(115 U. S. 300) MORRIS, Executor, etc., v. GIDDINGS. Filed November 9, 1885. TRIAL INSTRUCTION TO FIND FOR DEFENDANT-WHEN PROPER. The propriety of an instruction to the jury to find for the defendant must be tested by the same rules that apply in the case of a demurrer to evidence; and if the facts established, and the conclusions which they reasonably justify, do not disclose a valid cause of action against the defendant, such an instruction should be given. Instruction sustained. In Error to the Supreme Court of the District of Columbia. This action was brought by Richard T. Merrick and Thomas J. Durant to recover damages sustained by them in consequence of the violation of an agreement alleged to have been made by the defendant in error, in reference to compensation due them for certain legal services rendered in behalf of the state of Texas. The declaration contains a special count, and also a common count for money had and received to the use of the plaintiffs. The answer put in issue the existence of the alleged agreement, and every material fact averred in the declaration. Although the record contains several bills of exceptions upon plaintiff's offer to introduce evidence, the decisive question is whether the court erred in peremptorily instructing the jury, upon the whole case, to find for the defendant. 1 Mackey, 394. After the present writ ofe error was sued out, each of the plaintiffs died, and the action has been revived in the name of their respective personal representatives. The instruction to find a verdict for the defendant must be tested by the same rules that apply in the case of a demurrer to evidence. Parks v. Ross, 11 How. 373; Richardson v. City of Boston, 19 How. 268; Schuchardt v. Allens, 1 Wall. 370. If, therefore, the facts established, and the conclusions which they reason. ably justify, do not disclose a valid cause of action against the defendant, the judgment must be affirmed; otherwise reversed. The bill of exceptions states that there was evidence tending to make the following case: In the year 1867, Mr. Merrick, in conjunction with other counsel, was employed by the state to conduct, and they did conduct, legal proceedings for the recovery of certain bonds and coupons, of which, at the commencement of the recent civil war, she was the holder and owner, but which, pending that conflict, were transferred by a military board of the insurrectionary gov ernment of Texas for the purpose of enabling it to carry on war against the United States. These bonds had been received by the state from the United States under and in pursuance of the act of congress, approved September 9, 1850, entitled "An act proposing to the state of Texas the establishment of her northern and western boundaries, the relinquishment by the said state of all territory claimed by her exterior to said boundaries, and of all her claims upon the United States, and to establish a territorial government for New Mexico." 9 St. c. 49, p. 446. At the time of the employment of Mr. Merrick, some of the bonds and coupons, so transferred, were held, in this country, by the firm of White & Chiles, while the residue had been sent to England, and were there held, for others, by Droege & Co. and the Manchester Bank. The suit instituted was by original bill filed in this court in the name of the state against the firm of White & Chiles and others. By the final decree therein it was adjudged that the state was entitled to recover the bonds and coupons of which White & Chiles claimed to have become owners under a contract made between them and said military board on January 12, 1865. Texas v. White, 7 Wall. 741, 742. Subsequently, in 1873, the governor of Texas employed Mr. Merrick and Mr. Durant to institute, and accordingly they did institute, suit in the court of claims for the recovery of the proceeds of such of v.6s.c.-5 the bonds and coupons as had been sent to England; their compensation to be 20 per centum of what might be recovered by means of that suit. It does not appear what, if anything, was realized by that proceeding. *After the decree in this court in Texas v. White, establishing the invalidity, as to the lawful government of Texas, of the transfer made to White & Chiles, title was asserted by Chiles, individually, to the bonds and coupons, or their proceeds, held in England. Of this new claim, based upon a contract which Chiles pretended was made with him alone by said military board, Droege & Co. and the Manchester Bank were formally notified; and such claim and notice constituted the sole impediment in the way of the prompt recognition by that firm and bank of the state's right to receive the bonds and coupons, or their proceeds, so held by them. In this condition of affairs, the state, on the second of June, 1874, entered into a written agreement with J. D. Giddings and the defendant, whereby they were constituted agents, to proceed by suit against all persons having claims, adverse to Texas, to all or any part of the bonds transferred by said