426
FEDERAL REPORLLn.
or loaned money to the defendant, which the defendant received and used; and if this proof is made, it will be no answer to show the limitation of the powers of the defendant, contained in the by-laws above quoted. It is insisted that under some peculiar provisions of the statute of Maine, under which this corporation was organized, its by-laws have the force and effect of charter provisions; that all persons must take notice of them. I do not inquire into the soundness of this claim, as, eveu if it be admitted, if the third paragraph of the complaint is true the defendant is liable. A corporation, like a natural person, may be compelled to account for the benefits received from a transaction, even if it be one not enforceable by reason .of the fact that its agents have no right to make it unless it be in its .nature illegal or immoral. If the agreement under which the corporation has received money or property cannot be enforced, an action may be sustained without reference to the agreement to recover whatever money be justly due for the value received. A corporation that has received money or property from another, and appropriated it, cannot be heard to refuse to account for it on the ground that it had no power under its charter to take it. See rule 14, p. 121, Mor. Priv. Corp. and cases cited. . I The demurer to so much of the answer as sets up the defendant's want of power, as a defense to so much of the ammer as is contained in the third paragraph, is sustained.
RHODES and others v. CLEVELAND ROLLING-T't[rLJ. Co. (Circuit Court N. D. Illinois. 1. July 23, 1883.)
PAROL EVIDExcE-To EXPL.UX 'VlUTTEX COXTRACT.
While parol evidence is not admissible to vary or change the terms of a written contract, it is frequentl..- admissible for the purpose of ascertailling what was the intention of the parties, or the meaning which they int'mded to attach to the expressions used in the 2. S.UIE-COXTUACT TO DELIVEH PIG-Inox-BilEACU.
The contract in this case, claimed to have been broken hy defenrlant, construed, and held that there was nothing to justify deff'ndant in claiming that under said contract the whole amount of pig-iron to he delivered by plaintiffs to them was to he deli\'ered before the end of the year, but that defendant must he Iw;d to have known of the capacity of the mill from which the iron was to be produced, and that its refusal to receive the iron after the close of the year was a breach of its contract with plaintitI, and that plaintiffs were entitled to dama.ges therefor. SA)IE:-;\IEASURE OF D.UL\GES.
3.
Ordinarily, the measure of damages for a hreach of a contract of sale is the difference he tween the price which defendant, by the contract, agreed to pay, and the market value of the property at the time he refused to perform the contract. 4. S.UIE-N"OTICE OF REFT.:SAT, TO ACCEPT PROPEnTy-TEXDER.
"'heTe. however, defendant notifies plaintiff that no more of the property willlJe received after a date specified, and after such notke plaintiff teULlers
RHODES
V.
CLEVELAND ROLLING-MILL CO.
427
tIle balance of tlle property under the contraet, If the price of the property has advanced between the time of such notification and the date of the tender, so as to make less difference between the contract priee and the market price, the difference between the market price and the contract price at the time of the tender would be the measure of damages.
