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of a contract. Judgment was rendered in the circuit court for the plaintiffs. Defendant brings error. Reversed.
John C. Cooper, John A. Henderson, and George P. Raney, for plaintiff in error.
H. Bisbee and C. D. Rinehart, for defendants in error.
Before PARDEE and McCORMICK, Circuit Judges, and BRUCE, District Judge.
MCCORMICK, Circuit Judge. L. Bucki & Son, the defendants in error, brought this action against the Florida Central & Peninsular Railroad Company, the plaintiff in error, claiming damages for the breach of a written contract made by the plaintiffs below with H. R. Duval, receiver of the Florida Railway & Navigation Company, which contract is in these words:
"This agreement, between the receiver of the Florida Railway & Navigation Company, party of the first part, and Louis Bucki & Son, party of the second part, both parties transacting business in the state of Florida, witnesseth that the party of the second part operates a lumber mill at Ellaville on the railroad operated by the party of the first part; that, by reason of the consumption of the greater part of the forests near Ellaville, it is necessary for the party of the second part to draw its material supply from tracts of forests which it owns east, northeast, and southeast of Ellaville, and for that purpose it requires railroad transportation between the said forests and said mill; and, as the construction of such railroad involves an expense of about fifty thousand dollars to the party of the second part, and it being to the interest of both parties that the operation of said mill be continued and enlarged: Now, therefore, for this and other valuable considerations, the party of the second part agrees to construct a railroad adapted to the transportation of logs from some point or points on the line of the railroad of the party of the first part, either north or south, or both, of said point or points, to be selected by both parties, and to be within a distance of not over five miles east of Ellaville, running from the line of the said railroad of the party of the first part into the forests of said party of the second part, which said log railroad said party of the second part agrees to construct, equip, operate, and maintain and connect with the railroad of the party of the first part at the expense of the party of the second part, for the purpose of transporting its logs over the railroad of the party of the first part to Ellaville, to the mill of the said party of the second part, in such quantities as said mill may require; and it is further agreed that said railroad, to be constructed as above, and the portion of the track of the party of the first part which is hereby rented to the party of the second part, shall be operated by the party of the second part, under and in conformity with such rules and regulations as may be prescribed by the party of the first part, or its agents, from time to time. The party of the second part shall pay to the party of the first part a rental for the use of its railroad between Ellaville and the point of said connection, the sum of four hundred dollars per annum, per mile, during the continuance of this contract, said rental to begin when the connection with the railroad of the party of the first part is made, payment to be made monthly. The party of the first part further agrees to provide at all times, to the extent of its ability, the necessary cars and engines to transport the product of said mill of the party of the second part to Jacksonville, Fernandina, or such other points as said party of the second part may consign, with all practicable dispatch. It is further agreed that, in consideration of the large expense which the party of the second part must incur in the construction and operation of its railroad, and the advantage of said railroad as a means of supplying product for profitable transportation by said party of the first part, that the rates of freight to be charged by said party of the first part to Jacksonville and Fernandina shall at no time during the continuance of this agreement be increased over the present rates charged v.68F.no.8-55
in greater amount than the percentage of increase on the present market value of the product of said mill of the party of the second part, said present rate of freight and present market value of said mill product to be stated in writing and annexed to this agreement, said price of lumber to be based upon the New York market at the date of this agreement; and that the rates of freight to be charged by the party of the first part from Ellaville to all local stations or other points than those specifically named above shall be local rates of the party of the first part, or such other rates as he may deem proper, and that the party of the second part shall pay to the party of the first part for any damage to track, bridges, etc., which may be caused by said party of the second part, except ordinary wear and tear; and that this agreement shall take effect upon the date of its execution, and continue in effect thereafter during the life of said forests.
"January 15, 1887.
L. Bucki & Son.
H. R. Duval,
"Receiver Florida Railway & Navigation Co.
"Attest: E. R. Hoadley, Sec'y."
