WEST '0. HUISKAMP.
749
WEST v. HUISKAMP et al. (Oircuit Court of Appeals, Seventh Circuit. October 1, 1894.) No. 36.
1.
CORPORATIONS-RIGHTS OIl' SUBSCRIBERS TO STOCK.
Complainants and defendant W. entered into an agreement by which W. was to purchase the T. newspaper, he furnishing seven-tenths and complainants three-tenths of the purchase price; and a corporation was to be organi2ed to publiSh the paper, stock in which was to be issued to the parties in proportion to their contributions to the purchase price. Complain.ants advanced their proportion in cash, W. purchased the newspaper property, and transferred same to the corporation upon its organization, and became president and general manager. Upon a bill alleging that W. had falsely represented to complainants that he was financially able to carry out his part of the agreement, whereas he was insolvent; that the only ·cash used in the purchase was that furnished by complainants; that W. bad obtained credit for the balance of the purchase money upon his notes, whicb be afterwards paid with funds of the corporation misappropriated by him as president; that he had caused stock to be illegally issued, and bad !lPpropriated stock without paying for the same; and praying for cancellation of the stock illegally issued, and for a declaration that complainants were the only purchasers of the newspaper property, and the only own-ers of the stock of the corporation,-held, that W.'s misrepresentation of the value of his property could not atrect the validity or ownership of the stock; that it was no objection to W.'s title to the stock issued for the newspaper property that be had obtained the property on credit, and not paid for it; that complainants did not become the sole owners of the stock, or their shares the only valid shares, be.cause they alone paid what was paid for the property; that there should be a reference to a master to ascertain the
FEDEB.\L
,vol. 63.
of, the parties, arising l'/:'9Il) pI' illegal Iltock or other'",a,n,,q, Jlia,,t uPo,n pI,'oper fin,dlI\itIl there ¢ight be a decree in W.'s name, but not upon the ground merely' of hIS mis'!;'It!':))ifGljtil'a1iion of money or credits of,tbe company. OF PROOF. ; also allege.d that a piece of real estate bought by W. with the but forming D,o,part of It, had, been retained by him. ;No ,)JflljlrepreSeDtation, mistake, or. breach of trust was otproved, and it appeared thllt 'complainants knew of W.'s retention lotJtheJ lot Held insufllcient to sUStain a decree in complainants' favor for three-tenths of the vlllue of the lot. ' ',J!"
the Circuit Court of the United State$ for the Northof the Northern District of ' Thiswia It suit by HerwanJ.Hhiskamp, HenryC. Huiskamp, Cyrus E.PhMlips, George .Tolln N. Irwin, and John Williamson J. West, E, James A. FullenBoucher, Company, and wider, cross blII,<Q,Y ,;raIDesJ. West aglU,hst" HeDI'YC.HUlskamp, Herman , J. N., ,Irwin, George Cyrus E: Phillips, Frank,f:'. Wmgley, Joseph R. Dunlop, WilliaJb.Henry Sllilth, C. W. Fairbanks,WaIter,N. Haldeman, the Ohicago Times Company, oWD(:rship of ·shares ,of corporate stock. to ComplainaiJ.ts obtained' Ii decree, liM' the crossbiUwas dismissed at the .47 West appeals. L; H.· Bisbee, anClWilliam Brown" for appellant. Trumbull Willits, Robbins & Trumbull, A. W. Bulkley, and E. E. Gray, for appellees. Before HARLAN,Circuit Justice, and WOODS, Circuit Judge.
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WOODS, Circuit Judge. This suit was brought by Herman J. Hu,iskamp, Henry C. Huiskamp, John N. Irwin, George D. Rand, and Cyrus E. Phillips,citizens of Iowa, and Joll.n Willia,mson, a citiagainst the appellant, James J. West, and others, citizens. Of Illinois, for the purpose of obtaining a decree which the ow,nership <,if tM stock of the Chicago Times Company,.a. cQrporation organ1zed under the laws of Illinois, direct the canceij:ution of illeg-al stock, and, pending the suit, enjoin the .,etransferring or assigning stOCk, and against interthe publication or management of the newspapers known as theOhicago Times and the Chicago Mail. The averments of the and prolix, but the substance is that the comwith E. M:. Irwin and M.M. Phillips, are owners of in the Chicago, 'fi;nles Company, in amounts stated, nearly 3,000 of a total of 10,000 that on of December, 1887,the estate of Wilbur F. Storey, Times, the possession of Horace A. HurlbJlt,as'receIver, who in thl:l,t was conducting the publicationof that pa:per;'.that about that time the complajIlapt;s, with weSt and Clinton kSt}owden, "for the purpose of obtaining such .publication, known, as .tl1e Ohicago' Times, entered inroan ·arrange· ·ment agreement wljLereby Westalld SnOwden were fO" become
or
WEST tI. HUISKAMt>.