At Law. Emery A. St01TS, for plaintiffs. Lawrence, Call1p!;ell d: Lawrence, for defendanL
BLODGETT, J. This is a suit to recover damages for the breach of an agreement in writing moule between the plaintiffs and the defendant, on the sixteenth d,ty of February, 1880, whereby plaintiffs sold to defendant the entire product of 14,000 tons of iron are, which was to be manufactured into pig-iron with charcon,l by the Leland Furnace Company, of Leland, Uicbigan, ,vhich w,is to be shipped in vessel cargoes as rapidly as possible to the defendant at Cleveland, Ohio, during the season of navigation of IS80, and such portion of the product of said are as should be made after the cl03e of navigation for the season of 1880, was to be shipped by vessel to Cleveland on the opening of navigation for the season of 1881, or as near the opening as possible, and for which iron the defendant agreed to pay plaintiffs $45 cash. per ton of 2,240 pounds as rapidly as the same was delivered on the arrival of the vessel at Cleveland. The plaintiffs caused to be manufactured and delivered by the Leland Iron Company to defendant, in pursuance of tbis contract, before the close of navigation of 1880, 3,421 tons and 480 pounds of pig-iron from the are mentioned in the contract. On the twenty-third of February, 1881, defendant notified the plaintiffs that it did not recognize any contracts with plaintiffs for pig-iron made aIter December 31, 188U, claiming that the contract had expired at that time; and on the first of March, 1881, defendant reiterated this notice to plaintiffs by telegraph in the following words: "Your contract to manufacture pig-metal for us gives you no authority to do so after December, 1880." And the substance of this telegram was repeated in a letter from the president of the defendant company to plaintiffs under date of March 3d. Afterwards, and about :May 13, 1881, defendant offered to take the quantity of iron made prior to the first of January, and which had not been shipped, and which amounted to about 1,500 tons, with the understanding that they should be released from the obligations to receive any more iron under said contract. This offer was rejected by plaintiffs. Between the ninth of May and the second of July, 1881, the Leland Iron Company, for plaintiffs, shipped from Leland, to the defendant the remainder of the iron manufactured out of said ore, and tendered the same to defendant at Cleveland, in conformity with the terms of plaintiff's contract with defendant; the amount so shipped in 1881 being 4,653 tons and 390 pounds, which defendant refused to receive. This suit is now brought to recover damages for this alleged breach of de· fendant's contract.
428
FEDERAL REPORTEfi.
The facts which seem to me material to the decision of this case are briefly these: Prior to January 14,1880, the plaintiffs had made contracts with the Cleve· 1:lnd Mining Company for the purchase of 6,000 tons of iron ore, to be mined from the mine of said company, and with the Menominee Mining Company for the purchase of 5,000 tons of iron ore, to be mined from what was known as the" Norway mint'," owned by said Menominee Mining Company; and with the Rolling-mill Mine Company for the purchase of 1,5UO tons of ore, to be mined from the mine of said company; and with the Lumberman's Mining Company for the purchase of 1,500 tons of ore, to be mined from the" Stevenson" mint', owned by said company,-all said ores to he delivered by said mining eOlllpHlJleS to plaintiffs befure the first of October, IH80; and on the tourteenttt (}f .J all\tary plai ntUTs entered into an agreemeut in writing with the LE'!and Iron Company, who was the own()r and manager of a furnace lucatt'd at Lela'ld, J\lichigan, by which plaintiffs sold to said Leland Iron COlllpany the said 6,000 tons of .. Cleveland ore," 5,000 tons of "Norway ure," 1,5UO tuns" Rullingmill ore," aud 1,5UO tons" Steveuson ure," and agreed to purehase the entire produet of the pig-irun to be made with charcoal from the said ores, for which IJlaintifls w('re to pay the said Leland Iron Company at the rate of per ton, delivered over the nul at CiJicago, or $-10.25 per ton, delivered in the same way at Cleveland, Ohio, at the 'Jption of plaintilJs,-the plaintilTs to provide proper dock facilities for the proillpt unio:t,ling of vessels; and the 11'011 Company agreed to manufacture pig-iron from the said ores. as nearly as practicable, of the" gr;llle which the plaintiffs might desire, alltl 1.0 ship the same in car/{o lots, as rapidly as possible after mauufacture, duri ng the season of navigation, to said pmintiffs, to Chicago or Clevel:t111I, t:s afore:saitl;" tbe plaintiffs agrpeiug that s::id ores should be d,'livered to the Lelanl1 Iron COIOpany, 1,500 tons in May, 18:30, and 2,500 tons each month thereafter, as nearly as mav he; 1111 to be delivered to vessPls before November 1, ISS0, allli in suitaule q uantitips of each for the mixture Ilesired by said plaintiffs. Thpre is no doubt, frolll the proof, that plaintiffs commenced the shipmpnt of ore to the Leland Iron Company as early in the season of 1880 as navigation pprmitted, and that the opening of navigation, IS8tl, and the tirst day of Novemher of that year, there was nelivered by the plaiuti:Ts to tho Leland Iron Company ore in pur:suilnce of s;tid coutract as fullulI's: ClevelalHI are, 5,080 tons. Norway ore, "1,405 Rolling-mill ore 1,478 " Steven:,on are, .- ' 2,005 u
..
