·'h'1:'lm-orcanedJthe maker of the'instruIIlent as:a witness, and he.iea.: tifted that he desired and expected to pay the mortgage debt and redeem-th. property: inside of the 00 days. .That· he did ;,not do so cannot atfoonhe validity of the deed·. ,. A sufficient explanation of his failure to do. so, if any is necessary, is foUnd in the attachments fiued out by the pblintiff in error and '.otfierstwo:daysafter the execution·of the mortgage. Attachments against merchants commonly upset their business plans and destroy their commercialcredit;:·But,:aswe have said, the question of good faith was one for thejurYI and it was submitted to them under inlitrn<AA'Ons cenaiillyas. fa\tbrable to ;theplaintiff in error 88 it had any right to ask. The deed is not obnoxious to the· statute of frauds. ' The objection that it. was not duly acknowledged, if well. founded in faetrhli6 DOrorea, trustee took actu:al pdssesslonof the mortthe'\ixecution of the deed, and continued in "po&session"uritilit WMitakenfrom him under the'attaehment.Actual posof:mbftgageddbattels by th&IIlortgagee, before the rightsofthird parties' hnve :triter'tened; dlspenses'with the necessity of acknowledging the m6rtgageJ Wc>Od 104tJ;S. 786; Hauselt v. Harri8cm,105 U. 8.'401', 405; Cameron v.' :26 Kan. G12; Greelev v. Reading, 74: Mo. 809. ·:The judgment of tlle trial Gourt is ·affirmed. '! '. " · ,
s.
f
Co··· ,BEN!i1.B'l. Sept.etllber
'qr Apptaza, 81:efhCircuUNodl8; J
101801.)
r
,
'1,'
oUrade bunatn; tn .. .· 'csgo, autisoriptlonldor that purpoile were sought 'froM' the owne1'8 of neighboring ".' Qll. that the ;t)lereqf would be largely illcreased by the . 'erectlolji ofsqqh a biUlding. Defend6t\tll"agreed to pS:y a certain sum in cOnsideration .ot'thei !ptbpOaarto. sell· tlie sfte, 8hd' Of; the probable increase· in value oUhe ''all''' the col\814eratlollthat th,e said board of trade shall ereqt and complete said proposed.1)u!1diog and occupy the same for Ita regu'1lU' 116olous within' Wlo years from January I, 1881." Held, that the latter oondi.. . aD,d .. Jlreaoll. suit could be maintained .. SAME-QUANTUM: MERUIT.
"Ii..
D.efendantw ..
to it
1.la.lll!:l. u nd.er.. . ...
" m ....,C9lJnta . . qUan t'Ummll1'Uit. for the . .m.ou ..on.: .. ' &.
determined by the
''''In ErrOl'lto tl1'eatcuit CoUl'\'of the United States for the Northern .. 0' ,;). 1:. Jolin cR. Bensley's,gltinnthe Cincinnati l Sandusky & Olev&laild , Verdibt andJudglilent for plaintiff. Defend. &nt.bring&;er1'Or. I . ., . ..' 8tatEifuEnit: b.yBROwN, Circuit Justiee. lLn&ction to .1'e<l,<)ver·.the 'amount oflB eertain subMription made by the defendant railroad company towards the purchaae of a 10$
DiStrict of
CINCINNATI,S.
&
c.
R. CO.
V.BENSI.EY.
