Moore v. Backus, 5401.

• Citation: 78 F.2d 571,101 ALR 379
• Decision Date: 13 July 1935
• Docket Number: No. 5401.,5401.
• Parties: MOORE et al. v. BACKUS et al.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

101 ALR 379, 78 F.2d 571 (1935)

MOORE et al. v. BACKUS et al.

No. 5401.

Circuit Court of Appeals, Seventh Circuit.

July 13, 1935.

Walter H. Jacobs, Harold A. Smith, Robert Tieken, Henry Veeder, Albert H. Veeder, Frederic Burnham, David F. Rosenthal, Frank D. Mayer, Irving B. Goldsmith, Henry M. Wolf, Alexander F. Reichmann, Oscar D. Stern, James J. Magner, John P. Wilson, and Howard Ellis, all of Chicago, Ill., for appellants.

Morris Townley, of Chicago, Ill., for appellees.

Before EVANS, SPARKS, and FITZ HENRY, Circuit Judges.

SPARKS, Circuit Judge.

On July 28, 1933, E. W. Backus filed in the District Court his action at law against Herbert J. Blum, Gustavus F. Swift, Jr., and Allen Moore. The declaration consisted of seven counts. In the first five counts he sought to recover triple damages for alleged violation of the federal antitrust laws, 15 USCA § 15; in the sixth count he sought recovery of damages for an alleged conspiracy in violation of the Illinois anti-trust laws, Smith-Hurd Ann. St. c. 38, § 569, Cahill's Illinois Revised Statutes, 1933, c. 38, par. 598; and in the seventh count he sought damages for an alleged conspiracy between defendants in violation of the common law of Illinois. Each count charged that prior to July 19, 1928, he had contracted to sell designated amounts of corn at certain prices in expectation that its market price would decline before the end of July, 1928, and in the belief that he would be able to purchase such corn for July delivery at prices lower than those for which he had sold it. Each count further alleged that Blum, Swift, and Moore purchased July corn and by conspiracy effected a "corner" on substantially all of the July corn available on the Chicago market, and as a result thereof, the price of July corn was raised to such an extent that Backus was compelled to default on his sales contracts and was required to settle for his defaults at a price much in excess of the true commercial value of July corn. In the first five counts he demanded triple damages in the sum of $1,000,000, and under the sixth and seventh counts he demanded damages in the sum of $300,000.

Ancillary to and in aid of his action at law, Backus, on September 29, 1933, filed his bill of discovery against Blum, Swift and Moore, referred to as the "principal defendants," and the various brokers through whom they purchased and sold July 1928 corn, hereinafter referred to as the "defendant brokers." The court overruled appellants' motions to dismiss the bill for discovery, and thereupon answers were filed. Thereafter, Backus filed a supplemental bill of discovery asking for further and detailed evidence, which the court ordered appellants to answer, including certain portions of the original bill of discovery to which appellants had objected. The errors relied upon arose out of the rulings of the District Court requiring appellants to give the discovery requested by the original and supplemental bills.

On February 5, 1935, Elisabeth H. Backus and Seymour W. Backus, the widow and son of E. W. Backus, reported to this court that E. W. Backus had died on October 29, 1934, and that they were the duly appointed, qualified and acting administrators of his estate, by virtue of an order of the Probate Court of Hennepin County, Minnesota. They thereupon prayed this court that they might be substituted for decedent as appellees herein, and they were thus substituted without prejudice to the rights of appellants to move to vacate the order. Subsequently, appellants moved to vacate that order on the ground that the causes of action, which were in tort, did not survive but that they abated upon the death of E. W. Backus.

Accepting as true the allegations of the declaration in the legal action, it would seem that decedent suffered a property injury within the meaning of the Sherman Anti-Trust Act (15 USCA §§ 1-7, 15 note). Chattanooga Foundry & Pipe Works v. Atlanta, 203 U. S. 390, 27 S. Ct. 65, 51 L. Ed. 241. Whether his alleged causes of action survived to his administrators must be tested by the common law as supplemented by the early English statutes. For many centuries the maxim actio personalis moritur cum persona applied to all tort actions. In the fourteenth century, however, the English statute of 4 Edw. III, c. 7, was enacted, which limited and became a part of the common law. That statute is the basis of this controversy and reads as follows: "Whereas in times past executors have not had actions for the trespass done to their testators, as of the goods and chattels of the same testators carried away in their life, and so such trespasses have hitherto remained unpunished; it is enacted that the executors in such cases shall have an action against the trespassers to recover damages in like manner as they, whose executors they be, should have had if they were in life." (Quoted in Pollock on Torts 11th Ed. page 66.)

