293J Of the total
sued fOll,;' $644.96 is an, account against tbe defendant in error and in favor of Wm. R. Moore & Co. The other IWt()uhts'weretransferved, in: writing; tQ the plainHft'in muv for a valuable consideratioo. on ,the "20th 'of November, 1;897." ThE¥E!"is no contro'Versy,fn the, case, as :shown in the evidence"ex. cept 1i!s',to the transfer ,of the :WID; R. >Mopre & Co. account. That acc.ount is transfervedf :in this ,language':,'", ' . lheacc6unt'or Wm;R,;MOOte & Company. Nov. 20,'97. For value received, we hereby sell, transfer, and assign unto Tennent-Stribling ShOO,(jJQi:DI!Qlly"qf )[q., ,the with\n account W, E. Roper. : "WID' R. Moore'&, Company."
The attachment suit was brought on these several claims November 21, 1897. This was on Sunday,but the statutes of Mississippi permit the issuance and levy of attachments on Sunday. Ann. Code, § 139. A declaration was duly;filedjn:t):le 'case."t:lpbsequently, on the 8th J:qe defendant in the suit, W. E. Roper, moved the cotirt to dismiss the cast! "because thil'!'court has no jurisdiction; because, at the :time ;of suing out this attachment, only d,ll.c.or to, the sp.w of $920.90-:' The case was tried and disposed of on this 'motion: The bill of ex'that' tlie :"deferlttaht, I sustain' 'said motion to disthe in attachment,.,Wltli bIlls the transfers on the biHsofparticulars." We have already given the contents ofthefrlll1sfer of the Wtl:1.R. Moore:&:Co. account, dated November 20, 1897. The defendant then o,ffered the evidence of one witness, 0.:0. t,he transfer of theWm.R. Moore & Co. account, Witness was a member of the frrmofWm. R. Moore & To understand thedase, it is necessary t(igiv:e the parh! 't)f Mr.'Armsttong's 'stl:j;tement: "Q. What time did you ,actp.aIj.y'ap,!l,illfact close firm's accounts with plaintiffs? A. That was actually done, I WQuid say, about 4, evening, Npvemb!'lr Was any Pllllt of the purchase money paid before Monday, the 22d, or on Monday, Jhe22d? A. No, sir. Q. Had any memoranda in writing been signed' before or on Monday, the 22d of A. Any memoranda, in writing,? Q. Yes, sir,-evidencing the sale. A. No, !lir., Q. I :believe YiQuIB.ta,ted .in your direct examination that your firmo",ned the after it was to: the plaintiff up until Monday, November 22d. 'Please explain what you mean when you state that your firm were the owners of the account until that day. A. When I made ,that statement, I forgot a telegram that j;lassed Spnday ,evening, and I 1l0W that it did secure it Sunday evening. was merely mistaken. Q. Thentliesale was made on Sunday, was'it not? A., Yes, sir. Q. When did you first deliver your account to the agi!nt of the Tennent-Stribling Shoe Company, or theplaintilIs? A. I don't 'know,' sir. It was done as soon as the clerks coUld make it out, and ,put it in order. Q. That was some time lifter the was it not? A. Yes, sir."
On crosg'e':xaminationtMr. Armstrong testified that on the even· ingof November 20th he went on the, train with Mr. Fant, the attorney for the plaintiff in error, to Byhalia; that the trip was made to inve$tigate' WJ E. Roper's affairs; that witness had with him a:n itemized statement of the account of Will. R. Moore & Co. againstW. ,E. Roper; 'that it was (In that evening agreed that the plaintiff 'In error could buy theacconnt for 50 cerlts on the dollar
TENNENT-STRIBLING SHOE CO. V. ROPER.
