406,

o:t'iSaIe an!l'conveya,nqe" anq, ,of avails of saleto use, wHh remai.nder over tl) her niece, Eliza Trowbridge Whi'4l,;i'Ylfe of Josia,b, J. White, a of New York, ()f whose estate iii!, n9W adlAlplli!tratorj' and her heiFs, forever,. of ,of whom he is .,.The of Connecticut provide; that when a life is given by will with remainder, .over without a the P!:'qpi:i!te co,urtmay order the executor to deliver the esta.tEl:tqtb,e upon the giving of a p;.:operbond for its and .(leJivery to the reversioner. Gen., St. p., 138, § 559. Marjyi4tJi.\n. Prattlwfildemanded the es.tate as hel'own,without giving bill brought in the stl.lte court for a construction will. The, defendant 'W'hite filed a petition andd»ppd" ,which,. ,was approved in th,estate court, forthe removal of the cause to this' court, and entered it here. It has now: been heard on a motion to remand. If the suit is of such nature as to be removable at all, it could not be removed under the acts of congress now in force, unless all the parties in interest on one side of it, or of some separable controversy in it, are of one state, and those on the othersid,e are. citizens of another state. 25 Stat. 433. As a suit in the interest of the orator agaInst the defendants, it is not removable, because one of the defendants (Mary Ann Pratt) is a citi· zen, o.f,. the, same state (Connecticut) with the orator; The suit to get a collstruction 9f the will in for the safety of the admintOJ:)ifone which, in the iprisprudenceof the state, no one adn:J.iniStJ;ator can maintain:,Belfieldv. Booth, 63 Conn. 309, 27 At!. 585, 1'he relief sought is this advance construction, withotit'w.bre, fot1thebenefit of the oratplfl'as a reillparJ;y, in its own interest,and not'a.s arnerely nominal party without interest, as has Wlthout the a real party, nothing would remain of the suit.···,A separable controversy in a cause, about which parties may be arranged, within the meaning of this statute, must be something more than. a mere collateral ,or incidental dis}>l1te or question or QfJaw, and. amount ,to a substantialcolltroversy in respect to relief sought, which can 'he granted or denied, according to the rights of the parties as they may be Torrence v. Shedd,144U. S. 527, 12 726. The defendant White is not on iSide, with the orator ltlld the defendant Pratt, or either of of any stich controversy in this cause. He could them, on the not maintain any such suit as this, brought by himself against them, or eitherM them, for such' relief, and this suit includes no such controversythathe can maintain. Upon theSe considerations the suit does not appear to have been, in whole or in any part, removable. Motion granted.
DAVIS & RANKIN BLDG. & MANUF'G CO. v. DIX et a1. (CircUit rOdnrt, Oeirtral DiviSion, W. D. MllilSourl. Octo!:>er 16, 1894.)

1. EsTo:rJ>KI/ IN . PAIS.
   

the

purchasers at· the solicitation of the seller's agent. 'The purchasers tAUiqg to proVide land OD wbl/:lh to CODstruct,the creamery, the seller, as

A Contract for the sale arid construction ota creamery was signed by

. ,,'

"

.'

,

DAVIS &:RANKIN BLD«;l. &: JrIANUr'Q CO. tl. DIX.

407

permitted by the contract, procured land and erected the creamery in compliance with such contract, in the. view of 'such purchasers. Soon after the contract was executed, and at various times afterwards, the lat· ter sought to be released from, and refused to comply with, the contract fOl" various reasons, which did not include any claimed alteration of it. Held, that the purchasers could not, in an equitable action by the seller to enforce such contract, set up an unauthorized alteration, of which the seller was ignorant, made by the agent after part of them signed it.
2.

ALTERATION OF INSTRUMENTS-WHAT CONSTITUTES.

a.

