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be, and that we will be deprived of the market and profit which we had in view when we made our bid.

In our investigation of this subject of assessed valuation, we have, among other things, been furnished with a statement of the financial statement of the school district of Omaha, as shown by oflicial records of October 26, 1911. Among the items are the following: “'Actual value of property.

$163,420,760 'Assessed valuation for 1911...

32,684,152 "Had you prepared your statement in the same form, giving separately the amounts of actual valuation and assessed valuation, we would not have been misled, and a very unpleasant question would not have arisen.

“This being Saturday, we have not had the opportunity of taking the matter up with our counsel, but we will do so on Monday, on which day we expect to receive for submission to counsel the transcript of the proceedings authorizing the issue of the bonds. “Yours truly,

[Signed] C. H. Venner & Co." April 25, 1912, appellee, receiving no reply to his letter of April 20th, wired Cosgrove as follows:

"New York, April 25, 1912. "Fred H. Cosgrove, City Comptroller, Omaha, Nebraska :

“Under advice of counsel for reasons stated in our letter of twentieth and other material ones, we decline to take the six hundred thousand dollars city of Omaha bonds at our bid and request return of our five thousand dollar cheque. We are willing, however, subject to approval of legality by our counsel to buy the bonds at a fair price based upon your revised statement of assessed valuation and market conditions arising therefrom. Answer,

"C. H. Venner & Co. **Chg. C. H. Venner & Co."

Appellant, acting on the above telegranı, resold the bonds at a price more than $5,000 less than the bid of appellee, appropriated the proceeds of the certified check as liquidated damages, and at all times since has refused to return the same to appellee. The assessed valuation of property within the city of Omaha subject to taxation, as equalized and corrected by the state board of equalization and the county board of the county of Douglas, Neb., was for the year 1911, $31,494,743; for 1912, $32,808,025.

Section 12 of the Nebraska revenue law (Rev. Stat. Neb. 1913, $ 6300) is as follows:

"All property in this state not expressly exempt therefrom shall be subject to taxation, and shall be valued at its actual value which shall be entered opposite each item and shall he assessed at twenty per cent. of such actual value. Such assessed value shall be entered in separate column opposite each item, and shall be taken and considered as the taxable value of such property, and the value at which it shall be listed and upon which the levy shall be made. Actual value as used in this chapter, shall mean its value in the market in the ordinary course of trade.”

W. C. Lambert, of Omaha, Neb. (John A. Rine and L. J. TePoel, both of Omaha, Neb., on the brief), for appellant.

Halleck F. Rose, of Omaha, Neb. (John F. Stout and Arthur R. Wells, both of Omaha, Neb., on the brief), for appellee.

Before CARLAND, Circuit Judge, and RINER and MUNGER, District Judges.

CARLAND, Circuit Judge (after stating the facts above). It is urged in the brief of counsel for appellant that appellee had a complete and adequate remedy at law to recover the proceeds of the check accompanying his bid, and therefore a court of equity has no jurisdic

tion of the present action. As to this point it is sufficient to say that where the subject-matter of a suit is within the jurisdiction of a court of equity and the objection that the complainant had an adequate remedy at law is not made until a hearing in the appellate court, the reviewing court will not consider the objection. Tyler v. Savage, 143 U. S. 79, 12 Sup. Ct. 340, 36 L. Ed. 82; Brown v. Lake Superior Iron Co., 134 U. S. 530, 10 Sup. Ct. 604, 33 L. Ed. 1021; Reynes v. Dumont, 130 U. S. 354, 9 Sup. Ct. 486, 32 L. Ed. 934; Highland Boy G. M. Co. v. Strickley (C. C. A. 8 Cir.) 116 Fed. 852, 54 C. C. A. 186; National Bank of Commerce v. Equitable Trust Co. (C. C. A. 8 Cir.) 227 Fed. 526, 142 C. C. A. 158.

It appears from the record that the question as to whether appellee had an adequate remedy at law was in no wise raised in the court below. Moreover, the appellee may have had much difficulty in recovering in an action at law the $5,000 earnest money, with the contract created by the acceptance of his bid in full force. It was alleged, in the answer of appellant to the complaint of appellee and also in the brief of counsel, that appellee's objection to carrying out his bid was not in good faith, but an attempt to cause the bonds to be sold to the next highest bidder, and the language contained in appellee's bid, requesting that the names and prices bid by the next two highest bidders should be telegraphed in case appellee became the successful bidder, is referred to in support of this charge.