739
of land in Chicago, upon which the boardo{ trade of that city proposed The facts of the were substantially as follows: In July, 1880, the board' of trade being desirous of purchasing a new location and erecting a building, the plaintiff, Bensley, opened negotiatioDS with the heirs of John F. Tracy for the purchase of a part of a block ohacant ground 395 feet long by 205 feet wide, through the middle of which La Salle street extended. The entire block was worth from $150,000 to $175,000; the north 240 feet, the proposed purchase, being worth from $110,000 to $115,000. For the purpose of reducing the amount which the board ot trade wOllld have to pay, one Parker was employed to solicit subscriptions from the owners of neighboring property, which, it was supposed, would be largely increased in value by the new location of the board of trade. The defendant railroad company, being interested in a block of ground 50 feet wide neat the Tracy land, and worth about $40,000, the title to which had been acquired and was held for it by John S. Farlow, its president, executed the following contract: "BOSTON, December 10, 1880. "Whereas, it is proposed by the executors and heirs of'the estate of John F. Tracy, late of the city of Erie, in the state of Pennsylvania, to make a sale to the board of trade of the city of Ohicago, in the state of Illinois, of a lot. or parcel of land in the city of ChICago, bounded on north. on Jackson street 208 feet, east on.Pacilic avenue 2,15 feet, south by Van Buren street 208 feet, west by Sherman street 215 feet, on which said lot or parcel of land the said board of trade are to erect a suitable building for the transaction Of the rl'gular business of said board of trade, and to remove thereto; and whereas, the ereet.ion of said proposed bUilding and its occupation by said said board of tl'3de is likely to incrl'ase the value of the near-by estates on Clark street: Now, therefore, in of the premises, and the further consideration that the said board of trade shall erect and complete said proposed building and OCI'Upy the same for its regular business within two Yt'ars from January 1,1881, we, the undersigned, owners in fee or in trust of estates on said Clark street, hereby each to pay to said executor or heirs the sum of five thousand dollars in casnwhen said proposed building is completed and occupied, by said board of trade, as provided in this agreement. SA.NDUSKY & CLEVELAND. CO., . "13y J. S.FARLOW, Its President.. " to erect a building for thettansaction of itsbnsiness.
The subscription paper as originally prepared by Parker was an imcanditional one, providing for payment of one half whenthe contract should be made for the sale of theland, and the residue when the building was completed and occupied; but this Farlow refused to sign. In January, 1881, Parker wrote to Farlow asking for $1,000 more, sending back the original SUbscription, with a request to make it payable, one half when contract ofsale was made by the Tracy heirs to the board of trade, and the residue, with interest, when the building was completed, and also requesting a change in the. provision as to the time when the building should becotripleted. To this Farlow replied, saying that he thought 81,000 more would be subscribed, but no change should be made in the terins ofthi SUbscription, and again, in Ftlbruary) wrote, raising the
740
FEDERAL REPORTER,
vol. 51.
directed:by his board of directofil, but maksubsoription to $6,000, ing no alteration in tbetermsandconditions of the On February 18th, however, he wrote him again, consenting to make his. paYJ:l1ent conditionalnpon the board completingalild occupying its buUd.illg within two Years from tbe time of obtaining title to the land, wbichwas.being by to :bl:] taken to vacate La street. On J1,111e 18, 1881, the Tracy heirs .conveyed to plaintj fMh e land purchal!eclJ91' the use of the. board of trade, also assigned, to! the su made by ,the neighboring owners, in,,: gluding that of the Owing to a by an injquctionagainsttp.e of street, the c9nstr.uction of the builqing ;was postponed QntH April, 1882. when new plans were adopted for a granite building, costing $1,740,000, in Heu ora, two-story brick pJlilding to as originl,tlly contemplated. The building wasJlot cQrnpleteda,nd occupied by. the board of trade until April 29, 1885. On July 27, 1881, defendant sold its lot for $75,000, or $35,000 more than its: value in 1880. The case was submitted to the jury' upon this state of facts, and a verdict of the plaintiff for the full amount claimed, with :viz." $8,370, jullgUlentwas duly . To reverse judgment this .Wl'itof error wa.!lsued, out. The case .was argued before Mr.,JustioeBRowN,and Circuit ,Judge TAFT. ,. &!BC1imtl.ttn; :for plaintiff in error. ,He88ertmuellef' & Bihiii8'an:d D. Oadi»ell, forde'feildal)tiri'errbr. , , , ," , ' ," " : ,," t: ' ' I j " I '.',
