198
FEDERAL REPORTER,
vol. 49.
were taken urider color. of and the circrlihlourt therefore acquired jurisdiction by :of the seizure to dequestions'concerningtbe, property,and should have done compl:etejusticebetween the partJies;byenforcing their equitable rights. So here,Ithink that the notes and mortgage in question; having been taken possession of by the receiver under the order of this court purporting to authorjze him to take possession of all of the property of the defendant cOmpany; were taken by that officer under color of authority, and the court therefore acquitTed jurisdiction over it; and, all the parties interested being before the court as parties to the suit, it became the dutyofthecourt to dispose of the property in acoordance with theirequitable.rights. Those rights are fixed by the orderof the court, entered by theconsflnt of all of the parties in interest, including the petitioners, confirming the report ofthe master, which ascertained the amounts and order of priority of the claims or the respective parties. The notes and mortgage now in question not having been embraced by the decree of sale already made,there must bea supplemental decree directing a sale of the notes and mortgage, and a disposition of the proceeds thereof in accordance with the rights of the respective parties, as fixed by the ap;reed order and ,decree. In respect to the stock subscriptions, referred to in the supplemental petition, nothing more need be said' than that it is a matter over which this' court never acquired any jurisdiotion, and with which it is therefore in no way concerned. Petitions denied, and counsel will prepare'; a supplemental decree in accordance with the views above expre&:ied.
GAIa". TcTTLE et al. (oCrouu Court,
w. D. Me-IOU", B. D.
February S. 1892.)
L
The grantOr In a deed of trust, made to secure a debt, became involved in trouble, and ded the state. The oreditor secured induced the trustee to sell, and the property was purchased by defendants,bringing enough to pay the creditor and leave a surplus to the grantor.. Apprehensive that they would be made to pay this surplus to grantor's other creditors, defendants, who had received a conveyance from the trustee, reconveyed the to the trustee, procured him to resell the land, and at such sale repurchased the land for a tride, and received a second deed from the trustee. HeW, in an action by the aJtainst defendants to recover the surplus On the first sale,. that the second sale was a nullity, and that plaintiff was entitled to recover the surplus. , 8AJ,{B-CONTEMPORANIIOUS PAROL· AGRImMENT.
TO BBOl1BB
OF DBBTOR.
lL
Defendants alleged that plaintiff had directed the trustel:! to apply any surplUS remaining after satisfaction of the debt secured to the payment of plaintiff's other Indebtedness. There was no evidence to support the contention,except an admisQccurrlng in an imputed conversation three YElars prior to the sale. sion of Beld, tha1;suchalleged dIrection to trustee, purporting to have been made contemporaneously with the deed of trust, and giving a different direction to the fund tban that tW:lrein prescribed, was not admissible in evidence· OF OJ' TRUSTEE.
..
Tbe having provided tha.t any suchsurpllls sjlOuld go to plaintlff,defendantapurobased witb noticie of such provision, and acted at their perU in rely-
GAlR '11. TUTTLE.
199
ing on the representations of the trustee that sUch surplus should be applied to the satisfaction of certain debts of plaintiff in which defendants were interested, to the exclusion of other creditors of plaintiff. .. SAME-RATIFIOATION BY GJU.NTOB.
Though defendants have been induced to buy the property by suob repre. sentatioDs of the trustee, the same being beyond the scope ofnis authority, plaintift' could not by receiving or suing for such surplus, without knowledge of the departure of the trustee, be held to thereby ratify the conduct of the trustee in the premises. The grantor, and not the trustee in a deed of trust, is the proper person to maintain an action for the recovery of a surplus due to the grantor after satisfaction of the debt secured.
I.
SAME-ACTION TO RECOVER SURPLVS-PARTIBS.
At Law. Action by William Gair against Seth Tuttle and others to recover a surplus due to plaintiff as grantor in a deed of trust to secure debts, remaining after a sale of the trust subject, which was land. STATEMENT BY PHILIPS, DISTRICT JUDGE.