}'Iaking- a tobil o f "
'file Lelan'l Iron Company, in pnrsuance of their contract with the plaintiffs, immediately on the receipt of said nre cOlllllleuced the mauufadure of pig-iron therefrom, as callpd for by their contract, and continued to mauufaPlure and sllip s,thl iron, so that the quantity bpfore nanlPd, uf 3,421 tons and 45:1 ponnds, ra,.; manufadurpd aud duly Ile!i\'erl'rl before the close of 1830, and d"cennant aCl'epteJ and paill for the sa'ne; that the furnace of the Leland Iron Company was run to full capacity, and there was no delay in the manufacture of iJ"Ou by the fumace, s;we an unavoidable delay of about six days hy reason of the breaking of an elevator: an,l that at the time of the I;:st shipment thpre was uparly a cargo of iron really for shipment, which it was intenllell in goo'l faith to ship that fall, hut the vessel was preventpd from getting tothe pier at Leland by reason of the unusually early closing of navigation that season. After the close of navigation for the season of 18:JO, the furnace ":'Jl!Jnueu the manufacture of said are into pig-iron during the winter and
RHODES V. CLEVELAND ROLLING-lIHLL CO.
429
ensuing spring, and on the eighth of May, 1881, and from that time on until the second of July, 18tH, shipments were made in cargo lots to the amount of 4,653 tons and 350 pounds of iron, made from said ore so sold by plaintiffs to the iron company. The proof shows clearly that the Leland Iron Cumpany re.;umed the shipment of pig-iron, made from this ore, in cargo lots as soon as possilJle after the opening of navigation in the spring of 1881, and contillued such shipment until the whole lot was shipped. It alo:o shows that at the time of the opening of navigation the whole of the ore had not yet been manufactured, but what remained unworked at the openillg of navigation was manufactured and ready for shipment as soon as the same could be readily shipped from Leland in the due course of business, after the shipment of that on hand, at the opening of navigation. In the contract between plaintiffs and defendant it was provided "that in case of acci(lellt or striies at the Leland furnace, resulting in the stopp:lge of said furnace, then the plaintiffs are not to be heW responsible for the deli very of pig-iron under this contract beyond the responsibility of the Lelanrl Iron Company to them under the contract between p!<lintilIs and the Lelaml Iron Cumpany;" and the contracts between the plaintiffs and the mining compallies of whom they had purchased the ore, allli the clllltract of the plaintifIs with the Leland Iron Company for the sale of s:lid ore and its mallufactnre into pig-iron, and the purchase thereof by plaintiffs from the Leland Company. were made a part of the contract between the plaintiiIs and defendant. '.rhe defendant now contends that the legal COll3truction of the contract with the plaintilIs reqnires that all this pig-iron was to b3 m:lI1ufactured during the year 1880, and it is upon this construction of the contract that, defelldant insists that it had the right to refuse to receive any iron manufactured after December 31, 1830. ThiR construction is contended for by defendant mainly upon the last clause in the contract between the plaintiffs and the Leland Iron Company, in which the latter. agrees to nnnufacture from said ores, "anll to ship same in cargo lots as rapidly as possible after manufacturing, dnrin;:! season of navigation, to said HnoJes &; Bradley, to Chicago or Cleveland." While it is undoubtedly true that parol evidence is not admissible to vary or change the terms of a written contract, it is frequently admissible for the purpose of ascertaining what was the intention of the parties, or the meaning which they intended to attach to the expressions used in the contract. Doyle v. Teas, 4 Scam. 22G. 'rhe proof in this case shows that while the negotiations were in progress between the plaintiffs and the defendant which resulted in the contract now in question, the defendant was informed that the capacity of the Leland Iron Company's furnace was from 20 to 25 tons per day. The proof also shows that at ths time this contract was made this furnace had never exceeded an average product of 17! tons per day during any year after it was built, which was in 18li9. 'rhe defendant \Tas certainly chargeable with notice as to the geographica.l location of Leland, Michigan, \There this furnace was situated; with knowledge of the fact that it was upon the eastern shore or coast of Lake Michigan, a. short distance south of the entrance to Grand 'rravcrse bay, and in a place comparatively difficult of access for vessels; that it had no natnral or artificial harbor, but depended upon piers built out into the lake in an open roadstead. Kno\Ting that this iron was to be manufactured at this furnace, defendant, in my c3timation,
43l.l
.
