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as those of any other person engaged in it, and that they were rendered in pursuance of his agreeinent with l’orter, confirmed by Musser, and assented to by all parties in interest. The claim of White is founded upon a purchase made by him from Musser and Porter, and from others claiming under the former, whose rights arose subsequent in time to the contract between Porter and Peugh and Rittenhouse, and White's purchase being made after Peugh's services had been fully rendered. Apart from the merits, objection is made to a decree in favor of Peugh, on the ground that he has no equitable lien on the fund in controversy, within the decisions of Wright v. Ellison, 1 Wall. 16, and Trist v. Child, 21 Wall. 447. The rule, as declared in the first of these cases, is that “it is indispensable to a lien thus created that there should be a distinct appropriation of the fund by the debtor, and an agreement that the creditor should be paid out of it.' 1 Wall. 22. Here, as between Musser and Porter on the one hand, and Peugh on the other, there were words in the agreement of express transfer and assignment of the very fund now in dispute, though not then in existence, which, in contemplation of equity, is not material. And if that was not the case in the powers of attorney given by the claimants to Musser and Porter, it is not pertinent to this controversy; for the principals have voluntarily permitted the one-half of the fund to remain unclaimed by them, in order that their agents and attorneys may have it apportioned among themselves according to their respective rights.
It is further objected that Peugh's rights under the contract of February 16, 1870, were lost by the release of Rittenhouse, their interest being joint. If this were so at law, it would not be so in equity contrary to the intention of the parties; but here there was an express and distinct recognition of the several interest of Peugh in the contract, and of his right to proceed in its performance after the release of his co-contractor. His services were rendered and were accepted, and he is entitled to his compensation in accordance with his agreement. There should have been a decree in his favor on his cross-bill for the one-fourth of the fund, subject to the claim of the estate of Winder, who is deceased, for the amount of his compensation under his agreement with Peugh and Rittenhouse. The decree of the supreme court of the District of Columbia is accordingly reversed, and the cause remanded with directions to render a decree in conformity with this opinion; and it is accordingly so ordered.
(112 U. S. 713)
HALFERTY 0. WILMERING.
(January 5, 1885.) PLEADING-CONDITION PRECEDENT-ALLEGATION AND DENIAL_Law or Iowa.
A plaintiff having alleged general performance by him of his obligations under a contract, a denial by the other party in his answer of " each and every allegation in the petition," will not, under the Iowa Code, (which regulates pleading and practice in the federal courts in that state,) put in issue a condition precedent without performing which the plaintiff would have had no right of action. In Error to the Circuit Court of the United States for the District of Iowa. Galusha Parsons, for plaintiff in error. No appearance for defendant in
MATTHEWS, J. The plaintiff in error, who was plaintiff below, sued to recover damages for an alleged breach of a written contract, entered into at Chicago, for the sale and delivery of 1,000 hogs, to average 250 pounds or over, to be delivered at Plattsburg, Missouri, in the month of December, 1876, at the seller's option, at $4.50 per hundred gross weight. The contract con. tained the following clause: “Each party hereby agrees to deposit one thonsand dollars ($1,000) each in the Union Stock-yard National Bank for the faithful performance of the above contract, the thousand dollars to be for
feited to the party who fails to perform his part of the contract.” The petition, setting out the cause of action, alleged that “the plaintiff duly performed all the conditions upon his part to be kept and performed.” The answer stated that the defendant “denies each and every allegation in said petition, and the three several counts thereof contained, as fully and to the same purpose and effect as though each special allegation were herein specifically put in issue.” On the trial it was claimed by counsel for the plaintiff that the deposit of money, specified in the contract, was not a condition precedent to the right of recovery; but that if it was, its performance by the plaintiff was admitted upon the face of the pleadings. The court was requested so to instruct the jury, and its refusal to do so is now alleged as error. The obligation to make the stipulated deposit rested upon each party, as one of the terms of the agreement, so that to charge the other with a default, it became necessary to allege and prove performance, or some legal excuse for non-performance. And if the national bank, specified in the contract, refused to become the depository for the purposes of the agreement, none other could be substituted without the consent of both parties. This is the plain meaning of the stipulation. It is one the parties had a right to make; and their agreement on the subject is the law of the case. The denial in the answer of each and every allegation in the petition would certainly seem, so far as words are concerned, to put in issue the performance in this respect, as in every other, on the part of the plaintiff, alleged in the petition. But counsel for the plaintiff in error contends that such is not its legal effect under the Code of Iowa, which also regulates the pleading and practice in such cases in the courts of the United States sitting in that state.
