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court by which it was admitted to probate. Application for removal of the case into the circuit court for the United States, on the ground of prejudice and local influence, under the act of 1867, as in the case now before the court, was refused, though the requisite citizenship of the parties was shown. The action of the district court having been affirmed in the supreme court of that state, the case was brought here on the allegation of error in refusing to grant the order of removal. The same argument was advanced in favor of the exclusive jurisdiction of the state court as in the brief of the counsel in the present case. But this court said: “The constitution imposes no limitation upon the class of cases involving controversies between citizens of different states to which the judicial power of the United States may be extended; and congress may, therefore, lawfully provide for bringing, at the option of either of the parties, all such controversies within the jurisdiction of the federal judiciary.” "And if by the law obtaining in the state, customary or statutory, they can be maintained in a state court, whatever desig. nation that court may bear, we think they may be maintained by original process in a federal court, where the parties on one side are citizens of the state of Louisiana, and on the other citizens of other states.” This court reversed the judgment of the Louisiana courts, and held that the application for the removal should have been granted, and ordered the case to be remanded to the parish district court, with directions to make the transfer. The cases of Payne v. Hook, 7 Wall. 425, and Hyde v. Stone, 20 How. 170, are to the same effect. In the latter case the court said, with much force and propriety, that it “had repeatedly decided that the jurisdiction of the courts of the United States over controversies between citizens of different states cannot be impaired by the laws of the states which prescribe modes of redress in their courts, or which regulate the distribution of their judicial powers."
The case of Boom Co. v. Patterson, 98 U. S. 403, is also in point. That was a special proceeding to condemn property under laws of the state of Minnesota in the exercise of the right of eminent domain, which, commencing be fore special commissioners to assess damages, was by appeal brought into a court of general jurisdiction, and from there removed, rightfully as this court held, into the circuit court of the United States. The case before us was one removable into the court of the United States.
The next objection to the removal is that the application was made too late. If the case is only removable under the act of 1875, and if that statute repeals or supersedes all other statutes for the removal of causes from the state courts into the circuit courts of the United States, then the motion was made too late, for there was a period of five years in the circuit court of Ionia county during all which time the case stood for trial. See Pullman Palace Car Co. v. Speck, ante, 374. But though such has often in argument been asserted to be the effect of the act of 1875, the language of the repealing clause of it is not so comprehensive. That language is “that all acts and parts of acts in conflict with the provisions of this act are hereby repealed.” This implies very strongly that there may be acts on the same subject which are not thereby repealed. The usual formula of a repealing clause intended to be universal is that all acts on this subject, or all acts coming within itspur view, are repealed, or the acts intended to be repealed are named or specifically referred to. In this case the effect of the statute as a repeal by implication, arising from inconsistency of provisions, or from the supposed intention of the*legislature to substitute one new statute for all prior legislation on that subject, is not left to its usual operations, but the statute to be repealed must be in conflict with the act under consideration or that effect does not follow. And this was wise, for congress well knew that there were many provisions of the laws for such removals which might or might not come under the provisions of the act of 1875, and which might be exercised under reg different from
that statute, and accordingly these were left to stand, so far as they did not conflict with that act.
The provisions of the act of 1867, by which removals are authorized on the ground of prejudice and local influence, is embodied in the Revised Statutes, in the third clause of section 639. It declares that in such a case, with the requisite citizenship, when the non-resident party files the proper affidavit, at any time before the trial or final hearing of the suit, it shall be removed. We do not think this provision is embraced in the act of 1875, which says: nothing about prejudice or local influence, and is not in conflict with that act. We are of opinion that this clause of section 639 remains, and is complete in itself, furnishing its own peculiar cause of removal, and prescribing, for reasons appropriate to it, the time within which it must be done. One of these reasons is that the prejudice may not exist at the beginning, or the hostile local influence may not become known or developed at an earlier stage of the proceedings. Congress, therefore, intended to provide against this local hostility, whenever it existed, up to the time of the trial. It is said, however, that the trial spoken of had taken place before the commissioners of Ionia county, to whom the case had been referred. But we do not look at that proceeding as a trial within the meaning of the statute. It was merely a report, subject to be affirmed or rejected by the probate judge, and, by the express terms of the statute, subject to a right of appeal to a court in which a trial by jury could be had. The latter was the trial or final hearing of the suit which would conclude the right of removal; and until such trial commenced, the right of removal under this provision remained.