753.
the purchasel'B, if possible, of the various conflicting interests in the state of "Tilbur F. Storey, deceased, and thereby become the owners, for and on behalf of themselves and your orators, of all the property of said estate, * * * including said Chi'cago Times," it being further agreed that as soon as the purchase could be consummated a corporation should be formed for the purpose of publishing the Times newspaper, the stock of which corporation should be owned by the complainants and by West and Snowden; that the parties to the agreement, or a majority of them, were stockholders in the Chicago :Mail Company, a corporation of lllinois, which was engaged in pUblishing the newspaper known as the Chicago Mail, the capital stock of which company was $150,000, divided into 1,500 shares, of which West owned a majority, and, that stock being of par value, it was agreed that the property of the Chicago Mail Company should be transferred to the proposed Chicago Times Company, and stock of the new company issued, share for share, to the holders of the stock of the :Mail Company; that, pursuant to the 'arrangement, West and Snowden did thereafter purchase from the widow and heirs the entire Storey estate, in-eluding the Chicago Times, and on or about the 24th of December, 1887, West received a conveyance thereof for himself and the parties named, the purchase price being to the widow $275,000, to be paid in cash, and to the heirs $300,000, to be paid $110,000 in cash, and the remainder, $190,000, by the conveyance to the heirs .of a portion of the landed estate which had been conveyed to West; that on the 30th of December, 1887, the organization of the Chicago Times Company was completed by the election of directors, and by the issue and recording on the next day of final articles of incorporation; that, on the ensuing 5th of January, West was elected president and treasurer of the company, Snowden was elected secr-e. tary, and by-laws wer-e adopted, defining their duties and powers, and fixing the salary of West, as president and general business manager, at $10,000, and of Snowden, as secretary and managing ·editor, at $5,000; that on the same day, pursuant to the agreement hereinbefore set forth, the board of directors authorized the president and secretary "to purchase from West the real estate known as the 'Ohicago Times Building,' together with all the personal property therein contained, and the publication known as the Chicago Times, with all its press franchises, rights, and good will, and all the property used in the printing and publication of said newspaper, for the sum of $850,000, to be paid for in the stock of said company, to be issued, one shar-e to Frank S. Weigley, on.e thousand shares to Clinton A. Snowden, and seven thousand four hundred and ninety·nine shares to James J. West, the said West receiving a portion of said shares for and on behalf of your orators, as hereinbefore more specifically set forth; that soon thereafter the said James J. West transferred, conveyed, and delivered said property to the said Chicago Times Company, and the said the Chicago Times Company issued stock therefor pursuant to said resolution;" that about the same time the Chicago Times Company purchased the property, rights, franchises, good will, and effects· of the Chicago Mail Com-
BJjlPQB',CER, VQI.
63.