It is contended by appellants that this statute altered the common law rule only as to actions relating to specific, tangible, personal property, and that with this exception the former common law rule remained precisely the same regardless of whether the defendant or plaintiff died. In other words, they urge that, except as to actions brought to recover damages for injury to personal property in the tangible sense, all actions ex delicto abate upon the death of either party in the absence of an express statute to the contrary. It is conceded that there is no express statute other than 4 Edw. III, c. 7, which modifies the common law rule. It will be noted that this statute did not alter the common law rule in cases where the defendant died. Prior to the adoption of the common law and the statute of Edward by the American legislatures the English courts had many occasions to construe that statute with respect to the point here raised, and their construction was adverse to appellants' present contention.

In Sale v. The Bishop of Lichfield, Owen 99, 74 English Reports 928 (1589), decedent owned an advowson, consisting of a right of appointment to an archdeaconry, which the Bishop withheld. The executor recovered judgment restoring the advowson and awarding damages. Here there was no taking of tangible goods, but the court held that the statute of Edward was applicable, and said:

"For the statute says that they shall have an action of trespass for a trespass done to their testator, and not for taking goods, so that the taking of goods is but by way of resemblance, and not that they shall have an action of trespass for taking of goods only. * * *

"Put the case that the testator had judgment to recover damages, shall not that be assets? And why may not the damages here recovered be assets, and why shall not the grant of the advowson be assets in the hands of the executor as well as in the hands of the issue."

In a note by Sergeant Williams to Wheatley v. Lane, 1 Wms. Saund. 216, 85 English Reports 228 (1680) it was said that certain actions survive to the executor which do not survive against him, and that: "The statute of 4 Edward III being a remedial law, has always been expounded largely; and though it makes use of the word `trespasses' only, has been extended to other cases within the meaning and intent of the statute. * * * Therefore, by an equitable construction of the statute, an executor or administrator shall now have the same actions for any injury done to the personal estate of the testator in his lifetime, whereby it is become less beneficial to the executor, as the testator himself might have had, whatever the form of the action may be."

In Williams v. Cary, 4 Mod. 403, 87 English Reports 468 (1695) an executor recovered against a sheriff for a false return upon an execution levied during testator's life. The court in holding that the action survived, said: "It cannot be properly said in this case, that there is any actual wrong or injury done to the person of the testator; for if so, then moritur cum persona; but it is an injury done to his personal estate, in which he is represented by his executor, and therefore he may maintain this action within the equity of the statute 4 Edw. III * * * which gives him an action of trespass for a wrong done to his testator. * * * Therefore, though it be true that a personal action dies at common law with the person, yet, upon the equity of this statute, a wrong done to his estate still remains."

In Berwick v. Andrews, 1 Salkeld 314, 91 English Reports 277 (1704) decedent recovered judgment against an executor who wasted the estate of his testator thereby rendering collection of the judgment impossible. The judgment plaintiff having died, his executor charged the first executor with a devastavit and thus sued him in his individual capacity. The court held that the action survived and said:

"It lies for the executor of him to whom the wrong was done, though it lies not against the executor of him that did the wrong. Here the defendant is the person against whom the recovery was, and he has admitted assets; and the executor may as well maintain this action, as he may an action of debt for an escape where his testator might. So an executor of a parson shall maintain debt for tithes, as the testator might: for in this case the tort was to the property of the testator, and vested an interest in him, and is within the equity of the Statute de Bonis Asportatis; and the same reason holds for an action of debt, as for a scire facias. Vide 2 Sid. 102."

See 2 Lord Raymond 971, 92 English Reports 147, where the court said:

"But the Statute of Edward 3 is a remedial law, which has always been taken by equity, wherever there is a matter of property in question it is brought within the statute."

We are unable to discover any different interpretation of the statute of Edward by the English courts up to the time it, with the common law pertaining to this subject, was adopted by the American States. That the same construction has been...