Where a contract signed "D. & R, The First Party, per B., Special Agent," shows on its face that the "first party" is "D. & R. Bldng. & Manfng. Co.," such agent may, after the contract is signed by the "second parties," without their knowledge, and before he delivers it to the principal, add, opposite the names "D. & R," the words "Bldng. & Manfng. Co." Act Mo. April, 1891 (Laws 1891, p. 75), requiring foreign corporations, before being allowed to do business in the state, to keep public offices therein for the transaction of business, to file with the secretary of state copies of their charter, forbidding the incumbrance of their property in the state, etc., and providing that the act shall not apply to traveling salesmen soliciting business in the state for foreign corporations which are entirely nonresident, applies only to such corporations as conduct their business in the state in such manner as to give them a status there, and not to foreign corporations which merely sell their wares in the state through traveling salesmen.
If such act applies to foreign corporations who send traveling agents into the state to make contracts for the sale of goods and machinery kept and manufactured without the state, it is void as an interference with interstate commerce.

FOREIGN CORPORATION-AcT REQUIRING PUBLIC OFFICE TO BE KEPT WITHIN THE STA'fE-WHEN ApPI,IES.

4..

CONSTITUTIONAL LAW-INTERS'l'ATE COMMERCE.

Bill by the Davis & Rankin Building & Manufacturing Company against L. V. Dix and others to recover the contract price of a creamery, and foreclose an equitable lien on land on which it was erected. Decree for complainant. Silver & Brown, for plaintiff. Edwards & Davison and W. S. Pope, for defendants. PHILIPS, District Judge. This is a bill in equity filed by the complainant, an Illinois corporation, against the respondents, numbering about 45 persons. It is predicated of a contract for the sale and construction of a creamery, which is like that found in the case of Davis v. Shafer, 50 Fed. 765. 'l'he creamery was to be erected, as stated on the face of the contract, "at or near Jefferson City, or on Dix's farm." The respondents having failed to procure the lot of ground, with a supply of water, for the erection of the creamery, the complainant, pursuant to the provisions of the contract, proceeded to select the ground at or near Jefferson City, and to dig a well for water; and, as the title to this property was taken in the name of the complainant, this bill in equity is filed, alleging compliance with and performance of the contract on the part of the complainant, and asks a decree against respondents for the contract price, and for a foreclosure of the equitable right of the respondents in said land, and for the enforcement of the decree against the same, with judgment over against them for the residue. A part of the respondents answer

JJ'EDEBAL BllU'ORTER,

.

vol.

M.

separately, interposing the plea of non est factum, while the other reo spondents, iintheir answer, inter alia, setup the fact of the alleged alterationciftJ,tecontract relied upon by the first-named respondents, and allege tlUsalteration was made before theysignedthe contract, and that they would not have executed the same had they known the same had been altered after the other respondents had so executed it. The plea'ofrion est factum is predicated of the contention that the contract"as signed by the first·named parties, described the location for the creamery plant "at or near Jefferson City, on L. V. Dix's farm," and the· alleged alteration consists in interpolating the word "or" just be,ore the word "on," so as to make the prescription read "at or near Jefferson City, or on L. V. Dix's farm." There is a sharp conflict of evidence between the complainant and the respondents on the question of fact whether this word "or" was in the contract before it was signed by any of the parties. Blanchard, who was the solicit· ingagent who obtained the signatures of respondents to the contract, testifies that this word "or" was inserted in the contract at the instance and request of the respondent Dix, the first signer of the contract. On the other hand, the respondents' testimony tends to sb.()w that the word "or" was interpolated after some of the parties hlld signed. It is, however, quite impracticable, from the respondents' testimony, to determine with reliable accuracy after what particular signature to the contract this word was inserted. Accepting,the testimony of Mr. F. W. Boer, county clerk of Cole county, it w()U1d appear that this alteration was not made later than the signature of respondent Thomas B. Mahan. Taking the evidence on the part of the respondents as true, it would appear that this word "or" the objection of some of the SUbscribers to confining the location to the Dix farm; and Boer testifies that he heard the conversation between Mahan and Blanchard in which Mahan suggested that this change be made. How Mr. Mahall can be heard to complain of this alteration, when made at his suggestion, is not apparent. If it be conceded that this alteration was made, and that the effect in law would be to release those who signed the contract ptior.to the change, and that it ought likewise to operate in favor of the subsequentsigners, on the ground that they executed the instruJ;llent in reliance upon its being obligatory upon all the predecessors, arises, in view of all the facts and circum· stances attending this transaction, ought the respondents to escape liability on t,llecontract? This strife is a repetition of the facility and credulity exhibited by the average man in entering into SUch jQiIlt contracts,under the persuasive influence of canvassing solicit· ors, .and a vague .notion of either large profits that are in some way tQaccrue to thew Or the community by such projects. Too late disqcivering therecsponsibilityassumed by them in signing such contract, and that.such enterprise will end only in disaster, they begin to cast abQutfor some loophole of escape. The evi· dence .in this case shows that, after this contract was executed and returned by tIle agent to the cmnpany at Ohicago, the subscribers, in general and in particular, raised all mannel' of objections and reasons ,why they shouIdn,ot be Among the groundless con