Pl:lDY; tlpd 1;he same were tranlilferred and delivered in, oonsideration by the Timelil Company to the stockholders of the of the stock of the Times Company, share for share, wll,ich time the Times Company has continued the publication ()Lthe Chicago Mail; that West issued to himself 125 shares of /;!tock.jn the Times Cpp1pany, in exchange for Mail stock, more than hewas:entitled to receive, the rightful owners thereof never having their shares in the Mail Company in exchange for shares of·the Times Company; that the stock owned by M. M. Phil· lips. (3211/7 shares) W3.$ originally issued to Cyrus E. Phillips, who transferred the same, aqd that the shares of the other complainants, Huiskamp{Irwin, andc,Rand, "were issued to them in consideration of moneys advanced and property of the Storey estate bought for and on their behalf, and transferred to the said the Chicago Times Company;" that it was then and there agreed between them and West, as prompters. of the enterprise, that the sum of $700,000 should beinvestejl for the purpose of purchasing said Storey estate, and giving to the corporation sufficient capital to transact its business, and pay its debts theretofore contracted by the receiver of 1;Jle estate, of which amount the complainants agreed to furnish three-tenths and West agreed to furnish seven-tenths; that before into the agreement they required West to give them a statement. of his assets, to enable them to determine whether he was able to carry his. part of the burden; that West then andtp.e1'l3 made to them a ·statement showing that he was in gOQd securities, bonds, etc., and relying on that statEm'lenttheY,made th,e agreement, and did then and there furnish West of $150,000,. and afterwards, in full ped'ormance of the contract on their part, furnished l;lim the further sum of $22,500, of which the cOUlplainant Williamson contributed $7,000, and thereby became owner of the three-tenths interest in said Storey es-' tate and :Cllicago Times· Company originally agreed to be purchased by your; oratprs other than said Williamson ;" that West did not contribtrte.any money of his own to the pu,rchase of said paper and estate; t4at he had, no money of his own to contribute, and was then insolvent; "and that instead of paying for the same as he agreed.to do, and as he informed your orators he had done," he obtained fro111 the Storey heirs credit for the full amount of. $110,000 which wMtohave been paid them, giving Ulerefor the promissory notes of and Snowden; that West still owes the heirs $10,' 000, and theremainj.ng $100,000 he paid, not with his own means, but of the complainants, and moneys belonging Times Company;, that, of ;the $275,000 which he agreed to: paY Mrs. Storey, all that was paid at the time of the obtained of complainants, or borrowed from others, and repaiq:t;he loan out of the t:;toreyestate; that he still owes the widow the remainder having been pajdout of the proceeds of ttLeTimes property; that, before and at the time of the formation of the Chicago Times Company, West falsel:y represented to complaiQ,ants, and caused them to believe, that his personal indebtednmls pot large, and would soo.n be liquidated, when in
WEST V. HUISKAMP.
753
fact, as he knew, he was insolvent; that in 1889 the Times Company sold the Times building for $220,000, which was received by West, and deposited to the credit of the company; that at that time West represented that the company was indebted to the amount of $40,000 only, and it was then agreed that the proceeds of the sale should be used to pay all the existing debt, $40,000 should be placed to the company's credit in bank, and the remainder applied to the individual indebtedness (of West) guarantied by any of the complainants, for which amount stock should be delivered to the company, the balance to be used by the company in the purchase of stock from West at 60 cents on tae dollar; that, instead of $40,000, the indebtedness of the company was upwards of $250,000, a part of which was subsequently paid out of the proceeds of the sale of the building; that more than $100,000 of the amount West, as president, checked out and applied on his individual account, when the company owed him nothing, and he was largely indebted to the company, and that only a part of the guarantied indebtedness was paid; that, of the stock issued by the Times Company to West, only that issued in exchange for his stock in the Chicago Mail Company has been paid for by him; that the purchase price of the Storey estate, less the land reconveyed to the heirs, was $385,000; that West retained a tract of land of the value of about $50,000, and transferred the balance of the property to the Times Company, thereby transferring to the company property which he purchased for himself and orators at the price of $3S0,000, to pay which he used the money paid in by complainants, the 'proceeds of the sale of the building, and other funds of the Times Company; that on the 11th of July, 1889, West resigned the office of president of the company, and Herman J. Huiskamp became the president; that of the $1,000,000 capital stock of the Times Company, excepting the shares issued to orators, all shares were issued originally to West and to Snowden, except one share to Weigley, which was afterwards canceled; that Snowden transferred his shares to West; that neither West nor Snowden paid for any stock, except that received by each in exchange for his stock in the Mail Company, nor have any of the parties holding stock through West paid any consideration to the company therefor; that West and Graham. who had succeeded Snowden as the secretary of the company, issued certificates of stock in excess of the authorized capital to the amount of 1,000 sharefl and upwards, of which West has pledged portions to various banks and persons as security for- hi'S per-sonal debts, and a portion he sold to the company in pretended execution of his agr-eement to sell the company stock at 60 cents on the dollar-; that, of the stock of the company issued to himself, West has transferred 500 shares to Chauncey W. Boucher-, anll the remainder of hilS stock he has pledged, sold, and transferred, and is not now the owner or- holderof any stock in the company; that in July, 1889, West obtained of M. Pullman, J. J. P. Odell, and the Union Nor-man B. Ream, National Bank of Chicago, one or more of them, on his individual D,CCOunt, $100,000, for whieh he gave to Ream, as innocent holder v.63F.no.6-48
764
FEDERAL REPORTER,
vol. 63.
