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tent that any number less than the vhole sonable under all the circumstances, and in may not amend the articles of incorporation view of the state of the law upon the subject so as to avoid the condition upon which the as we understand it. We feel thoroughly constock of the appellants was issued.

vinced that the conclusion reached is correct, Weither is it important here that there are and, entertaining this view, it could subother matters contained in the laws affecting serve no practical purpose to grant a rehearthe corporation and stockholders that are not ing of the case. contained in the articles of incorporation The application, therefore, should be, and which from time to time may be amended and accordingly is, denied. which may fall within the reserved power of the state. A complete answer to this is that MCCARTY, C. J., and STRAUP, J., concur. the state has not specially relegated these matters to the incorporators to agree upon as they deem best. With regard to all these

(13 Idaho, 556) the state simply provided rules or regula

MILLS V. AMERICAN BONDING CO. et al. tions in the form of laws, all of which were (Supreme Court of Idaho. July 30, 1907.) subject to change at any time, and they thus APPEAL — PROSECUTION – BAR OF REMEDY, were not, nor intended to be, matters in- DISMISSAL. hering in special contracts. But, apart from

Where a litigant seeks and procures a re

moval of a case from the state court to a fedthis, in what way is the state, as such, inter- eral court, and thereafter pursues bis remedy in ested in private contracts, whether made be the latter court, and it is finally determined that tween incorporators or between anybody

the federal court has acted without jurisdiction

and that the case has never been legally and reguelse? True, the people of the state are in

larly removed from the state court, and he thereterested in having the resources of the state after takes up his case where he left off in the developed, and the state has an interest in

state court, the bar of the statute and rules of

court limiting the time in which to pursue his promulgating wholesome laws and in hav

remedy on appeal will be held to run against ing them enforced; but whether money is ob- him the same as if he had never sought to prosetained by one method or another, either to cute his remedy in another forum. start a new enterprise or continue one al

[Ed. Note.For cases in point, see Cent. Dig.

vol. 3, Appeal and Error, & 2744.] ready launched, the state has no interest whatever. Neither is it interested in whether

(Syllabus by the Court.) a private corporation discharges its obliga- Appeal from District Court, Ada County; tions with money obtained through assess- Geo. H. Stewart, Judge. ments of corporate stock or by the sale of Action by J. C. Mills, Jr., against the its property. Indeed, if the laws of this state

American Bonding Company and others. are any indication of its policy, then it has Judgment for plaintiff, and defendants apmanifested that policy in declaring that cor- peal. Motion to dismiss appeal on grounds porate stock is not assessable, unless made that transcript has not been filed in time reso by the stockholders themselves. True, the quired by rules of court.

quired by rules of court. Motion sustained, state may authorize a certain number of the

and appeal dismissed. stockholders to do this as it applies to future

Morrison & Pence and Neal & Kinyon, for charters; but it cannot, after unconditionally

appellants. W. E. Borah, H. L. Fisher, and authorizing a contract granting the right to

Frank J. Smith, for respondent. hold stock unconditionally, impose limitations upon that right by changing the con

AILSHIE, C. J. The respondent has moved tract, or authorizing it to be done, without

for a dismissal of the appeal herein on the the consent of all the stockholders. Such a

grounds that it has not been prosecuted with contract, being wholly outside of the condi

diligence, and especially for the reason that tions and agreements required to obtain a

the transcript has not been prepared, served, corporate franchise, cannot be said to fall

and filed within 60 days after service of the within the reserved power of the state to

notice of appeal, as provided by the rules of alter and amend the laws governing corpora- this court. This is a companion case to that tions.