It is argued that the cause should have been removed to the circuit court. for the Western district of Michigan instead of the Eastern, because the county of Ionia, in which the suit originated, is in the former. But the language of the removal statute is that suits shall be removed into the circuit court of the district where such suits are pending. Undoubtedly this means where they are pending at the time of removal. This suit was not then pending in the Western district of Michigan, but in the county of Jackson, which is in the Eastern district of that state. We are of opinion that the case was properly removed from the circuit court of Jackson county into the circuit court of the United States for the Eastern district of Michigan, and that that court erred in remanding it. Its judgment to that effect is therefore reversed, with instructions to proceed in the case according to law.
Mr. Justice GRAY dissents.
(113 U. S. 163)
UNITED STATES O. MUELLER.
(January 19, 1885.)
Under contracts to furnish stone to the United States for a building, and to saw it, and cut and dress it all as "required," the contractor may recover damages for enforced suspensions of and delays in the work the United States, arising from doubts as to the desirability of completing the building with the stone and on the site, which involved the examination of the foundation and the stone by several
commissions. 2. SAME_CONTRACT CONSTRUED.
A contract to furnish “all of the dimension stone that may be required in the construction" of a building does not include dimension stone used in “the approaches or steps leading up into the building." Appeals from the Court of Claims. Sol. Gen. Phillips, for United States. Enoch Tolten, for Mueller.
BLATCHFORD, J. Before July 23, 1872, the United States advertised for proposals for furnishing and delivering at the site of the United States govern.
ment building to be erected at Chicago, Illinois, “all of the dimension stone required in its construction." John M. Mueller submitted a proposal, dated July 23, 1882, “to furnish dimension stone in accordance with the attached advertisement," at specified prices. This proposal was accepted by a notice to him, which said: “You are hereby notified that your proposal to furnish all the dimension stone that may be needed for the exterior of the new customhouse building to be erected in the city of Chicago," for specified prices, “the stone to be delivered at the site of the building, and in such quantities and at such tiines as the department, or its duly-authorized agent, may direct, is accepted.” On the second of September, 1872, a written contract, in pursuance, of such advertisement and proposal, was made between the United States and Mueller, which described Mueller as the person “to whom was awarded a contract for certain dinension stone required in the construction of the new custom-house, court-house, and post-office building, at Chicago, Illinois, on his bid received under advertisement, and dated July 23, A. D. 1872.” By the contract, which was made on behalf of the United States by the supervising architect of the treasury department, Mueller agreed to furnish from his quarry, “and deliver at the site of the aforesaid buildings, all of the dimension stone that may be required in the construction of said building,” and to furnish and deliver 100,000 cubic feet of the stone on or before the first of January, 1873, "and the remainder at such times, and in such quantities, as may be required” by the supervising architect; and the United States agreed to pay to Mueller certain specified prices. The stone was known as “Buena Vista freestone.”
On the ninth of December, 1871, Mueller entered into another contract with the United States, on his bid made under an advertisement, by which he agreed to furnish the cutting of the Buena Vista freestone to be used in the basement story, sill, and lintel course of said building, in accordance with a specification attached, by which he was to deliver the stone, cut and ready for setting, "promptly and as required by the superintendent, so that the progress of the work will not be interrupted.” By the contract, all the stone for the area wall was to be cut, lewised and ready for setting on or before the first of March, 1873, and the pier-stones, and sill and lintel course, as soon thereafter as required by the superintendent.
