gent in the management of the engine before it got back to a roundhouse where it could be inspected and repaired. I must assume from the proofs that it was negligently run, for certainly that was a question for the jury; and, therefore, the question is: Who was the negligent person in permitting it to be used as it was until it got to the Port Morris yard? If there was negligence, clearly the engineer and the conductor shared in it; but they were fellow servants, and to hold the defendant some alter ego must have contributed his own negligence to the accident. As the proofs now stand, there must be some evidence of the negligence of the chief train dispatcher. Upon that I think the last paragraph of the opinion of the Circuit Court of Appeals still controls. The words I refer to are these:

"Even if the train dispatcher knew or thought the defect was one likely to make it dangerous to proceed with the engine in that condition. he had a right to suppose that the engineer had disconnected the disabled side, as the proofs show he could perfectly well have done. The purpose of the message was to get from the train dispatcher the remedy which the conductor thought applied to the situation, namely, the pusher, and this was promptly supplied."

In this trial the plaintiff thinks that he has met this difficulty by the testimony of Smith, who swore that, although the disabled side of the locomotive could have been disconnected, still there would have been a strain caused by the revolution of the rod. Smith's testimony in that respect is in substance as follows:

"If he had killed that side, it would have done no work; but the revolution of the rod would have still caused a strain on the lower guide after that, unless he was able to take down the main rod, which he could not have done."

This testimony, brought out on cross-examination, was directed to a strain on the lower guide which had not broken and which was not the cause of the accident, because it was the upper guide which had been lost. The witness' testimony was somewhat confused as to whether there was any strain upon the top guide except in backing; but of course that confusion was for the jury to resolve. However, this testimony is far from showing that the accident might still have happened if the right side had been disconnected. Laying aside the fact that he only says there would have been a strain on the lower guide, and even assuming that from it the jury might have inferred that there would also have been an upward strain, it nowhere appears that had the side been disconnected the strain was serious enough to cause a break. As the whole theory is that it was negligence for the chief train dispatcher not to insist upon the removal of the engine and for him to assume that the conductor could not have safely dealt with the situation, some such proof as this was essential to the plaintiff's case. Again, even if the engine with the tools actually at hand could not in fact have been so disconnected as to remove all danger, yet the chief train dispatcher, acting in the stead of the superintendent, still had a right to suppose, as the Circuit Court of Appeals holds in effect, that the men on the ground would neutralize that danger, or else keep the employés away from the injured side of the engine. It is not as though the chief train dispatcher had been consulted as to how the situation should be managed; nor was he to assume that the discon180 F.-56

nection of the injured side was the limit of the possibilities of the men on the spot. The conductor assumed responsibility for the situation by asking for a pusher, and the chief train dispatcher could rely upon his doing what was necessary. When he said that the top guide was lost, it was to explain why he asked for the pusher, not to state the facts and ask for advice; he was then speaking, not to the superintendent at all, but to the chief train dispatcher, and asking that a piece of rolling stock be moved from one place to another. Therefore the information to the chief train dispatcher did not disclose to him a situation necessarily so dangerous that nothing short of entirely disconnecting the locomotive would have made it safe. Perhaps in that case the failure of the chief train dispatcher to intervene by affirmative action would have been a ground for negligence.

I cannot see that a substantially different case has been shown from that passed on above, and I shall therefore have to deny the motion for a new trial.

COLGATE v. JAMES T. WHITE & CO.

(Circuit Court, S. D. New York. August 3, 1910.)

1. INJUNCTION (§ 128*)-PUBLICATION OF BIOGRAPHY-EVIDENCE-WEIGHT. Evidence on a bill to enjoin publication of complainant's biography held to show that he gave facts concerning his life on an understanding that they would be used in a set of books officially recognized by the federal government.

[Ed. Note.—For other cases, see Injunction, Cent. Dig. § 278; Dec. Dig. § 128.*]

2. INJUNCTION (§ 59*)-PUBLICATION OF BIOGRAPHY.

Injunction lies to prevent publication of complainant's biography in a set of books other than a set issued under auspices of the federal government, where he gave the facts for use in such set only.

[Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 114-116; Dec. Dig. § 59.*]

3. CONTRACTS (§ 168*)-TERMS IMPLIED-PUBLICATION OF BIOGRAPHY.

Complainant having indicated that he would give facts concerning his life for use only in a biography issued under auspices of the federal government, there was an implied promise that they would not be otherwise used.