and as tru.steefor the other parties hamed, his promissory note, and, as aecurity therefor, pledged with Ream 5,001 shares of the .capital stock of the Times Oompany, issued by himself, as president of the company, to .himself; that thereafter West assigned, transferred, and conveyed to· complainants Rand and Irwin the said 5,001 shares of stock, subject to the lien of Ream, as collateral security for au indebtedness of West to Rand and Irwin of $64,000; that rthe defendants ]'ullenwider and Graham assert some interest in some of stock of the company, but paid nothing therefor; that West and his co·respondents have made recent threats to take possession of the Times Company and property; that some of the fraudulent stock issued by West and Graham has been transferred to parties unknown; that a portion of the stock issued to West in consideration of the transfer of the Storeyei3tate has been transferred by West, fraudulently and without consideration, to parties unknown; that by his conduct West ,has brought into danger of forfeiture the Times Company's, right in the franchise of the Western Associated Press Association, and the forfeiture will be insisted upon if West and his associates are permitted to control the affairs of the company. The prayer'ofthe bill is for a'decree :firidingwhat stock is fraudulent and void, and ordering a cancellation thereof, and that complainants be declared to be the only purchasers and owners of the Storey estate and of the capital stock of the Times' Oompany purchased by the transfer of the estate to the: company, etc. West answered, controverting largely the averments of the bill, and :filed a cross bID, seeking affirmative relief, chiefly against an unauthorized sale to the complainants of the 5,001 shares of stock which had been pledged to Ream; To the cross bill the complainants answered, reaffirming in substanCe of the bill, and admitting the sale to themselves of the pledged stock without previous demand on West for payment of the debt. There was the usual replication to the answers to the bill and cross bill, respectively. The- circuit court entered .a· :finding for the complainants in substantial conformity with the bill, and, further, that West represented to the complainants that "the boulevard lot" was a small building lot worth only from ten to twelve thousand dollars, and plaintiffs, knowing nothing of its value, and believing the repl,'esentation true, consented that West should retain the lot as compensation for his services in negotiating the purchase of the Storey estate, when in fact the lot was worth '50,000, less an incumbrance of $12,500 ; and accordingly the court decreed that the complainants and their assignees are the owners and holders of 3,000 shares of the capital stock of the Ohicago Times Oompany; that the entire issue of 5,001 shares, represented by certificates numbered 11 and 23, was illegal,and should canceled, subject to the rights of the purehasers of the note for which the stock was pledged, and that West has no title or interest therein; that West, by his fraudulent conduct towards the complainants and his assodates in the purchase of the Storey estate, and in the organization .and management of the Ohicago TimesOompany,has
75l>
forfeited all right, in equity or justice, to any further issue of stock on the basis of $70 per share, or upon any other basis; that the complainants do have and recover of the defendant West the sum of $13,587.50 as and. for their three-tenths interest in the boulevard lot appropriated by said defendant, together with costs in this proceeding to be taxed, and that they have execution therefor; and that the cross bill of West be dismissed, at his costs. For the finding and opinion of the court, see 47 Fed. 236. The evidence in the record being too voluminous, and the discussions of counsel too elaborate, to admit of detailed review, or even synopsis, we shall make only a brief statement of our views and conclusions. We are of opinion that in important particulars this decree is erroneous. If it were true, as the bill charges, that West made to the complainants a false statement of the value of his property, the fraud, upon discovery, might doubtless have been made cause for a rescission of the contract of the parties, or, after the Times Company was organized, for the winding up of the affairs of that company, but in respect to the issues of this case the alleged misrepresentation seems to be quite immaterial and irrelevant. It in no manner affects the question either of the validity or ownership of shares in the capital stock of the Chicago Times Company. It is clear, too, that the complainllnts were not materially deceived or misled by any representation which West is accused of having made. In order to prove the alleged representation false, it is insisted in one of the briefs for the appellees that West's letters to John N. Irwin, written on and before the 10th of November, 1887, "establish the fact that he was hard pressed for money, and could