulation in the contract that" it is herein agreed

a

152

.. FEDERAL REPORTER,

vol. 51.

t.hat eacnstockholderehallbe liable only for the amount subscribed by him' " .,qlearly manifests the same purpose. The suggestion that this clause only relates to and fixes the liability of the stockholders inter sese after the organization of the corporatkm is untenable. Each stockholder when the corporation was organized, without this stipulation, would be liaple ,oply for the amount of stock subscribed by him. The word This "stockholder" in this stipulation is to be read as readlnggives to of the parties, and imparts legaIforceto the stipulation, which otherwise would have none. I am aware that the foregoing views are in conflict with the opinion of the circuitwurt for the western: district of Missouri in the case of Davis Y. Shafer, 50 Fed. Rep. 764, decided by Judge PHILIPS. I have carefully exnmined the'U1l1,nuscript ppinionin this case, and I find myconclusion there reached. .In my judgself unAble to concur .in ment, the contract under consideration must be construed as several, aJldJlQtjoint., ' It is contended,howeve/.', if the, contract is held to be several, that the cause of .action set out in the declaration is joint,and reasqn thtl pourt has jurisdiction. The argument is that the injllJ'J! CQillplained of,isfor the willful breach of the contract caused bY' the:: joint· wrong of all the defendants in preventing the plaintiff contrltct; and that the damages sued for spring from t1?is Jqiri,t., Wrong. ' The argument is unsound. The cause of action is froW the rights and obligations ere· ated by the contract, no cause of action would be exhibited by the declaration. ,W,hether the. of the contract arose from the willful misconduct of, tbedeieridants, or from their unil1tentional violation of it, makes J:l()tIifrerence in the rights or obligations of the parties. In either case, thei,rrights and 'obligations spring from and are measured by the ,colltract. If lllai[}titf has anx right of action for the wrongs alleged, it arises solely from the obligations imposed on the defendants by their contract. It therefore results that the court has rio jurisdiction of the subject-matter. T4e' demurrer is sustained. Let judgment be

QUINnAltO

TP. et 01. v.

SQUIER.

(Otr'cUit.Oourt o!,.4.,meals, Efghth Oircuit. June 18, 18D9.)
USE Oll' LANDS AS 'PUllLIO PARIl:""'-ADVERSB POSSESSION.

Undet 'Gen. at. Kan. o. 80, art. 8, par. 4093, the open and notorious use by a township of certain lands. specUieallymar!i:ed' upon a recorded plat, for more than 15. years, publio park. olaim of title, is sufficient to bar an action therefor, even tbough the township had no paper title, and ereoted no fenoes or buildings on the land. Wood v. RaUwa1l 00., 11 Kan. 823, 848, applied.

IIi Ernor to the Circuit Court of the United States for the District of lUv6l'$ed.

QUJNDARO TP.

1li3

Statement by CALDWELL, Circuit Judge: The defendant in error, J. J. Squier, brought suit against Quindaro township, in Wyandotte county, Kan., and the trustee, clerk, and treasurer of said township, to recover the possession of a parcel of l!mw particularly described in the complaint. The defEmdants filed a general denial and a plea of the statute.of limitations. The leading facts which give rise to the suit are as. follows: 'On the 9th of February, 1858, the territorial legislature of Kansas incorporated the city of Quindaro, with extensive boundaries, which included the land in controversy. On the 25th day of January, 1859, another act was passed amending the first act of incorporation. On the 7th day of April, 1860, the owners of a large body of the land situated within the corporate limits of the city of Quindaro, as defined by the acts of the legislature, platted the same into lots, blocks, streets, avenues, alleys, and parks, and duly recorded such plat. Upon this plat the land in controversy was designated and described, and dedicated to public uses as a park. The filing of this plat had the effect to vest the fee in the lands "therein expressed, named, or intended for public uses, in the county, * * in trust and for the uses therein expressed, named, or intended. ' * *" Act approved February 11, 1859, c. 24. On March 6, 1862, the legislature passed an act repealing the act incorporating the city of Quindaro, and all acts amendatory or supplemental thereto. The third section of the repealing act provided "that it shall be the duty of the trustee of Quindaro township to take imme. diate possession of all books, papers, assets, and property of every kind belonging to the city of Quindaro, dispose of the same, and discharge the indebtedness of said city. In the performance of these duties he shall have and exercise all the powers of the officers provided for in the act of incorporation aforesaid." On March 5, 1872, a petition, based upon a statute of the state, (act approved March 2, 1868, c. 109,) was presented to the board of county commissioners, praying for the vacation ofa portion of the platted lands lying within the boundaries of the former city of Quindaro. The park was within the exterior boundaries .af the portion of the plat sought to be vacated, but it was not in terms named or referred to in the petition for vacation. Proceedings were had .an this petition, and its prayer granted May 6, 1872. On the 13th of July following, on the motion of the trustee of Quindaro township, the board of county commissioners entered an order declaring that so much of the order of May 6, 1872, "as 'includes the public park is hereby set aside; and it is further ordered that said park be taken from the assessment roll of the county." The act under which the vacation proceedings were had provides that, when the town site is vacated, "the streets, alleys, and lanes shall revert to the owners of the lots platted upon them in due proportion, and the public grounds to the owners.)) The plaintiff, Squier, is grantee of the original owners of the platted lands, and has the same, and no greater, right to the park than they would have if they had made no conveyance of the same. The case was tried before a jury, who, under instructions from the court, rendered a verdwt for

