Barnsdall v. Waltemeyer

• Decision Date: 29 November 1905
• Docket Number: 2,237.
• Citation: 142 F. 415
• Parties: BARNSDALL v. WALTEMEYER.
• Court: U.S. Court of Appeals — Eighth Circuit

142 F. 415

BARNSDALL v. WALTEMEYER.

No. 2,237.

United States Court of Appeals, Eighth Circuit.

November 29, 1905

(Syllabus by the Court.)

A special finding of facts, in an action at law in which a jury has been waived, is not reviewable on the ground that it is not supported by the weight of evidence, but is conclusive if there is substantial evidence to sustain it.

The pendency in a state court of a prior action between the same parties for the same cause constitutes no bar to, and furnishes no ground for the abatement of, a subsequent action in the federal court.

A prior garnishment of a debtor in a state court, in an action by a third party against his creditor, constitutes no bar to an action by the latter against his debtor to enforce his original claim, and it seems that it constitutes no ground for an abatement of the action.

A ruling upon a plea in abatement is not reviewable by writ of error in the federal court.

An accepted bill of exchange is an assignment to the payee to the extent of its amount of any debt due from the debtor to the drawee.

A promise to accept a bill or order not in existence, but subsequently drawn in favor of the promise, who takes it for a pre-existing debt, is a good acceptance.

A qualified or conditional acceptance is as binding and effective as an absolute acceptance upon a compliance with its conditions.

But such an acceptance is ineffective when its conditions have not been, and probably never will be fulfilled.

Where a written contract is indispensable to a valid agreement, a pleading of an agreement that does not affirmatively show that it was not in writing is a pleading of a written agreement.

The fatuous choice of a fancied remedy that never existed and the futile pursuit of it until the court adjudges that it never had existence is no defense to an action to enforce an actual remedy inconsistent with that first invoked.

A suit to rescind a contract for misrepresentation and default of performance, which was dismissed on its merits, is no defense to an action to enforce the contract.

S. A Giffin and W. H. Bryant, for plaintiff in error.

E. C Mason, T. W. Hoyt, Caldwell Yeaman, and Frank E. Gove, for defendant in error.

Before SANBORN, Circuit Judge, and PHILIPS and CARLAND, District judges.

SANBORN Circuit Judge.

Thomas S. Waltemeyer brought an action against T. N. Barnsdall to recover $10,000 and interest, which he alleged that Barnsdall, in February, 1900, had promised to pay to him and Millard F. Leech out of the first moneys he received for ore taken from the property of which the $10,000 was a part of the purchase price. Leech had assigned his interest in this obligation to Waltemeyer. Barnsdall interposed five defenses but the court overruled each of them and rendered judgment for the plaintiff. These rulings are assigned as error, and they will be considered in their order.

The first defense was that the promise was to pay $10,000 out of the first net proceeds of the property sold; that this property consisted of a mine; that the expense of operating it had been more than the income from the ore derived from it; and that there never had been any net proceeds. A jury was waived, and this issue was tried by the court. The evidence was oral testimony. There was sufficient to sustain a finding of the issue either way, and the court made a special finding of facts in favor of the plaintiff. When, in an action at law, a jury is waived and the court tries an issue of fact and makes a special finding upon which the substantial evidence is conflicting, the losing party may not reverse it by writ of error because it was not sustained by the weight of evidence. Hughes County v. Livingston, 104 F. 306, 319, 43 C.C.A. 541, 555. The only reviewable questions upon a writ of error to reverse a judgment upon such a trial are the rulings upon the admission and exclusion of evidence, upon questions of law, upon the question whether or not there was any substantial evidence in support of the finding, and upon the question of the sufficiency of the facts to support the judgment. Rev. St. Sec. 700 (U.S. Comp. St. 1901, p. 570); Clement v. Insurance Co., 7 Blatch. 51, 53, 54, 58, Fed. Cas. No. 2,882; The Francis Wright, 105 U.S. 381, 387, 390, 26 L.Ed. 1100; The City of New York, 147 U.S. 72, 76, 77, 13 Sup.Ct. 211, 37 L.Ed. 84; Laing v. Rigney, 160 U.S. 531, 540, 16 Sup.Ct. 360, 40 L.Ed. 525; Ward v. Joslin, 186 U.S. 142, 147, 22 Sup.Ct. 807, 46 L.Ed. 1093; Mercantile Co. v. Wood, 8 C.C.A. 658, 660, 60 F. 346, 348. The testimony was sufficient to warrant the finding, and no other issue is presented by the challenge of the trial of the first defense.