On the eighteenth of July, 1873, Mueller entered into another contract with the United States, by which he agreed “to furnish such number of mechanics and laborers as may be required from time to time” by the superintendent, and all of the tools and materials necessary to cut, dress, and if necessary box, all of the stone required for the construction of said building, "and to cut such stone in such manner and at such place as may be required” by the superintendent, and to furnish, free of cost, to the government all shops, sheds and machinery necessary to cut, dress, and box said stone; and it was agreed, that all materials required for the cutting or boxing of said stone should be supplied only upon the requisition of the superintendent, and that not less than 250 stone-cutters, with the necessary complement of mechanics and laborers, should be employed “at any time during the progress of the work;” Mueller to be paid for the labor full market rates "of the labor” actually performed, increased by 15 per centum, and for the materials the lowest trade prices, increased by 15 per centum thereof.
On the fourth of August, 1873, Mueller entered into another contract with the United States, on a bid of his, by which he was to furnish all the tools, machinery, shops, and sheds, etc., required to saw, and to saw such of the stone supplied under his contract of September 2, 1872, as might be found necessary by the superintendent; the sawing to be done at such times and in such quantities as the superintendent might require, and Mueller to be paid a specified price for all stone sawn.
Mueller brought a suit, on these contracts, against the United States, in the
court of claims, to recover sundry items, and, among them, pay for certain stones furnished, for which he had not been fully paid; also damages for suspensions and delays, enforced and caused by the United States, of work under the contracts, which kept Mueller and his men, machinery, plant, and capital idle; also damages because dimension stone was required for the construction of “the steps and approaches leading up into said building,” but he was not allowed to furnish it. The court of claims allowed to him $20,000, as damages for suspensions of the work enforced by the United States, and $2,758.25 additional pay for the stones referred to, and rejected all the other items sued for, and rendered a judgment in his favor for $22,758.25. Among the items rejected was the claim for damages in respect to the stone for the “steps and approaches.” The United States have appealed because of the allowance of the $20,000; and Mueller has appealed as to the item for "steps and approaches.”
The finding of facts by the court of claims as to the $20,000 item is this: “On the thirteenth of May, 1875, claimant was directed to stop shipment of stone until further orders, and on the fifteenth he was directed to stop cutting. On the twenty-fifth of May he was notified formally, in accordance with the language of the contract, that the party of the first part does not require that any more stock should be delivered at the present time. Whenever more is required you will be notified. On the sixteenth of October, 1875, he was notified to resume cutting. In the summer and fall of 1877, when the work was nearing completion, he was directed to discharge workmen from time to time, so that the number was reduced below the minimum fixed in his contract. The work of sending forward stone was also resumed about the middle of October, and continued until about the first of December. The second suspension lasted until about the middle of February. These suspensions arose from a well-founded doubt as to the desirability of completing the Chicago custom-house with the Buena Vista stone, and on the site. Several commissions made lengthy and exhaustive examinations of the foundation and stone, pending which the United States stopped the work. The damages resulting to the claimant therefrom were $20,000.” The court was of opinion that, as the delay was caused by a contemplated change of purpose in regard to the stone and the site, the enforced suspension and delay were unjustifiable, and not covered by the stipulations in the contracts that the stone and the work should be furnished as “required.” 19 Ct. Cl. 591. We are of opinion that the court was correct in its view. U. 8. v. Smith, 94 U. S. 214.
The finding of facts as to the "steps and approaches,” was as follows: “The approaches or steps leading up into the building required, according to the plans for said building, a large quantity of cut dimension stone, to-wit, 17,473.10 cubic feet, and, although the claimant was able and willing to furnish the same under his agreement, the officers of the United States refused to permit him to furnish the same; but it does not appear that he made any proposition to furnish it. The defendants determined that granite would be more suitable than sandstone for these approaches, and the amount required was furnished by other parties. If the claimant had been allowed to furnish sandstone, he would have made a profit of $6,115.58.” The court was of opinion that there was no violation of the contract. 19 Ct. Cl. 592.
