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the proper authority, his acts bind the prindpal, al-
though done In his own name. The only difference is
that, where the agent contracts In his own name for
an undisclosed principal, who has employed him, he
adds his own personal responsibUity to that of his
principal. As to the admissibility of parol evidence
to qualify the written contract, there is as much ob-
jection to letting it in for the purpose of enabling the
principal, not named in the contract itself, to sue, as
for the purpose of rendering him liable to be sued.
But the true rule, it is submitted, is that parol evi-
dence is admissible for the purpose of introducing a
new party, but never for discharging an apparent
party to the contract Jones v. Littledale, 6 Adol. &
£.486; Sins V. Bond, 5 Bam. A Adol. 893. It is the
constant course to admit parol evidence to show
whether the contracting party is agent or principal.
Wilson V. Hart, 7 Taunt. 296. The agent's right to sue
in his own name, where the instrument is in terms
payable to him, is the same whether it be a promis-
sory note, bill of exchange, check, bill of lading,
policy of insurance, bond, and the Uke instances. 1
Wait, Act. A Def. 279, and cases cited. In Colbum v.
PhUlips, 18 Gray, 64, it was held: **An agent may sue
on a written agreement made by him in his own name
in behalf of his principal." Rhoades v. Blacklston,
106 Mass. 884. • • • • But it is insisted for the
defendant that the plaintiff by the contract of insur-
ance represented that he was the owner of the prop-
erty, and, as he had in fact no interest In the property,
the contract is, by the terms of the policy, void. It is
true that the policy is in the name of the plaintiff.



John K. Deitz, and insures the property as his; an^ it
is also true that the policy provides that, if the prop-
erty is held in trust, or be a leasehold or other Interest
not amounting to absolute or sole ownership, it must
be so represented in the poli^ in writing; otherwise
the Insurance as to such property shaU be void* But
the statement of facts filed by the plaintiff alle^^es that
the plaintiff effected the insurance as the agent of the
wife, the said Sarah E. Deitz, and at the time in-
formed the agent of the defendant tliat the property
belonged to his wife. In Hunt v* Insurance Co., 32
Fed. Rep. 668, it was held: *'Where a company's
policies provide that 'any interest in property insured
not absolute, or that Is less than a perfect title, must
be especially represented to the company, and ex-
pressed In this policy In writing, otherwise the insur-
ance shall be void,' it is the duty of the agent who
makes the contract in behalf of the company, if he
knows that the property upon which the insurance is
desired belong to the applicant's wife, to state that
fact in the policy, and if he faUs to do so the policy
will not be invalid on that account." And in the
same case It was further held that *'a husband who
has taken out insurance as his wife's agent, upon her
property, in his own name, may sue In his own name
for her benefit in case of loss." It is a general prin-
ciple, well-settled by the authorities, Uiat agents of an
insurance company, authorized to procure applica-
tions for insurance, and to forward them to the com-
pany for acceptance, must be deemed the agents of
the company in all they do in preparing the applica-
tion, or in any representation ihey may make as to
the character or effect of the statements therein con-
tained; and when, either by bis instruction or ^Hrect
act, such agent makes out an application incorrectly,
notwithstanding all the facts are correctly stated to
him by the applicants, the error is chargeable to the
oompany. This rule is not affected or changed by a
stipulation Inserted in the policy that the acts of such
agent la making out the application shall be deemed
the acts of the insured unless written in the applica-
tion or expressed in the policy. Eausal v. Assoc, 81
Minn. 17; Woodbery v. Ins. Co. ,81 Conn. 617; Travis
v. Insurance Co. 2d W. ya.684.



The question of the police power of a State,
involviDg rights of railroad companies, came
up in a new form before the Supreme Court
of Alabama, in the case of L. & N. R. R.
Co. V. Baldwin, 5 South. Rep. 311. There
it was held that an act of the legislature of
1887, requiring all persons employed by
railroad companies, in any capacity, calling
for discrimination of color signals, to be ex-
amined by a State board of examiners as to
their ability to distinguish colors, and making
it a misdemeanor to accept or continue in
such employment without a certificate from
the examiners, is unconstitutional, as de-
priving persons of property without due
process of law, in so far as it requires the
fees for such examinations to be paid by the
railroad companies. The court is divided
on the question, Clopton, J., dissenting in an



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ezhaottive opinion/ The majority of ^e
court say :