not have been worth $365,000, as he stated to Huiskamp and Irwin, or $200,000, as he now claims." Irwin therefore had notice of West's embarrassed condition, and his relation to his associates was such that notice to him was notice to them. In respect to the boulevard lot, the finding of the court goes beyond the averment of the bill, which is simply that "West retained a tract of land of the value of about $50,000." No fraud, misrepresentation,mistake, concealment, or breach of trust by West, nor lack of knowledge on the part of complainants, is alleged, and the proof is that the lot was retained by West with the consent of complainants. No cause of action in this particular is alleged in the bill, and none is proven. The complainants neither had nor expected to acquire an interest in the Storey estate, as such, or in West's contract of purchase. Their aim, from the first to the end of the negotiation, was to obtain, as they did, an interest in the proposed Chicago Times Company, owning the Times newspaper, presses, etc., and the Times building, and not other parts of the Storey estate. To enable West to complete his purchase, they advanced him money, for which they were to have, and afterwards received, credit on the price of their shares of stock in the company which was organized. They took receipts from West showing that the moneys they advanced were to be applied "on purchase of the Storey estate," "to the purchase of the Chicago Times and the Storey estate," and, in one in-
7156
stance, "as part paymeilttor a three-tenths interest in the contract made by Snowden and West for the Chicago Times and Storey e$tate, the said amount to be -refunded in case the said contract is not conslUPmated." But these expressions tend nO more to prove an interest in the boulevard lot than in that part of the real estate which was recollveyed to the Storey heirs. It remains to consider what were the rights of West in the capital stock of the Chicago Times Company. The controlling facts are few, and admit of little dispute. The contraet of West and Snowden with the widow and heirs for the purchase of the Storey estatl:' was made oli the 29th of October, 1887. There had been previous negotiations between West and Irwin, looking to the taking of- an interest in the purchase by the latter and his friends; but no definite or binding agreement in that direction was reached before the 17th of Dece:rn.ber ensuing, when West and Snowden signed and delivered to Henry C. Huiskamp the writing of that date, which, ·signature.s omitted, is of the following tenor: "We, the undersigned, owners of contracts now existing for the conveyance of the Chicago Times, hereby agree to organize a company under the name and title of the Chicago Times Company (notice of incorporation of said company .having already .been given) on the following basis: Seven-tenths (7/10) of the stock to be owned by James J. West and C. A. Snowden, of Chicago, and three-tenths (3/10) by the following named parties collectively: John Irwin, C. E. Phillips, George Rand, H. C. Hulskamp, and H. J. HUiskamp, all of Keokuk, IOlVa, and John Williamson, of New York. And it Islurther hereby agreed by all parties herein named that the stock of the Times· Company shall be issued only for the amount actually paid in by eacI;1 stockholder at the rate of eighty-five dollars ($85) per share, and that the residue of the stock of said company, if there be any, shall, after all debts have been paid by the company. be distributed and paid in the followIng proportion: James J. West and C. A. Snowden, seven-tenths (7/10) and John N. Irwin, C. E. Phillips, H. C. Huiskamp, H. J. Huiskamp, and George Rand, of. Keokuk, Iowa, and John Williamson, of New York, threetenths (3/10) of same."
Until accepted or acted upon by the complainants, that writing perhaps amounted to no more than a proposition on the part of the signers; but it was accepted and aeted upon, as the evidence shows, except that it having been determined afterwards that a mortgage for $145,000 upon the Times building should not be paid off, but should be carried by the Times Company, the price of the stock to be issued was reduced from $85 to $70 per share; and on that oasis the complainants,having advanced $172,500 cash, and owning Mail stock to the amount of $37,500, which seems to have been treated as oash, were entitled to receive, and did receive, for the whole sum of $210,000, 3,000 shares of stock. Deducting $10,000, which, according to the testimony of West, was the price of the boulevard lot, the property of the Storey estate, which on December 24, 1887, was conveyed to West, and which on the ensuing January 5th he conveyed to the Chicago Times Company in consideration of 8,500 shares of stock, of which 1,000 shares ,were issued to Snowden and 7,499 shares to West, costf380,000,of which, after deducting $172,500 furnished by complairl:ants, there remained $207,500, for which, by the agreement of December 17th, West was entitled to credit,
WEST tI. HUISKAMP.