DAVIS & RANKIN BLDG. & MANUF'G CO.

v.

DIX.

409

tiona of some of the respondents, made in the testimony, but not distinctly raised by the pleadings, is that they simply signed a piece of paper with no form of contract attached thereto, and that it was a mere subscription paper. This is wholly incredible. In the first place, it is apparent that the solicitor, Blanchard, is correct in his testimony that the papers were a unit,-the two forms and the subscription were attached together. Aside from this, many of these respondents testify that when they signed the paper they saw the contract thereto, and over half allege in. their answer that they examined its contents, and signed it after Blanchard had stated to them that they would only be held to the extent of their subscription. And what is still more glaringly contradictory is the fact that some of these parties, while testifying that no form of contract was attached, at the same time attempt the defense in their testimony that when they attached their names to the contract it was only signed "Davis and Rankin, The First Party, per Chas. Blanchard, Special Agent," and that Blanchard afterwards added, opposite t:q.e words "Davis and Rankin," the words "Bldng. & Manfng. Co." The paper shows on its face that the name "Davis and Rankin" was affixed at the bottom of the contract; so it was impossible for the parties to have seen that signature without seeing that it was attached to a contract. If they gave no heed to what they were signing, with the paper before their eyes, they must realize the force and virtue of the maxim of the law, "Vigilantibus et non dormentibus jura subveniunt." But suppO@e, as a matter of fact, that Blanchard did add the words "mdng. & Manfng. Co." after "Davis and Rankin"; how does that affect the obligation? With conspicuous capitals, the contract, on its face, over and over again shows that the ''Davis and Rankin Building and Manufacturing Company" is the party of the first part, with whom the subscribers, as "party of the second part," were contracting. The agent, if he neglected to add the full corporate name in signing the contract, could do that at any time before it was delivered, for it was not completely executed by the company until duly signed by the agent. About the time of the completion of the subscription list, mutterings of discontent, fomented mainly by the respondent Dix, arose among the subscribers. and some of them wrote to Blanchard to be released. Dix and Creedon wrote letters to the company manifesting dissatisfaction in a general way, whereat Mr. Woodbury, secretary of the company, was sent out from Chicago to Jefferson City to investigate the causes of discontent, and, if possible, to harmoniously adjust matters. On his arrival at Jefferson City he met subscribers in convention at the Monroe House, and saw others afterwards in detail, and particularly those interposing this plea of non est factum, when the whole grounds of grievance were canvassed and discussed. Not one of these respondents, in any letter ever written by them, or at any meeting, or In private conversation with Woodbury, suggested one word about the alleged alteration made in the contract as a reason for their nnwillingness to proceed. Their whole gronnd of complaint, both in said letters and interviews, was predicated of other matters. They also made suggestions of compromise.

410'

, J'JlIDERAL REPORTER,

voLo: 64.

lands tor saidbl1U4Jng" together with springjor reseo/0ir on said lot for t4euse 0t and it i{l that! ,in case the said t9 furnishs'jUd, land and water wIthin ten days after the execUtion of this contract,tben the Davis' and Rlj,D.kin Building and ManufaettirfugCompany, at its optian, may select and furnish land and water in 'bEibalfrQJ1d at the ot,thesubscribers."