military board, with authority to compromise those claims upon such terms as the governor of the state should approve. And it was stipulated that the agents should have, for their services, a contingent fee of 10 per cent. for all sums actually received, under their appointment, by compromise, and 20 per cent. on all sums recovered and actually realized by suit, and no more; such "per cents, respectively, to cover all costs and expenses, and attorney's fees, whether accrued heretofore or to be incurred hereafter, so as to give the state of Texas all of the money so to be obtained, save and except the ten per cent. aforesaid." The selection of J. D. Giddings and D. C. Giddings as agents of the state was not designed to interfere with the counsel previously employed; for, shortly after their appointment, the governor of Texas informed the latter that such agents were to be only their "outside aids” in conducting the litigation. On the thirteenth of October, 1874, in consequence of objections made by defendant to the terms of the contract of June 2, 1874, the governor agreed to its modification, as indicated by his indorsement, as follows: "Whereas, apprehensions have been expressed by J. D. and D. C. Giddings that, in consequence of outstanding contracts *heretofore made with other attorneys, under which contingent fees are claimed, if said claims are sustained the said Giddings might become liable to the state for any excess thereof above ten or twenty per cent. stipulated in the within contract; this indorsement is made for the purpose of declaring that no such liability by the said Giddings in said event was intended or contemplated; and as, under outstanding contracts, as aforesaid, the per cent. for fees may equal or exceed that stipulated for that purpose in this contract, it is hereby declared that said Giddings shall be paid, in that event, a reasonable per cent. of the amount realized by them on compromise, which shall be a just compensation for their services." Subsequently, in November and December, 1874, Merrick and Durant were employed by the state to institute and conduct further proceedings to remove and avoid the new title and pretension set up by Chiles to the bonds and coupons, or their proceeds, held in England. It was agreed that if, by means of those proceedings, the state recovered the bonds and coupons, or their proceeds, the attorneys should receive for their compensation 20 per centum of what was so obtained. Under such employment, they commenced proceedings in this court, which resulted in a judgment, rendered March 29, 1875. to the effect that Chiles, in making claim to the bonds and coupons, and their proceeds, in England, was in contempt of this court, for which he should pay a fine to the United States of $250, and stand committed until it was paid. In re Chiles, 22 Wall. 165. Of these proceedings the defendant was informed by Merrick and Durant; indeed, defendant urged upon the attorneys the necessity of such a suit, in order that his trip to England be attended with suc cess. He was furnished by the attorneys with a certified copy of all the proceedings in this court. The defendant, with knowledge of the state's contract with the attorneys, and also that the latter claimed 20 per cent. of what might be collected in England, went abroad in July, 1875, and, prior to September 29 of that year, succeeded in recovering of such bonds and coupons, and their proceeds, an amount equivalent to $339,240 in the currency of the United States. This collection was effected solely in consequence of the last-mentioned proceedings in this court. Prior to his departure for Europe, as well as after his return to this country, the defendant promised the attorneys that he would hold any fund collected until their fees should be paid, and he informed them that the governor of Texas had given him the assurance that all fees might be paid from that fund before its surrender to the state. The last occasion upon which that promise was made and information given was on the thirtieth of September, 1875, during an interview with Mr. Durant, while defendant was in Washington for the purpose of obtaining payment of the bonds and coupons recovered in Europe. The defendant left Washington the same day, and shortly thereafter, under the requirement of the governor of Texas, paid to the latter, of the funds so collected, the sum of $300,000. Of this fact the attorneys were informed by defendant on the twenty-third day of October, 1875. They were at the same time notified that out of the balance, $39,240, in his hands, the governor of Texas had allowed to J. D. and D. C. Giddings the sum of $31,240, leaving for the attorneys only the sum of $8,000, which latter amount the governor of Texas agreed should be held until they could be heard from. Finally, on December 17, 1875, the $8,000 was paid by defendant to the governor of Texas. After December 30, 1875, and prior to January 12, 1876, the attorneys were notified by the governor of Texas that "unless