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the defendant's conduct was voluntary, in pursuance of his fraudulent scheme, and that he had no claim as against Nugent to be relieved from the consequences of a collateral act. It was thought that the debt from Mrs. Heyl to Stoffela was a matter with which Nugent, in spite of his covenant to pay it, had no concern, the only question being the relative validity of the plaintiff's and defendant's titles. The defendant appealed to this court.

We are of opinion that the judgment appealed from was wrong, and that the judgment of the court of first instance should be affirmed. It is true that the defendant acted fraudulently and knew what he was about. But a man by committing a fraud does not become an outlaw and caput lupinum. National Bank & Loan Co. v. Petrie, 189 U. S. 423, 425. He may have no standing to rescind his transaction, but when it is rescinded by one who has the right to do so the courts will endeavor to do substantial justice so far as is consistent with adherence to law. See Pullman's Palace Car Co. v. Central Transportation Co., 171 U. S. 138, 150. If Nugent is allowed to have the land free of all charge and the defendant's claim is extinguished, Nugent gets much more than he bargained for and the defendant is deprived of his equitable interest in Nugent's covenant to pay the mortgage debt (Johns v. Wilson, 180 U. S. 440), and is made to lose a large sum rightly due to him, not from any necessity of justice, but simply because he has acted badly and therefore any treatinent is good enough for him. It is said that the discharge of the old mortgages was a collateral matter with which Nugent had no concern. If that were true, still justice might forbid Nugent to rely upon it. But it is not correct. The discharge and the new deeds, although different instruments, were parts of one transaction. Each was consideration for the other. As the plaintiff elects to do away with the consideration for the discharge, he must be taken to elect also to give up the discharge, or, to put it in another way, he must restore the defendant to the condition in which he stood before the re

Argument for Appellants.

217 U.S.

scinded deeds were made. The defendant's rights were cut down at least sufficiently by the trial court. Judgment reversed, with directions to affirm the judgment of

the District Court.

JAVIERRE v. CENTRAL ALTAGRACIA.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR

PORTO RICO.

No. 171. Argued April 26, 1910.-Decided May 16, 1910.

Where a proviso carves an exception, dependent on a condition suh

sequent, out of the body of a statute or contract, the party setting up the exception must prove, and has the burden, that the condition

subsequent has actually come to pass. A contract for delivery for a term of years, of sugar, terminable mean

while only in case a specified new Central was built, could not, in this case, be terminated unless the particular Central contemplated was built; it was not enough that a Central called by the same name had

been built. Damages in a suit at law for failure to comply with the terms of a con

tract for delivery of crops is an adequate remedy and specific performance and an injunction against delivery to others should have been refused in this case.

The facts are stated in the opinion.

Mr. Charles Hartzell, with whom Mr. Manuel Rodriguez Serra was on the brief, for appellants:

The burden of showing that the Central Eureka referreu to in the contract was not the project known as the Swift Eureka Central was not on the defendants below but such 'burden as to the identity of the projected Central Eureka referred to was on the plaintiffs below.

There was not, nor is there now, any presumption that the Central Eureka referred to was the Swift project. The burden of proof of a fact is upon him wlio asserts it. Complainants

217 U. S.

Argument for Appellants.

(defendants in error here) adlege, and to recover must prove, that defendants entered into a combination or conspiracy to enable them to violate a contract; that this violation was to be committed by pretending that a certain proposed sugar mill known by the name of “Eureka” was not, in fact, the Eureka project which the complainants alleged it to be, and in order to make proof to justify a decree in its favor it must prove by a preponderance of the testimony, in view of defendants' denial, that the Swift Eureka was the project actually intended and referred to in the said contract. Mutual Reserve Fund v. Powell, 79 Ill. App. 364; Piper v. Watkins, 8 Kan. App. 215; Rupp v. Sarpy County, 71 Nebraska, 382; Vertrees v. Gage County, 75 Nebraska, 332; Simonton v. Winter, 5 Pet. 141; Adams v. Adams, 21 Wall. 185; Knox v. Smith, 4 How. 298; Leurs v. Cocks, 23 Wall. 470.

Fraud and conspiracy, when alleged as the basis of action, must be clearly proven in order to warrant a recovery. Farrar v. Churchill, 135 U. S. 609; Gaines v. Nicholson, 9 How. 356; United States v. Arredondo, 6 Pet. 691; Jones v. Simpson, 116 U. S. 609; Jacobs v. Van Sickel, 123 Fed. Rep. 341; Cheesman v. Hart, 42 Fed. Rep. 98, distinguished.

This case does not present in any event, any ground for equitable relief, or the issuance of an injunction. The only consistent relief which could be applied for would be in the nature of specific performance. Grape Creek Company v. Spellman, 39 Ill. App. 630.