''The ptrIie8(jt>:the 13econd part hereby agree to seh!ctand ,futnlsh suitable

The', coJitfllct'

the following

As the had'notni,lidethe selection nor offered the groun,d,WoQ(j"t,lUtyinformea them at that interview that as' the company,' underWeoontraet,'could ,not compel payment without performance pn, ttspart, he would proceed, under the, right conferred the and purchase the ground and furnish the water for the pll\nt;' More than he gave them notice iP, Wrltmg, WhICh recIted the contract in question by reference, and above quoted, advising them that he would proceed ,to acquire the land, 'He proceeded,thereafter in execution of theeontract,pought and paid for the land, and put up and completed the creamery. Not one of the respondents at said meeting, orin said interviews, or in response to said notice, gave Woodbury or the company a word about the alleged alterin tbecontract, but,placingtheil' complaints on other groundst they stQ6d by ana 'suffered the company, in ignorance of the imputationthat Blanchard had altered theetlntract before he returned it to the company, togo ahead with the manufacture of the material and I1).achinery in their house at Ohicago, and put it up on the ground at Jefferson Oity in view of the respondents. Shall they now be heard" in the ,forum of to interpose the alleged alteration against tne demand of the company for' its, pay?' It is a wholesome, because a reasonable and just, maxim of law, especially applicable in the administration of eqUity jurisprudence, that "he who did not speak when he should have spoken shall not be heard now that he should be silent." State v. Potter, 63 Mo. 226; Quinlan v. Keiser, 66 Mo. 605., This equitable rule has been 'succinctly stated by the supreme of this state in Chouteau v. Goddin, 39 Mo. 229, as follows:
"When a party, by his ads or words, causes another to believe in the existence of a certain state of'things, and indnces him to act on that belief so' as to alter his own preVious condition, he will be conclllded from averring anytiling to the contrarya.gahlst the party so altering his condition." ,

.And thesupreDle cour't'of the United States, in Bank v. Morgan, 1l1U.K 108, 6 Sup. Ot.657, citing with approval the language of Folger, J.,in Bankv. National Bank of Oom., 51) N, .Y. 583, held it IlOt to be-:the part of the persort maki,tJ.g a declaration or doing an act, to mislead the
','ahvays necessary' to suchap.· estoppel that there should be an intention, on o;ne" Who is induced to rely rupon it.1nc;leed, it would limit the rule much the reason of it if it were restricted. tQcases where there was an eleqlellt of fraudulent purpose. In very many ot the cases in which the rule tias there wasrtb more than negligence ()n the part of him who was estopped,'" . ,

This case further the prbposition that if, in the transaction in dispute, the one' party has led the bther into a belief of a.

DAVIS & RANKIN ,BLnG. &

v. Dlx.411

-certain state of facts, he cannot be heard afterWards, as against the first, to show that the state facts did not -exist. And, following this principle to its logical result, it has become axiomatic that "silence, when it is the duty of the party to speak, is lequivalent to concealment." 7 Am. & Eng. Ene. Law,p. 12. So, it is held by the court of Wisconsin, in Meincke v. Falk, 61 Wis. 623, 21 N. W. 785, that one who refuses to carry out a contract on the ground that it is illegal is estopped from· afterwards raising the objection that the other party has not complied; and the reverse of the statement would be true,-that one who refuses to carry out a contract on the ground of specified misrepresentation would be estopped from afterwards raising the objection that the contract had been altered. It was but following up this sound rule of commercial honesty that the supreme court, in Railway Co;v. McCarthy, 96 U. S. 258, held tbat:

of

"When a party gives it reason for hiscondllct and decision touching anything involved in a controversy, he is estopped, after litigation has begun, 'from chllJIlging his ground, and putting his conduct upon another and different consideration."

Applying this rule to the factS of this case, the respondents who set up this plea of non est factum are estopped; and of consequence the second class of respondents, who ask to be discharged on the -ground that those of the first class are released by reason of the alteration, are also estopped. Take, as an illustration, the conduct and attitude of the respondent Dix, who has been the leader' in this resistance. In his letter of April 1, 1892, written long after he had -signed the contract, he notified the company that he would not bQ responsible for the five shares of the subscription for the erection of the creamery, "for the reason that my name to said subscription, and amount subscribed, was obtained from me by false and fraudulent representations by the said Chas. Blanchard, who represented that he was the agent of the firm of Davis & Rankin, of Chicago." He specified wherein the alleged misrepresentation was false, to wit, that Blanchard r-epresented himself as the agent of Davis & Rankin. He does not, even in his answer, allege this flimsy excuse as a defenSe. These respondents having placed their reflisal to proceed on otlier ,grounds, and standing mute as to any claimed interpolation in the contract, the company had, in effect, their assurance that it might proceed in construction of the plant, subject only to loss in case any of the objections then interposed by them, and afterwards pleaded, ,should prove to be true in fact and valid in law. This is clear equity, as it is natural justice. It then only remains to be seen what other defenses an;r of these respondents have set up than the one just disposed of. First, it is pleaded that the complainant cannot maintain this suit because it is a foreign corporation, and had failed to comply with the act of tIre legislatureof Missouri approved April 21, 1891 (Laws Mo. 1891, p. 75). This act, in. effect, requires every nonresident corporation for pecun· iary profit, before it shall be authorized to transact or do any busi.ness in this state, to maintain a, office or place in the state for