Wt.: ·. . HMi

u.p on which .... but l.writ oif

ni'-,Iw.as'

,"

. '.'; aHd.. . :, i ' ;

, ,i

.i

on' the.

man &- P&ttf:t', 'tiff's In erto't;' 1. B.
! '

,,,:

. ';

i

\'

& Miller, on the brIef,) for plalD, ; , , Jamq 'S,'GibWri.,fo1'defendaot 'in error. and SANBORN, Circuit
, '; ,

CircUit .rudge'. The 'plaintiff in error .bas assigned numeroua, errol's, dneo(l'which "a'deem it necessary to consider. To Iluppdrl:thepl,ea of the statute: of lUnitations, the defendants offered to the 'Hate of the o1'<1e1' of the board of county comon May 6, 1872, vacating a portion of the town site, the1triillOf the',eaulle,-apel'iod'of 19 years,--the township of and had claimed this park as the the' toWpshi'p i' that' dUl"ing all this time the township, thl'otigh!litS dfficers, denied that thepark"had been vacated asa public had had the actual, oontirruoU8,' and adverse 'P6llSession of the park, using,: directing, and public park;tbatthe township "fenced it from lime to time, "'and that: its: tiseby the township as a pUblic park was 'exolUsive, open, andn6torioUSj that there ,were living on the vacated portion of' the :town ,sitefllOm 800 to 500 people ; that the settlement 'or village bore the name' of Quindaro, and bad a post office, schools, 'andchurchesj that the land in controversy had oontinuously from the 'Year 1872. down tothe ootilmencemerit of this suit been in the possession 'lind :under the direction 'and oontrolof the township, by its officers, as Ja:puhlicpark, and that it had been used and enjoyed as a public park by the', inhabitants of said ,village, the township of Quindaro, and the "8iuTounding country during all oNhat time; and that during this time it had 'not been listed for taxation:. 'The courtrefused to permit the defendant to prove these facts. The statute of limitations of the state of Kansas provides that'--'" ;-"',-"', ,", .:,!.,:, - -', , .'!. - - , .. , the, tecovel7 ot, real property, or for the determination of any right' or interest therein, are only to be brought within the periods hilreU1afterprescribed after the cause of action shall have accrued, and at no time thereafter: · .. .,F:QUrth. An action for the recovery of real :pl'operty, ]'l'ovided for, within fifteen years. ". Chapter 80, art. par. St. 1889. Construing this statute, thssupreme court of the state of Kansas has de,cided that "a mere tres!,lIisser(without color of right or title, who has been 'infhe actual possession ofreal estate for fifteen years; .claiming title thereto, "JbElComes the property by ofthe statute oflimitations." :*:; '" * 11 Kan. 323, 848. The learning on the: lIubject Qf.ooloroftit1ehas, therefore, no application to this case. The aefendantswere not required to produce a paper title, or show color of title to auPPOl't their plea. It was enough to shoW' that for a period of 15 years or more preceding the commencement of the suit, the de-

WE8TERN REFRIGERATOlfc6;tI., AMERICAN

INS. & SEC. 00.

155

f130dants had beEln in the aotual, continuous, and advetse posseSsion of the land, claiming and using it as a public park. Such possession vested the title to the park in the township, and was an effectual bar to the plaintiff's action, whether. the townshi}) did or did oot acquire &. right to ,; the park under theaet of the legislature repealing the act inabout which we express no bpillion. corporating, the city of The ground 'upon which the oourt excluqe,d this evidence is not disclosed by the record. In this court the counseL for the defendant in error seeks to support the ruling upon the ground that the claim of title to the land ,set up by'the township, and its open and, notorious use and occupation of the lands as apublje park for the village and township of Quindaro, 13:0 not <!onstitute such an adverlje possession as would start the statute. of limitation in favor of the, township. This conbmtioJ;1u. not sound.' It is well settled that to constitute adverse there on need not be a fence, a building, or other land. It is sufficient for tois purpose that visible and notorious acts of ownership are exercised over the premises in controversy, under claim. of title, forthe period required by the statute to bar the action. Ewing v. Burnet, 11 Pet. 41. The open and notorious use of this land as a public park, under claim of title, constituted a possession as effectnal to bar the plaintiff's action as if it had been inclosed by a,stone wall. Tqe boundaries of the park were distinctly marked on the p,lat of the town which dedicated it to the public use asa park. The only possession of which it was susceptible was a possession consistent with its use as a park, and its open, public,and notorious use for that purpose was all the possession requisite to support the defendants' plea. The court erred in excluding the evidence offered j and for this error the judgment must be reversed, and the case remanded for a new trial. '

WESTERN REFRIGERATOR

Co.

fl. AMERICAN CASUALTY OF BALTIMORE.

In. & SEC. Co.

(CwcuU Court. N.D.

nZtnota. November 10,1891.)

mtmANCB-ACTlON ON POLICT-DECLARATION.

An insurance company issued a policy, one item of which was ",against all direct loss or damage [excepting all losses caused directly or indirectly by tire or light.ning] to the property" of the insured. Held, that a declaration attempting to state a cause of action under said item, without stating that the 10S8 was not caused, directly or indirectly, by fire, was demurrable.

At Law. On demurrer. A88'UmpBit by the Western Refrigerator Company against the American Casualty Insurance & Security Company of Baltimore. Fry « Babb and Tlwmal Bates, for complainant. W. B. Keep, for defendant. BLODGETT, District Judge. Defendant demurs to the 2d, 4th,6th. and 8th counts of the declaration. These counts state a cause of action