The statute undey eefnsMeration attempts to Impose
•n the railroad^ eorpaitttloiis, withmit their oonsent,
and whether they will or not, the expense of the ex-
aminatlon of certain classes of their employees, for the
porpose of determining their fitness for the senriee.
Is this not a mere lef(lslatl?e edict that one person
(artificial) shall, withoot his consent, pay for senrices
rendered to another? This Is not '*due process of
law.** Private property shall not be taken for private
use. These are constitutional guaranties, and corpo-
rations are as much under their protection as natural
persons are. The case of Morgan v. Louisiana, 118 U.
a 46^ rightly interpreted, is not opposed to the views
expressed above, and furnishes no warrant for the
statute we at<a' Interpreting. The question in that case
arose under the faarantine laws of Louisiana, enacted
for the purpose of keeping out contagious diseases.
To allow vessels to land t»9iw Orleans, not having a
bill of health free of contagiouaov infectious diseases,
would be to greatly imperil the Inhabitants of the city.
The quarantine inspection or ezamla«tton was re-
quired primarily for the safety of the dty, httisecond-
arily and largely for the benefit of the vessel. If fttund
free from disease, she could at onoe proceed, complsis
her voyage, and come Into port The benefit of the
hwpeetlon was thus largely the vessel's, and furnished
a sufildent consideration to uphold the charge made
against her. In the case of Railway Co. v. Alabama, 9
S. C. Bep. 28, the question we have been considering
was not, and could not be, raised. Hence the remark
of the eminent Jurist who prepared the opinion In that
case Is not an authoritative adjudication. • • • The
law under consideration, passes beyond the legitimate
domain, of the police power, and reaches ground for-
bidden by the prohibitions of the constitution. It Is
not denied that the legislature has the power to regu-
late the business of common carriers engaged In run-
ning railroads in this State by a reasonable exercise of
its police power, having In view the preservation of
the public safety. Smith v. State, 85 Ala. 841 ; Smith
V. Alabama, lii U. S. 465; McDonald v. SUte, 81 Ala.
279. It may also, in the lawful exerdse of this power,
require the examination of railroad employees for
color-blindness, or other defects of vision, as done in
this case, and may require a certificate of personal
qualification for the service In question. Baldwin v.
Kouns, 81 Ala. 272. As to these propositions there Is
no dllterenoe of opinion among the members of the
court. Such a oertifioate, however, is in the nature of
a personal license to the employee. It is mainly and
primarily for his benefit; as much so as the personal
license or diploma of a lawyer, physician, druggist, or
any other person engaged In any other employment
would be. It follows his person, unless restricted,
anywhere In the territory of the sovereignty granting
it, and in whosesoever employment the license may be
engaged. It is only Incidentally beneficial to the em-
ployer, so long as the employment may subsist. It Is
not the property of the employer, but of the employee.
The debt incurred for the service rendered in making
the examination is therefore the debt of the latter, not
of the former. The liTw making power can enact no
edict by which a legal liability for the debt of one per-
son can be fastened on another without due process of
legal proceedings, according to the rules and forms
established for the protection of private rights. It
eannot take the property or money of one person, and
give it to another, by naked transfer, nor impose a
liability on ene person for the private benefit of an-



eshir; in tte absence of some relation between the
parties which brings the case within the sphere of the
police power. There Is a line where taxation may be-
come spoliation. So laws, under the guise of police
regulations, may reach the constitutional dead-line of
property confiscation; It Is impossible to forecast the
logical results which may practically fiow from the
opposite conclusion. Farmers might as well be com-
pelled to pay the licenses of commission merchants
employed In sampling their cotton; druggists, for the
diplomas of their clerks; the patrons of schools, for
certificates of qualification required for teachers;
patients, for the diplomas of doctors; or clients, for
those of lawyers. No precedent known to us among
the adjudged cases goes to this extent, or lays down
any principle which, in our opinion, would support
the constitutionality of the law under consideration,
so far as it seeks to make the railroad companies liable
for the expenses incurred in the examinaflon of em-
ployees under the provisions of the act.