of Finney v. American Bonding Co. et al., 91 In conclusion, we desire to state that, Pac. 318, decided at this present term. The while the questions involved, in and of them- same action has been taken in this case in selves, are of great importance to both the all respects as was taken in that case, and state and the citizen, the utility involved in the appellants are guilty of the same degree settling them is of still greater importance. of negligence, delay, and laches in this case Both sides have, with much diligence and as in that one. On the authority of that case, earnestnessfully all

both the and

, for , they have us much

dismissed. in determining the questions. The duty to Appellants cite McIver v. Florida Central adopt one or the other theory devolved upon & P. R. Co., 110 Ga. 223, 36 S. E. 775, 65 L. us alone. We have adopted that which, in R. A. 437, as an authority in support of their our judgment, seemed the most just and rea- contention that this court should assume

prof tably be said upon either theory, and also rekearing, the appeal in this case must be

jurisdiction of the appeal and hear the case of which it was given by defendants was sold to on its merits. As we read that case, it does them, may show the representations of the sales

man, who made the sale : the written order benot support the position appellants are obliged ing obscure and subject to interpretation. to maintain here. It simply holds that where 3. BILLS AND NOTES-BONA FIDE P’URCHASa case has been commenced in a state court ERS-EVIDENCE. and thereafter properly removed to a federal

Iefendants, in an action by the assignee of

a draft against the acceptors, for the purpose of court, and the plaintiff was nonsuited or rol

showing plaintiff's knowledge of the character untarily dismissed his case in the latter of the paper it was buying the defense heing court, he was not thereby precludeil from that the trasts were given for worthless jewelry.

to the knowledge of plaintiff, may show that again commencing his action on the same

plaintiff had bought similar paper of the same case in the state court at any time prior to jarty, to which the like defense had been made. the bar of the statute of limitations. It [Ex. Wote.-For cases in point, see ('ent. Dig. should also be borne in mind that the McIver vol. 7. Bills and Notes. $ 1741.] Case recognizes the principle that, even Appeal from Superior Court, Spokane though the case be properly removed to a County ; Miles Poinilexter, Judge. federal court, nevertheless the statute of Action by the Johnson County Savings limitations continues to run against the right Bank against Victor A. Rapp and another, ('0of action under the state statutes. If this is partners doing business as Rapp & Lloyd. true where there has been a proper and regu- Judgment for defendants. Plaintiff appeals. lar removal, it must be equally true where Atfirmeil. the removal eventually proved abortive and

A. E. Russell, for appellant. Danson & without jurisdiction. If under such circum

Williams, for respondents. stances the bar of the statute runs against the prosecution of the action in the state FULLERTOX, J. The appellant is a bankcourt, why should not the bar run in like ing corporation doing business at Iowa City, manner against the prosecution of the appel- in the state of Iowa. The respondents are late remedy for the review and correction of merchants doing business in this state. In errors? We think the law and reason of the the summer of 1.904 the Puritan Manufacturcase, as well as the justice and equity there. ing Company, of Iowa City, Iowa, contracted of, require that the litigant who seeks and to sell and deliver to the respondents certain procures a removal, and thereafter pursues jewelry at the agreed price of $25, to be his remedy in the federal court and is un- paid for in four quarterly payments, of $63.successful, and then takes up his case in the 25 each, "if the purchaser gives his four acstate court and prosecutes his remedy in the (eptances, each for one-quarter of the amount, latter court, should be dealt with in all re- to close the account within ten days from the

spects the same as if he had never invoked date of delivery ; otherwise terms are net

the jurisdiction of another forum for the trial of his case; and if he has abandoned the proper tribunal, and has voluntarily spent a portion of "his day in court" in a forum without jurisdiction, that time should be charged against him when he takes up his cause before the proper tribunal.

The appeal herein is dismissed, with the costs in favor of respondent.

SULLIVAN, J., concurs.

(47 Wash. 30)

RAPP et al.
(Supreme Court of Washington. Aug. 17, 1907.)

Evidence in an action on accepted drafts by the assignee thereof hold sufficient to go to the jury on the contention that plaintiff was not a purchaser for value before maturity without notice of deferts.

[Ed. Xote. For cases in point, see Cent. Dig. vol. 7, Bills and Yotes, $ 1879.) 2. EVIDEXCE-PAROL EVIDEXCE-FAILURE OF CONSIDERATIOX.