One Davis, being the owner of the land in question, mortgaged it to the Lombard lnvestmert Company to secure a debt of, say, about $2,500. He gave two mortgages,-one for the principal· sum, and one for the annually accruing interest. Afterwards he sold the land to the plaintiff Gair for over 85;000. In payment therefor, Gair executed his note to Davis for, say, $2,800, and assumed the payment of the debt of Davis to the Lombard Investment Company. To secure the payment of the note.to Davis he executed to Davis a deed of. trust on the land, in which trust-deed the payment of the debt to Lombard was assumed. Gair made payments to Davis· until the amount remaining on his note was about $1,800. Gair got into some trouble, and left the state, going to Texas. Thereupon Davis, who had transferred his note on Gair, persuaded the trustee, Morris, to advertise the land for sale under his deed of trust. He worked up a "syndicate." composed of the defendants, to purchase the land at this sale; who were persuaded to bid it in at the sum of 84,350, sufficient to payoff the Gair note to Davis, and- to meet the amounts owing to Lombard. At the conclusion of the sale Morris executed and delivered to the purchasers a deed, as trustee, conveying to them the land. This deed the purchasers accepted, and had recorded. On threats made by '3ome of Gair's creditors and others to demand the surplus arising from this sale, after the satisfaction of Davis' debt, the purchasers became alarmed, and. on the advice of counsel, undertook to reconvey the property back to the trustee, and induced him to aocept a quitclaim deed from them, and record it; and thereupon the trustee, at the instance of the purchasers and Davis, readvertised and resold the land. At this last sale the defendants again became the purchasers, at the sum of $100, and received a second deed from the trustee. Gait brings this action to recover from the purchasers the surplus money remaining after the satisfaction of the Davis debt and the costs of the first . forecl()sure sale. The issues and other facts sufficiently appear from the opinion. Ben U. Ma88eJy and Sebree & Tatlow, for plaintiff. P. J. De Li,MJI and Rathburn. «Son, for defendants.
200
FEDERA.L
District Judge, (after 8lalingtJie fncl8.) By the express proVisions of the mortgage made by Gair to Morris, trustee, the proceeds arisin&from the foreclosure sale to be applied-,-Pir8t, to the payment of the costs of the sale and expenses attending the execution of the trust; 8econd, to the satisfaction of the debt from Gair to Davis; and, third, the surplus, if aIlY, was to go to the mortgagor, Gair. This would have been so by operation of law. When the trustee executed and de. liYeredto the purchasers the deed, and they accepted and put the same to record, their obligation at law was complete to immediately pay to the tru!,tee the whole sum bid by them. In sueh case the purchasers were not rElsponsible for the proper application of the purchase money. The title in them was complete, and the application of the fund devolved upon trustee, who, had the mouey been paid to him, would alone have been answerable to the cestui que truat and the mortgagor for the proper,distribution thereof. Rev. St. 1889, § 8691; Barnard v. Duncan, J38,Mo. 182. The sale first made by the trustee was the executionof the special power conferred upon him by the trust instrument; and, the power having been once regularly exercised and fully accomplished. by the execution and delivery of the deed to the purchasers, it was exhausted. The second sale by the trustee 8ua sponte was therefore a nullity. The defendants took no title thereunder. 2 Jones, Mortg. § 1889; KoeBter v. Burke, 81 Ill. 436. The attempted reconveyance of the property by the purchasers back to the trustee was an unprecedented performance; and; in so far as the rights of the mortgagor in this action are concerned, may be wholly disregarded. ,The mortgagor was in no senSe a;pal'ty; to this transaction. It isi dimportant in the further discussion of the questions' involved to observe what: the real issues are in this' case. There is no foundation for any claim of fraud and,deceit. Theallswer tenders no such issue. On thecontrnry, it alleges authority in, the trustee to make the assurances imputed to him. Therefore,having represented the .truth, it would be utterly inconsistent and contradictory to claim fraud and deceit on. the part of the trustee ,as ground of relief. The case must fore ,be considered and determined upon' the logicof the position assutneddll'l'theanswer. Ha'rri8v. Railroad Co.· 37 Mo. 310; Newhamv. Klmlon, 79 Mo. 385jBank V. Arin8f:rong, 62 Mo. 65; Wade v. Hardy, 75 :M.o. 399. If in fact the trustee did have authority, from the mortgagor to ·selland apply thesurphts money tathe payment of the prior mortgages, the plaintiff would be bound, thereby, and the defense of the fendants at law would be :complete. Let us examine this issue of fact. This claimeda'Qithorization rests entirely in, parol, and is sought to be drown from an, alleged conversation had with plaintiff (j.t the time of the execution of the deed oftrust. The essence of the testimony respecting this issue is that, time ofthedrawingup.ofthe trust instrument by Morris, the trustee, when the provision was read to Gair stating that the deed theretofor¢, givf:}oby Davis to the of trust was subject to,·tHe Lombard Investment Company" Gair askild;,wha\ Use" t.here. .was in that.