[Ed. Note. For other cases, see Contracts, Cent. Dig. § 751; Dec. Dig. § 168.*]

4. EQUITY (§ 141*)-BILL IN EQUITY-REQUISITES.

While a bill in equity must advise defendant of the facts on which complainant relies, it need not state a cause of action at law, a bill which asks relief not itself inconsistent, and justified by the narrative part of the bill, being ordinarily sufficient; and complainant is not limited to any given theory of law if he does not depart from the bill itself.

[Ed. Note. For other cases, see Equity, Cent. Dig. §§ 323-333; Dec. Dig. § 141.*]

5. COURTS (§ 329*) - FEDERAL COURTS - JURISDICTION-VALUE OF SUBJECTMATTER.

On a bill to enjoin publication of complainant's biography in a set of books, an allegation that the right infringed is worth $2,000 is prima facie sufficient to confer jurisdiction of the subject-matter on the federal For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

circuit court, in the absence of proof that the facts which he gave for publication in another set of books were merely formal, or such as any one might learn.

[Ed. Note. For other cases, see Courts, Cent. Dig. § 897; Dec. Dig. § 829.*

Jurisdiction of circuit courts as determined by the amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Tennent-Stribling Shoe Co. v. Roper, 36 C. C. A. 459.]

6. COURTS (§ 328*)-FEDERAL COURTS-AMOUNT IN CONTROVERSY-JOINDER OF CLAIMS NOT RELATED.

On enjoining publication of complainant's biography in a set of books other than that for which he gave facts of his life, relief cannot be had in the United States Circuit Court against a contract to subscribe for a set at $10 a volume; the subject-matter concerning the biography and the subscription being distinct.

[Ed. Note.-For other cases, see Courts, Cent. Dig. § 891; Dec. Dig. § 328.*]

In Equity. Bill by R. R. Colgate against James T. White & Co. Decree for complainant.

See, also, 169 Fed. 887.

This is a bill in equity to prevent the defendant from publishing in the National Cyclopedia of American Biography facts of complainant's life obtained from him, and to deliver up and cancel a certain written instrument of subscription to the said Cyclopedia obtained from the complainant by fraudulent misrepresentations. The bill depends upon diversity of citizenship, and charges that the defendant represented to the complainant that the biography in which he proposes to insert the facts stated was one to which the Congress of the United States had made an appropriation of money, and that the defendant was engaged in collecting the information and in publishing such books for the government; that, upon these representations, the complainant told the defendant a number of facts, including the principal events of his life, and subscribed for a set of the said books at $10 a volume; that the representations were false and known by the defendant to be false, and were made with intent to deceive and mislead the complainant; that the complainant is a private person, and not engaged in business nor a holder of public office, and that he acted upon the representations of the defendant that the publication was a government work; that the defendant threatens to use the facts so obtained and to collect for the subscription. The answer denies the substantial allegations of the bill, and alleges affirmatively that the complainant ratified the contract after knowledge of the facts.

Upon the final hearing certain affidavits were submitted as final proofs, which had been used upon a hearing for preliminary injunction. The complainant's affidavit alleges that he is a retired business man having an office in New York and living in Sharon, Conn.; that on December 2, 1908, he had a conversation with one Gower, a sales-agent of the defendant, who told him he had been assigned to write his biography for the "National Cyclopedia of American Biography." The defendant protested, whereupon Gower said that it was a national affair. Complainant then said: "If it is a government matter, I will see you in reference to it." Gower came the next day, and had a conversation with the complainant at his office, to which conversation he instructed his stenographer to listen. Gower said that he was sorry complainant was opposed to having his biography written, but that this was something entirely different from the ordinary work of the kind, as it was a national affair, to which the complainant replied that, if it was a government matter, he would give him some facts. Complainant then says that he asked him how the government came to take the matter up, and Gower gave some explanation, using the names of some senators or of a representative, and saying that the bill had been introduced to make an appropriation for the •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

work which was to be sent to each ambassador and consul. At that interview the complainant signed a subscription blank binding himself to take a copy of the work at $10 a copy. The complainant will not swear that Gower used the word "government," but does say that he constantly used the word "national." Complainant used the word "government," however, without correction from Gower. On the 6th complainant says he learned of the character of the work, which was not in any sense under the patronage of the government. Next morning, on the 7th, he went to the office of the defendant and asked for White, one of the defendant's officers. He saw Gower at the time, who conceded that it was not a government work, but that the government had subscribed for a number of volumes. Complainant then told Gower that he wished to cancel his subscription, and was recommended to White, who subsequently came in and refused to cancel the subscription and to refrain from publishing the facts. On the 15th of January the complainant wrote, making a formal tender to rescind the subscription, and demanding that they refrain from publishing the facts. The complainant's stenographer, who was in the office at the time of the interview, swears that she listened to the conversation, as she was instructed, on December 3d, and that the complainant told Gower he disliked publicity of this kind, whereupon Gower said that this was entirely different from anything gotten out before, it was a national affair; that he also spoke of an appropriation by the government; that he constantly used the word "national." The impression she received from the conversation was that the Cyclopedia was compiled and published under the direction of the United States.