The disputed question as to when the
statute of limitations begins to run against a
stockholder's liability for unpaid subscrip-
tions to capital stock of a corporation was
eonsidered by the Supreme Court of Greorgia
in the case of Glenn v. Howard, 8 S. E. Rep.
636. The case was argued some time ago,
and a dediton held up in order to get a de-
cision of the Supreme Court of the United
States upon a similar question, but the latter
has not yet been rendered. In this case, the
company, whose officers were authorized to
make calls for unpaid subscriptions, but who
had failed to do so, made an assignment for
the benefit of creditors, without empowering
the assignee to do so. The coort, some years
thereafter, durected that a call be made upon
the subscribers for their unpaid subscrip-
tions. Defendant contended that the action
was barred by the statute of limitations, and
the court below sustained this claim. The
supreme court reversed that decision, saying:

Under the facts all^^dinthe declaration, was the
causeof action barred? The Supreme Court of Vir-
ginia, in a similar suit, involving the same question
(Vanderwerken v. Glenn, 6 S. E. Rep. 806), held that
the statute of limitations did not commence to run
until after the call was made, under the decree above
referred to. The Supreme Court of Maryland, when
the question came before it, held to the same effect.
Qlenn v. Williams, 60 Md. 96. The Supreme Court of
Alabama, in a case involving the same question (Glenn
V. Semple, 80 Ala. 150), likewise held that the stotute
of limitations did not begin to run until this call was
made. Here, then, are three courts of last resort of
different States of the Union that have directly decided
the question made in the present case. We are aware
tliat there is a decision to the contrary by Judge
Brewer, of the United States circuit court (Glenn v.
Dorsheimer, Cir. Ct. Mo. 28 Fed. Bep. 685), in which it
was held that where an insolvent corporation ceases to
do business, and assigns all its property, including un-
paid stock subscriptions, to trustees for the benefit of



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its creditors, the liabilities of its stockholders at once
becomes absolute, and the statute of limitations be^ns
to run in their favor, and against such creditors and
trustees, immediately. And this is the only decision
to the contrary that we have been able to find directly
upon the question. Other cases have been referred
to by learned counsel who argued the case, wnich
seem to look in that direction— and I must say for my-
self that there is a great deal of reason in favor of the
decision of Judge Brewer; but the weight of authority
is unquestionably against the ruling of the court below
in this case. Under the act incorporating this com-
pany, a call was to be made upon the stockholders for
their unpaid subscriptions, whenever necessary, by
the president and directors of the corporation. No
such call was ever made, and in the deed of assign-
ment no authority was given to the assignee to make a
call; and it is a rule in chancery, well recognized and
uncontroverted, that wherever the subscnbers fail to
pay up their stock, and the officers of the corporation
will not make the call, a court of chancery will make
it, at the instance of any creditor, as was done in this
case. When the call was made under the decree in
this case, it became a call as effectually as if it were
made by the officers of the corporation, who were au-
thorized by the charter to make it. Until this call was
made, the statute of limitations did not begin to run.
Cited for the plaintiff in error: Glenn v. Foote, 86
Fed. Rep. 824; Glenn v. Semple, 80 Ala. 159; Glenn v.
WiUiaras, 60 Md. %; Yanderwerken v. Glenn, 6 S. E.
Rep. 806. Cited for defendant in error: Thomp.
Liab. Stockh. § 291; Glenn v. Dorsheimer, 28 Fed.
Rep. C95; Sawyer v. Hoag, 17 Wall. 610; Railroad Co.
V. Thomas, 2 Phila. 344; Eppright v. Nickerson, 78
Mo. 482; Baton v. Dana, 101 U. S. 214; Upton v.
Tribilcock, 91 U. S. 46; Sanger v. Upton, Id. 66; Web-
ster v. Upton, Id* 66; Terry v. Anderson, 95 U. S. 680;
Taylor v. Holmes, 127 U. S. 493.



The Supreme Court of California, in
Marriner v. DenDison, 20 Pac. Rep. 386, de-
cide that a complaint in an action for breach
of a contract to convey real property, show-
ing the contract to be for the conveyance of
lots of certain numbers in defendant's sub-
division of the M tract, but not alleging any
extrinsic facts by which the lots may be
identified, is bad. The description in such
contract being insufficient, the memorandum
of the contract is inadmissible in evidence.
The court says :

