COLJ.INS
V.
WHITEHEAD.
121
per cent. ad valorem, upon the actual value of the same." If there were' .nothing here but this statute to be interpreted, I should feel no hesitancy whatever in holding that this phraseology imports that when these boxes or <loverings are constructed upon a plan which facilitates and contemplates other use in connection with their contents while such contents are being themselves used, they are designed for a use other than in transportation to the United States. Under such a construction, if I did not direct a verdict for the defendant, he would certainly be entitled to go to the jury as to whether they found these particular articles fairly within the test of a double use. But that is not all that there is here. The supreme court, upon most elaborate argument, and with great care, have considered this entire subject, and have delivered an opinion in Oberteuffer v. Rpbertson, 116 U. S. 499, {) Sup. Ct. Rep. 462. They there interpret or paraphrase this proviso which I have read as follows: "This," says the court, meaning the proviso, "implies that if the boxes or coverings of any kind are not of a material or form designed to evade duty thereon, and are de$igned to be used in the bona fide transportation of the goods to the United States. they are not subject to duty" With all due respect to the learned judge who wrote this opinion, I think that his paraphrase goes the text or the intent of the statute; for while the statute provided that if there was a use for these boxes designed otherwise than for transportation, although the use for transportation was also designed, they should pay duty, the paraphrase would relieve them from the payment of duty, although they might be, and were, generally, put to an incidental Uf:\fJ in -connection with their contents other than that of transportation, provided they were bona fide used for the purpose of transporting goods. .Still, that is the opinion of the supreme court, and it is controlling here, and I shall follow it. The jury will render a verdict for the plaintiff, pursuant to the direction of the court, for $407.27, with interest.
v. WHITEHEAD et al. (Oircuit Oourt, D. Oolorado. March 5, 1888.) LmEL AND SLANDER-SLANDER OF TITLE-DAMAGES-WEIGHT AND SUFFICIENCY OF EVIDENCE.
In an action for defaming one's title to land caused by filing for record a claim to have it conveyed. evidence that the plaintiff was thereby prevented from selling the land. and using the proceeds in his business. is sufficient to support a verdict for substantial damages, without further proof of special damages. ,
At Law. Motion for new trial R. D. ThorriJpson, for plaintiff. B. F. Montgomery, for defendant. HALLETT, J. Defendants are real-estate brokers in Denver. Plaintiff resides at Kansas City. in the state of Missouri, and owns a tract of land
FEDERAL
REPORTER.
near Denver. In the early part of last year defendants applied to plaintiff to purchase the land, and negotiations followed, which resulted in a proposition by the plaintiff to sell the land for $15,000. To complete . the transaction, plaintiff sent to the,Union Bank of Denver a deed to be delivered; to defendants on payment of the,$15,OOO, provided such payment should be made on the 5th day of March. 1887. Defendants claimed ¥.> have discovered i.n the title, and .did the deed on that day, but apphed to plamtIff for further time m whlCh to examine the title, and this request was refused. On the 7th day of. March. 1887, defendants filedjnthe .office oithe recorder of deeds a paper which was duly recorded, as. follows: "Know all men by these presents. that whereas, on or about the 28th day of February. A. D. 1886, Andrew W. Whitehead and Edwin K. Whitehead. constituting the firm of Whitehead Brothers, of Arapahoe county. Colorado. bargained for and bought of Sewell G. Collins the undivided half of the east half of the north-east quarter. and the llnqivided half of.the north-west quarter of the. north-east quarter. all of section 23, township 4 south. of range 68 west, Arapahoe county. Colorado/for tbe sum and price of $15,000. which sum and price said Sewell G. Collins agreed to accept in payment in full for saidabovedescribed land, and to convey the same by' good and sufficient warranty deed to said Whitehead Brothers. or assigns. and whereas said Whitehead Brothers are ready and willing to comply With,their part of said contract, and accept warranty deed to said land upon the terms agreed upon, and pay therefor the said sum agreed upon, and have made tender thereof to said Sewell T. Collins. and demanded conveyance of said Iiuids as aforesaid : Now. therefore, this will give noUet! that said 'Whitehead Brothers claim the right t.o enforce said contract to convey said lands as aforeSaid. and for damages for failure of said Collins to carry out said contract;·and this statement of claim is filed for recor!! in the office of thacounty clerk and recorder of said county to the end that a claim and lien may be created. and exist upon and against said lands herein; before for the enforcement of said contract. or for damages. or for 'ANDREW WaITEHEAD. [Seal.] both. "EDWIN K. WHt'l'EHEAD. [Seal.] "WHITEHEAD BROTHERS. "State of CoZorado. County of Arapahoe-ss.: Personally appeared before me this 7th day of March, A. D. 18i:l7, Andrew Whitehead and Edwin K. Whitehead. and acknOWledge that they executed the foregoing instrument as their free act and deed, and as 'the free act and deed of said firm of Whitehead Brothers. "Given under my hand and notarial seal this 7th day of March. A. D.1887. [Notarial Seal.)' ., '''ELMER W. MERIUTT, Notary Public." I ,
,Upon demand by plaintiff afterwlirds made, defendants refused to ra,yoke or cancel the paper, and plaintiff brought suit in the dilStrict cpurt ()f Arapahoe county for such relief. He also brought this suit in the nature of an action for defamation of title, to recover damages for putting the paper on record. The theory of the case is that the, paper marks a cloud on plaintiff's title which, until it was removed by. th.e district court of Atapahoe county, hindered and prevented plaintiff from selling or oth. . erwise disposing of the land. On'the trial plaintiff obtained a verdict for $1 ,550 damages. Several questions' were raised at the trial, and now again on motion for new trial,
COLLINS
11·.
