employment he had aided and assisted in making sale of one of the pumps of their manufacture to said city for the price of $33,500, wherefore plaintiff was entitled to recover from the defendant, for his services, the sum of $1,675, and concluded with the averment that defendant had failed and refused to pay same, "to plaintiff's damage $5,000." The second count avers an indebtedness to the plaintiff in the further sum of $5,000 "for work and labor, care and diligence," done and performed for the defendant, as factor and agent, "in and about the sale of a certain pump to the said city of Grand Rapids, for said defendant, at the special instance and request of the said defendant, and, being so indebted, the said defendant, in consideration thereof, undertook

and promised the said plaintiff well and truly to pay to said plaintiff the said sum of money," etc.; and, though often requested, had not paid the whole, or any part, "to plaintiff's damage of $5,000." The third count is another common count averring an indebtedness of $5,000 for goods sold, money lent at its request, "and a like sum of money due plaintiff on a contract for the sale of a certain pump," etc., and a like sum for commissions due from defendant in effecting the sale of a certain pump, and avers a promise to pay said sum of $5,000, and request and refusal, "to plaintiff's damage," etc. After the filing of this declaration the defendant duly removed the cause into the United States court. Thereupon the plaintiff filed the record, and voluntarily filed what, under Michigan practice, is called a bill of particulars, and served copy of same on the defendant. Thereupon the plaintiff entered a motion to remand the suit to the state court, upon the ground that the amount in dispute was less than $2,000. This motion was based upon this bill of particulars and an affidavit by the plaintiff averring that the real matter of dispute never exceeded $1,675, and interest for a few months, being "5 per cent. commission on $33,500, as commission on the sale of certain pumping machinery to the city of Grand Rapids." This motion was denied. Thereupon, after issue joined, the cause came on to be heard by the court and jury. Pending the trial, and after the plaintiff's evidence had been heard, the motion to remand was renewed, upon the ground that the amount in dispute had never been more than $1,675. This was again overruled. At the conclusion of all of the plaintiff's evidence, the court directed a verdict for the defendant, upon the ground that the services fo which the plaintiff sought compensation "were services rendered in the solicitation of a public board and its officials, in the procuration of a contract in which he and his employers were directly interested," and that from the plaintiff's own case it was made to appear "that no disclosure was made of the fact that he had an interest in the subject-matter concerning which these representations were made, and that he withheld information from the public officials of the fact that he was interested in the transaction which he sought to accomplish." The plaintiff has assigned as error the refusal of the court to remand the cause to the state court, and the direction to find for the defendant.

Wm. Wisner Taylor, for plaintiff in error.

Butterfield & Keeney, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and CLARK, District Judge.

LURTON, Circuit Judge, after making foregoing statement of facts, delivered the opinion of the court.

The preliminary question as to the jurisdiction of the circuit court must be decided against the plaintiff in error. Under the common counts of the declaration filed in the state court there was no rule of law by which.the plaintiff was prevented from recovering a judg ment for any sum within the ad damnum clause of the writ of summons, which was $5,000. The declaration disclosed most clearly a cause of action within the jurisdiction of the circuit court, inasmuch as the demand, under the common counts, was $5,000, a sum in excess of the amount necessary to give jurisdiction to that court. The suit was, therefore, one which was removable, diversity of citizenship existing.

1

Barry v. Edmunds, 116 U. S. 550, 6 Sup. Ct. 501. But it is said that under the act of March 3, 1875, it is the duty of the court to look behind the pleadings, and if, after a removal upon the prima facie jurisdiction appearing from the face of the plaintiff's declaration, it should appear to the satisfaction of the court that the suit did not really and substantially involve a dispute or controversy within the jurisdiction of the circuit court, the court should remand the cause to the court from which it was removed. Where a suit originates in a court of the United States, the question of whether it really and substantially involves a dispute exceeding $2,000 generally depends upon the ad damnum clause in the summons, and upon the facts stated in the plaintiff's declaration, though, since the act of 1875, these tests are not conclusive.

In Barry v. Edmunds, 116 U. S. 550-560, 6 Sup. Ct. 506, Justice Matthews said:

"It is true, indeed, that in some cases it might appear as matter of law, from the nature of the case as stated in the pleadings, that there could not legally be a judgment recovered for the amount necessary to the jurisdiction, notwithstanding the damages were laid in the declaration at a larger sum."

The learned justice then cites the early case of Wilson v. Daniel, 3 Dall. 401-407, where Chief Justice Ellsworth said that:

"The nature of the case must certainly guide the judgment of the court, and whenever the law makes a rule that rule must be pursued. Thus, in an action of debt on a bond for £100, the principal and interest are put in demand, and the plaintiff can recover no more, though he may lay his damages at £10,000. The form of the action, therefore, gives in that case the legal rule. But in an action of trespass, or assault and battery, where the law prescribes no limitation as to the amount to be recovered, and the plaintiff has a right to estimate his damages at any sum, the damage stated in the declaration is the thing put in demand, and presents the only criterion to which, from the nature of the case, we can resort in settling the question of jurisdiction. The proposition. then, is simply this: 'Where the law gives no rule, the demand of the plaintiff must furnish one; but where the law gives the rule, the legal cause of action, and not the plaintiff's demand, must be regarded.'"