412

nUZBAL BEPOBTlllB,

vol. 64.

the transaction of ita bUlJiness, where legal service may be obtained upon it, and where .properi books shall be kept to enable suchcorporation to comply with the law governing such corporations, and subject to all )the .liabilities,restrictions, and duties imposed upon corporations of like character organized under the laws of the state, and .forbidding it· from mortgaging, pledging, or otherwise incumber;ingits real or personal property situated in this state, also requiring liIuchnonresident corporation to ille with the secretary of state a copy;of,its charter or articles of incorporation; and that the principal officer. :or agent· in Mislilouri shall fumish the secretary of. state a sworn 'statement of the proportion of'the capital stock of said corporation represented by' its property located, and business transacted, in this state. The act subjects such corporation, fora failure to comply therewith, to·a fine of not less than $1,000, and in addition thereto denies to such corporation the right to maintain any suit or action in any-cOurt of the state upon any demlJ.nd, whether arising out of a contract or tort, but with the proviso that the act shall not apply to "drummers," or traveling salesmen, soliciting busineSs iil the state ,for corporations which are entirely nonresident. Independent of aDV consideration of whether or not this statute is violative of the iritel'state clause of tp.efederal constitution, it is quite apparent, from a of all of its provisions, that it was intended to appl;V.9nlv to such nonresident corporations as were conducting their busine8a operations in the state in such manner as to give it a status here. must be doing arid collducting a business here, as it would be sai,d of a resident citizen or corporation doing business in the The only evidence pertaining. to the manner of making this cOntract and the conducting of complainant's business is the Mr. Woodbury, secretary of the company, who testified:
who canvass the territory for ns, under blank contracts furnished them. After this contract appears to them to be'sat!sfactory, it is forwarded to us for ratification or rejection. If accepted by us, the agents are paid for the work, and their cOnnection with it ceases. The machinery is made here in Chicago. seU that to .the contracting and to other established creameries in the .
"We! manufacture everything that pertains to the plant, and this is done in and by The contract for the building is done by agents

Confessedly, the state legislature cannot deny to a nonresident citizen the right to send a canvassing agent here to snlicit, by sample or otherwise, contracts for the sale of goods or machinery to be manufactured without the state, and shipped into and delivered in the state by the merchant or manufacturer. A corporation stands upon the same footing in this respect as an individual. Paul v. Virginia, 8 Wall. 168. Similar statutes in other states have been held inef· fectual to prevent the operation, or to obstruct the contracts, of for· eigncorporations whose method is to send a solicitor into other states to make contracts for goods to be manfactured at the domicile of the corporation, and shipped to and delivered to the customer in the state, for the reason that such transactions are parts and promotive of interstate coIDInerce, and not subject to state regulation. Gunn v. Machine Co. (Ark.) 20 S. W. 591; Bateman v. Milling Co.

DAVIS & RANKIN BLDG. & MANUF'G CO · .". DIX.