[2] We have examined the testimony in the record carefully, and are clearly of the opinion that appellee acted in entire good faith in refusing to perform his bid. Appellee bases his right to recover upon two propositions: First, that the information contained in the circular of March 28, 1912, relating to the valuation for assessment purposes of the property of appellant for the year 1912, and also of the statement as to the tax rate for all purposes for 1912, per $1,000, were false, and placed in the circular by appellant with the intention of misleading persons who should desire to bid for the bonds offered for sale; second, if the statement shall be held to have been true, then appellee in bidding for the bonds acted under an honest mistake as to the material facts touching the assessed valuation and tax rate of appellant, and in either event he is entitled to rescind the contract and recover the sum demanded. In this connection appellee claims that, if the language of the circular shall be construed to mean the assessed value of the property of appellant for the year 1912, then the statement was false and known to be so by appellant; and, if the statement shall be construed to be true, then appellee was justified in believing that the language referred to the assessed value of the property of appellant for taxation in the year 1912. In other words, he honestly believed that the assessed valuation of the property of appellant was five times the amount of the actual assessment and that the tax rate was in all one-fifth of the actual tax rate.

The statement contained in the circular dated March 28, 1912, concerning valuation, is as follows: "Valuation for assessment purposes 1912, estimated.” If this language is construed to mean the assessed value of property upon which the annual tax is to be levied, then the

amount of $164,167,720 is false, because the assessed valuation for the year mentioned was $32,808,025.

Appellant claims, however, that the words quoted, when taken in connection with section 12 of the Nebraska Revenue Law, supra, states the truth. Section 12 provides that all property subject to taxation shall be valued at its actual value, and shall be assessed at 20 per cent. of that value; that such assessed value shall be considered as the taxable value of such property and the value at which it shall be listed and upon which the levy shall be made. It therefore is claimed by appellant that, when its comptroller stated that the valuation for assessment purposes for the year 1912 was a certain amount, the statement referred to the actual value of the property subject to taxation, and not one-fifth of that amount provided by law as the assessed value.

Exhaustive arguments are made in the briefs on both sides for the purpose of showing how the language used with reference to valuation in the circular of March 28, 1912, should be construed, and cases are cited in support of the different contentions. Exhaustive arguments are also made as to how the laws of the different states in which appellee intended to sell bonds should be construed, with reference to the eligibility of municipal bonds as investments by savings banks in those states. But we think it is unnecessary to determine whether the statement in the circular of March 28, 1912, as to valuation, when properly construed, referred to the assessed value as defined by the Nebraska statute, or the actual value of all property subject to taxation. If it is a question upon which legal minds may differ, it certainly was a question concerning which appellee had a right to be honestly mistaken, and if in making his bid he honestly believed that the language referred to the assessed value of appellant's property for taxation, and not its actual value, then he would be entitled to refuse performance of the contract at the time he did when he learned the contrary, whether the language was used by appellant with the intention to deceive or not.

Whether or not the bonds for which appellee made his bid were eligible in the savings bank market of the states mentioned would depend largely upon how the statement in the circular of March 28, 1912, should be construed and this was another question which appellee ought not to be held to decide at his peril, and furnishes another reason why, if he was honestly mistaken as to the meaning of the language used, he should be entitled to relief.

The statement as to valuation contained in the circular was a statement of fact and material, however we may construe the language used. In Chicago v. Fishburn, 189 Ill. 367, 59 N. E. 791, it was decided under a statute similar to section 12, supra, that the debt limitation should be computed upon the assessed valuation, and not upon the actual value which is ascertained in the process of fixing the assessed value. On the other hand, in the case of Halsey v. Belle Plaine et al., 128 Iowa, 467, 104 N. W. 494, under a statute of Iowa similar to section 12, supra, it was decided that the debt limit should be computed on the actual value and not on the assessed value.

If these learned courts may differ as to the meaning of the different statutes, it is clear that appellee could be honestly mistaken as to the meaning of the language used in the circular of March 28, 1912, and his testimony that he thought the language referred to the assessed value stands uncontradicted.

We are satisfied from the evidence in the record that the judgment of the lower court was right. We base our decision upon the proposition that if the language used with reference to valuation in the circular of March 28, 1912, shall be construed to mean the assessed value of the property within the city of Omaha, then it was false, and it is immaterial whether it was intentionally false or not so far as appellee is concerned. If the language used shall be construed to refer to the actual value of the property within the city of Omaha for taxation, then on this record appellee was honestly mistaken as to the meaning of the language when he made his bid, and in either event he is entitled to rescind and recover the money deposited with his bid. Turner v. Ward, 154 U. S. 618, 14 Sup. Ct. 1174, 23 L. Ed. 391; Smith v. Richards, 13 Pet. 26, 10 L. Ed. 42; Hearne v. Marine Ins. Co., 20 Wall. 488, 22 L. Ed. 395; Moffett v. City of Rochester (C. C.) 82 Fed. 255, affirmed in Moffett v. City of Rochester, 178 U. S. 386, 20 Sup. Ct. 957, 44 L. Ed. 1108.