By section 2715 of the Iowa Code, it is provided that, “in pleading performance of conditions precedent in a contract, it is not necessary to state the facts constituting such performance, but the party may state generally that he duly performed all the conditions on his part;" and section 2812 enacts that every material allegation in a pleading not controverted by a subsequent pleading shall, for the purposes of the action, be deemed true. Section 2717 is as follows: “If either of the allegations contemplated in the three preceding sections is controverted, it shall not be suflicient to do so in terms contradictory of the allegation, but the facts relied on shall be specifically stated." The two other sections referred to are sections 2714 and 2716, the latter of which provides that “a plaintiff suing as a corporation, partner. ship, executor, guardian, or in any other way implying corporate, partnership, representative, or other than individual capacity, need not state the facts constituting such capacity or relation, but may aver generally, or as a legal conclusion, such capacity or relation; and where a defendant is held in such capacity or relation, a plaintiff may aver such capacity or relation in the same. general way.”
*The application of the rule prescribed in section 2717 to the cases described in section 2716 has several times been considered and adjudged by the supreme court of Iowa. In the most recent of them to which our attention has been called, (Mayes v. Turley, 60 Iowa, 407, S. C. 14 N. W. Rep. 731,) the plaintiff averred in his petition that he was the duly appointed, qualified, and acting administrator of the estate, etc. The defendants' answer said they denied each and every allegation in said petition contained. It was held by the court that the jury should have been instructed that, the denial being insufficient, they could not take notice of it, and they should therefore consider it admitted that the plaintiff was duly appointed and qualified administrator. So, in Stier v. City of Oskaloosa, 41 Iowa, 354, it was held that a bare denial, in the answer of the averment to the petition, that the defendant was a corporation, does not put that faci in issue. To the same effect are the following cases: Coates v. Gaena & C.U.R. Co. 18 Iowa, 277; Blackshire v. Iowa Hninestead Co. 39 Iowa, 524; Gates v. Carpenter, 43 Iowa, 152. No distinction can be drawn betweets
the application of the rule to the cases mentioned in section 2716 and that specified in section 2715; and upon such a question we feel bound to adopt the construction of the state Code which has been established by the decisions of the supreme court of Iowa. It follows, therefore, that the circuit court erred in its instruction to the jury that the alleged performance on the part of the plaintiff below of the condition of the contract wbich required a deposit of money in the Union Stock-yard National Bank was a matter in issue and requiring proof, and in not instructing them, as requested by the plaintiff, that it was to be taken as a fact, without proof, upon the admission in the pleadings. For this error the judgment of the circuit court is reversed, and the cause remanded, with instructions to award a new trial.
(112 U. S. 733)
ST. PAUL & D. R. Co. 0. UNITED STATES.
(January 6, 1885.) 1. CONTRACT FOR CARRYING MAIL- RAILROAD MORTGAGE - RIGHT OF MORTGAGEE OPON
The St. Paul & Duluth Railroad Company, upon succeeding, through a foreclosure of mortgage, to the Lake Superior & Mississippi River Railroad Company, did not thereby acquire any claim the latter might have had as to such reduction of compensation for carrying the United States inail as was made by the postal de partment either before or after the succession of title; the contract with the United States government having been made by the Lake Superior & Mississippi River Railroad Company, and there being no descriptive words in the instrument of mortgage transferring the rights of the latter company under that contract to the
mortgagees. 2. SAME_TRANSFER OF CLAIMS AGAINST THE GOVERNMENT-SECTION 3477, Rev. St.
A voluntary mortgage for the security of a debt, and finally completed and made absolute by judicial sale, comes within the intent of section 3477, Rev. St., which provides the formalities attending the transfer of a claim against the United States, although, under the decisions in Erwin v. U. S. 97 U. S. 392, and Goodman v. Niblack, 102 U. S. 556, an assignment by operation of law to an assignee in bankruptcy, and a voluntary assignment of an insolvent debtor for the benefit of creditors, do
not conie within the statute. 3. SAME-EFFECT OF TRANSFER-SECTION 3737, Rev. St.
Section 3737, Rev. St., avoids the liability of the United States upon a contract after the transfer of any interest therein to another person by the party with whom
the contract was niade. Appeal from the Court of Claims. J. F. Farnsworth, for appellant. Sol. Gen. Phillips, for appellee.
MATTHEWS, J. On the eighth day of October, 1875, the Lake Superior & Migsissippi Railroad Company entered into a contract in writing with the United States, acting by the postmaster general, for carrying the mails between St. Paul and Duluth for an agreed compensation of $13,859.97 per annum. On the twentieth day of October, 1876, the postmaster general gave notice to the company of a reduction in its compensation at the rate of $2,772 per annum, in accordance with the post-office appropriation act of July 12, 1876, and on the twenty-eighth day of August, 1878, a rther decrease was notified by the department under the post-office appropriation act of June 30, 1878, amounting to $498.96 per annum. The total reduction amounted to $12,141.36, of which $3,686.76 was made prior to June 12, 1877, and $8,454.60 after that date. The service rendered during the first period was by the contractor, the Lake Superior & Mississippi Railroad Company, during the latter period, by the appellant, the St. Paul & Duluth Railroad Company, claiming to be the successor to all rights of the former under the contract. Its title thereto arises under a judicial sale by virtue of a decree of the circuit court of the United States for the district of Minnesota, foreclosing a mortgage given by the Lake Superior & Mississippi Railroad Company to trustees to secure its bonds, dated
January 1, 1869.* This mortgage professes to convey the lands of the mort gagor, to which it was or might be entitled under grants from the United States and the state of Minnesota, and its railroad constructed or to be constructed, right of way, and all tracks, bridges, viaducts, culverts, fences, de pots, station-houses, and other similar houses, superstructions, erections, and fixtures held or to be acquired for the use of the railway, or in connection therewith, or the business thereof; also, all locomotives, tenders, cars, rolling stock, or equipment, and all machinery, tools, implements, etc., and also all franchises connected with or relating to said railway and said line of telegraph, and all corporate franchises of any nature, including the franchise to be a corporation, and all endowments, income, and advantages, etc., to the above-mentioned lands, railroad, or property belonging or appertaining, and the income, rents, issues, and profits thereof.
