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first part the cash payment of $15,000, which shall have been paid under this contract, together with the accumulated interest thereon at said Broadway Savings & Loan Company.” It is to be observed of this provision that the right to rescind plainly depended on substantial defects in title, and failure or inability in Stafford on request to correct them. But the only complaint made in respect of title in the Ryan letter of July 14th, was the absence of an “abstract of title that will, enable them (purchasers' attorneys) to pass upon the title to the lands. * * * * The implication plainly is that there was some sort of an abstract submitted, but that it was not complete. This was not showing that there was in reality any defect in title. It was, at most, showing only that the means for determining that question were not present. Nor was it showing that the seller was unable to procure and submit a proper abstract. It did not even suggest, much less point out, omissions or mistakes made in the instrument called an abstract. Where the right of rescission is expressly limited, as here, to defects of title that the seller either will not or cannot on request correct, it is not easy to perceive how the omission in the first instance to furnish all the means of ascertainment of title was a sufficient warrant for the exercise of the reserved right of rescission. The only other right expressly reserved to the purchasers to rescind is found in the following portion of the contract: “And it is mutually agreed between the parties that, if the said first party shall be unable to procure the transfer of the concessions as above stated, then and in that event the party of the second part shall have the right, at their election, signified in writing, to rescind this contract; and, in such event, the down payment of fifteen thousand dollars provided for hereunder, with the accumulated interest thereon, shall be returned to the party of the second

part, and both of the parties hereto shall be relieved from further obligations under this contract.”

It will be noticed that this right to rescind is limited to inability “to procure the transfer of the concessions as above stated.” The words “as above stated” required the seller “to arrange an agreement with the national government of Mexico for the transfer of the concessions.” The complaint made in the letter of July 14, 1902, in regard to the assignment of concessions, was that it “did not comply with the terms of the aforesaid contract.” Here again is a failure to specify. Nothing like inability in Stafford to procure transfer is suggested. The most that can be said is that the parties differed in opinion as to the form of the agreement.

It is true that Stafford had agreed in the sixth paragraph of the contract to arrange an agreement on or before the 1st day of July, 1902, with the Mexican government for transfer of the concessions; but it is not claimed that the time thus stated was made of the essence of the contract. There was no such limitation concerning the furnishing of a deed conveying the land. The concession could be of no possible advantage unless title to the land could be conveyed. Indeed, it is provided in the eighth paragraph of the contract that the purchasers should secure the right to hold lands in Mexico and be ready “to accept a conveyance of said lands and concessions from the party

of the first part when he is in a position to make same under the terms of the contract." The plain import of this is that the delivery of the conveyance and of the transfer should be concurrent acts.

Moreover, it appears in a letter of earlier date (May 31, 1902) from McPherson to Stafford that Stafford had on the 21st of that month notified Carter and Ryan “to be in the City of Mexico on June 15th prepared to receive the deed and concessions as provided in your contract of January 4 with them.” But McPherson thought this unnecessary, and requested completed abstracts to be submitted to him, explaining that their attorneys would require 30 days, and “possibly much longer," to look into the title.

It is worthy of notice, too, that just five days prior to the date of the Ryan letter demanding return of the deposit, counsel of the purchasers, to whom the papers had been referred, had in a letter to McPherson (dated July 9th) advised him that they had examined all the papers turned over to them "relating to the title,” and that there were no abstracts of title among them, but that there was a report of certain named Mexican counsel concerning the title. Nothing, however, is said about any paper relating to the concessions. The letter concluded


“It will be necessary for Mr. Stafford to furnish abstracts of title as provided in paragraph nine of the agreement entered into January 4, 1902. Un. til this is done, no examination can be made of the title."

The inference to be drawn from that letter is that there was reason to call for abstracts of title, but there is nothing to suggest rescission of the contract.

The letters cannot be misunderstood. The purchasers did not observe the contract when they demanded return of the $15,000. Then, upon Stafford's request of McPherson of July 19th to tell him frankly what his position was, he was told by McPherson's answer of July 21st that the Ryan letter “is final.” Plainly this evidence did not even tend to prove the breach alleged against Stafford, and the claim for damages based upon any such breach was rightly denied for that reason. Sprague v. Booth, [1909) A. C: 576. Indeed, if any breach was shown, it was committed by Carter and Ryan, and not by Stafford; and in view of the action taken by Stafford in response to the final demand made for the return of the deposit, the action of the cattle company would seem to have been altogether misconceived. At the dates of the Ryan and McPherson letters, the contract was executory. Insistence upon return of the deposit, made in anticipation of the time of performance, was totally inconsistent with further progress under the contract. It was tantamount to a distinct refusal to perform. Stafford was entitled to treat the contract as renounced by the purchasers. Weber v. Grand Lodge of Kentucky, F. & A. M., 169 Fed. 522, 533, 95 C. C. A. 20; Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953; Hockster v. De La Tour, 2 El. & Bl. 678; In re Neff, 157 Fed. 57, 60, 84 C. C. A. 561. Whether Stafford could also rightfully, according to his avowed purpose, retain the $15,000 is another matter.