as
(after 8t(!ting facta. ) Ther,e, a.retwo qlles, tiolls involved in this .case: (1) W:hetberanaction will lie upon the ex" presscontfact'oftbedefendantconwany to contribute' tothepurchase Vrice ,of the lot . (2) \Vhether, incase lluchactioIl' will not lie, the eirctlI.llstancest'lli!le'an 'im'plledobligatiQn'on 'th!e of tbedefehltant to i.nakll, a 'qon,tiib1;itiop. p'n?p,qrtipned;tb,',¥hf) beileflt' receivE)d ,by it' frotU ofttra9-6, UPOPll\Wb lot. a fl1rther, question ,raised ,and passed, upon by the ,circuit oourtas to the power of the defendant to bind itself to make thig'subscription,ibut,in the view wo ha,ve ta,ken of the other questions, }te:do not find it ileee!:lsary t6 consider ,.",'. . ; tbis. ·1 ·· We fiudno difficulty in holding that: theaotion,so far as it is based ul>on the express promise set forth jl,lthe instrument of December 10, 1880, and the subsequent modifioatLoQs tbereof, cannot be maintained. This promise to pay the heira the sum of $5.000, subsequentlyraised -to .$6,000jupon tbe. completion and occupation of the board ,of trade provided this take p]acewitbin two years from January 1, .1881, subsequently changed to two yell-rs from the tiqJe tho ,boa,rd of tradeishould obtain title to ,tho. lot, This was, the expresE\ conditioJl upon whi'cb the subscription was mado, and,such"condition not tbeaction will pot lieupon the. promise. Withoutgoing into the nicet.iesof regard to and independent covenants; np ono who up.derstll-nds the force ·of can
CINCINNATI, B.
&;
C. R. CO. tl. BENSLEY.
741
fail to conclude that the.defendant intended only to be bound in case the building were completed and occupied within the time specified. The language of the covenant is too clear to admit of any doubt: "Now, therefore, in consideration of the premises, [viz., the proposition of the Tracy heirs to sell the lot,and the probable increase in the value of the neighboring estates,] and the further consideration that the said board of trade shall erect and complete aaid proposed building and occupy the same for its regular business within two years from January 1, 1881, we, the undersigned. owners in fee or in trust of estates on said Clark street. hereby etc. . The intention to be bound only upon the performance of this tion is the more manifest from the fact that the directors of the ·defendant company refused to sign the unconditional sUbscription inclosed by Parker in his letter of. December 10, 1880, and the subsequentcorrespondepce indicates its willingness to raise theamount to $6,900, and to make it payable two years from the time the board of trade shouldobtain title to the lot, provided "there shall be no unnecessary delay in obtaining the title." Indeed, the whole tenor of the correspondenoej'as well as the contract itself, exhibits the unwillingness of the defendant to make its subscription unconditional as to time. It is sufficient to 'say 1 hat thfjcondition evidently goes to. the whole promise, and thatth-e promise falls with the failureto comply with such condition. If any authority were l1eeded jn support of so plain a proposition, it IYouldbe,Jound in the Cases of Bank v. Hagner, 1 Pet. 4,55, and '1ll.ott v. Jones, 23 How. 231. The first was an action against theaelimdant .upon a special agreement to purchase of theplaintift' certain land in the city of Washington. A time was fixed· for the perforrn8.ll0l! of the yontract and the payment of the consideration money. .Ill wS:s held thatincontracts ()f this description the undertakings of .the ,respec. tiye parties are to be considered dependent, unless a contrary intention a vendor or vendee wishes to cbmpel. the clearly appears; that if other to fulfill his contract, he must make his part 'of theagreemen:fl precedent, and cannot proceed against the other formance of the