741
(witness referred to thIs agreement as an "option"); that the option was finally closed· on Sunday evening. On this evidence, the court granted the motion, dismissed the cause, taxed the plaintiff with the costs, and ordered that certain moneys in court (the proceeds of the sale of part of the attached property) be paid to the defendant, W. E. Roper. The several assignments of error are directed to the action of the court in dismissing the case and entering the judgment described. It is claimed by the defendant in error that the transfer of the Wm. R. Moore & Co. account was made in violation of the Sunday laws, and that such transfer is therefore void. It is a misdemeanor in to engage in work on Sunday. Ann. Code; § 1291. Mr. Armstrong testifies that he and the plaintiff in error's attorney had a conversation on Saturday about the sale of the claim. It seems that the effect of the conversation was that the plaintiff in error was' to have the account, if he wished to take it, at 50 cents on the dollar. This agreement is referred to by the witness as an "option." On Sunday there was evidently further communication on the subject, and on direct examination the witness says, in effect, that the account was not drawn off till some days later, probably about the 22d of November, and that the sale was not completed till 4 o'clock Sunday afternoon, November 21st. But, on cross-examination, the witness says that he had the account with him itemized on Saturdav, the 20th, at the time of the conversation with plaintiff's attorney:' The account offered in evidence is transferred on "Kovember 20th." If this is not the true date of the written transfer, no date is given by the evidence. We are not unmindful of the fact that the witness holds to the proposition that the sale was not concluded, as he understood it, till Sunday afternoon; but the date of the written transfer would indicate that the telegraphic correspondence on Sunday was to ratify what was already done. If it be conceded that the transfer was made on Sunday, we cannot agree that the defendant in error can take advantage of it. The action is not brought on the contract of assignment. The defendant in error is not a party to the contract of assignment. His contract was with Wm. R. Moore & Co'. to pay the account. That account, with the other claims, is now the property of the plaintiff in error. It sues on the account. The assignment of it is the means by which it became the owner of it. If it was assigned to it on Sunday, if the assignor afterwards ratified the assignment, and the assignee claims under it, iUs binding between them. A third person, not a party to the contract of assignment, should not be permitted to avoid the payment of the debt by pleading the illegality of a coutract that can be and is ratified by the parties to it. The defendant in error could not be again made to pay it if this assignee recovers it. Ko one else claims, or can successfully claim, the debt. A member of the firm of Wm. R. Moore & Co. was in court as a witness, ratifying and approving the assignment. If the defendant in error can defeat the collection of the claim of the plaintiff in error, then no one can collect it. As both the assignor and the assignee are satisfied with their contract, and the same having
742, by. :mO,uey, l,L11?-" delIvery of the accouut wIth tl+ewrItten in .is nota.I;larty to· any rqpr:quty,. s4ould, not. bepermJttedto. thf Sunday tpe payrqentPf The in: tentiQu w,itJl,wlHch the.se enacted will belJeHerpromoted by' notper,initting .their u,se to be to de'fe,a,:t .just Qbligations not contrll,cted on .. :. A third person, nota)arty to the. .cann.ot its validity6n. the ground' thoat}t..w,a.s..,m ... . n. .. n.' v. K. Me. 463; Y"Wooten, 67 Miss. 54(j; 7 South. 501; Adams ·v. Gay, 19 Vt.3,58. . ,, . .' ' . 2. is a statenwnt of.tp.e fblaims sued o:t;l;,' as by the record:, . ' , , ," , , . , Exhibit A, ..... ";"1"'" $ 920 90 64496 ExblOit n, WID, R)!oore &CQ Exhibit C, Memphis Grocery Company '. ............·..... . 488 35 129 75 Hkhiblt B, !Goo/lman :5rosH.··. ..·'·. '· .....·... '. . ,' ·· " Exhibit E,M'lu',ks & I!'ader······ i).,." · · · · i ' . 15268 H "
H
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,
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A'ggr,e¥:ate .,
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$2,336 64
The ·plaintiff is the, original 0wner of the first· aCCiOunt, and. the others are 'transferred to, it as before stated. The ruffidavit is 'made to secdreanattachmentto claims, the,w,ritiB issued and levied;. and declaratioIL ftled;eMh ishowingan amountfiin the aggregatel 'within' the jurisdiction, of the circuit court. If it be conceded that the evidence in the 'case shows that the plaintiff; for some reason, camlotmaintai'n its title to, or right to recover on, one of the accounhi; and that deducting thaU:tCcountfrom the aggregate of the amon,nts! sued for reduces. the. sum below, $2,000" does such 'evidence defeat illhe jurisdiction: of,the circuit court? The circuit court so held. Concluding that the plaintifl?s title to the WIJ!l. R. Moore & COi.acotlUnrtwas defective, and'deducting that sum ·from the aggregate, it reduced the,amount for which plaintiff could obtain judgment below $2,000, and the' court therefore' dismi!3Sed ilhe case for want of . juvisdictioJll..' Unless the matter in dispute ina case exceeds $2,000, the courtris',without jurisdiction.. In .Lee Y. Watson, 1 Wall. 339, the cotirtsaid: i
"By 1m!8.tter in! lis meant the subject of lltigation,c...the matter for: which tbe, suit isbrougnt,__and upon which issue is jOin./ld.,and 'in relation to whi(]h j,urors are a:Q.d .. lnll.llac.tion .upon a lllatter III dii;lput"l .1S money 4,ewa,nd, where tbe general Issue If! pleaded, the debt:chlimed, and its al{lount as stated in the-body of till'l decIaratiOli;"
·In the of in Hilton, v. Dickinson, 108 U. 2 Sup. Ct. 424:"the court"held:, "The amount atated in, t.lW ,bo(1y of the :declaration *, * be considered in dete:t'I9:ining the question course do arise when the .aru.ouut stated,)n t1Jie declaJ,'lltionwouldnot govern, as, for example,.a sujt for ,for tpe breach of a $1,000 bond. The amqu,nt, of the bo,Ildi,wouldl;Je the,ilimitofthe recovery, and so the of in dispute. Ip. an. action, however, on accou.u,ts .exhibited with. the declaration} t),leamount Of accounts
NATIONAL Ace. soc. V. DOLPH.