We have not found it necessary to consider the real character of the instrument called an abstract of title. The same is true as to the form

of agreement concerning transfer of the concessions. Nor have we thought it important to determine whether the contract required the deed of conveyance to contain the name of Stafford as grantor, instead of the Palomas Land & Cattle Company, the apparent purchaser at foreclosure sale. The points urged touching the rejection of evidence do not seem to us to have been relevant to the case as it stood after the breach was shown. After the evidence above considered had been presented at the trial, the court below asked counsel for plaintiff whether he intended by his “future testimony to contradict the testimony” he had “already offered,” to which counsel answered: “I certainly do not.” We think this answer was correct, for we have found no evidence that would tend to warrant the demand and insistence made to return the deposit or to show that the demand was retracted. Hence the action of the purchasers seems to us to have been none the less a breach because of anything found in the rejected evidence. We hardly need say that plaintiff is bound by the acts of its assignors. The assignments made to it by Carter and Ryan did not occur until 1905, a period of more than three years after the contract had been repudiated. But, without stating upon what theory recovery of the deposit could be had in this action, it is urged that Stafford cannot have the land and the deposit too. This is based upon a similar statement made by Baron Parke in Laird v. Pim, 7 M. & W. 472, 477. But that case did not present the question with which we are confronted. There the vendor, not the vendees, brought the action. The suit was to recover the purchase price and the interest, without tender of any deed of conveyance. Recovery was allowed for only the interest and the value of some clay which the purchasers had removed from the land. The remark of Baron Parke was made in comment upon the claim that the vendor was entitled to recover the principal of the purchase price, as well as the interest, although title to the land had not passed or even been tendered. The difficulty in the present action is that the right of recovery of the $15,000 is based on an express contractual promise to return the money and interest. This promise, upon the hypothesis of the present action, was made operative through the purchasers' rightful exercise of the reserved privilege of rescinding in consequence of a breach of Stafford. But, when it is found that Carter and Ryan committed the breach, no contractual promise to return the money with interest can be said to exist. The effect then of plaintiff's claim in argument is to change the action from an affirmance of the contract to one in disaffirmance of it. This would convert the action into one based solely upon a constructive contract, and consequently upon a promise not made by defendants but imposed by law, or by natural equity, to prevent Stafford from “enriching himself unjustly at the expense of" his vendees. Keener on Quasi Contracts, 16, 24; Hertzog v. Hertzog, 29 Pa. 465; Railway Co. v. Gaffney, 65 Ohio St. 104, 115, 61 N. E. 152; People ex rel. Dusenbery v. Speir, 77 N. Y. 144, 150, 151; or, as said by Judge Lurton in Michigan Yacht & Power Co. v. Busch, 143 Fed. 929, 934, 75 C. C. A. 109 (accordant with Judge Severens in Cherry Valley Iron Works v. Florence Iron River Co., 64 Fed. 569, 574, 12 C. C. A. 306):

"If the defendants have obtained money which ex æquo et bono they ought not to withhold from plaintiff, they should refund, and the law implies a promise to that effect.”

It is manifest that when the court below found that plaintiff, instead of defendants, was chargeable with breach of the contract, there was no way to obtain relief as to the deposit unless it could be secured through some form of amendment. But whether a complete change in cause of action was permissible through amendment cannot be considered. No suggestion in this regard has been made by counsel, and the case was brought and purposely tried below on the hypothesis of express contract and its breach. No request was made at the trial to amend or change the form of action, and the court heard and disposed of the case in the original form. Argument, therefore, in support of a claim based upon another and different scheme of action, is unavailing. L. & N. R. R. Co. v. Womack (C. C. A., 6th Circuit) 173 Fed. 752, 97 C. C. A. 559. Whatever rights plaintiff may have respecting the deposit, they cannot be determined in this action.

Hence we are bound to overrule the assignments of error, and affirm the judgment

(Circuit Court of Appeals, Fifth Circuit. February 8, 1910.)

No. 1,984.

