delivery of personal property in instalments, payment to be made in
notes of the vendee as each instalment is delivered, is sufficient to jus-
tify the vendor for refusing to continue the delivery, unless payment
be made in cash; but it does not absolve him from offering to deliver
the property in performance of the contract if he intends to hold the
purchasing party to it: he cannot insist upon damages for non-per-
formance by the insolvent without showing performance on his own
part, or an offer to perform, with ability to make the offer good.
Florence Mining Co. v. Brown, 385.
4. When, in the performance of a written contract, both parties put a prac-
tical construction upon it which is at variance with its literal meaning,
that construction will prevail over the language of the contract. Dis-
trict of Columbia v. Gallaher, 505.
5. In this case the defendant in error having under a written contract with
the agents of the plaintiff in error constructed a sewer which in the
course of construction was, by mutual consent, and for reasons assented
to by both parties, made to vary in some respects from the plans which
formed part of the contract, but without any agreement as to a change
in the contract price: Held, for the reasons given by the Court of
Claims, that the judgment of that court awarding the contract price
for the work is affirmed. Ib.
See DAMAGES;
EQUITY, 2, 3.
1. An employé of a business house, who, having a principal place in the
establishment, is entrusted by his employers under their direction and
on their behalf, in their building, and subject to their control and use,
with the custody and possession of printed copies of a copyrighted
photograph printed in violation of the provisions of Rev. Stat. § 4965
has no such possession of them as will entitle the proprietor of the
copyright to proceed against him for a forfeiture of one dollar for
every sheet under that section. Thornton v. Schreiber, 612.
2. The words "found in his possession" in § 4965 of the Revised Statutes
do not relate to the finding of the jury that the articles in question
were in the defendant's possession, but require that there should be a
time before the cause of action accrues, at which they are found in
his possession. 1b.
3. Whether the provision in Rev. Stat. § 4965 that one-half of the profit
shall go "to the proprietor, and the other half to the use of the United
States" does not relate solely to the "case of a painting, statue, or
statuary," quære.
1b.
A counterclaim set up by the defendant was, on the facts, properly
disallowed. Roberts v. Benjamin, 64.
1. In its opinion this court reviews the evidence offered by the plaintiff
on the trial of the case in the court below, none being offered there
by the defendants, and finds it sufficient to entitle the plaintiff to have
the issue submitted to the jury; and as the court below directed the
jury to find a verdict for the defendants, which was done, and a judg-
ment was entered on the verdict, this court reverses the judgment and
remands the case, with directions to grant a new trial. Humiston v.
Wood, 12.
2. In general it is for the jury to determine whether, under all the circum-
stances, the acts which a buyer does or forbears to do amount to a
receipt and acceptance within the terms of the statute of frauds.
Hinchman v. Lincoln, 38.
3. Where the facts in relation to a contract of sale alleged to be within
the statute of frauds are not in dispute, it belongs to the court to
determine their legal effect. Ib.
4. A court may withhold from the jury facts relating to a contract of sale
alleged to be within the statute of frauds, when they are not such as
can in law warrant the finding of an acceptance, and this rule extends
to cases where, though there may be a scintilla of evidence tending to
show an acceptance, the court would still feel bound to set aside a
verdict which finds an acceptance on that evidence. Ib.
5. A motion by the defendant, at the close of the plaintiff's testimony, to
take the case from the jury, was properly refused, because it was a
motion for a peremptory nonsuit, against the will of the plaintiff; and
it was waived by the introduction by the defendant of testimony in
the further progress of the case. Union Ins. Co. v. Smith, 405.
On appeal by the United States from a judgment of the Court of Claims
against them for less than three thousand dollars, rendered pro forma,
against the opinion of that court, and for the purpose of an appeal,
this court, upon objection taken in behalf of the United States to the
irregularity of the actions of the court below, reverses the judgment,
and remands the case for further proceedings according to law. United
States v. Gleeson, 255.
CRIMINAL PROCEEDINGS.
See EQUITY, 6.
1. Merchandise was delivered to its importer, after he had paid the duties
on it as first liquidated or estimated on its entry. Subsequently, the
collector recalled the invoice, the local appraiser increased the valua-
tion, there was a reappraisement by the general appraiser and a mer-
chant appraiser, and a new liquidation, which increased the amount of
duties. The importer paid that amount under protest, and appealed
to the Secretary of the Treasury, (who affirmed the action of the
collector,) and then brought a suit against the collector to recover the
amount: Held, that under § 3011 of the Revised Statutes, the action
would not lie, because the payment was not made to obtain possession
of the merchandise. Porter v. Beard, 429.
2. Rolled iron, in straight flat pieces, about twelve feet long, three-eighths
of an inch wide, and three-sixteenths of an inch thick, slightly curved
on their edges, made for the special purpose of making nails, known
in commerce as nail-rods, not bought or sold as bar iron, and not
known in a commercial sense as bar iron, was not dutiable at one and
one-half cents a pound, as “ bar iron, rolled or hammered, comprising
flats less than three-eighths of an inch or more than two inches thick,
or less than one inch or more than six inches wide," under § 2504 of
the Revised Statutes, (p. 464, 2d ed.,) but was dutiable at one and
one-fourth cents a pound, as "all other descriptions of rolled or
hammered iron not otherwise provided for, under the same section "
(p. 465). Worthington v. Abbott, 434.