757
and to receive stoCK to the number of 2,964 2/7 shares. He also owned 1,000 shares of Mail stock, including 200 shares obtained of Snowden, worth. $100,000, which, on the b3lsis of $70 per share (which was allowed to complainants for their $37,500 of Mail stock), entitled him to 1,428 4/7 shares; making a total of 4,392 6/7 shares to which he was entitled upon the completion of the organization of the company, and the turning over of the property of the Mail Company. He afterwards acquired 1,000 shares of Snowden, of which 500 shares were transferred to Boucher; but whether payment for these shares was ever made either by Snowden or West we have not determined. The total number of shares of stock was 10,000, of which 3,000 were issued to complainants, 1,000 to Snowden, one to Weigley, and West in his own right was entitled to 4,392 6/7 shares; making a total of 8,392 6/7 shares accounted for, and leaving 1,607 1/7, for which, as president of the company, and under the agreement of December 17th, West was responsible and accountable as a trustee. To these add 1,250 shares, which it is conceded were issued by West in excess of the, total capital stock of the company, as limited by the articles of incorporation, and we have 2,857 1/7 shares unaccounted for; but, if these be deducted, there remain 1535 5/7 of the 4,392 6/7 shares to which West was originally entitled. It is no objection to West's title to stock issued in consideration of the property turned over to the company that he obtained the property on a credit, and had not paid for it; and if afterward!=l, in breach of his trust as president and manager, he used the money of the company to pay the debts so incurred, he became thereby indebted to the company. And, by reason of the trust relation, it has been suggested that the company became entitled to a lien upon the stock for its reimbursement; but it is not true, as contended by the complainants, that they became sole owners of stock, or their shares the only valid shares, on the theory that they alone had paid what was paid for the property which was transferred by West to the company, and for which the company's stock was issued. They bargained for three-tenths of the stock, and that they got; and if, by reason of West's misappropriation of the moneys of the company during the year and a half of his management, the value of their stock has been impaired, it does not follow that West's stock, in so far as it was valid when issued, should be annulled or declared void. We have not attempted to determine the exact rights of the parties in any particular. There should be a reference to a master for that purpose. To the extent that West has issued illegal stock, Qr has appropriated stock without paying for it, or has failed to surrender shares under his agreement to surrender them for cancel· lation at 60 cents on the dollar or otherwise, the court may, on a proper finding of the facts, decree a cancellation of shares which stand in West's name, or were issued to him, saving the rights of innocent purchasers; but there should be no such cancellation on the ground merely of misappropriation by West of the moneys or credits of the company during the term of his presidency and man.agement.
75a
FEDER..u.·HEPORTER,
Yolo 63.
Upon thec1'Ol§ bill, that the complainants, or.some· of 1;hem, an illegd. iItle,and had becomeptirchasers of, the stock <pledged to Ream,West was entitled to have the illegality .of .,declared. The decree belOw is therefore !reversed, and the cause remanded for reference, on· the proofs in the record, to a master, who shall report hia conclusions of fact and law upon the several matters in dispute. Li'MER. (Otrcuit Court of Appeals, Eighth Circuit. September 24, 1894.) Np. 351. , . . ..
An oral consent in open colirt to 8Jl order of l'eference,made pursu:ant to a' stai1le. 'Statute (Code CiV. PrQC. Neb. § 298) will not enable the .circuit court .of: ,appeals (eighth circuit) to review the action of the circuit court.on t9.tlle report, where there was no bill of' exceptionsmakmg that report,()r the evidence upon which it was founded, a part of the record. DJ¢tzv. Lymer, 10 C. C. A. 71, 61 Fed. 792, affirmed. . ,
On Rehearlng. \.:Bef()l'e QALD:WELL, SANBORN, and THAYER, Circuit Judges.
Judge. ,As will appear from our previous opinion. in. this ca,ae (10 G. O"A.. 71, 61 Fed. 793, 795), we predicated our, ruling record presepted nO questions which could be reViewed by tlils';court on. .that there was no written stip,i.Ilation jury bill of exceptions found in the Th a does not challenge the, facts last ol;l. ruling was predicated. On the 'contrary, it ,inferentiaUyaqIp.itted that there was no written a jury" and:tl;1!tt the order of reference was made pursuant to a of in obedience to an oral consent expressed ,the case might be sent to a referee for trial. Srtcli. oral consent, ,it is said, enables this court to review the action circuit court Qnthe exceptions to the referee's report, althOjighJhere was no bill()f exceptions making that report, or thee'\'i4ehcetippn which it a part of the record. We 'cannot asse¥tf?thJs view .decisions. IIi ;Booghe,l' V'· .:rn.surance 00." . U.S. 90, 95, Mr. Chief Justice Waite serious reasons therein fully stated,. whether trie,dbefore to state laws can be reviewed in appellate under existing acts of congress.. That doubt left. unresolve4, ,but.it was held that such cases cannot be .reviewed. on writ ,of efrQr. unless a jury is waived in the mode providep bY tbe act 86, § 4, 13 Stat. 501, now sections 649,700, Rev. St.); is to say, by a written stipulation .it was decided that the record signed by the parties. In sufficiently show,ed that a of the pacties waiving a jury had been filed, because, in the state of Missouri, where
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