I Defendants, in an action on an accepted draft by the assignee thereof against the acceptors, for the purpose of showing, as part of their defense of failure of consideration, the condition on which the worthless jewelry, in payment

(ash 15 days, 6% discount cash 10 days." The sale was made by the Puritan Manufacturing Company's traveling salesman. On the re(cipt of the order given the salesman by the respondents, the jewelry company shipped them certain jewelry, and at the same time drew upon them four drafts payable according to the terms of the contract of sale above quoted. These the respondents accepted on August 3, 1901. On September 30th thereafter the Puritan Manufacturing Company indorsed them and delivered them to the appellant. The drafts were not paid at maturity, and this action was brought to recover thereon. The respondents defended on the ground that the jewelry shipped them was not as warranted by the jewelry company, and was utterly worthless for any purposes for which they could use it, and that there was for that reason no consideration for the drafts. The appellant claimed to be a purchaser of the paper for value before maturity and without notice of any clefect therein. On these issues a trial was had to a jury, resulting in a verdict and judgment for the respondents.

It is first assigned that the court erred in refusing to sustain the appellant's challenge to the sufficiency of the evidence: it being contendel that the respondents' evidence was insufficient to constitute a deteuse. But we think the court properly submitted the matter

(151 Cal. 577) to the jury. On the question of the value of BROOKSHIRE OIL CO. v. CASMALIA the goods, the respondents testified that they

RAYCI OIL & DEVELOPMENT were not as represented, and that all they

CO. et al. (L. A. 1,787.) were able to sell of them were returned us (Supreme Court of California. July 30, 1907.) the purchasers after a short time because of INJUNCTION TRESPASS – IRREPARABLE INtheir inferior quality; and other witnesses,


Plaintiff was entitled to a preliminary incalled as expwrts in the jewelry line, testified

junction, where the complaint alleged he owned that the goods were worthless for the pur- and had been in peaceable possession of an easeposes of legitimate trade. On the question of ment to maintain a pipe line to convey oil; that the knowledge of the appellant of this failure

defendants wrongfully and maliciously tore up

4.000 feet of the pipe, and mutilated and renof consideration the evidence is not so direct. dered it useless, with intent to wantonly prevent Still we think it sufficient to sustain the the exercise of the casement: that defendants verdict. While it is true the president of the

threatened to, and would, if not restrained, pre

vent plaintiff by force from relaying the pipe appellant bank did testify in his examination

line which was essential in the continued marin chief that the bank purchased the drafts keting of plaintiff's oil, and that the damage after they had been duly accepted by the re

from such wrongful arts would be irreparable : spondents, without notice or knowledge on his

| that plaintiif's actual damages already sustained

were $7.500, the answer admitting the tearing part of any defects therein, yet on cross-ex- : up of pipe, and merely raising the issue of the amination he admitted that he knew the ultimate title and property rights of the parties, character of the business the drawer of the

showing that plaintiff, if he should finally pre

vail. would not be irreparably damaged by the drafts was engaged in: that the bank had acts tenporarily enjoinerl, and it not appearing purchased large quantities of their paper, and plaintiff's use of the pipeline pendente lite had had a number of lawsuits over it where

would be of any serious detriment to defendant. the defense was failure of consideration.

[Ed. Note.--For cases in point, see Cent. Dig.

vol. 27. Injunction, $$ 305, 306.] Ilis evidence, moreover, leaves a doubt whether there was any actual purchase of the pa

In Bank. Appeal from Superior Court, per-whether the pretended purchase was not

Santa Barbara County; J. W'. Taggart, Judge. rather a scheme to aid the seller of the goods

Action by the Brookshire (il Company than an engagement in ordinary trade. When,

against the Casmalia Ranch Oil & Developin connection with this, it is remembered

ment Company and others. Defendant comthat the business of the seller' was hardly

pany appeals from an order denying its molegitimate that it was, in fact, little better

tion to dissolve a temporary injunction. Afthan obtaining money by false pretenses-

firmed. it is rather too much to say there is no evi- W. H. Chapman and Henley C. Booth, for dence from which the jury could rightfully appellant. Richards & Carrier and McD. R. draw the conclusion that the bank official did Venable, for respondent. not testify truthfully in his direct statement. The evidence was sufficient to go to the jury,