The declaration averred that the defendant, having become the owner of the railroads and other properties represented by the receiver when the contract was made, adopted, ratified, and confirmed it, and faithfully kept and performed its covenants and agreements for a long period after it became the owner of the railroad. That, on and continuously after the 1st of September, 1889, the defendant refused to keep and perform these covenants adopted by it, and in violation of them exacted of plaintiff largely excessive charges of freight on all of plaintiff's shipments from 1st September, 1889, till the early part of May, 1893, to plaintiff's damage $10,000. The other counts it is not necessary to notice. By a complication of demurrers, pleas, and replications customary under the practice in Florida, the issues were reached, and the plaintiff offered testimony by which it intended to show that the defendant had adopted the contract made by the receiver, and also introduced proof tending to show the amount of lumber shipped from 1st of September, 1889, to May, 1893, on which defendant exacted freight at the rate of $21 a car load of 35,000 pounds. The plaintiff also offered, and, over the objection of defendant, introduced, testimony tending to show the amount in feet of sawed lumber of the uncut lumber trees in the forests of plaintiff, which he claims he was prevented using by the defendant's alleged breach of the contract. There was a verdict for plaintiff in damages to the amount of $29,626.49, and judgment thereon, to reverse which this writ of error is prosecuted. The defendant in error has moved to strike out the assignment of errors, for failure to comply with rule 11 of this court. 11 C. C. A. cii., 47 Fed. vi. On the face of the assignment it is obvious that it is framed with a studious effort to conform to the letter of the rule, and therefore the motion will be refused, but the assignment is obnoxious to the criticism suggested in the motion. It is familiar law on this subject that a general assignment of error should be disregarded, because it does not advise the adversary as to what he is to defend and unduly taxes the time and effort of the reviewing tribunal. On this view rule 11 is founded and applied. Now, a general assignment is but the sum of all the possible particular assignments which the record could support. It is manifest, there
fore, that if the party cast in the trial court multiplies his exceptions to cover all the action of that court, and makes each exception taken the basis of a special assignment of error, the result and effect is equivalent to a general assignment. Such unwinnowed assignments are hurtful to the interest of parties, to the credit of counsel, and to the dignity of the appellate court. In this case only 44 separately numbered errors are assigned. The forty-fourth, being the sum of all the others, is in these words: "The court erred in entering judgment for plaintiffs in said cause against defendant." The diligence and zeal of counsel were not equal to the work of taking up and urging these 43 separately assigned errors one by one in succession. At one point in the printed brief of their argument they group Nos. 16 to 26. We will pursue the lead of this wholesome forbearance on the part of counsel somewhat further than they have gone. The averment as to the adoption of the contract is sufficient, when established by proof, to charge the defendant for excessive exactions of freight on shipments made. Whether the contract was binding on the receiver or not is immaterial. Chicago & A. R. Co. v. Chicago, V. & W. Coal Co., 79 Ill. 121; Mining Co. v. Humble, 153 U. S. 540, 14 Sup. Ct. 876; Wiggins Ferry Co. v. Ohio & M. Ry. Co., 142 U. S. 396, 12 Sup. Ct. 188. We have said the plaintiff offered testimony by which it intended to show that the defendant had adopted this contract. We have the gravest doubt whether any of the testimony offered, or all of it put together, tends to show the alleged adoption. Much of it, as we view it, tends to show the contrary. The objections to the introduction of the testimony of James Veit and W. M. Christman were rightly overruled. The absence of better evidence was accounted for by the plaintiff. The best evidence was in the hands of the defendant. The entries made by the witnesses in the books of the plaintiff show the result of the witnesses' personal examination of the weekly reports made by the defendant of the shipments of lumber. These reports having been destroyed by fire, the plaintiff had the right to prove the contents by the witnesses who had examined them at the time they were rendered, and had recorded the result of that examination, basing their testimony on that record, and its verity on their knowledge that it was correctly made by them at the time of the transaction. The objection to the testimony of the witness Louis J. Brush and of other witnesses to the extent of the uncut forest was well taken, and should have been sustained, and for the error in admitting this testimony, and the consequent errors in the charges of the court and in the refusal of charges requested by the defendant, the case must be reversed; and, as we do not know that the plaintiff will not be able, on another trial, to make proof of its averment as to the adoption of the contract by the defendant, the cause will be remanded for a new trial. There is nothing in the nature and terms of the contract declared on engaging to pay, or clearly implying an obligation to pay, any such damage as those claimed on this uncut forest. If the plaintiff can lay and prove these damages so as to avoid the objection of remoteness and uncertainty, it is clear to us they have not been so laid in the declaration, and
no proof has been offered tending to support such averments, if such had been made. These objections must be avoided, and proof aliunde the contract made, to raise such an implied liability, and the special damage must be shown before the plaintiff can recover on account of its uncut forest. Howard v. Manufacturing Co., 139 U. S. 199, 11 Sup. Ct. 500. The judgment of the circuit court is reversed, and case remanded to the circuit court, with directions to award the defendant a new trial. Reversed and remanded.
MCFARLIN et al. v. FIRST NAT. BANK OF KANSAS CITY, KAN., et al. (Circuit Court of Appeals, Eighth Circuit. June 3, 1895.)
NATIONAL BANKS-INCREASE OF CAPITAL-SUBSCRIPTIONS TO STOCK.
Plaintiffs subscribed for certain shares of stock in the E. Bank, to be issued for the purpose of increasing its capital and changing it into a national bank, and paid certain installments on their subscriptions to the bank, to be held in trust until the whole subscription was paid and the shares legally issued. Subsequently they consented that the E. Bank should be consolidated with the F. National Bank, the capital of the latter increased from $100,000 to $200,000, and that their subscriptions should stand as subscriptions to such increase of the stock of the F. National Bank. They afterwards made some further payments on their subscriptions. Some preliminary steps were taken by the F. National Bank for the increase of its stock, but the comptroller of the currency refused to consent to an increase to more than $150,000, and, before that amount had been paid in and before any certificate had been made by the comptroller declaring the increase, the F. National Bank was declared insolvent and placed in the hands of a receiver. Held, that the plaintiffs had never become stockholders in the F. National Bank.
In Error to the Circuit Court of the United States for the District of Kansas.