agreement on his part, or a tender and refusal. . It Was said by the court that the tirue fixed for performance is,a! law, deemed of the essenc.e of the contract; that, no part of the consideration haviag been paid on the day named, the defendant had a right to abandon his contract; and that the tender of a deed 16 months thereafter was not sufficient to charge the defendant with the payment of the money. In Dermott v. Jones, ld. 220, the action was upon a special contract to build a house py a certain day, which was not fulfilled; and it was held to have been erroneous in the court to instruct the jury to find for the plaintiff, as the work was not finished by the appointed day tho\1gh it was completed after the time, with the knowledge and approbation of the defendant; that by the terms of the contract the performance of the work was a condition precedent to the payment of the money sued for; that,i the special contract not having been performed by the day named, no· action wou14 lie upon it; and the case was remanded to the circuit court-
counts sfor work and lab01 and. rilaierials fl1mashe4r. ,80 in; the case ofJ¥atermun v.Banks;.f44 UiS;394,12 Sup. Ct. Repj ,646, the dE!fendant,by iwritteu contract, agreed that "at ,months from .,t,his date,.uppp deman<J" of the would execute, a deed of an interest in :l.certain miD6;,anddtwas held that this conveyed to the plaitltiff's assignor no present iri6et6st in the.property, the right tt):aequire stlCh an of 12 the oltha contractj that tlmewas of'the essence of such a contract; and that a demand made after the expiration of 12 months was of no avail as foundation forthe 'Buit. Sea, also, Slater v; fJ)merson, 19 Row. 224. The Bame'constructionwas placed by the supreme courtM Illinois in the case:Of,Ogd8n.v. Kirby, 79 Ill. 555, upon a subscription to aid in the construotiopof a railroad when the Mad should be completed and in operation'.to,aCilertllinplace by a certain tittle. So in Railroad 00. v. Boe8fler,15 IOWI1, 555, itwns held tha:t s; condition in a contract to aid the constl'uctiGJoof a railroad by Ii subscription, that the road should Le put under,eontract by a certain time, was a condition precedent to the right of the comPany to recover'on theeontract, and that a completion of the roaabythe time stipulated in the contract, without the letting of theoontraet,stipulated in the condition precedent, was not a sufficient compliance ,to 'enable the company tel recover. . There atle doubtlel!ls cases in eqUity where a contract hilS been made to purchase .real estate and to pay for· the same within a certain time, has entered into possession, which hold that time is not to and the beoonsiderethsofthe e$Sence ofthecontrltct, and that the vendee shall not be ousted, or his-contract forfeited, by reason of his failure to pay upon the day named; but these cases have Iio application' to an action at law where thepisintiffhllll failed to perform a. condition precedent. ,2. The more: important and difficult question remains to be considered, viz., whether the fncts in this (}aSe raise an im plied obligation on the part of the defendant to pay for the benefit received by the construction of the building, irrespective of the written contract. Every action upon a contract must reat upon the fotitiaation of a promise, expressor::implied. ,If the' promise be express, and be subject to a condition,' it elm- only be enforced if the condition ,hilS been fulfilled. performanee of some a.ct by the defendant, the plaintiff But if, from has received :andiaccepted a benefit to which he would not otherwise have .been entitled, he is as much bound in equity to pay for it as if he had expressly promised todo so beforehand. This the law calls an implied promise otobligation. Thus, if a man build a house upon the land of another, with 'his assent, the law raises an obligation on his part to pa", its value,sincehehasbeen benefited· to that extent, and, if he oia not intendftp pay ,it was his duty to forbid its construction, 01' at least to give notioe that he would not be chargeable. So, if he had expresalycontracted to,pay,ifot the hOUse, provided it were built in a certime, and be accepted it, though it be tain manner not built in the ml.ulner or within the time limited, he is bound to pay'
to betriai UpoD' !the
CINCINNATI, S. &Cl. R. CO.t>. BENSLEY.