413

(Tex. Civ. App.) Id. 931; Lyons-Thomas Hardware Co. v. Reading Hardware Co. (Tex. Civ. App.) 21 S. W. 300. If this act of the state legislature applies to this case, it would also apply to the instance of a manufacturer of mowers and reapers, like that of McCormick, who should send a traveling salesman into Missouri, soliciting from a farmer a contract for the sale of a reaper, to be manufactured at Chicago, and delivered at the farm in Missouri, with the usual stipulation that the company's agent should put it together and start it in running order. So of a manufacturer of furnaces for houses, who should send a soliciting agent into the state to make a contract with the owner of a building for a furnace, to be manufactured at the company's shops outside of the state, and by it shipped into the state, accompanied by an agent who was to put it up in working order. Carried to its logical conclusion, the state legislature could reach the case of every nonresident incorporated mercantile concern which manufactures and sells its wares through the medium of a traveling agent, who takes orders in this state for goods to be manufaotured in another, of a particular character, and shipped into the state, and delivered by an agent of the shipper to the local merchant, under a stipulation that the agent should remain a few days and assist the purchaser in properly arranging the goods, and explaining to him their quality and the like. While according to the state the fullest recognition of its power to exclude from its territory every nonresident corporation from obtaining a footing-a situs-within its territory to transact business, the federal constitution interposes an insuperable barrier to its interference with the necessary operations of interstate commerce. The next defense set up in the answer is that notwithstanding the clause in the contract which declares that the company will not be responsible "for any pledges or promises made by its agents or representatives that do not appear in this contract, and made a part thereof either in print or in writing," yet the agent, Blanchard, assured them that they would not be held on their subscription for a greater sum than the amount representing the shares subscribed for, and that the company promised in writing to make good any assurances of said Blanchard. The contract, on its face, is clear and explicit, and by its terms it is a joint and several contract, each subscriber being responsible for the whole sum of the contract price. Davis v. Shafer, supra. Waiving any discussion of the fact that the proof, even on the part of the respondents, shows that any such statement by Blanchard was made to only a few of them, it is to be kept in mind that it is not averred in the answer that this alleged statement by Blanchard was fraudulently and deceitfully made, or that respondents executed the contract in reliance upon the truth of such representations. The case presented, therefore, by the respondents, is a naked attempt to vary, change, and control the plain provisions of a written contract, by contemporaneous verbal statements and understanding. This precise question was decided adversely to this contention by this court in Davis v. Shafer, supra; and 80 say all the authorities. But, say respondents, the complainant afterwards promised in writing to make good any promise made by Blanchard.

the complajnant resJX>!l-dl:mts, ,:would be defined and lmuted hy r;It could be' niebroader,in' its' obligatiou than of three Iett,eTlfw'titten the resP9tidents by the company after the executellby' the partie$ and delivered to the company. the three respondents, to The promise, therefore,''COuld wit; 'Gtal'k; 'Qreedon,ari6, J)avis. It'does not appear affirmatively that anY()J1e' Creedo,nwrote to the company. In his letter he of any representations him by Blanch;\rd, ;stated, tel"lliS, 'tb;at a number 'of the subscribers 'w4(;!l'e dissatiS'fted,andtliat 'Blanchard was nota good man, and . let ofi','''a:s,l have other business to look after." In reply, tQC:b\.nI;.... the " ' , ' ',': .,.;'" ,.' .....' wrote hftnas fOllows:: ", " company' , (:' ',,'; : ,,", , '
,'tlljvor C)f· Apr. 5U1 received, ,.and,'contents carefullY noted. We are vet1Sol'l'y'that atiy misuHderstanding has arisen among your people, and we assUre !)fW we will fUlfill all promises made by out .agent Cbas. Blanch· .,arli;aDl!lI .$cnehas flUi of Jlll!:tter, we refer you to him in !QU make in.

.. As ,tn!.()1aJ.lK..and Da."Vis it seems that their complaints were not madEHtiJ\kWters to the company, ,bu:tthat they had complained to Blancliard}i'iand to eack of them the company as follows:
tbrorigh oUr 'agent Mr. ehas. Blallclil\,rd that there is some misu'aliijiostltndlngand troubllibt'Ougllt'on by. one L. V. Dix. We are sOl.'ry th8lt U15' IJUisunderstfl,ll.ding lWiouj.q.arise,aud, '\Va assure you that we .will Blanchard, and will do all in our power to make your creamery a succ(')ss...· . .