The second defense was that the receiver of the Midget Mining & Milling Company, a corporation, had brought a suit in a state court against both of the parties to this action to recover the property which was the subject of the contract of sale from Waltemeyer and Leech to Barnsdall and to rescind that agreement on the grounds that Waltemeyer and Leech held their interest in the property in trust for the corporation and were not authorized to make the sale, that the contract of sale was without consideration and without mutuality, and that Barnsdall had made default in its performance. To the statement of this defense a demurrer was sustained. This ruling is alleged to be erroneous because the answer disclosed the fact that there was a prior action pending in the state court between the same parties for the same cause as is this action. But the suit in the state court which was pleaded was not between the same parties, but between a third party upon one side and both the parties to this action on the other, and it was not upon the same cause of action-- that is to say, upon the promise of Barnsdall to pay the $10,000 to Waltemeyer and Leech--but upon alleged grounds for the avoidance of that promise, the rescission of the agreement in which it was contained, and the transfer of the property which was the subject of it to the corporation. Moreover, this is a simple action at law to enforce the payment of a contract debt. If there had been a prior action pending in the state court between the plaintiff and the defendant to enforce the payment of this debt, it would have presented no bar to, and would have furnished no ground for, the abatement of this action. The pendency in a state court of a prior action between the same parties for the same cause furnishes no defense to a subsequent action in the federal court. Barber Asphalt Pav. Co. v. Morris, 66 C.C.A. 55, 58, 132 F. 945, 948, 67 L.R.A. 761, and the cases there cited.

A demurrer was sustained to the plea of the third defense which was that on August 10, 1902, before the commencement of this action, Barnsdall had been garnished in an action between Holmes and Allen, plaintiffs, and Leech, Waltemeyer, and another, defendants, that Barnsdall had answered the garnishee summons to the effect that he did not then owe any of the defendants in that action anything, and had set forth other facts, and that the garnishee proceeding was still pending and undetermined. These facts were insufficient to constitute a plea in bar of any part of the cause of action here presented. They entitled the defendant to nothing more in any event than a stay of the entry of judgment against him to the extent of the amount with which he might be charged in the garnishee proceeding until the final disposition of that proceeding, or until the expiration of a reasonable time for the garnishee to bring it to a final determination. Barber Asphalt Pav. Co. v. Morris, 66 C.C.A. 55, 58, 132 F. 945, 948, 67 L.R.A. 761. If the concession were made that the facts here stated constitute a good plea in abatement and that the court below should have sustained them, then its ruling upon this subject is not fatal to the judgment challenged, because a judgment may not be reversed in the federal courts for error in ruling any plea in abatement. Rev. St. Sec. 1011 (U.S. Comp. St. 1901, Sec. 1011, p. 715); Crawford v. Clute & Mead, 7 Ala. 157, 159, 41 Am.Dec. 92; Haselton v. Monroe, 18 N.H. 598, 599; Embree & Collins v. Hanna, 5 Johns. 101; Hacker v. Stevens, Fed. Cas. Nos. 5,887, 5,888. Since the judgment may not be disturbed on account of this ruling, even if it is erroneous, it is unnecessary to determine the question whether or not a prior garnishment of a debtor in a state court which has not passed to final judgment against the garnishee constitutes good ground for a plea in abatement to an action in a federal court against the garnishee by his creditor to enforce his claim, and that issue is not decided. But it is difficult to perceive how these facts can sustain a plea in abatement, because a stream may not rise higher than its source. One who sues a creditor and garnishes the latter's debtor in a state court has no greater or better right to enforce the claim against the debtor than the latter's creditor had. If the creditor had brought a prior action against his debtor in the state court, that fact would not have sustained a plea in abatement of a subsequent action between the same parties to enforce the same claim...