GAIR V. TUTTLE.
201
Morris said it was to make Davis safe, and that was the intention. Gair observed that was useless; that if he could not pay for the place he wanted, in case the sale went on, to pay both of them; that he did not want Davis to lose a cent by him. This imputed conversation was nearly three years prior to the foreClosure sale. Such testimony is, at least, calculated, under the circumstances of this case, to excite some suspicion. Davis, Morris, and these defendants seem to have been consult" iug together before the sale as to how the purchasers could get the land under the sale, and at the same time protect Davis against his debt to the Lomoard Company, and secure the debt from Gair to him. Gair, it appears, had gotten into some sort of trouble and left the state, leaving the farm'in possession of a tenant. Ftom" the atmo3phere" surrounding the transaction, it is rlifficultto escape the impression that these parties regarded Gair as civilly dead, and that they would administer his estate after the fashion of an administrator de son tort. The defendaritTuttle is the father-in-law of Davis. Davis was the moving spirit in bringing about the sale. It was at his instance that the trustee advertised. He worked up,l,'the syndicate" to purchase the land,and the very tlonofhi's'activity was to secure a bid sufficient to payoff all the debts in which he was directly and indirectly concerned. As Gait bttdgone to Texas under a cloud, it was supposed, perhaps, that he' would ,riot return or appear to interrupt the programme. The,trustee,seemingIJi forgetting that, in exercising his duties under the trust-deed, he is'espe.! cially a trustee for the debtor, and should pursue such course as is most advantageous to the debtor, (Chesley v. Chesley, 49 Mo. 540-542,) evi" dentlylent himself to the promotionol" the Davis scheme, and no doubt did agree to apply the proceeds of the sale as desired by Davis. stead of requiring the purchasers to pay over the purchase money at the time of the delivery of the deed, he permitted them to take iq and ,put it to record without having received all of the money. When other creditors of Gair interposed to reach the surplus fund, and recognizing the fact that, under the express terms of the trust-deed, this surplus belonged to Gair, recourse was had to the only apparent mode of escape from the dilemma by looking for Iluthority irom Gair outsille of the deed itself. It was discovered, as they supposed, in the conversation resurrected after a three-years sleep. At most, the conversation relied upon was casual :l.Ud incidental. It was a mere expression of what ,Gair expected; a mere commendation of his honest purpose to see that Davis did not lose anything by the credit given him. It was in no degree of the character of a direction to the trustee to dE}part from tlJe plainly expressed provisions of the solemn power of attorney then being executed. If such was the understanding of the parties at the time of the execution of the written instrument l why was it not incorporated therein, which itself defined and qualified the powers and duties of the trustee? It is nothing more nor less thall a bald attempt to ingraft by parol a clause upon the deed of trust enlarging the powers of the trustee. and giving a different direction to the fund than that prescribed by the written instrnment. Such verbal statements being marle contemporane-
202
ously with the ,execution of the deed appointing the trustee amI defining his powers, they neither qualify, enlarge, nor chfl,Ilge the trustee's authority. Walker v.FJpgler,30 Mo.130jWoodward McGat'1Jh. 8 Mo. 161; Morgan v.PQ'rler,103Mo.135j S. W. Rep. 289; Tracy v. IronWorks Co., 16 S. W. Rep. 203. Court& cannot too rigidly adhere to the rule holding such trusteeato the letter and spirit of the written power of attorney., It is certain and definite. It guards and protects the rights()f themortgllgor the treachery of hqman memory to the cestui and the miscoIld1;lct of the trustee. ' It is a source of que trUBt, it. is the sqrest protection and guamntyto the purchaser ,unde.- fpreqlq,u,re. They have the record before them.