Touching the effect of the act of 1875 upon the rule stated in Wilson v. Daniel, Justice Matthews, in the case cited, said:

"The amount of damages laid in the declaration, however, in cases where the law gives no rule, is not conclusive upon the question of jurisdiction; but if, upon the case stated, there could be a recovery for the amount necessary to the jurisdiction, and that amount is claimed, it would be necessary, in order to defeat the jurisdiction, since the passage of the act of March 3, 1875, for the court to find, as a matter of fact, upon evidence legally sufficient, that the amount of damages stated in the declaration was colorable, and had been laid beyond the amount of a reasonable expectation of recovery, for the purpose of creating a case within the jurisdiction of the court. Then it would appear to the satisfaction of the court that the suit 'did not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court.'"

What would be a colorable enlargement of a demand, where the law gives no fixed rule, would depend upon the facts of the particular case. Touching the necessity of legal evidence of such a fraudulent swelling of the amount of a plaintiff's demand, the court, in this same case of Barry v. Edmunds, said that the order of a circuit court dismissing a cause for that reason would be reviewable upon a writ of error, and added:

"In making such an order, therefore, the circuit court exercises a legal, and not a personal, discretion, which must be exerted in view of the facts sufficiently proven and controlled by fixed rules of law. It might happen that the judge, on the trial or hearing of a cause, would receive impressions amounting to a moral certainty that it does not really and substantially involve a dispute or controversy within the jurisdiction of the court. But upon such a conviction, however strong, he would not be at liberty to act, unless the facts on which the persuasion is based, when made to distinctly appear on the record, ereate a legal certainty of the conclusion based on them. Nothing less than this is meant by the statute when it provides that the failure of its jurisdiction on this account 'shall appear to the satisfaction of the circuit court.''

The cases involving a colorable enlargement of the amount claimed as in dispute for the purpose of bringing the matter within the appellate jurisdiction of the supreme court are in point upon this question. Lee v. Watson, 1 Wall. 337; Hilton v. Dickinson, 108 U. S. 165–174, 2 Sup. Ct. 424; Bowman v. Railway Co., 115 U. S. 611, 6 Sup. Ct. 192. In Hilton v. Dickinson, just cited, the court said:

"It is undoubtedly true that until it is in some way shown by the record that the sum demanded is not the matter in dispute, that sum will govern in all questions of jurisdiction; but it is equally true that, where it is shown that the sum demanded is not the real matter in dispute, the sum shown, and not the sum demanded, will prevail."

Neither is it admissible to determine the question of the existence of a dispute involving the necessary jurisdictional amount by an inquiry in the nature of a demurrer to the case stated in the pleadings. That a good defense appears from the facts stated to the whole or to a part of the demand does not affect the jurisdiction of the court, unless, of course, the nature of the claim stated is so manifestly fictitious as to make it legally certain that the amount of the demand is alleged simply to create a jurisdictional sum for the purpose of creating a case within the jurisdiction. The case of Schunk v. Moline, Milburn & Stoddart Co., 147 U. S. 504, 13 Sup. Ct. 416, was a suit to recover $2,194.13, of which $530.09 was due, and the rest, as shown on face of declaration, was not due. The jurisdiction of the court to entertain the suit was challenged by demurrer, upon the ground that, as there could be no recovery of the amount not due, the sum really in dispute was under $2,000. The jurisdiction was maintained, the court, among other things, saying:

"It matters not that, by the showing in the petition, part of this sum was not yet due. Plaintiff insisted that it had a right to recover all. That was its claim, and the claim which was disputed by the defendant. Suppose there were no statute in Nebraska like that referred to, and the plaintiff filed a petition exactly like the one before us, excepting that no attachment was asked for, and the right to recover anything was challenged by demurrer, would not the matter in dispute be the amount claimed in the petition? Although there might be a perfect defense to the suit for at least the amount not yet due, yet the fact of a defense, and a good defense, too, would not affect the question as to what was the amount in dispute. Suppose an action was brought on a nonnegotiable note for $2,500, the consideration for which was fully stated in the petition, and which was a sale of lottery tickets, or any other matter distinctly prohibited by statute; can there be a doubt that the circuit court would have jurisdiction? There would be presented a claim to recover the $2,500; and, whether that claim was sustainable or not, that would be the real sum in dispute. In short, the fact of a valid defense to a cause of action, although apparent on the face of the petition, does not diminish the amount that is claimed, nor determine what is

the matter in dispute; for who can say in advance that that defense will be presented by the defendant, or, if presented, sustained by the court? We do not mean that a claim evidently fictitious, and alleged simply to create a jurisdictional amount, is sufficient to give jurisdiction."