This was an action by William McFarlin, John B. Wright, and Charles Baird, executors of the estate of T. W. Cornell, deceased, and others against the First National Bank of Kansas City, Kan., and W. T. Atkinson, its receiver, to recover back certain moneys paid to the bank. The circuit court overruled a demurrer to the answer. Plaintiffs bring error.
The plaintiffs in error, William McFarlin, John B. Wright, and Charles Baird, executors, et al., who were also the plaintiffs in the circuit court, filed a complaint against the defendants in error, the First National Bank of Kansas City, Kan., and W. T. Atkinson, its receiver, which contained, in substance, the following allegations, to wit: That in the year 1890 the plaintiffs were solicited to subscribe for certain shares of stock in the Exchange Bank of Kansas City, Kan., with a view of increasing the stock of that bank from $51,000 to $300,000, and of converting the same into a national bank, to be called the "Exchange National Bank of Kansas City, Kansas"; that they severally assented to such proposition, and subscribed respectively for certain shares of stock to be issued by said proposed Exchange National Bank, agreeing to pay for the same in installments, which installments were to be paid to said Exchange Bank, and were to be held by it in trust, as a special deposit, to be applied in payment for the stock subscribed when the whole subscription should be paid and the shares of stock in said proposed Exchange National Bank should be legally issued; that the plaintiffs subsequently paid to said Exchange Bank, under
the aforesaid arrangement, in installments, the sum of $12,760, on account of their said subscriptions; that it was subsequently represented to them by the president of said Exchange Bank that it would be advantageous to consolidate said bank with the First National Bank of Kansas City, Kan., and to increase. the stock of the latter bank to the extent of $100,000; that said First National Bank had, by resolution duly passed, already agreed to increase its capital stock from $100,000 to $200,000, and that said First National Bank then had a paid-up capital of $100,000 and a surplus of $10,500. Plaintiffs further averred that the proposition made to them to transfer their aforesaid subscription from the Exchange National Bank to the First National Bank, so that the subscription should stand as a subscription to the increased stock of the First National Bank in lieu of a subscription to the stock of the Exchange National Bank, was assented to, and that, by the representations aforesaid, they were induced to assent to said transfer and to make a further payment on account of the stock theretofore subscribed, which last-mentioned payment was made to the First National Bank. It was further averred that, at the time the aforesaid representations were made to the plaintiffs, said First National Bank was insolvent, which fact was wholly unknown to them; that all the moneys paid by them to the Exchange Bank of Kansas City on account of their several subscriptions were by said Exchange Bank turned over to the First National Bank when the latter was utterly insolvent, and that when the First National Bank was declared to be insolvent by the comptroller of the currency it held such fund, so received from the Exchange Bank, as a special deposit made by these plaintiffs to be applied in payment for shares of its increased stock when the same should be lawfully issued. The plaintiffs also averred, in substance, that on July 6, 1891, when said First National Bank was declared to be insolvent and a receiver of its affairs was appointed, they did not own any stock in said bank; that the money theretofore paid by them to the Exchange Bank, before the attempted consolidation, was held by said First National Bank, at the date of its insolvency, as a trust fund to be applied in payment for shares of its increased stock at the rate of $100 per share, which stock was to be issued to the plaintiffs when the whole amount of the increased stock was subscribed and paid for, and when the comptroller of the currency should have issued his certificate specifying the amount of such increase and his approval thereof. In conclusion the plaintiffs averred that: "Said proposed increase of the capital stock of said bank was never lawfully authorized by the owners of two-thirds of the capital stock of said bank; nor did two-thirds of the owners of said original stock ever vote for such increase, as required by law; nor was the whole amount of $100,000 of such proposed increase of stock ever paid into said bank as required by law; nor was the amount of such proposed increase of stock, which was agreed to be taken and paid for, ever paid into said bank; nor was the certificate of the comptroller of the currency * * * specifying the amount of said proposed increase of capital stock, with his approval thereof, and that it had been paid in as part of the capital of said bank, ever obtained; but, by reason of the insolvency and suspension of said bank, and the consequent winding up of its affairs, none of said conditions and requirements have been, or can now be, fulfilled or complied with on the part of said bank, nor the contract between said bank and these plaintiffs in reference to said shares of stock ever be completed or performed." In view of the premises, the plaintiffs prayed for a judgment against the First National Bank of Kansas City, Kan., in the sum of $12,760, together with interest thereon from the time the several installments had been paid.
The defendants filed an answer to the foregoing complaint, wherein they specifically denied that the First National Bank was insolvent at the time the attempt was made to consolidate that bank with the Exchange Bank. The other material allegations of the complaint were either admitted or left undenied. For a special defense to the action, the defendants pleaded as follows: "Defendants admit that, at the time of said approval by the officers and directors of the Exchange Bank and of the First National Bank of the suggestion to attempt a consolidation, an application had been made for the increase of the capital stock of the First National Bank of Kansas City, Kan., from one hundred thousand dollars to two hundred thousand dollars, and it was supposed by the officers and directors of the Exchange Bank that author