MCFARLAND, J. This is an appeal by

the defendant the Casmalia Ranch Oil & and the challenge was properly denied. It is next assignel that the court erred in

Development Company from an order of the admitting, over the objection of the appellant,

superior court denying said defendant's moevidence relating to the representations of

tion to dissolve a temporary injunction. The the traveling salesman of the Puritan Manu

injunction was issued upon the complaint in

the action, and the motion to dissolve was facturing Company. But this was a necessary part of the respondent's case.

based entirely upon the complaint and the

They were obligat'd to show the condition on

answer of the defendant filed to the com

plaint. No showing was made on the mowhich they purchased the goods, in order to show a failure of consideration. This evi

tion other than what appeared on the face

of the said pleadings. Thenie was directly in point for that purpose.

It is a verred in the complaint, which was The written order, which the appellant urges

fileil March 2, 190.), that 0 February 24, represents the entire contract, was at hest

1905, and for more than 30 days prior there. obscure, and subject to interpretation. The

to, plaintiff was the owner and in the peaceinterpretation: put thereon by the salesman

alle possession of an eavement and privilege to induce a sale could be properly put in

granted to it by the owner of certain lands evidence to show a failure of consideration.

subject to said esement "to construct and The testimony of the witness Hoyt as to a

maintain a pipe line for the conduct of oil" similar transaction vith the appellant bank

from certain oil lanils in the vicinity owned was admissible as tending to show knowledge

by plaintiff across the stil lands subject to on the part of the bank of the character of

said casement to a certain station on the the paper they were purchasing from the

Southern Pacific Railroadl, and, being in the Puritan Manufacturing Company.

peareable possession of said easement and The judgment appealed from is affirmed.

privilege, the plaintiff prior to February 21,

190.), had constructed a line of oil pipes four IIALLEY, C. J., and MOUNT and CROW, inches in diameter across the said lands; JJ., concur.

that on said February 24, 1905, in the absence of plaintiff and its officers and agents, on December 2, 1899, duly recorded in Book the defendants wrongfully, maliciously, and 2 of Leases in the office of the recorder of without any right whatever tore up about Santa Barbara county, in which county said 4,000 feet of said pipe, and mutilated and land is situated, and has ever since remained rendered the same useless; and that, by rea- a record in said office; and that afterwards, son of said acts, plaintiff suffered actual on December 2, 1899, the said Morehouse and damage on account of pipe destroyed in the others, parties of the second part to said sum of $2,500, and damage by loss incident instrument, by a written instrument executto the prevention of the conduct of oil from ed, acknowledged and duly recorded, assignthe oil lands of plaintiff to said railroad ed to defendants herein, the said Casmalia station in the sum of $3,000. It is also ex- Company, all the right, title, and interest pressly averred that in doing these acts de.

which said Morehouse and others had by fendants were guilty of oppression and mal

virtue of said instrument of February 25, ice, and that they did said acts with in

1899, which is called a "lease." tent to wantonly, oppressively, etc., prevent

It is contended by appellant that said inplaintiff in the exercise of his said ease

strument of February 25, 1899, vested the ment, and that plaintiff was entitled to

lessces therein named with full possession of receive as vindictive damages the further

all the surface of the Arellanes rancho, so

that neither the lessor nor any other person sum of $10,000. It is also averred that defendants threaten to, and will, if not re

could enter upon any part thereof without strained by the court, prevent plaintiff by

the consent of the said lessees except as

trespassers, and that, therefore, the plainforce from relaying and re-establishing its

tiff herein could not subsequently to the exsaid pipe line and easement during the pen

ecution of said lease acquire the easement (lency of this action, that said line is es

asserted in the complaint, or any right or sential to the continuance of the market

privilege whatever in said land adverse to ing of the oil products from plaintiff's land

appellant. Respondent contends that this which are constantly being produced from