Equity should not intervene. An action at law for damages is equally, or even more, effective for complainant. There is no allegation in the complaint of defendants' insolvency.

The court erred in granting any relief to appellee, because the contract was wholly unilateral and incapable of enforcement by a court of equity, either by way of specific performance or by injunction.

Appellee's mill was neither constructed nor enlarged upon any consideration moving from this contract. There was no consideration.

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Appellants were not in anywisc dependent upon appellee for a market for their sugar cane, for they were dealing with other mills before appellee's factory was started, and the bill of complaint shows that there are more mills in the vicinity than the supply of sugar cane would justify. The remedy must be mutual. Ross v. U. P. R. R. CO., Fed. Cas. 12,080; Pullman Pal. Car Co. v. Teras & Pac. R. R. Co., 11 Fed. Rep. 625.

Where a contract is harsh the court will leave the parties to their reinedy at law. King v. Hamilton, 4 Pet. 311; Redman v. Zilley, 1 N. J. Eq. 320; Appeal of Weise, 72 Pa. St. 351. Even though the contract be valid at law, if it be harsh or unjust, equity will not relieve. Leigh v. Crump, 36 N. C. 299; Friend v. Lamb, 152 Pa. St. 529.

Mr. Hugo Kohlman, with whom Mr. F. L. Cornwell and Mr. N. B. K. Pettingill were on the brief, for appellee:

Relief was properly given by injunction instead of by spe cific performance.

The bill of complaint prayed for an injunction and not for specific performance. Defendants in a suit cannot complain that only partial relief has been granted. The bill is not strictly to decree a performance of a contract, but, by injunction, to prevent the destruction of contractual obligations. Hendricks v. Hughes, 117 Alabama, 591.

This doctrine seems to be an extension of that maintaining the right to enjoin the violation of contracts for personal services so well established and often applied since Lumley v. Wagner, 1 De G., M. & G. 604.

The fundamental basis of jurisdiction to enjoin the violation of the contract instead of leaving a complainant to his action at law for damages is the impracticability of ascertaining with any definiteness the real extent of such damage; hence the inadequacy of the remedy. Where performance is to continue through a series of years in the future, that fact alone renders definite ascertainment of damages impossible. See the following English vases more or less analogous in their

217 U.S.

Argument for Appellee.

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reasoning to the case at bar: Jones v. North, 44 L. J. Ch. 388; Donnell v. Bennett, 22 Ch. Div. 835; Whitwood Chem. Co. v. Hardman, L. R. (1891] 2 Ch. 416; Catt v. Tourle, L. R. 4 Agp. Ch. 654; and also see the following American cases: W. U. Tel. Co. v. U. P. Ry. Co., 3 Fed. Rep. 423, 429; C. & A. Ry. Co. v. N. Y., L. E. & W.R. R. Co., 24 Fed. Rep. 516, 521; Alpers v. City of San Francisco, 32 Fed. Rep. 503; General Elec. Co. v. Westinghouse Co., 151 Fed. Rep. 664, 672, 677; Manhattan &c. v. N.J. &c., 23 N. J. Eq. 161; St. Regis Co. v. Lumber Co., 173 N. Y. 149, 161.

The same principles have been applied in cases involving contracts wherein public interests were involved. Walla Walla v. Water Co., 172 U. S. 1, 11; Joy v. St. Louis, 138 U. S. 1, 46.

Defense of appellants upon question of meaning of disputed clause of contract is affirmative. The burden of proof under such a proviso is clear. United States v. Cook, 17 Wall. 168, 176; and see Steel v. Smith, 1 B. & A. 99, in which a proviso, exactly as in the case at bar, was construed.

In equity where an answer which is put in issue admits a fact, and insists upon a distinct fact by way of avoidance, the fact admitted is established, but the fact insisted upon must be proved. Clements v. Moore, 6 Wall. 299, 315; and see to the same effect, Bour v. Kimball, 40 Ill. App. 327; Nelson v. United States, 30 Fed. Rep. 116; Lake Shore Co. v. Felton, 43 C.C. A. 189, 193; Miller v. Shields, 124 Indiana, 170; Rowell v. Janvrin, 151 N. Y. 60, 67.

Even had the proviso allowing the cancellation of the contract been absolute, and self-operative in its terms, thus importing a condition, it would still have been a condition subsequent, of which the burden of proof would still be upon the party to be relieved by its fulfillment. Den v. Steelman, 10 N. J. L.

. 193, 204; Hotham v. East India Co., 1 Term Rep. 638, 645.

The unilateral character of the contract is not open for consideration in this court, but even could the court consider that question, the mutuality of consideration and obligation is plainly apparent on its face.

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