they would accept said sum of $8,000 under a receipt in full for all services by them rendered to the state in respect to said bonds and coupons, etc., he would pay that sum into the treasury of the state, and leave the legislature to settle the matter." On the twelfth of January, 1876, Merrick and Durant, without knowledge of the existence of the contract of June 2, 1874, or of its modification on the twelfth of October, 1874, or of the fact that defendant held the $8,000 on twenty-first of October, and retained it until December 17, 1875, addressed a letter to the governor of Texas, in which, although protesting against the injustice done them by limiting the amount of their compensation to $8,000, they inclosed a receipt for that sum, "acknowledging the same to be in full for all demands against the said state in and about the recovery of the said bonds and coupons or their proceeds." The bill of exceptions sets forth that had they been informed of the facts of which, as just stated, they had no knowledge, they would not have executed that receipt, or received the said $8,000 upon it. Öther facts are set out in the bills of exceptions, but, as they do not materially affect the conclusion to be necessarily reached from those recited, they need not be stated. John Selden, for plaintiffs in error. A. H. Garland and F. P. Cuppy, for defendant in error. Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court: It must be conceded that the claim of Merrick and Durant to be entitled, under their contract, to receive for their services an amount equal to 20 per cent. of the bonds and coupons, and their proceeds, recovered by the defendant in England, finds strong support in the facts which the evidence, as we are informed by the bill of exceptions, tended to establish; for not only does that recovery seem to have been the immediate result of the legal proceedings instituted and conducted by the attorneys, but the evidence justifies the conclusion that it was in the minds of all the parties, including the governcr of Texas and the defendant, that the attorneys should be deemed to have participated in any collections made in England, provided it appeared that those collections were the result of the suit last instituted in this court. *In this view of the evidence, and under all the circumstances of the case, it may be that the promise by the defendant not to part with the bonds and coupons, or their proceeds, which might be recovered in England, until the fees of the attorneys were settled, was not inconsistent with the relations which he and they respectively held to the state. And it may also be that, for the violation of that promise, the defendant was responsible to them in damages. But, in our opinion, the attitude of the parties towards each other, and the whole aspect of the case, was changed when the attorneys, with information as to the amount collected by defendant, and with knowledge that their claim of 20 per cent. of such collections was controverted, came to a final settlement with the state upon the basis of $8,000 as full compensation for all services rendered in and about the recovery of the bonds and coupons, or their proceeds. That settlement, we are constrained to hold, swept away the very foundation of their demand against the defendant; for, in establishing that demand, it was necessary to show that the state was actually indebted to them for legal services rendered. But how could such indebtedness be shown to exist, and how could the attorneys be said to have been damaged, within the meaning of the law, when, prior to any suit against defendant for violation of his agreement, the attorneys voluntarily submitted to a compromise, by which, in consideration of a named sum, they released the state from all further liability to them? Their suit proceeds upon the distinct ground that defendant's failure to keep his promise deprived them of the opportunity to obtain such amount as the state owed them for their services. But that breach by defendant of his promise could not be made the basis of an action for damages, after they stipulated with the state to receive, and did receive, a specified sum in full discharge of all claims for legal services in respect of the bonds and coupons, or their proceeds. And this view of the rights of the parties is not at all affected by the fact that the attorneys were, at the time of their settlement with the state, ignorant of the existence of the contract of June 2, 1874, or of its subsequent modification. To that contract they were not parties, and it was entirely competent for the state and her agents to modify it without notice to or consultation with others. The attorneys had their separate contract with the state, made at the time of their employment, under which they proceeded against Chiles in respect of his individual claim to the securities, or their proceeds, held in England. The defendant was not bound by his relations with them to disclose the terms of the contract which he and his