743
its value, not exceedingtbe Gontract price,less any damages he may have Buffered 'by ,reason of the failure of the other party to comply with the exact conditions of his contract. Vande1'bilt v. Iron Works, "25 Wend. 665; Ladue v. Seymour, 24 Wend. 60; JeWell v. Schroeppel,:4' Cow. 564. In other words, the contract is looked. to to determine the time' and manner in which it is to be perlormed, and ,also to limit the amount of the recovery; but the promise upon which the plaintiff recovers is not the express promise of the contract, since that was not performed,btlt the implied obligation arising from the acceptance of the benefit. We know oino case in which it has been held that the contract can be looked to for the promise, since the promise must be taken with its accompanying condition. Upon the other hand, if a house be built upon the lot ·of a neighbor, the defendant is under no obligation to pay, though his lot be thereby quadrupled in val ue, since this increase of value was an incidental benetit, to which he was entitled. If the law were otherwise,evety man who' built a houSe might assess his neighbors with the increased value thereby given to their property. As a matter of fact, however, it is not unusual for neighboring property owners to agree to contribute toa valuable improvement with a view. to the enhancement of their own properly, as was done in this case. But such agreemeat is stricti juris, and the obligation. of the promisor is akin to that of a guarantor who receives no personal benefit from the performance of the act for which he agrees to become responsible; at least, none to which he would not have been entitled if the promise had not been made. In such ,case the contract cannot be looked to to raise a promise to pay. That must result from the circumstances of the case. So if A. promises to pay B. for a house to be built upon the land of C., provided it be built within a certain time; the house be not completed within the time named, it is difficult to see how A. could be held liable in any form of action, since he hasreMived nobenefit·from the subflequent performanceofthecontract. In such case,' however) if C. should accept the house, he would undoubtedly be bound to pay its value; but if he failed to so, the builder would have no recourse but to remove the house from the land. It was his own folly to have made so stringent a contract. This illustration is practically covered by the case of Slater v. Eme,/,I;on, 19 How. 224, in which the defendant promised to give a railway contractor his note for certain work to be done for the railway, provided the work were completed by a certaindaYianditwlls held that, as the work was not finished within the stipulated time, there could be no recovery. The rule, as we understand it, was stated by Sir JAMES MANSFIELD in C(JOM v. Munstone, 1 Bos. & P.(N.R.) 855,asfollows:, . .. Where a'party declares on a special contract, seeking to recover'thereon, but fails in. hjs right 60 to do altogether, he may recover on a generalcount, been Iio..specialcontract. he if the case .be such, that, supposing there might 6till have reeovered for money paid ()r for work and: labor d()oe." The caeesupon this point are not numerous, but we think they are conclusive. In the case of Munro v. Butt) 8 El. & Bl. 738, the action
744
,'J'EDERALREPORTER, voL 51.
to complete certain specified workon,a certain day, aliti'fto b"done to the satisfaction ofa surveyor named, upon whose apprOYal: payment was to be made. The work was not done by the day llamoo.,"and' there was no evidence of any certificate by the surveyor, OIl any other expression that he was satisfied. It was held that the plaintiff could not recover upon the special contract, because it had not been performed, and that there was ,no such evidence ofan acceptance of the house by the owner as to make him chargeable with its value. It was said in this case that the mere fact, of the, defendant taking· possession of his own Jand on which buildings had beeu erected, or repairs or alterationstobuildings had been made, did not afford an inference that he had dispensed with the conditions of the special agreement under which the 'wQrk.. was done, or, 'of a contract to pay for the work actually done, according to measure and value. A like ruling was made upon a similar contract in Smith v. Brady, 17 N. Y. 173. In Applebiyv. Myer8, L. R. 20. iR. 651, the plaintiffs contracted to erect certain machinery on the de'fendant's premises at specified prices for a particular portion, and to keepitit1 repair for two years, the price to be paid upon the completion of the whole. After some portions of the work had been finished and others were in the course of completion, the premises; with all the machineryand materials, were, destroyed by an accidental fire. It was held that the plaintiffs were not entitled to sue in respect of those portions of the work which had been completed, whether the materials used had ,become the property of the defendant or not. The ruling was, in substance, that the fire put an end to the contract, and that both parties ware excused from its:fur,ther performance. The English law upon the 8ubjeeHs summed up:ina note to the leading case of Outter v. Powell, 2 Smith j Lead. Cas. 25,as follows: 'IBtftI no claim iri t'he" nature of a quantum, meruit can be founded upon a specia.lf:eontract which has 110t been performed. unless the person who has the right to insist Ilponthe performance of the special contract has accepted some' bt!n,etitre8lllting from its partial performance, or the circumstances are such as to. sljowinElome other way that a new contract has arisen between the parti4ils.... t
The rule in this country is the same. Thus, in Faxon v. Maniifield, 2 Mass. 147, it was held that, where the defendant undertook to erect and finish a barn by a day named, and. afterwards left the work unfinished without the consent and contrary to the wishes of the owner, who was obliged to procure other workmen at his own expense to complete the same, he was entitled to recover nothing. The same rule was applied in Olmstead v. Beale, 19 Pick. 528, to a case where the plaintiff agreed to work for the defendant for a definite period, and voluntarily left the defendant's'servicewithout his consent before the expiration of the term. The mostsll:tisfactorycase,however, is that of Railway 00. v. Thomp8cm, >24 Kari.170.,. This was an action upon certain bonds issued by the city ofPars'ons in aid Of the construction of the plaintiff'sroad, and sub,jecttoia condition thatthe plaintiff should "have its road constructed land· in operation * on or before the 1st day of July, 1878."