FEDERAL· REPORTER,·
was chargeable with notice of the capacity of this furnace, or had at least sufficient notice to put it on inquiry, and that from this known c,apacity it was impossible fat the furnace to manufacture 14,000 tunG of iron are into pig iron between the opening and the close of navi-· gation for the year 1880. And so, also, before the furnace started in the spring, but after the contract between the parties was made, the defendant was notified by letter from the plaintiffs 'that the managers of the furnace hoped the product would be from 25 to. 30 tons per day. The language of this letter is: "We think the furnace ought to make from 25 to 30 tons per day, perhaps more; cannot tell until she gets well under way. We make 50 tons at Bangor. The Leland may come up to that, as Henry Ford, who used to be at Bangor, is at Leland now." To this information as to the probable product of the furnace, defendant took no exception, lmd mao.e no objection, and the furnace, as the proof shows, from the time it started until the close of navigation, made an average of about 22t tons of pig-iron per day. After the close of n2.vigation there was at one time a suspension of about two weeks for want uf charcoal; and at another occasion it ran for a time under check for want of a sufficient supply of charcoal. The proof does not show by whose fault this suspension and delay occurred, but assuming that it was the fault of the Leland Company, it cuts so unimportant a figure in the rights of the parties, that I think very little consequence should be attached to it. If there was some slight delay it could have been corporated in damages to defendant, but there is no proof that defendant sustained any damage by such delay, and, in my estimation, it furnished no valid reason why defendant should be allowed to rescind the contract. Reading the contract between the plaintiffs and the Leland Iron Company in the light of the facts, as to where this furnace was situated and its capacity, no sane man "auld have a right to expect that this 14,000 tons of are "auld be fully manufactured into pig-iron between the middle of May and the 'thirty-first of December, 1880. The total product of this are in round numbers was 8,000 tons, which, at 25 tOllS per day, "auld take 320 full working days, and it could hardly be expected that a run of that extent could be kept up for 320 consecutive working days. Allo"ance must be made for accidents, delays, and the failure of human calculation to some extent, of which business men making contracts for performance in the future must take some notice. And therefore I hold that it must have been in the contemplation of these parties, at the time of making this contract, that this iron could not and "uuld not be made by or before the end of the year 1880. The words "shipped as rapidly as possible after manufacture, during season of navigation," in the contract between plaintiffs and the Leland Company, do not, in my estimation, imply of themselves that the shipment "as to be made during the season of navigation of the year 1880. But as the Leland Iron Company was to transport this iron in ressel cargoes to Chicago or Cleye-
,lBODES V. CLEVELA.ND
co.