The decree for sale directs the sale of the mortgaged premises, and a sale thereof was confirmed by the court and a conveyance made to the appellant, a corporation organized by the purchasers for that purpose, under the laws of Minnesota, on June 27, 1878. In respect to the claim of the appellant for so much of the reduction made by the post-office department as relates to the service performed prior to the sale by the Lake Superior & Mississippi Railroad Company, it would be governed by the decision of this court in the cases of Chicago & N. W. Ry. Co. 104 U. S. 680, and Chicago, M. & St. P. Ry. Co. Id. 687, if the corporation with whom the contract was made were the claimant; but we do not find in the mortgage, or decree for sale, any terms of description, as to the property and interests conveyed, sufficient to pass the interest therein of the original company to the purchasers at the sale. The same remark applies to the contract itself. The appellant, by virtue of the sale of the railroad and property rights mortgaged, did not be come assignee of the contract between the United States and the Lake. Superior & Mississippi Railroad Company, and can claim nothing as such in this suit. * There are no words of description in the mortgage which include it. The fact that service was performed in carrying the mail, subsequent to the sale, by the appellant, does not commit the government to a recognition of the contract as if made with it. No such recognition is found as a fact by the court of claims, and it is apparent, from the facts found, that the postoffice department treated the service performed by the appellant as subject to regulation according to the terms of the act of June 17, 1878, which justified the reduction complained of. If it were otherwise, however, the appellant's case must still fail. That part of its claim for services rendered prior to the sale by the Lake Superior & Mississippi River Railroad Company falls within the prohibition of section 3477, Rev. St., which provides that “all transfers and assignments made of any claim upon the United States, or any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or any part or share thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof.
In Ěrwin v. U. S. 97 U.S. 392, it was held that an assignment by operation of law to an assignee in bankruptcy was not within the prohibition of the statute; and in Goodman v. Niblack, 102 U. S. 556, a voluntary assignment by an insolvent debtor, for the benefit of creditors, was held valid to pass the title to a claim against the United States. But, in our opinion, the present case is not within the principle of these exceptions, but falls within the purview of the prohibition. It is a voluntary transfer, by way of mortgage, for the security of a debt, and finally completed and made absolute by a judicial sale. If the statute does not apply to such cases, it would be difficult to draw
a line of exclusion which leaves any place for the operation of the prohibi. tion. * So, the transfer, by the same proceeding, of the contract itself, so as to entitle the assignee to perform the service and claim the compensation stipulated for, is forbidden by section 3737, Rev. St. That section is as follows: "Sec. 3737. No contract or order, or any interest therein, shall be transferred by the party to whom such contract or order is given to any other party, and any such transfer shall cause the annulment of the contract or order transferred, so far as the United States are concerned.” The explicit provisions of this statute do not require any comment. No explanation could make it plainer. The judgment of the court of claims is accordingly afirmed.
(112 U. 8. 737)
(January 5, 1885.)
St. Paul & D. R. Co. v. U. S. ante, 366, followed and judgment afirmed. Appeal from the Court of Claims. J. F. Farnsworth, for appellant. Sol. Gen. Phillips, for appellee. MATTIIEWS, J. In this case the appellant sued in the court of claims to recover $14,394.71, alleged to have been earned by the Flint & Pere Mar. quette Railway Company under a contract for postal service, and which the postmaster general had withheld as a reduction of compensation under the post-office appropriation act of July 12, 1876, and that of June 17, 1878. The appellant is a corporation organized under the laws of Michigan by the purchasers, at å judicial sale, of the railroad property and franchises of the Flint & Pere Marquette Railway Company, under proceedings to foreclose mortgages which expressly conveyed to the mortgagees all choses in action, and all claims and demands whatsoever, including claims against the United States. The sale undoubtedly passed the interest and title of the mortgagor to the claim sued on, if that was capable in law of being assigned. As it has just been decided in the case of St. Paul & D. R. Co. v. 0. 8. ante, 366, that the assignment and transfer of such a claim was rendered void as against the United States by section 3477, Rev. St., the appellant had no title to the claim sued on which it could enforce in the court of claims. The judgment of that court is accordingly affirmed.