We come now to the application of the act of 1875, as construed by the cases cited, to the facts of the case here involved. This cause did not originate in the circuit court, but was started in a circuit court of the state of Michigan, and removed into the cir cuit court of the United States, upon the ground that the controversy involved a sum in excess of $2,000, and was a case wherein the necessary diversity of citizenship existed to entitle the defendant to remove the cause into a court of the United States. The plaintiff's writ of summons laid his damages at $5,000, and his declaration, which was filed before the removal, stated a case upon which there could be a legal recovery for the amount necessary to the jurisdiction. Under the common counts in the plaintiff's declaration it was legally competent for him to prove goods sold, money lent, or services rendered, and that the defendant had promised to pay the sum of $5,000. So, if the plaintiff was unable to make out a contract to pay him a commission of 5 per cent. upon the price of the pumping engine sold through his aid and assistance, but did show that he had rendered valuable services at the instance and request of the defendant in making such sale, there was no legal reason why he might not, if the evidence should justify, recover a judgment for the whole amount of his claim or demand of $5,000. The doctrine that where the plaintiff has done work and labor under a contract which he has not fully performed, and therefore sues for a quantum meruit, he shall not recover in excess of the contract price, has no application if, in fact, there was no stipulation as to the price or compensation. The first count of the plaintiff's declaration was for an agreed commission. But the other counts were so framed that, if no agreed stipulation for a definite commission was established, it was legally possible for him to have recovered a much larger sum as the reasonable value of the services rendered. The amount in dispute and claimed by the plaintiff when the case was removed was, therefore, within the jurisdiction of the court, and the cause, therefore, removable under the statute. But after the removal of the cause the plaintiff filed, vol untarily, a bill of particulars, consisting of an account against the defendant for $1,675 and interest, due as a commission of 5 per cent. on the sale for $33,500 of one of defendant's pumping engines to the city of Grand Rapids. At the same time he filed an affidavit, and certain correspondence with the defendant, in which he averred that he had never claimed from the defendant any other or greater sum than a commission amounting to $1,675. This, it was insisted, constituted legal evidence that the matter in dispute did not exceed $1,675, and that the controversy was not, therefore, within the jurisdiction of the court. The only legal effect of his voluntary bill of particulars was to cut down the amount of the claim in dispute to a sum less than $2,000. It was equivalent to a confession that he was not entitled to claim so much as was claimed

by his declaration. Such a concession will not operate to defeat a jurisdiction which had already attached.

In Riggs v. Clark, 37 U. S. App. 626-632, 18 C. C. A. 242, and 71 Fed. 560,-a case decided by this court,-it was sought to defeat the jurisdiction of the circuit court in a case which had been removed into that court from a state court as a consequence of a stipulation by the parties, after the removal, as to the facts of the case for the purpose of a hearing, from which it appeared that the amount in dispute was really less than $2,000. The jurisdiction was maintained upon the ground that the question whether a case is removable or not is to be determined by the claim of the plaintiff at the time of the removal. Where a cause is removed to the circuit court of the United States by a defendant, and the record at the time of removal shows a dispute or controversy within the jurisdiction of a circuit court in respect to amount, the jurisdiction over that case cannot be defeated by the subsequent conces sion of the plaintiff that the amount he claimed was less than that he had stated in pleadings filed before such removal. Neither would such concession be strengthened by any stipulation as to the real facts of his demand, nor by any other form of concession made after removal. Riggs v. Clark, 37 U. S. App. 626, 18 C. C. A. 242, and 71 Fed. 560; Fuller v. Insurance Co., 37 Fed. 163; Peeler v. Lathrop, 2 U. S. App. 40, 1 C. C. A. 93, and 48 Fed. 780; Waite v. Insurance Co., 62 Fed. 769; Henderson v. Cabell, 43 Fed. 257-259. The plaintiff started his suit in a state court, and then filed his declaration demanding $5,000. As he could not remove his case to a court of the United States, there was no colorable enlargement of his demand for the purpose of making a case within the jurisdiction of a circuit court of the United States. So, if his services were rendered upon no agreement as to the amount of his compensation, he was at liberty to estimate their value at any sum he saw fit, and lay his ad damnum accordingly. That he had, before suit, estimated his services at a smaller sum, or claimed a less sum as due under an express agreement, furnishes no legal reason why he might not, if the existence of the contract was denied, sue both upon the agreement he claimed and in assumpsit for a larger sum. Whatever the facts of the plaintiff's claim, and however he may have stated his demand before commencing suit, he voluntarily chose to begin a suit upon a claim which, in amount, was within the jurisdiction of the circuit court, and therefore removable. Whether the facts would or would not support his claim as stated, or for the amount he demanded, is a matter of no moment. Jurisdiction to hear and determine that claim existed in the circuit court to which the cause was removed, and the jurisdiction thus acquired could not be defeated by any subsequent amendment of his pleadings, bill of particulars, or other form of conces sion as to any part of his demand. The case is not one of colorably enlarging a demand for the purpose of giving jurisdiction to the courts of the United States, for the plaintiff could not have entertained any such purpose.

This brings us to the merits of the case. The claim of the plaintiff was to recover compensation for services rendered to the defendants,