lease, on its face, gives to the lessees only wells thereon, and that the damage to plain

the right, for a term of years, to produce tiff from said wrongful acts will be irrepar

petroleum and other hydrocarbon substances able. The prayer is for damages in the sum

from said land, and to drill and operate oil of $17,500, and for a final injunction re

and gas wells thereon, and to use such part straining defendants from continuing said

of the land, and to lay and operate such pipe unlawful acts, and for a temporary injunc

lines, etc., and to have such rights of way, tion during the pendency of the action. Up

as should be necessary to carry on said busion this complaint, duly verified, the court

ness of producing oil, etc., from said land; granted the preliminary injunction enjoin

but did not give said lessees any possession ing defendants from preventing or in any

of any part of said land not used by them in way interfering with, the construction and

said business. We need not, however, exinaintenance of said pipe line, and from re

amine into this matter, because it goes only inoving any part of the same until further

to the question of title which is to be deorder in the premises.

termined on the final decision of the case on In the answer the ownership and posses

its merits, and not to the propriety of the sion of the alleged easement is denied; and

refusal of the court to dissolve the temporary it is also denied that defendants "wantonly,

injunction. The verified averments of the commaliciously, and oppressively” tore up the

plaint show a clear case for the equitable inoil pipe as alleged in the complaint, but it

terposition of the court by a preliminary inis not denied, and is admitted, that defend

junction. The answer does not in any way ants did actually tear up said pipe, etc., and

change the basis upon which rested the equiit is not denied that defendants will prevent

table considerations which led the court to plaintiff from relaying said line. There are

grant the injunction. The answer merely also denials of the amount and the irrepar- raises the issue of the ultimate title and propable nature of the damages suffered, and of

erty rights of the parties in the premises insome other of tbe averments of the com

volved in the action. It does not deny the plaint. It is also a verred—and appellant re- facts upon which the equitable right to an inlies greatly on this averment-that on No

junction pending the determination of the isvember 23, 1897, George B. Arellanes was the

sue of title rested. It does not show that owner in fee of a certain tract of land, which plaintify, if it should finally prevail in the acmay be called for brevity the "Juan Arel- tion, would not be irreparably damaged by the lanes Rancho"; that this is the land which acts of appellant which are temporarily enplaintiff claims to be subject to its alleged joined. A court will sometimes hesitate to pipe line easement; that on said November grant a preliminary injunction, eren upon 25, 1899, Arellanes, as party of the first part, a strong showing of the plaintiff, when it executed to C. c. Morehouse and others, as appears that the injunction may seriously parties of the second part, a certain written injure or disturb the use of the property or instrument, of which a copy is attached to possession of the defendant; but there is no the answer marked “Exhibit A”; that this consideration of that kind in the case at bar. instrument was duly acknowledged and was It nowhere appears that, even if appellant should finally prepail, the continuance by him to declare the whole debt due on default in plaintiff of the use of the pipe line during

payment of interest until by some outward act: the pendency of the action would be any

beyond a mere mental determination or a direc

tion to his own agents he has manifested an serious detriment to appellant, or would in election. any material way interfere with the exercise [Ed. Note.-For cases in point, see Cent. Dig. of whatever rights in the premises appellant

vol. 35, Mortgages, 1209.] has by virtue of said lease, or that it ob- 6. SAME-PLEADING. structs appellant in anything it has done, or

Where the complaint in a foreclosure ac

tion alleges that the plaintiffs "elect" to declare has to do, in carrying out its right of pros

the whole debt due for default in payment of inpecting for and taking oil, etc., from said terest, proof may not be made of an election land. On the other hand, if respondent

made before the commencement of the action. should finally prevail, it is apparent that,

Department 1. Appeal from Superior in the absence of the preliminary injunction,

Court, Trinity County; James W. Bartlett, it would have unjustly suffered great and

Judge. irreparable damages. We think that the

Action by the Trinity County Bank and ancase presents an exceedingly proper one for other against F. G. Haas and others. De the employinent of the aid of a preliminary

fendants appeal from a decree foreclosing a injunction, and that no reason appears for

mortgage and from an order denying a new disturbing the ruling of the court in refusing

trial. Reversed and remanded. to dissolve it.