743
in the aggregate is the amount in dispute. The fact that some defense may be made, or is, in fact, made, which will make the recovery fall below the jurisdictional amount, does not ,defeat the jurisdiction of the court. It occurs in the practice that judgments are sometimes entered for a less sum than suit could have been brought for. b'tatutory provision as to costs is made for such cases: "'''hen, in a circuit court, a plaintiff in an action at law originally brought there * * * recovers less than the sum or value of five hundred dollars, exdusive of costs, in a case which cannot be brought thcJ;e unless the amount in dispute, exclusive of costs, .exceeds said sum or value, * '" * he shall not be allowed, but, at the discretion of the court, may be adjudged to pay, costs." Rev. 81. U. 8. § 9G8.
This statute, at least, shows that the congress does not so construe the statutes conferring jurisdiction on the court that the same will be defeated, if, by defense, the an;lOunt claimed in the action should be reduced below $2,000. In Ilardin v. Cass Co., 42 Fed. 652, a suit was brought for a sum exceed'ing the amonnt ;, '1'he statute of limitations was snccesflfully pleaded as to part of the claim. This part of the suit being defeated, the amount left collectible was less than the jurisdictional. ,amount., ' The, defendant insisted that the case sl:\ould be dismissed. The court, granted judgment for the .remainder oUhe claim, although it was for less tban $2,OUO. The case,of Green v. Liter, 8 Qranch, 106, was a suif f<,>r a ll:/.rge trac,t of land, alleged to ,exceed the value which then fixed the of the court. The rec{)very was for less in value. '}fr. .Justice Story, deIiveringthe opil).jon of the court, said: , "As to the first question, we are satisfied that the circuit court had jurisdiction of the cause. 'l'aking the eleventh' and twentieth sectiOlls of the judi· cial act .of 1789 (chapter 20jin connection, it is dear ih'at the jurisdiction attaches when the property demanded exceeds' $500 in falue; .and if, upon tHaI, the demandant recovers less, he is not allowed his costs, but, at the discretion of the court, may be .adjudged to pay costs.:'
See, also, Levinski v. Banking Co., 92 Fed. 449. The judgment of the circuit court is reverSed, and the cause remanded, with direction to reinstate said cause on the docket, and to proceed in conformity with this opinion; and it is so ordered.
NATIONAL ACC. SOC. OF Cl'l'Y OF NEW YORK v. DOLPH. (Circuit Court of Appeals, Third circuit. 12. 1. INSURANCE-AcTION ON ACCIDENT POLICy-EVIDENCE.
May 17, 1899.)
ThePennsy!vania act of May 11, 1881, which provides that no application or constitution or by-law of the company shall be admitted in evidence as part of a contract of life or fire insurance, or as having bearing thereon, unless a copy thereof shall have been attached to the policy, does not apply to contracts of accident insuranc-e.
2.
REVIEW-HARMLESS ERROR.
A judgment will not be reversed on account of the erroneous exclusjon of evidence which was merely cumulative. and where the f,actsought to be shown thereby was proved by other evidenee without dispute, and properly submitted for the consideratioll of the jury.