CINCINNATI, S. & C. R. CO.
v.
BENSLEY.
745
It was held that time was of the essence of this contract, and that thl' failure of th[:l plaintiff to complete the road by the day named was fatal to a recovery, notwithstanding that the road was completed shortly after that, and the city received the benefit of it. In delivering the opinion of the court,Mr. Justice BREWER, now of the supreme court of the United States, observed: "Nor is this a case of part performance by one party and the acceptance by the other of the proceeds of such performance. The work done by the company was upon its own grounds. It owns the road absolutely and entirely. It has parted with nothing which the city has received. The city has accepted and appropriated none of its labor and none of its materials. hils received the benetit of the work in no other sense than every individual in the community, and in po other way than that of one from his neighbor's irilprOvement of his own property.· It does not at all parallel the case of a party contracting to build for another a house upon the latter's land by a 'certain day, and only partially doing the work oy that day. The partially built house belongs to the latter. He appropriates the labor and the materials of the former. But here the company hill\, parted nothing. and the city has taken and owns nothing. and in such case the dition mllst be performed. or the contract does not bind the city. Nothing excuses such nonperformance. Both parties stand released." ,. .
con-
The language of this opinion is plainly applicable to the case under consideration.. Had the defendant received a benefit from the performance of this contraot to which he would Dot have been entitled had the contract not been made, the result might have been different; but, as '8 matter of fact, it received no benefit from the erection of this building which did not accrue to other owners of neighboring property who did not sign the contract or subscribe in aid Of the purchase of the lot,and as to such persons it would not bl:' claimed that a liability arises. Its acquiescence in the completion of the building is immaterial, sinceit had no right to interfere. It is then only upon the basis of the special contract to' pay that an action will lie, and, this contract not having been performed by the plaintiff, there can be no recovery. There is a class of cases much relied upon by the plaintiff, wherein the courts have sustained actions by members of a family against the head of the family for services performed which the law presumed to have been gratuitous, and have allowed the contract to be given in evidence to rebut such presumption. In these cases, however, the contract fully performed by the plaintiff, and the only difficulty that lay in the way was in the enforcement of the promise as made by the defendant, and it was held that the plaintiff could recover for his labor. Thus, in Stone v. Stone, 43 Vt. 180, the plaintiff and defendnnt entered into a parol agreement by which the plaintiff was to work for the dpfenrlant on his farm, and the defendant was to deed the plnintiff one half the farm. It was held that, though the promise to give the deed was within the statute of frauds, an action would lie upon the common counts 10r the labor, upon the ground that the plnintiff had performed his contract, and it had inured to the benefit of the defendant. So in McGarvy v. Roods, 73 Iowa, 363, 35 N. W. Rep. 488, it was held that no recovery
could, be rhad ,br,':$,rlllaughter against het tlilother's ad'ministrator fQr tho mainteuanceoft mother, who was aged and infirm for some years prior to her deat.h"iothe absence of nnexpress:promise on the part of tbemother to,payfoi"such that where there were such facts and would satisfy the jur,ythat the services were rendered in the expectation on the part of the mother of paying compensation, an prpmise was not necesl3ary. Tllere was a promise to pa,yforsi!:nila,r,serviceilin Ellis v. Cqry,74 Wis.176, 42 N. W. Rep. 252, but the promise to ,pay was within the statute of frauds as to a portiono! it, and it was held that, as the services had been performed un'tier a promise to pay, the court wouJd enforce theptomiseas one to pay was held to be operatfye, not as a contract, that thy plaintifl' rendered the services in gratuitously· See, also, Wallace v. Long, l05lnd. 522, 5 N. E. Rep.; 666ji Shanev. Efmith,?7 Kan.55, 14 Pac, Rep. 477. It is:obvioUll, howevet, that thesAcases have no application where the failed to perform th? contract on his. part, and the receIved from Its subsequent performance to WhICh It would' not have beenoUierwise entitled. .. ..' , The facts shown in thiB case-that the defendant sold its property within a:fe,w months after theoontract was signed, and very shortly after it be-tlalllle: 'kpown that the ibdardof trade' had purchased of the Tracy heirs fdt a,SlIUIl very largelY'in:excess of it'S previous value, (an enhancement of;'priceJ undoubtedly due to the proposed relocation of the board of tnide 'building)-ares\!lchas to appeaLstrongly to the generosity of the defendant; hut, if any obligation be thereby created, it is not one which a court of law can enforce. The defendant is entitled to stand upon the letter ofits contract, and weare of opinion the action cannot be main.' The verdict and ·of the court below must therefore be set aside; and. the case rema.nded for further proceedings in conformity with this opinion·.