The' is to be: :underatooda,s having been employed by the 'writer ihkits ol!dinary:.: legal. significance or i common acceptation, whicb BlaogjJn his Law DictionarYI defines to be:
"A declliratlonjverbal'ol'wrlttelij:made by one person to another, for a good or vaLuable; c(l:tisideratlondn the nl\,ture j)f a covenant, by which the promisor bine:ts l1iWM1f, to. do()r some! act and gives to the promisee a legal right to,qelnapd and enforce a fulfillment." !,
..,: .':;" ;\ '." .' i :" ';. '." ., · ; I -;

"

. -Thatfis,tosay, if BlaMhard had made such.a declaration, based .ona 'goOQ or valuable consideration, to do .for respondents some future w.ould carry it out. No reasonable conclusion canaIise, fromAhe language 'of these letters, that it had any possible'referance to,the present claim of re:;;pondents that Blanchard had ,ma,de them MSu,rances that the plain terms of their written promise :to. pay shotlildnot be complied with, but rather, that if Blanchard, .had made them some .independent .promise respecting something to be done ,by him for them outside of the terms of the written icompact, basedjof cOUl1$e, upon a consideration, the company:wQuld keep and perform it. But even a written promise made by tlIe'qonipilpy,aftetltheexecution and delivery of the contract, ··without!9ome·neW consideration therefor, would .be a mere nuduw, pactl1In;Y!md I ,especia:llJ: ,so·where,as in tb,isCa:se, the respondents had' thereafter· done· nO act'in reliance thereon,. so as to alter their Davi3 'to Shafer, 50 Fed. 772. , The ()iBlyi.6ther defense interposed by the answer is that no deed

GREGORY V.I'IKE.

415

to the property has ever been tendered; that the' title was bad; the creamery was not completed in time, arid did not come up to the requirements of the contract. It is sufficient to say there is no evidence to support this contention. The respondent Dix claims, in his testimony, that he had a contract with Blanchard by which it seems Blanchard promised to allow him $3QO for his services in assisting him to obtain subscribers to the contract. It is enough to say of this that Dix sets up no' such matter in his' answer, but contents himself simply with the plea of non est factum. He was necessaril.v, in his pleading, driven to this attitude, because it would hardly be consistent with his claim that the contract had been varied and was fraudulent, while he himself was going around with Blanchard persuading others to sign it. It results that the issues are found for the complainant. Decree accordingly.

GREGORY v. PIKE et al. (Circuit Court of Appeal;;, First Circuit. No. 98.
1.

TRANSCRIPT OF RECORD ON CROSS ApPEALS NAL DECREI<J. Cnoss BILL DISMISSED BY FI-

September 26, 1894.)

One not originally made a defendant in a bill in equity was brought in as such by subsequent proceedings, and allowed to file a cross bill. On his own motion, he was dismissed as defendant in the original bill. The final decree in terms dismissed his cross blll, and he was allowed an appeal, but he was not named as appellee in an appeal from the decree taken by the complainant. Held, that the transcript of the record for use on both appeals should include the cross bill and the proceedings and proofs thereon. From the transcript filed in such case, at the request of the complainant as appelJant, the cross bill and the proceedings under it were omitted. Held that, as speedy action was needed, the court, in the exercise of its inherent power to dismiss unless a proper transcript is filed, would require the complainant to file a complete transcript on peril of dismissal of his appeal, instead of awaiting the usual and less expeditious remedy by certiorari. Nashua & L. R. Corp. v. Boston & L. R. Corp., 9 C. C. A. 468, 61 Fed. 237, applied.

2.

SAME-OnDER TO FILE Fur,I. TRANSCRIPT.

8.

SAME.

Appeal from the Circuit Court of the United States for the District of Massachusetts.
This was a suit by Charles A. Gregory against Frcderick A. Pike and others to compel the surrender of certain notes. brought in the supreme j\ldicinl court of Massachusetts, and removed therefrom to the United States circuit court. In that court George 'V. Butterfield and John C. Kemp Van Ee were brought in as defendants, and given leave by the court to file (29 Fed. 588), and did file, crOSS bills in the case. In a supplemental bill filed by complainant additional parties were made defendants, and, by amendment thereto, after the decease of the defendant Frederick A. Pike, his executrix, Mary H. Pike. was made a defendant. By the final decree the cross bill filed by Butterfield was dismisscd. Complainant appcaled from the decree, but did not make Buttertield a party appellee to his appl!ul; and at complainant's request the clerk of the circuit court omitted from tbe transcript of therec·