These two affidavits constituted the complainant's direct proof. The defendant's proof consisted of Gower's affiadivt, in which he denies that he ever said anything from which it might be inferred that the publication was a "government affair." At the interview on December 3d he says that he started by saying that this work was entirely different from the usual publications, for it was a national affair. He does not remember the complainant's saying it was a government matter. He denies that he said that a bill was being introduced for an appropriation to send the work to all ambassadors and consuls. He concedes that he spoke of the subsidization of such biographies by foreign governments, and that there was no government publication of the sort in this country. He says that he told the complainant that this was a private publication for which the government had done nothing but subscribe for a number of copies. He concedes that he used the word "national" repeatedly, but asserts that none of his conversation was sufficient to convey to a reasonable mind the idea that the publication was a government enterprise. He denies that it was apparent to him that the complainant was being misled. He remembers the interview of December 7th, in which the complainant requested White not to publish the biography. At that interview the complainant told White that Gower had told him it was a government publication. White replied, asking whether he claimed there had been misrepresentation, to which he said, "No; not that, but a misapprehension." In White's affidavit he says that he talked with the complainant on December 7th, who told him he did not wish to have his biography published, and said that he could not say that there had been misrepresentations, but rather misapprehension. White then suggested that he let the publication of his own biography go over until the volume after next, and the complainant accepted this as a compromise of the whole matter, and that at the end of the interview he said, "Send along the books. I will pay for them"; that they sent the first six books on December 10th, and on January 12th, two more; that on January 11th the first six books were refused. The affidavit of Linen for the defendant says that on December 3d the complainant came to the office and said that he had been influenced to give his biography upon the belief that it was a government publication; that at that time he said nothing about cancellation; and that in the interview he disclaimed the position that there had been any misrepresentation, but said that there had been misapprehension. The complainant replied in an affidavit, repeating that Gower had stated that the government had made an appropriation for the publication, and gave the name of a senator who introduced the bill; that on December 7th at the interview in the defendant's office he stated that

Gower had told him that the work was a government one and used the words "false representations," which made Gower and White very angry, so that he said he would substitute the word "misapprehension," which seemed to satisfy them. He denies that he said: "Send along the books. I will pay for them.

་་

This is all the testimony in the case, although there was a subsequent interview on the telephone between White and the complainant.

Hawkins & Delafield, for complainant.

Philip J. McCook, for defendant.

HAND, District Judge (after stating the facts as above). I think there can be no doubt that Gower gave Colgate to understand that the facts were not to be published in the ordinary biography which is used. as a bait to practice upon the vanity of the simple and so procure their money, but was to be used in a publication issued under the auspices of the United States government. It is significant that Gower does not deny that Colgate used the word "government" in reply to his own questions. Both sides concede that Colgate was extremely unwilling in the first instance to allow his biography to be used, and was reluctantly forced into the enterprise; nor do I think that there can be any doubt that whether his inference was reasonable or not he certainly supposed that the book had the sanction in some form of the government. Colgate's immediate claim of being misled is strong corroboration of that fact, as is also the affidavit of McLaren, the stenographer. The question is whether Gower gave him reasonable grounds for believing so. The name of the publication somewhat lent itself to that misconstruction. Colgate swears distinctly that he used the word "government" a number of times, and McLaren corroborates him. The well-known urgency of book agents to procure subscriptions under these circumstances adds to my belief that Gower let the interview proceed after it would have been apparent to any reasonable man that Colgate was acting under a misapprehension, and supposed that the facts would not be published in the usual kind of biography. I therefore find that as a fact the reasonable implication of the conversation was that, if Colgate would tell the facts, Gower would use them in a biography having some official recognition from the United States government, instead of publishing the account which he was to get up from other sources as he had threatened.

Upon the law I think that the complainant is entitled to an injunction, though not upon precisely the same lines as was suggested upon the argument. The contract between the complainant and the defendant, as I have found it, was to publish the facts of his life in a book issued under the auspices of the United States government. Assuming that there was fairly to be implied a negative covenant not to publish the facts except in a biography issued under government auspices, we have the general rule now well established that where, as here, the defendant has received the consideration and the complainant cannot at law have adequate relief, an injunction will go to enforce the negative promise, even in a case where the court would not grant affirmative specific performance. While the law first grew up under cases of personal service, beginning with Lord St. Leonard's decision in