It is suggested by counsel for appellant that the mistake of appellee, if he was mistaken, was a mistake of law, and therefore not relievable in a court of equity. It may be conceded that as a general rule a mistake of law is not a ground for rescission of a contract, but there are exceptions to the rule. Snell v. Insurance Co., 98 U. S. 90, 25 L. Ed. 52. We do not think the mistake of appellee was one of law. He testifies and it is uncontradicted, that he thought the valuation stated in the circular was the assessed valuation. As a matter of fact it was the actual value.

It is further urged by counsel for appellant that the evidence shows that appellee was in some doubt as to the meaning of the language in regard to valuation contained in the circular of March 28, 1912, and thereupon he consulted the circular of July 15, 1911. Appellee testified that he consulted the circular of July 15, 1911, because of the use of the word "estimated" in the circular of March 28, 1912; that he inferred that the tax rolls had not been finally made up for 1912, and for that reason he consulted the circular of July 15, 1911, which gave the assessed valuation for 1911 at $151,331,701.

We think appellee had a right to rely upon the statenients made in the circular, and that he did so rely when he made his bid; that the statement as to valuation was either false, or, if not, appellee was honestly mistaken in respect thereto when he made his bid, and in either event he is entitled to the relief prayed for. Affirmed.

243 F-8

ATCHISON, T. & S. F. RY, CO. v. UNITED STATES.
(Circuit Court of Appeals, Eighth Circuit. April 9, 1917.)

No. 4764.

1. MASTER AND SERVANT 13–HOURS OF SERVICE ACT-CASUALTY OR UN

AVOIDABLE ACCIDENT.

A railroad train parted on a curve, where the track descended a heavy grade from either side to cross a natural depression. The automatic couplers, slipping, passed by each other because of worn places on the faces of each knuckle, due to the attrition of coupling and traction against similar knuckles. It appeared that the cars had been recently inspected, and that the usual inspection before the train started was made, but that the defect was not discovered. There was evidence that it could have been discovered only by the use of a gauge used by railroads for measuring such couplers. By reason of the parting of the train the railroad company kept employés on duty for more than 16 hours. Held that, as the railroad company might have used a gauge for the inspection of the couplers, the accident cannot be deemed a casualty or unavoidable accident as a matter of law, within the Hours of Service Act, providing that it shall not apply in case of casualty or unavoidable acci. dent or act of God, and hence the railroad company could not escape liability for keeping its employés on duty for more than 16 hours in violation of the act.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. $ 14.) 2. MASTER AND SERVANT O 13-OPERATION OF RAILROAD-HOURS OF SERVICE

Аст. .

A train telegraph operator at a station operated at night as well as day was required to remain on duty more than 9 hours to care for the United States mails, but he performed no services as train dispatcher after the expiration of the 9-hour period prescribed by the Hours of Service Act (Act March 4, 1907, c. 2939, 34 Stat. 1415 (Comp. St. 1916, $$ 8677-8680]). Held, that such fact did not exempt him from the protection of the act.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 14.] 3. MASTER AND SERVANT em 13OPERATION OF RAILROAD-HOURS OF SERVICE

ACT.

A telegraph operator, whose regular period of service was from 3:30 p. m. to 12:30 a. m. each day, was directed to remain on duty to care for the United States mails, which were to be transmitted to and received from a passenger train scheduled to pass the station at 10:15 p. m. The train on this particular evening was known to the railroad company's officials to be 214 hours late into a somewhat distant station, and it had been losing instead of gaining time. There was another employé at the station, who was under no restriction as to hours of service, but he was not bonded, and the railroad company made no effort to have him care for the mails. Held that, notwithstanding the company's officials had expectations that some of the lost time would be made up, and despite the fact that there was a considerable margin between the operator's hours and the scheduled time for the trains, the railroad company was guilty of violation of the Hours of Service Act in requiring its operator to remain on duty more than 9 hours, for, if it desired a bonded employé to handle the mail, it should have a sufficient supply of such help subject to call.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $ 14.] 4. MASTER AND SERVANT 18-OPERATION-HOURS OF SERVICE.

A railroad company, which keeps employés on duty for longer time than authorized by the Hours of Service Act, has the burden of showing For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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