The real estate is described in the agreement as lots
1, 2, 88, 84, 60, and 69, in his (defendant's) subdivision
of the Magee tract. In what city, county. State, or
country the land is situated does not appear. If the
instrument were one attempting to convey title to
property its insufficiency ^ould be apparent. But
the rule as to the particularity of description required
in executory contracts to convey is extremely liberal
in favor of their sufficiency. The rule is that where
the description, so far as It goes, is consistent, but
does not appear to be complete, it may be completed
by extrinsic parol evidence, provided a new descrip-
tion is not introduced into the body of the contract,
and the complaint must contain the averments of such
extrinsic matter as may be necessary to render the de-
scription complete. Stanley v. Green, 12 Cal. 162;
Lick v. O'Donnell, 8 Cal. 68; Fry, Spec. Perf. 169 et



seq.; Torr v. Torr, 20 Ind. 118; Colerick v. Hoopet, 3
Ind. 316; Baldwin v.Kerlln, 46 Ind. 426; Browne, St.
Frauds, § 885; McConnell v. Brillhart, 17 III. 860. But
parol evidence cannot be heard to furnish a deserip-
tion. The only pwpose for which such evidence can
be heard Is to apply the description given to the sub-
ject-matter. Thus, if the description were "my"
farm in Los Anj^eles county, an allegation in the com-
plaint that I owned but one farm in said county, and
where it was situated, would apply the description to
the proper subject-matter, and render It certain. But
If the description were "a" farm in Los Angeles
county, it could not be rendered certain by the allega-
tion of such extrinsic matter. Browne, St. Frauds, f
896; Baldwin v. Kerlin, 46 Ind. 426, 481. It Is not suf-
ficient to allege that by the imperfect description given
in the contract the parties Intended to convey certain
property. Browne, St. Frauds; Baldwin v. Kerlin,
supra; Ryan v. Davis, 6 Pao. Bep. 389; Eggleston v.
Wagner, 46 Mich. 610; Bowers v. Andrews, 52 Miss.
596; King v. Wood, 7 Mo. 889; Hudson v. King, 2
Heisk. 560, 572; Clark v. Chamberlin, 112 Mass. 19;
Gigos V. Cochran, 54 Ind. 598; Newman v. Perrill, 78
Ind. 158; FerHs v. Irving, 28 Cal. 645; Rich-
ards V. Snider, 8 Pac. Rep. 178. It is
not enough, as we have said, to allege that
by such incomplete description the parties Intended to
convey a certain tract of land. Such extrinsic facts
must be alleged as will, in connection with such de-
scription, show that the particular piece of land was
intended. If the facts alleged, together with the de-
scription set out, are not sufficient to identify the
land, the contract must be held to be void for uncer-
tainty. ♦ ♦ ♦ ♦ Applying these well-established
rules to the case before us, we are of the opinion that,
properly aided by the allegation of extrinsic facts, the
description in the contract might have been sufficient.
If, for example, it had been alleged that the defend-
ant was at the time of the contract the owner of lots 1,
2, 88, 84, 60, and 59, in his (defendant's) subdivision
of the Magee tract, situate in lot 10, block O, of the
San Pasqual tract, in the county of Los Angeles, SUte
of California, according to the map of said subdivision,
on record in Book 12, page 29, of Miscellaneous Rec-
ords in the office of the recorder of said county, and
upon which map said lots are delineated ; that said
lots were the only lots of said numbers, of any sub-
division of defendant in any tract of land known as
the **Magee Tract;" that said lots were examined by
the parties hereto, before making flaid contract, and
were verbally agreed upon as the ones for which the
said contract was to be executed, and were the lots
and property referred to therein, and the said subdi-
vision was the only one then owned by the defendant,
or known or designated as the **Dennlson Subdivision
of the Magee Tract," —we think the complaint would
have been sufficient in this respect. But the com-
plaint under consideration contains no such allega-
tions, or any others tending to aid the imperfect de-
scription set out in the contract. It simply alleges
that, by the description given, it was the intention of
the parties that the tracts of land specifically described
in the complaint should be conveyed. But we have
shown that this is not enough. The allegation that
the parties intended to convey certain property Is the
allegation of a mere conclusion. Such intention must
appear, as we have said, from the description given,
and such extrinsic facts as are alleged In aid of It. As
the description, standing alone, is admittedly insuffi-
cient, and no faets in aid of it are alleged, the eom-
plaint must be held to be bad for thatreason.

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299



REMOVAL OF CAUSES UNDER THE ACT
OF 1887.