IN RE FRIEDRICH.
747
In re 1.
FRIEDRICII.
(Circuit Oourt, D. Washington, N. D.
August 9, 1892.\
CONS'l'I'1UTIONAL LAW-DUE PROCESS-MoDIFYING VERDICT.
an indictment for murder in the first degree, a verdict was returned of "guilty as charged." The prisoner was accordingly sentenced to death, but the state supreme court, considering the evidence insufficient to show murder in the first degree, reversed the judgment, and remanded the case, with directions to allow the verdict to stand, and enter a new judgment, adjudging the prisoner guilty of murder in the second degree, which was done. that this second judgment was void, for it was the jury's province to determine the degree of the crime, and the prisoner's confinement thereunder was wi"hout due proc-6ss of law, and in violation of the fourteenth amendment to the constitution of the United States. The action of tbe supreme court was not warranted by Hill's Code Wash. S1429, which gives it authority to "affirm, reverse, or modify any judgment or order ape pealed from, " and to "direct the proper judgment or order to be entered, "for fohese are merely fohe powers usually posses!led by appellate courts. beaR CtRP'UB, for the trial court had com{llete jurlsdlct.ion of the person and the
2. SAME.
8.
HABEAS COBPuIl-CONVICTION BY STATE COURT.
The prisoner was not, however, entitled to be released by a federal court on
crime, aI\d he could appeal from the void Judgment to the state supreme court, and there present the question involved, and, If relief were then denied, he would be entitled toa writ of error from the supreme court of the United States· ·· CRIMINAL LAW-"VERDIOT" AND "JUDGMENT" DEFINED.
That which legally differentiates a "verdict" from a "judgment" or "sentenoe" is found In the fact that the former ascertains the guilt of the accused, while the latter designates the action· of the court in declaring thll consequencea to the OODviet of the fact thus ascertained.
Petition for writ of habeaacorp'U3. Denied. W. B. Tyler, for petitioner. JameB A. Haight, Asst. Atty. Gen., for the State. HANFORD, District J uclge. Albert Friedrich petitions for a writ of habeas corpus, on the following grounds: A valid indictment, charging him with the crime of murder in the first degree, was fOUlld by a lawful grand jury, and duly presented to the superior court oftbe state of Wash. arraignment and Il plea of not guilty, ington for the county of King. he was upon said indictment tried in said court, with the result that the jury brought in a verdict finding him "guilty as charged in the indictment.» He was thereupon sentenced to suffer the legal penalty for said crime, which is death. Upon a review of his case, thJ3 supreme court of the state ronsidered the evidence insufficient to warrant a conviction of the crime of murder in the first degree, and on that ground reversed the judgment of the superior court; but instead of setting the verdict aside, or ordering the superior court to do so, the supreme court ordered that said verdict stan 1, aud remanded the case to the superior court, with instructions to enter a new judgment against the petitioner, adjudging him to be guilty of murder in the second degree, and to proceed thereon in accordance with law. 29 Pac. Rep. 1055. In obedience to such instructions, fIe superior court did adjudge the petitioner to be guilty of murder in the second degree, and sentenced him therefor to be punished by imprisonment at hard labor in the stllte penitentiary for a period of 20 years, and in pUl'suance of that sentence he is now