William C. Bissell, for appellants. D. J. The order appealed from is affirmed.

Hall and H. R. Given, for respondents.
We concur: SHAW, J.; LORIGAN, J.; AN-

SLOSS, J. The defendants appeal from a decree foreclosing a mortgage, and from an

order denying their motion for a new trial. ( !51 Cal. 553)

On January 11, 1901, the defendants F. G. TRINITY COUNTY BANK et al. v. HAAS Haas and Emily E. Haas made and delivered et al. (Sac. 1,463.)

to plaintiffs their promissory note for $5,969.(Supreme Court of California. July 26, 1907.) 73, payable one year after date, with interest 1. MORTGAGE - CONSTRUCTION -NONPAYMENT thereon at the rate of 1 per cent. per month OF INTEREST-PROVISION FOR FORECLOSURE. from date until paid, said interest payable A note and mortgage, being parts of one

quarterly, and, if not so paid when due, to be transaction, are to be read together, and the mortgagee may rely on the provision in the

added to the principal and to bear interest at mortgage making the principal due for nonpay- the same rate as the principal sum. On the ment of interest at his option, though the note following day said defendants executed and contains no such provision.

delivered to plaintiffs a mortgage of real [Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Mortgages, $$ 214, 215.]

property to secure their note. The mortgage 2. SAME-DEFAULT-NOTICE OF ELECTION TO

provided that, “in case default be made in FORECLOSE-NECESSITY.

the payment of the said principal or any inWhere a mortgage provides that, on default stallment of interest as provided, then the in payment of interest, at the mortgagee's op

whole sum of principal and interest shall be tion the whole debt shall become due, the mortgagee need not, before commencing a foreclo

due at the option of the said parties of the sure action, notify the defaulting mortgagor of second part (the payees), or assigns." On his election to declare the principal due. September 6, 1904, the defendants F. G. and [Ed. Note.--For cases in point, see Cent. Dig.

Emily E. Haas conveyed to the defendant vol. 35, Mortgages, $ 1209.)

Joseph Elliott the greater part of the mort3. SAME. Where a mortgage provides that, on de

gaged premises, Elliott assuming the payment fault in payment of interest, at the mortgagee's of the mortgage debt. option the whole debt shall become due, the The first installment of interest, payable principal suin does not become due ipso facto

on April 11, 1904, was paid when due. This upon default in interest payment, but the clause gives the mortgagee a mere option which he

action was commenced October 17, 1904, the may take or waive, and the option is lost if be- plaintiffs alleging in their complaint that no fore it has been exercised the mortgagor pays further interest had been paid, and "default or offers to pay the overdue interest.

having been made in the payment of the sum [Ed. Note.--For cases in point, see Cent. Dig.

of interest due July 11th, 1904, plaintiffs, in vol. 35, Mortgages, $ 1209.] 4. PAYMENT

accordance with the terms of said mortgage, DEPOSIT IN BANK FOR CRED

elect to declare the whole of said principal ITOR.

Under the express terms of Civ. Code, $ sum and interest thereon from April 11th, 1500, where a mortgagor's tender of interest was

1901, now due and payable." The answers refused, a deposit in a bank of good repute of the amount to the mortgagee's credit, with

allege that all interest due upon said note or notice thereof to the mortgagee, amounted to by said mortgage “has been heretofore paid, payment of the interest.

and that the principal sum of said note and [Ed. Yote.--For cases in point, see Cent. Dig. | mortgage is not yet due." The court found vol. 39, Payment, $ 24.]

against the plea of payment, found that 5. SAME-ELECTION TO DECLARE DEBT DUE- plaintiffs had, on or about the 3d day of SUFFICIENCY. A mortgagee cannot be held to have exer

October, 1904, elected to declare the principal cised an option under the mortgage entitling and interest due, and, as has been stated,

91 P.-25

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