Plaintiff's intestate, who was an experienced miner, while working with a helper in a room in defendant's coal mine was killed by the falling of the roof. It was the duty of defendant to furnish props to support the roof, and of deceased to set them up as the work progressed and the end of the room was extended. Two or three days before his death, he had asked defendant's superintendent or bank boss for props for use in his room, but they were not furnished; the boss telling him to keep on at work, that the roof was all right, and that he would send him props soon. Deceased continued his work, and at the time the roof fell had extended the room for 20 or 30 feet beyond the last props, which rendered the place where he was working dangerous, as he knew. On the morning of his death, he had examined the roof and then continued his work. Held, that in so doing with full knowledge of the conditions he assumed the risk, and that defendant, although negligent, could not be held liable for his death.

(Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 638647; Dec. Dig. & 221.*

Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]

Shelby, Circuit Judge, dissenting. In Error to the Circuit Court of the United States for the Northern District of Alabama.

Action by Leon Thomasino, administrator, against the Republic Iron & Steel Company. Judgment for plaintiff, and defendant brings error.


*For other cases see same topic & & NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

| Rehearing denied March 22, 1910. 176 F.-4

This action was brought by Leon Thomasino, hereinafter styled “plaintiff,” as administrator of the estate of Tony Thomasino, against the Republic Iron & Steel Company, hereinafter styled “defendant,” claiming $20,000 damages for the killing of plaintiff's intestate. The complaint charges that the defendant was operating a coal mine at or near Sayreton, Jefferson county, Ala., and that on August 16, 1905, the said Tony Thomasino was in the employment of the defendant as a coal miner, and, while so engaged in and about the said service of the business of the defendant in said mine, a part of the roof or top of the said mine fell upon said Tony Thomasino, and as a proximate consequence thereof he was so injured that he died. In the first count of the complaint it is charged that the death was caused by reason of a defect in the condition of the ways, works, and machinery or plant used in connection with the said business, to wit, the roof or top of said mine was not sufficiently propped to prevent its falling, which defect arose from or had not been discovered or remedied, owing to the negligence of the defendant or of some person in the service or employment of the defendant intrusted with the duty of seeing that the ways, works, and machinery or plant were in proper condition. In the second count it is charged that the death was the proximate consequence of the negligence of a person in the service or employment and intrusted by the defendant with superintendence while in the exercise of such superintendence, to wit, one W. M. Mason. And in the third count the death is charged as occurring through the proximate cause of the negligence of a person in the employment of the defendant with superintendence whilst in the exercise of such superintendence, to wit, some person unknown. The fourth count is very similar to the second, but charges that said Mason negligently failed to sufficiently prop or secure from falling the said roof or part thereof which fell upon and killed the said intestate. The fifth count is similar to the third, but more specific in charging that some unknown person intrusted with superintendence negligently failed to sufficiently prop or secure from falling said roof or part thereof. The sixth count charges that the death was the proximate consequence of the negligence of said Mason intrusted by the defendant with and exercising superintendence in failing to furnish plaintiff's intestate with sufficient props to secure said roof. And the seventh is similar to the sixth, except it varies in charging that the negligence of an unknown person in the service or employment of the defendant charged with superintendence negligently failed to furnish plaintiff's intestate at his place of work a sufficient number of props to secure said roof or part thereof, etc. The defendant answered with a plea of not guilty; that it was the duty of plaintiff's intestate to keep his room properly timbered or propped; that he negligently failed to timber or prop said room, in that he placed the timbers or props of said room at too great a distance apart, thereby rendering said roof likely to fall; that his negligence in this regard contributed to and was the proximate cause of his death; that the fall of said roof was caused by the fact that the timbers by which the same was propped were placed at a distance of 16 feet from the face of said mine rendering the roof thereby likely to fall ; that the timbering of the said room in this manner was unsafe and dangerous, and such danger was obvious and apparent to plaintiff's intestate, and, notwithstanding such obvious and apparent danger, plaintiff's intestate undertook to mine in said room with the roof thereof timbered in such manner, and thereby assumed the risk of the roof falling upon him; that plaintiff's intestate was killed by the roof falling upon him because it had been improperly propped or supported by timbers; that plaintiff's intestate had been cautioned by the defendant as to the necessity of having any such props; that, notwithstanding such caution and warning, he continued to work in said mine while such props or timbers were in there at such distance, and thereby he assumed the risk of said roof falling; and, finally, that plaintiff's intestate was aware that the roof was not propped or supported by props and was rendered unsafe, thereby and notwithstanding said knowledge plaintiff's intestate continued to mine under said roof, whereby and as a proximate consequence of which plaintiff's intestate was killed.

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