431
land, where the same was to be delivered to the plaintiffs, they had the right to suspend such transportation during the suspension of navigation, so that what was not manufactured and shipped during the season of naVIgation of 1880 was to be manufactured afterwards and shippen during the season of navigation of the next year or years. This contract between plaintiffs and defendant provided in express terms for delays by accidents or strikes at the Leland furnace, resulting in the stoppage of said furnace and at the mines, and it may he readily imagined that a contract of this magnitude might not have been executed by reason of contingencies thus anticipated, eVl,n beyarrd the season of 1881. I am, thE:refore, of opinion that nothing in the contract between the plaintiffs and the Leland Iron Company justifies the assumption that this iron was to be all manufactured before the first of January, 1881. The terms of the contract between the plaintiffs and defendant certainly seem to have contemplated that all the iron would nOG be manufactured during the year of 1880. The provision is that the iron is to be shipped in vessel cargoes to the defendant at Cleveland during the season of navigation of 1880, and E'uch portion of the product of said are as is made after the close of navigation of 1880 is to be shipped by vessel to Cleveland on the opening of navigation of 1881, or as near the opening as possi. ble. Certainly this language is so used as to clearly comey the idea that the parties intended and expected that a portion of this are would not be manufactured into pig iron during the year 1880, and that the manufacture of what was not made and shipped before the close of navigation of 1880 was to go on and be completed, and the shipments made as rapidly as possible on the opening of naviga-(ion for the season of 1881. The werds "as soon as possible," here used, are equivalent in their legal effect and meaning to the words "with all reasonable diligence," or "without unreasonable delay;" and there is nothing in the proof in this case to show that there was any unreasonable delay; aud yet, as early as .January 1, 1881, the defendant, by telegram to the plaintiffs, intimates that it wishes to know the amount of iron on hand manufactured up to December 31, 1880, and the later communications from the defendant to the plaintiffs show that this information was for the pnrpose. of enabling the de· fendant to take the position that it would only rec(·iv" so much of such iron as was manufactured up to and including the said thirtyfirst day of December. There is nothing in the terms of the contract which fixes any cer· tain or definite time within which the manufacture and delivery of this iron is to be fully accomplished. It was to be made with all reasonable dispatch by the use of the meam at the command of the parties. Neither plaintiffs nor the Leland Company were bound to erect a new furnace or build vessels for the purpose of this contract. When the defendant notified the plaintiffs, the last of February or first of March, that it wonld receive no iron made after the first of
432
FEDERAL REPORTER.
January, and in May gave notice that it would receive what was made up to and including December 1st, on condition of being discharged from further obligation under the contract, I have no doubt that a legal breach of this contract occurred, and the plaintiffs would have the right to treat the contract as repudiated by the defendant at that time; and plaintiffs were under no obligation to make the tender which they subsequently made of the iron. 'rhe plaintiffs, however, by their contract with the Leland Iron Company, were bound to receive this iron at Cleveland or Chicago, at the price fixed in their contract, and, I suppose, the plaintiffs were subjeeted to no special inconvenience or cost in making a tender of these cargoes, as the Leland Iron Company shipped them during the months of May, June, and July, 1881. The only legal effect of this tender, after the defendant's repudiation of the contract, it seems to me, was to keep the contract alive, so far as to enable the defendant to recede from its repudiation and accept the iron when tendered, and, perhaps, to give the defendant the benefit of any advance in the price; that is to say, if the defendant, after IHwing given notice that i; would not accept this iron, had, when these carg,les were tendered it from time to time, seen fit to accept it, it would have been a good performance on both sides, and have fully condoned the breach which was committed by the defendant at an earlier day, by their notice that they would not accept the iron. Def<onclant also insists th'1t the are was not clelivered by the plaintiffs to the furnace cOIll:Jany in the proportions called for by the COHhact; defenclant assn ming that tile ores were to be mixed for the purposes of making this pig-iron in the proportions of the quantities from the several mines, while the proof shows that there were 2U tOllS less "Cleveland are" deliveroo than called for by the contract; 5!J5 tons less" Norwa,y," 22 ton;; le.,s"Rnlling mill," anli S05 tons mure "Stevenson" than was called for by the contract. But the proof shows that the quali'y of the Norway and Stevemon ores was the same; that the two mine;; were on the same vein, and c10se together, so that their workings ran into each other; as one witness says, the ores vf the two mines were ideutical in quality and value, ancl these two ores cost plaintiffs the same price per ton, delivered on board vessel at Escanaba. It is true that the witnes3 Emmerton, the chemist of the Joliet Iron & Sted Company, testitied that he analyzed a single sample of Sterenson Ol'e, which showed !J7-1000 phosphorus, and 1/) per cent. of silica; that he also analyzed two samples of NonYa,Y are for phosphorus, one of which t:lLIOwed 21-1000 phospllOrus, and 22t per cent. silica, and the other showed 53-10UO phosphorus. The large amollnt of phosphorlls sllown in this single sample of Steven"ion are is, in my opinion, no criterion of the average amount of phosphorus in the bulk of the are from that mine. Tue large difference in the qnantity of phosphorus in the two samples of Norway are examined by this witness is a sufficient illustration of the fallacy of re-
RHODES V. CLEVELAND ROLLING-MILL CO.