On the dd of March, 1887, congress passed
an act to determine the jurisdiction of the
circuit courts of the United States and to
regulate the right of removing causes to them
from the State courts. This right had al-
ready been made the subject of several stat-
utes, and the law, as interpreted by numerous
and well-considered judgments of the courts,
had come to b3 regarded as definitely settled
and easily understood. The new act, how-
ever, in attempting to remodel the whole
scheme of the jurisdiction of the federal
courts, has introduced the most radical
changes in the subject of the removal of
causes, and in consequence of an unfortunate
lack of perspicuity, it renders necessary a
re- consideration of the whole subject, in order
to determine the rights of litigants, and
throws upon the courts the ungrateful task
of searching out the meaning of the legisla-
tors from a confused and perplexing conge-
ries of statutory directions. Indeed, as first
officially promulgated, the act was seen to
abound in errors of grammar and orthog-
raphy, even to the extent of making some
of its sentences absolutely nonsensical.
This was found to be due to a faulty enroll-
ment of the bill, and on August 13, 1888, an
act was passed ^^to correct the enrollment"
of the act of 1887, whereby the latter statute
was re-enacted in correct and (comparatively)
intelligible language. This, however, does
not go far enough to remove the grave doubts
and questions which have arisen as to the
meaning of some of its provisions and their
proper application by the courts. It is pro-
posed, in this article, to notice briefly the
more important changes introduced by the
act of 1887, as exemplified and explained by
the decisions.

Policy of the Act. — In form, the act of 1887
is an amendment to the act of March 3, 1875,
upon the same subject, and all the important
provisions of the latter statute, so far as con-
cerns the right of removal, are superseded by
the substitution of new sections, so that prac-
tically the act of 1875 goes out of existence
and that of 1887 takes its place. It is very
apparent that the design of the act of 1887 is
to restrict the right of removal within much
narrower limits than before existed. It is



not by any means an enlarging statute, but
its policy of restriction is manifested both by
the additional barriers which it raises against
removals and the increased stringency of the
conditions imposed and the procedure pre-
scribed.^ Indeed, it is held that this inten-
tion is so clear that the act must be strictly
construed against any one seeking to evade
the additional requirements which it puts
upon the right of removal. ^

StattUes Repealed, — ^The statutes upon the
subject of removal of causes which have been
important and controlling, and of general
application, are the act of 1789 (Judiciary
Act) which was repealed by the act of 1875 ;
the act of 1866, also repealed by that of 1875 ;
the act of 1867 ('^prejudice and local influ-
ence act") ; and that of 1875. In regard to
the prejudice and local influence act of 1867,
it was held to remain in force and unrepealed
by the statute of 1875.^ But it is much more
difficult to determine whether it stands un-
touched by the enactment of 1887, or is
superseded by the corresponding provisions
of the last-named law. Without going into
a discussion of the question here, it may be
stated that the weight of authority, so far as
yet given, decidedly inclines to the view that
the provisions of the earlier act are incon-
sistent with those of the later and it is there-
fore superseded.^ If we accept this view, it
follows that the act of 1887 stands as the
only statute now in force on the subject of
the removal of causes, except some minor
provisions not of general applicability-^

What Suits Removable, — It may be stated
in the most general way that the same actions



1 Wolf V. Chisolm, aO Fed. Rep. 881, where Wallace,
J., said *Mt was the obvious purpose of the act of March
8, 1887, to restrict the right of removal of an action
from a State court to the circuit court, as it then ex-
isted; the right is restricted as to the parties who can
exercise it, as to the classes of actions in which it can
be exercised, and as to the time at which an election
to exercise the privilege must be made."

« Dwyer v. Peshall, 82 Fed. Kep. 497.

s Hess v. Reynolds, 118 U. S. 78; Dillon on Removal
of Causes, § 246.

4 Whelan v. New York, etc. R. R., 85 Fed. Rep. 849;
Southworth v. Reid, 86 Id. 451 ; Short v. Chicago, etc.
R. R , 84 Id. 225. Compare Fisk v. Henarie, 82 Id. 417;
8. c, 85 Id. 280; Hills v. Richmond & D. R. R., 88 Id.
81.

A The act of 1887 expressly excepts from its repealing
clause S§ 641, 642, 648, and 722, and title 24, of the Re-
vised Statutes, and also the act of March 1, 1875.
These relate to **civil rights," their protection and
enforcement, and to suits against revenue officers.



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are now remoyable as heretofore, except that
the amount in controversy must exceed
$2,000, instead of $500, that only a non-resi-
dent defendant can remove, instead of either
party, that the time within which the privi-
lege must be claimed is much restricted, and



Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 80 of 151)