3. Merchandise was delivered to its importer after he had paid the duties
on it as first liquidated. Within a year after the entry, the local
appraiser made a reappraisal and a second report, from which the
importer appealed, within such year. The board of reappraisement
met after the year; the importer was present; the merchandise was
not reappraised because it could not be found, and it was not exam-
ined; and the fees of the merchant appraiser were paid by the
importer. The second report of the local appraiser increased the
values of the goods from the invoice values, disallowed a discount
which appeared on the invoice, and changed the rate of duty on some
of the merchandise. The collector, after the expiration of the year,
made a new liquidation, by disallowing the discount and changing the
rate of duty, as suggested by the local appraiser: Held, That, under
§ 21 of the act of June 22, 1874, 18 Stat. 190, the first liquidation of
duties was final and conclusive against the United States, as it did not
appear that the second liquidation was based on any increase of the
value of the merchandise, or that the disallowance of the discount and
the change of the rate of duty depended on such increase, or were
involved in any proper action of the local appraiser in appraising the
merchandise, or were matters which could not have been finally acted
upon by the collector at any time within a year from the entry as well
as at any other time, and without any reference to any increase in the
appraised values of the goods. Beard v. Porter, 437.
4. Whether the taking of steps by the collector for a reappraisement by a
local appraiser, within a year from the time of the entry, in a case
where the question of reliquidation depends strictly upon a reappraise-
ment of the value of the merchandise will have the effect to make
the reliquidation valid, under § 21, although that is made after the
expiration of the year, quære. Ib.
5. The "protest " referred to in § 21 is a protest against the prior “settle-
ment of duties" which the section proposes to declare to be final after
the expiration of the year. Ib.
6. It is not necessary that the plaintiff should show by his declaration that
he has brought the suit within the time limited by § 2931 of the
Revised Statutes, although that must appear, as a condition precedent
to his recovery. Ib.
1. The damages to be recovered in an action against a telegraph company
for negligent delay in transmitting a message respecting a contract for
the purchase or sale of property are, by analogy with the settled rules
in actions between parties to such contracts, only such as the parties
must or would have contemplated in making the contract, and such as
naturally flow from the breach of its performance, and are ordinarily
measured by actual losses based upon changes in the market values of
the property. Western Union Telegraph Co. v. Hall, 444.
2. And, accordingly, where such an action was brought to recover damages
caused by a delay in the transmission of a message directing the per-
son to whom it was addressed to purchase property in the open market
on behalf of the sender, by means of which delay that person was
prevented from making the purchase on the day on which it was sent,
and it appearing that he did not make the purchase on the following
day in consequence of an immediate large advance in price, nor at any
subsequent day; and it not appearing, further, either that the order to
purchase was given by the sender in the expectation of profits by an
immediate resale, or that he could have sold at a profit on any subse-
quent day if he had bought: Held, that the only damage for which he
was entitled to recover was the cost of transmitting the delayed
message.
DEDICATION.
See SAN FRANCISCO.
When a government officer, acting under authority of law and in accord-
ance with its forms, conveys to an individual a tract of land as land
of the government, the deed will pass only such title as the govern-
ment has therein; and there is no presumption of law that it is a
valid title. Sabariego v. Maverick, 261.
DEMURRER.
See JUDGMENT, 1, 2.
DESCRIPTION.
See CONTRACT, 2.
DISTRICT COURTS OF THE UNITED STATES.
See EQUITY, 8;
LOCAL LAW, 2.
DOMINICAN REPUBLIC.
See TREATY, 1.
1. An action of ejectment cannot be maintained in the courts of the
United States for the possession of land within the State of Nebraska
on an entry made with a register and receiver, notwithstanding the
provision in § 411 of the Code of Civil Procedure of that State, that
"the usual duplicate receipt of the receiver of any land office
is proof of title equivalent to a patent, against all but the holder of an
actual patent." Langdon v. Sherwood, 74.
2. To entitle a plaintiff to recover lands by virtue of prior possession, in an
action brought against an intruder, a wrongdoer, or a person subse-
quently entering without right, it must appear that the possession was
in the first instance under color of right, and that it has been con-
tinuous and without abandonment; or, if lost, that there was an
animus revertendi. Sabariego v. Maverick, 261.
EMINENT DOMAIN.
See REMOVAL OF CAUSES, 2;
WASHINGTON AQUEDUCT.
1. In a suit in equity the court, in determining the facts from the plead-
ings and proofs, the answer being under oath, applies the rule stated
in Vigel v. Hopp, 104 U. S. 441. Union Railroad v. Dull, 173.
2. The fact alone that after a contract was entered into by a railroad com-
pany for the construction of a tunnel, one of its employés who neither
represented it in making the contract, nor had supervision and control
of the work done under it, or in the ascertainment of the amount due
the contractors, was, without the knowledge of the company, admitted
by the contractors to a share in the profits, affords no ground in equity
for setting aside an award between the contractors and the company
settling the sum due from the company under the contract after its
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