433
lying upon the analysis of a single specimen as a test of the average result of the whole product of a mine. The testimony of this witneSI3, therefore, does not, in my estimation, establish an appreciable difference between the ores of the two mines; at least, it does not overcome the affirmative testimony that the ores are essentially alike. By the contract with the Leland Company, these ores were to be mixed as directed by plaintiffs. No evidence of any direction by plaintiffs or defendant as to the mixing of the ores is put into the case. The defendant accepted the entire quantity of are shipped during the season of 1880, without allY complaint as to the quality of the iron, and even offered to take all that had been made up to the first of January, 18Rl, and no objection was raised as to the quality of their iron. I therefore conclude that theBe slight shortages in the quantities of Cleveland and Rolling-mill are are in no sense material, and, indeed, the qnantities are as close as can usually be practically arrived at in the transportation by vessel cargoes of so large volumes of any commodity, and that the excess of Stevenson ore over the Norway has in no perceptible way alIected the character of the product of these masses of ores, and that these facts furnish no excuse for the breach of the contract by defendant. Un. doubtecUy, if plaintiffs, after the notice from defen'dant that it would not accept any more iron on the contract, saw fit to proceed and complete the contract and tender the iron, they were bound to a substnntial compliance with the terms of their contract. But I see nothing in the proof showing that they did not sub,;tantially pedol'm their contract. Finding, as I do, from the proof in the case, that defendant has been guilty of a breach in its contract, the only question remaining is the measnre of the plaintiffs' damages. This being a contract of sale, the obvious and natural rule of damages is the difference between the price which the defendant, by its contract, agreed to pay for this iron, and the market value of the iron at the time defendant refused to perform its contract. I do not think that plaintiffs can
increase or enhance the damages by the tender of performance, after the notice by defendant, on or near the first of March, that it would not accept any more iron on the contract. This was a breach by defendant which fixed the measure of its liability. The defendant knew at the time this notice was given that plaintiffs had bought
this iron from the Leland Iron Company, were-bound to accept and pay for it on the terms of their contract with that company, and knew, therefore, that plaintiffs would have the iron on their hands, and be compelIe<i to dispose of it on the Lest terms they could if the defendant did not accept it. The rights of complainant, therefore, seem to me the same, as to the measure of compensation, as if plaintiffs had had the iron on hand and ready to deliver, and had tendered a deli,ery on the fil'st v.17,no.5-28
1=31."
, FEDERAL REPORTER.,
or third of March. If, however, this iron had advanced' in price tween the first of March and the time the plaintiff tendered it to the defendant, soas to make less difference between the contract price and the market price, the difference between the. market price and the contract price, at the time of the tender would be the measure of damages. But I find from the proof there was very little difference in the price of Lake Superior iron between March and the first "eek in July, either in the Cleveland or Chicago markets. This iron was not a well-known brand, having a quotable market value; it was made on contract from certain ores, and had no established reputation. It may have been said to have been made for the defendant, and the defendant only, to be used in and about the defendant's business. The proof shows that plaintiffs did not put this iron on the market and attempt to sell it until about November, 1881, a.nd that since that time they have been diligently endeavoring to sen it, but had up to the time of the trial only succeeded in disposing of about 1,000 tons, in comparatively small lots, at prices averaging about $30 per ton; but from this must be deducted expenses, such as storage, commissions for selling, etc. I do not consider these sales made by plaintiffs as any standard or criterion of the value of this iron inthe spring or summer of 1881. I conclude, however, that the prepO'llderallce of proof justifies me in finding that this iron could not have been sold in any of the markets for pig-iron between the first of March and the first of August, 1881, for more than a net price of $27 per ton, which, deducted from the contract price of $45 per ton, gives the difference of $18 a ton, making a total of $82,422 as the difference between the market price of the iron and the contract price on the 4,579 tons; that is to say, I assume that the product of the 14,000 tons of are would be, in round numbers, 8,000 tons of pig iron. Three thousand four hundred ana twenty-one tons, in round numbers, were delivered in the fall of lSSO, and it left 4,511l tons due on the contract after the opening of navigation in the spring of 1881. It will be remembered that there was delivered by the plaintiffs to the Leland rolling-mill the gross quantity of 14,168 tons, and the total amount of iron manufactured was 8,074; the 74 tons being manufactured, as I assume by the proof, from the excess of are delivered oy the plaint;ff to the rolling-mill company, which, of course, the defendant is not chargeable with.