partner had with the state. The attorneys were in possession of all the facts essential to their determination of the question whether they would stand upon their own contract, or accede to the proposition made by the governor to pay them, in full of all demands, a specifel sum. With information as to the amount actually recovered for the state, and as to the amount claimed by, and allowed to, the defendant and his partner for their services, the attorneys made a final settlement with her upon the basis already indicated. That settlement, we repeat, precluded them from making any further claim upon the fund which came to the hands of the defendant as agent of the state, and, consequently, precludes them from recovering damages by reason of the defendant having surrendered that fund in advance of the payment of their fees, retaining only what was allowed to him and his partner for their services. Touching the suggestion that the defendant and his partner were not justly or equitably entitled to receive more than the attorneys who conducted the itigation, it is sufficient to say that the former did not receive more than the state agreed to pay them, while the attorneys have received what they agreed to accept in full discharge of their claim against the state. For these reasons, and without reference to other considerations pressed upon our attention, it was proper to instruct the jury to find for the defendant. Judgment affirmed. (115 U. S. 363) POPE and another v. ALLIS.1 Filed November 9, 1885. 1. PLEADING-VARIANCE-REV. ST. WIS. 1878, ? 2669. Where the complaint alleged a contract for delivery of iron at one place, and the answer a contract for delivery at a different place, evidence offered by the plaintiff, which tended to support the averment of the answer, was properly admitted, under section 2669 of the Revised Statutes of Wisconsin, the defendants having failed at the trial to prove that they were misled by the variance between the complaint and the proof. 2. EVIDENCE-AVERMENTS UNDER OATH IN PLEADING IN ANOTHER SUIT. Averments made under oath, in a pleading in an action at law, are competent evidence in another suit against the party making them; and the fact that the averments are made on information and belief goes only to their weight, and not to their admissibility as evidence. 3. SALE-SPECIFIED QUALITY OF GOODS NOT IN EXISTENCE-RIGHT TO RESCIND SALE OF GOODS OF INFERIOR QUALITY. Where goods of a specified quality, not in existence or ascertained, are sold, and the seller undertakes to ship them to a distant buyer, and, when they are made or ascertained, delivers them to a carrier for the buyer, the latter, on their arrival, has the right, if they are not of the quality required by the contract, to reject them and rescind the sale, and, if he has paid for them, to recover back the price in a suit against the seller. In Error to the Circuit Court of the United States for the Eastern District of Wisconsin. Edward P. Allis, the defendant in error, was the plaintiff in the circuit court. He brought his suit to recover from the defendants Thomas J. Pope and James E. Pope, now the plaintiffs in error, the sum of $17,840, the price of 500 tons of pig-iron, which he alleged he had bought from them and paid for, but which he refused to accept because it was not of the quality which the defendants had agreed to furnish. The plaintiff also demanded $1,750 freight on the iron, which he alleged he had paid. The facts appearing upon the record were as follows: The plaintiff carried on the business of an ironfounder in Milwaukee, Wisconsin, and the defendants were brokers in iron in the city of New York. In the month of January, 1880, by correspondence carried on by mail and telegraph, the defendants agreed to sell and deliver to the plaintiff 500 tons of No. 1 extra American and 300 tons No. 1 extra Glengarnock (Scotch) pig-iron. The American iron was to be delivered on the cars at the furnace bank at Coplay, Pennsylvania, and the Scotch at the yard of the defendants in New York. By a subsequent correspondence between the plaintiff and the defendants it fairly appeared that the latter agreed to ship the iron for the plaintiff at Elizabethport, New Jersey. It was to be shipped as early in the spring as cheap freights could be had, consigned to the National Exchange Bank at Milwaukee, which, in behalf of the plaintiff, agreed to pay for the iron on receipt of the bills of lading. That quantity of American iron was landed at Milwaukee and delivered to the plaintiff about July 15th. Before its arrival at Milwaukee the plaintiff had not only paid for the iron, but also the freight from Coplay to Milwaukee. Soon after the arrival in Milwaukee the plaintiff examined the 500 tons American iron, to which solely the controversy in this case referred, and refused to accept it, on the ground that it was not of the grade called for by the contract, and at once gave the defendants notice of the fact, and that he held the iron subject 1 See note at end of case. |