McCornick v. Western Union Telegraph Co.

• Decision Date: 01 March 1897
• Docket Number: 824.
• Citation: 79 F. 449
• Parties: McCORNICK v. WESTERN UNION TEL. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

79 F. 449

McCORNICK v. WESTERN UNION TEL. CO.

No. 824.

United States Court of Appeals, Eighth Circuit.

March 1, 1897

On October 18, 1892, George L. Frink, manager of the Glencoe Mining Company of the territory of Utah, applied to the plaintiff, a banker of Salt Lake City, in said territory with whom said mining company had an account, for a loan by way of overdrafts, to the amount of $7,500, which was declined, but with the statement that plaintiff would so loan such sum as one D. E. Soule, of New Milford, Conn., would authorize said Frink to draw for upon the said Soule. Thereafter, on the same day, said Soule, in the city of New York, delivered to defendant a message, signed by him, to be telegraphed to said George S. Frink at Salt Lake City, to whom it was addressed, of the following purport: 'May draw twenty-five hundred dollars at sight. ' By some error or mistake in transmission, the message, when delivered to Frink in Salt Lake City by the defendant's messenger purporting to come from, and to be signed with the name of said D. E. Soule, read: 'May draw seventy-five hundred dollars at sight. ' Thereupon said Frink made on the same day a sight draft in favor of McCornick & Co. upon said D. E Soule for the sum of $7,500, and upon the delivery thereof to the plaintiff, and the exhibition to said plaintiff of said telegram as received by said Frink, the plaintiff advanced and loaned to said Frink, by placing the same to the credit of said mining company, the sum of $7,500. Soule paid on said draft $2,500, and no more, and the draft was protested. In the meantime the mining company had obtained from plaintiff $7,276.68 of such loan. Frink and said mining company are insolvent and the plaintiff seeks in this action to recover of the defendant $4,776.68, as his damage because of the negligence and carelessness of defendant, and its agents in the transmission and delivery of said telegram. The complaint was filed July 20, 1893, in the district court of the Third judicial district of the territory of Utah, county of Salt Lake, and the answer of the defendant was filed in the same court September 23, 1893, and the cause was pending in that court when, on January 4, 1896, the state of Utah was admitted into the Union. On February 1, 1896, the defendant filed in the district court of the Third judicial district of the state of Utah, county of Salt Lake, its petition for the removal of this cause to the circuit court of the United States for the district of Utah, on the ground that the amount in dispute, exclusive of interest and costs, exceeded $2,000, and that defendant was a citizen and resident of the state of New York, and the plaintiff a citizen and resident of the state of Utah. Defendant filed at the same time a proper bond for the removal of said cause, and thereupon, on the 21st day of February, 1896, by the order of the judge of said state court, said cause was removed for trial to said circuit court of the United States for the district of Utah, which last-named court afterwards denied the plaintiff's motion to remand said cause to the state court. Afterwards the said cause came on for trial at a regular term of said United States circuit court, and at the close of the evidence, the jury, in obedience to the direction of the court, returned their verdict in favor of the defendant, and judgment was thereupon rendered in favor of the defendant for its costs.

Arthur Brown (Henry P. Henderson and William H. King with him on brief), for plaintiff in error.

David Evans and Eleneious Smith (George H. Fearons, L. R. Rogers, and Joseph Dickson with them on brief), for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District Judge.

LOCHREN District Judge, after stating the case as above, .

1. The cause was properly removed to the United States circuit court. The right of removal in this case did not depend on the act of March 3, 1887, in relation to the removal of causes from the state to the federal courts, which is inapplicable to suits pending in the courts of a territory. Such right of removal rested entirely on the provision made by congress for the special purpose of removing into the federal courts such causes pending in the territorial courts of Utah, when such courts should cease to exist, on the admission of the new state, as might, conformably to the constitution of the United States, be removed to the federal courts for trial. By the act of congress enabling the people of Utah to form a constitution and state government, the convention provided for was empowered to provide by ordinance 'for the transfer of actions, cases and proceedings, and such matters pending in the supreme or district courts of the territory...