UNITED STATES V. STAnN.
435
(Dis:riet Court, D.Ne1O Jersey. 1. EXCESSIVE FEE IN PENSION
July 24,
Section 31 of the act of .March 3, 1873, rIe8larerI- Pi/·"t, that no agent, attorney, or other person should receive as a fee in any pension case any greatercompensation than might be allowed by the commiss'oner of pensions, not exceeding $25; and, secondly, prescribed the punishment for so doing. The first part of the act was marIe section 4785 of the Re';ised Statutes. and the second rart, section 5485. By act of ,Iune 20, 1878. congress expressly repealed Rev. Bt. § 4785, and limited the fee in all cases to $10; but left Rev. St. § 5485, prescribing the penalty, still in force. On :March 3,1881, congress enacted that the provisions of Rev. St. § 5185, should he applicable to auy person wilo should violate the provisions of the act of June 20, 1878. Held, that there was no statute in force during the period between June 20, 1878, when Rev. St. § 4785, was repealed, and March 3, 1881. on which the penalty pr<;scribed by Hev. St. § 5485, could operate, and an indictment charging an offense in receiving a greater fee than allowed by the title of the Hevised Statutes relating to pensions, dlU'iDg such period, could not be sustainerl. It is a fundamental rule in the administration of criminal law that penal statutes are to be construed strictly, and that cases witbin the like mischief are not to be drawu within a clause imposing a forfeiture or a penalty, unless the words clearly comprehend the cas.,.
2.
:PENAL STATUTES-CONSTRUCTION.
SAME-PUBLIC MISCHIEF TO BE SUPPRESSED.
In construing a statute the court should look at the plllJlic mischiefs whicn are sought to be supprcs'ed, as well as the obvious object and intent of the legislftture in enacting it; and in doubtful cases these hwe great influence on the judgment in arriving at its meaning; but where the law-making power distinctly stutes its design, no place is left for construction.
Motion to Quash Indictment. A. Q. Keasbey, U. S. Dist. Atty., for the United States . .S. H. Grey and Thos. B. Harned, for defendant. N:CWN, J. The defendant is indicted under section 5485 of the Revised Statutes. The first count of the indictment charges that, being the agent of one Benjamin Barnes in procuring his pension, he demanded and received from the said Benjamin a compensation for his services, in prosecuting said claim, greater than was provided in the title of the Revised Statutes of the United States pertaining to pensions. The motion is to quash the said count, on the ground that when the alleged offense was committed, to-wit, on May 1, 1880, there was no provision in the title of the Revised Statutes pertaining to pensions, limiting the fee which an agent or attorney might lawfully demand and receive for his services in a pension case. the congress of the United States On the thil'<i of passed an act to revise, consolidate, and amend the laws relating to poosians. 17 St. at Large, 566. By the thirty-first section it was enacted in substance: (1) That no agent or attorney, or other person, instrumental in prosecuting any claim for pension, shalL demand or receive any other compensation for his services, in prosecuting a claim for pension, than such as the commissioner of pensions shall