123
of which we think that but one is worthy of consideration. That touches the measure of damages, and is beset with difficulties. At the trial plaintiff sought to show that the land depreciated in value after the paper was put on record; and if he had succeeded in that, his right to recover to the extent of the depreciation would be clear enough. But the evidence tended more to prove that the limd had risen in value since the paper was filed than. to the theory of depreciation; and so the jury was advised 110t to rely on that ground. It was thought also that malice was not sufficiently charged in the complaint to support a verdict for exemplary damages, although the evidence seemed to prove that the act of filing the paper was willful and without cause. Still the plaintiff was allowed substantial damages, without proof of such, except in so far as they might be disclosed in the transaction itself. Evidence was given to the effect that pla,intiff was anxious to sell the property in order to obtain money for other enterprises, but not disclosing the nature of such enterprises. And the jury was told that every man may dispose of his own as he thinks fit; and, by way of illustration, that it often happens that men need money in their business affairs, and are compelled to sell property which they may wish to keep, in order to obtain it; and that anyone who shall wron¢hlly interfere with such right of disposal should answer in damages as in the judgment of the jury may be reasonable under all the circumstances. If, in the opinion of the jury, putting the paper on record hindered or prevented the plaintiff in selling or otherwise disposing of his land, the act itself was unlawful, and the jury could return damages as to them seemed just. So understood, the case seems something like that in which 8 defendant failed to pay an incumbrance as he had agreed.to do, (Loosemore v. Radford, 9 Mees. & W. 657;) or to satisfy a judgment as was his duty, (Allen v. Conrad, 51 Pa. St. 487;) or, being a banker, to pay a check with funds in hand, (Rolin v. Steward, 14 C. B. 595,)-in all which substantial damages were allowed without proof of special damage. It is not claimed that these cases are exactly in point, or that others may not be found which appear to be in conflict with them. But the principal on which they rest may be extended to the case at bar, and sound reason seems to require it. Certainly one who wantonly puts on record such a paper, apparently with the intent to compel the owner of the property to come to terms with him, ought not to have refuge in the technicalities or the weakness of the law. The injury to plaintiff was real, however difficult the proof of it may be. He was compelled to bring suit to remove the cloud from his title, and, for the time, his property was useless to him. It would be a reproach to the law to give only nominal damages in such a case, and, if anything substantial is to be allowed, it cannot be claimed that the verdict is excessive. The motion for new trial will 'be overruled. BREWER, J. I did not sit in the trial of this case, but I heard with my brother. HALLETT, the argument on the motion for a new trial. And while the question is a doubtful one, yet I think substantial justice has been '<lone, and: the verdict ought to stand.
124
FEDERAL REFOBTER.
BROWN '11. FINN.
( Cirouit .OOU'l't, D .. Oolorado.
March 6, 1888.)
BANKS AND BANKING-STOCKHOLDERS-TRANSFER OF STOCK TO DIRECTOR WITHOUT ms TO REPUDIATE.
Where a man, elected a director and vice-president, and assuming the active management of a bank. being bound by a statute to own a certain number of shares, and. presumed to know the condition of the books of the bank, not only as to whether the required number of shares are held by him, but whether there are the required number of stockholders, and who they are, docs not return a dividend paid him by the blink at a time when it was insolvent, upon stock transferred to him without his knowledge prior to his election as director and vice-president, and does not repudiate the transfer, except by a return of the dividend to the supposed owner of the shares, he must be held the owner of the stock thus transferred to him on the books.
At Law. On motion for new trial. Wolcott Vaih, for plaintiff. Parsons Lyles and Patterson Thomas, for defendant. HALI.ETT, J. Sam Brown against Nicholas Finn is an action upon a. statute of the United States, to recover a sum due from defendant as stockholder in the First National Bank of Leadville, and the question which arose upon the trial and upon the motion for a new trial was whether Finn was in fact a stockholder in that bank at the time of its failure. Upon the facts as disclosed in evidence, the jury found a verdict, by direction of the court. It appeared in evidence that Mr. De Walt, as president of the bank, had, at some time in the fall of 1883, transferred a number of shares to Mr. Finn, and thereupon he became vice-president of the bank, and entered into the active management of its affairs. At or about that time, Mr. Sauer, who had been cashier of the bank, resigned from that position, and Mr. Finn became acting cashier, although not chosen to that position. I believe he became a director at the same time, as was perhaps necessary to qualify him as vice-president of the institution. Some time later,-a month or two perhaps,-he purchased certain shares, 20, I think, of Mr. Sauer. His position is, and he offered evidence to show that at that time and afterwards until January, 1884, he knew nothing of the matter of the transfer of shares to him by De Walt previous to his election as a director and vice-president of the bank. In January, 1884, about the 'first of that month, he became aware of the transfer of these shares by the circumstance that there was declared by the board of directors a dividend of 25 per cent. upon all of the shares, as well those which were transferred to him by Mr. De Walt as the shares which he had purchased from Sauer, and this dividend was put to his account. In that way he became apprised of it. He sought immediately-within a few days-to repudiate the transfer of these shares, not by having the transfer enrolled upon the books, but by informing Mr. De Walt that he did not assent to that transaction, and paying to him the amount f)f the dividend which was attributable to those
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