The expression, "steps and approaches leading up into said building,” used in the petition, and the expression, "approaches or steps leading up into the building,” used in the finding of facts, are, perhaps, somewhat vague. But we must infer that the expression used in the finding means structures wholly outside of the building, not a part of it, but constituting a means of ascent on the way into the building. In this view, the stone used in the approaches or steps was not stone used in the construction of the building, within the meaning of the first contract and the original advertisement. The approaches may have been of cut dimension stone, and necessary for use in
connection with the building after it was constructed; but, in the absence of anything more definite in the finding, it cannot be said that they were in the building, or a part of it. Judgment affirmea.
(113 U. S. 89)
GRIFFITH 0. GODEY and another.
(January 25, 1885.) 1. ADMINISTRATION OF EstatE-CONCEALMENT, FRAUD, ETC.-JURISDICTION OF Equity.
A settlement of an administrator's account by the decree of a probate court does not conclude as to property accidentally or fraudulently with held from the account. If property be omitted by mistake, or be subsequently discovered, a court of equity may take the proper action to do justice to the heirs or creditors of the estate as to such property, even though the probate court might in such case reopen its decree
and administer upon the omitted property. 2. SAME-GENERAL RULE.
A fraudulent concealment or a fraudulent disposition of property is always a
ground for the interposition of equity. 3. SAME-ADMINISTRATOR OF DECEASED PARTNER-WEAK-MINDED SUBVIVOR—TRUSTEE.
The administrator of a deceased member of a partnership, who, taking advantage of the consent of an ignorant and weak-minded surviving partner, assumes control of the entire partnership property, is bound to the utmost good faith in his deal. ings with the property, and should be held in its disposition to the responsibilities
of a trustee of such surviving partner. 4. SAME-Rights of DEFRAUDED PARTNER-ACCOUNT.
A surviving partner, whose property is sold by the fraudulent act of a deceased partner's administrator, may, instead of seeking to annul the sale, com pel the ad.
ministrator to account to hiin sor the amount received for the property. 5. SAME-PURCHASER AT FRAUDULENT SALE-NOTICE.
A purchaser, who colluded with an administrator in the fraud by which a sale of partnership property was consummated, takes the property with notice of the rights of the intestate's partner, and of the relation of trustee which the adminis trator bore to such partner. Appeal from the Circuit Court of the United States for the District of Cal. ifornia.
This is a suit in equity to charge the defendants as trustees of certain property in which the complainant was interested, and which they received and disposed of. The facts out of which toa case arises, briefly stated, are as follows:
For some years previous to 1870 the complainant, Ellis Griffith, and his brother, John Griffith, were partners, engaged in the business of cattle raising, and resided in Kern county, California, where they occupied what is called a stock range, a tract of country on which cattle are permitted to roam and graze. It may be termed the feeding ground—the pasture land of the cattle. Although the title to the land constituting the range was in the United States, and the land was not inclosed, the right of the Griffiths to use it for the pasturage of their cattle was recognized and respected by their neighbors and other stock raisers in the county. It had excellent springs, furnishing water to cattle roaming over a large extent of country, and was capable of supporting from one to three thousand head. It had, therefore, a great value, proportionate to the number it could support. In April, 1870, one Pedro Altube, a member of the firm of Peres & Co., large cattle dealera in California, who was familiar with Kern county and with the character of * the range, desired to purchase it for his firm, and offered for it, with the stock, 812,000.
John Griffith died on May 21, 1870, intestate, leaving surviving him two brothers, the complainant and Morris Griffith, his only heirs at law. The partnership property of the deceased and the complainant remained in the lat. ter's pos ion. It consisted, prin lly, of horned cattle, horses, and the