-the open, published. in solemn form, of the directionand of both debtor and creditor. FOfiluchpurpose the deed is written and " ' ", nor law: (l.1;1thority from the The .trllstee,then, haviJlg'neither surplps fund ar,ising .from the, 814eto other sources mortgagor to, than the m,QUgllgor, the fina,J; contention oldefendants is that, tAe; havingrepr,esented' to the pUrQhaser that he bad authorityW ,sell, an4 apply to, payment of anteeedentmortgagesi ..lid so apply saJlle, and they ,paving bid, the ,8um they qid jQ,n, .' that, tpeQry, the, mortgagor is boQ.tW 'Mlereby ,in this acti()D. The fOl'thi$ proposition is ,the recognized rule oflaw applicabletopriJ;lqipal andagEmt, that where a person represtlnts withauthor.itytQact in a ltiD)self to given matter in: a particular 'Yay" although he Irul.Y have no such principal take the fruit agencyandllouthority .yel if the oithe assumed or seelt of the benefits arising from the mil!representation, he. ihe act of the imputed agent, and will be estopped frptQ contrarYias "he who would himself of the ,adVantages arising from .theact 'of another iphiB behalf must also llSBumetheresponsibilities,,'J As this raises tlle question of r!ltification, it might, be" a sufficient.. a:u:swer to say that no such issue is tendered by the answer; as, undel' the code ofpleading ipthis state"a must be pleaded to avail the party. Bank v. Armatrong, 62 Mo. 59; Wade v. FJard,y; 75 Mo. 399.' ButH it be conqeded that defendants are in an attitude..to avail, themselves of this deit i" aD interesting questionas to: whether "the foregoing rule has any properlliPplication to this case." It,, isa .t;nlsqQnception to regard :¥,orris in the ljght of one acting Jllerely under color of an agp.ncy. In no senile didheQ¢cuPY the position of a.. person in possession, of another's property, om,rtng it for sale on false assurances of ownership or authorsell. ' Nor was his attitude that of one falaelYI*,ssuming to have Jiuthority. to djapQ&eofanother's propel'ty,. and" making false assurances reapectingthe. In such C8flEl;thfUrue owner or principal.col:11d OJ,lly of the ,acton 'the assumption, that the agent's act " , I' ,J3llt tpei PIlSl!' at bar is where was the appointed bydeoo,.d\llyrecorded, known to Jhosedealing"with: him, wherein his
GAIR
TUTTLE.
203
powers and duties were clearly defined. All those who dealt with him had, as a matter of law, notice of the nature and extent of this trusteeship. "Every such instrument in writing, certified and recorded in the manner heretofore prescribed, shall, from the time of filing the same with the recorder for record, impart notice to 'all persons of the contents thereof; and all subsequent purchasers and mortgagees shall be deemed, in law and equity, to purchase with notice." Section 2419, Rev. St. Mo. 1889. As said by. the court in Barnard v. Duncan, 38 Mo. 181183: "The sale is not made by the original owners. It was a sale by the trustee in his fiduciary capacity only. The trustee undertakes only for the execntion of the power that is given him, and be is only authorized to sell and convey the title which is vested in him by the deed. ** * The case belongs to the of fidnciary vendors, as executors, administrators, ,guardians, mortgagf'es, al!signees for the benefit of creditors,and other like trustees, who have no other interest in the property than a legal title with power to sell and convey. * * * They are mere agellts to sell and convey, and tru8t('es to execute the trusts declared. * * · The title is on record. the records are open to all, and the purchasers can examine the title for themselves. 'fhere beinl{ no warranty. the rule of caveat emptor must be implied in reference to the conveyance." It is inconsonance with this that the rule obtains that a purchaser under a foreclosure mortgage sale cannot be relieved from the payment of the surplUS bid by him on the ground that he wall of opinion, and was so advised by counsel, that the fund,would go to the liquidation of the prior mortgage debt. The purchaser buys only the equity of redemption, which is convE>rted into money, and he takes the property cum O'nere. "A trustee holding the naked legal title cannot, on the sale of the property, use part Of the purchase money to satisfy taxes or prior incumbrances, unless he is empowered thereto in the instrument creatingthe trust. In all such cases: the purchaser takes the land subject to the incumbrances." Schmidt v. Smith, 57 Mo. 135. See, also, Shear v. Robinson, 18 Fla. 379; Ledynrd v. Phillips, 32 Mich.l1t As said by Lord HARDElVICKE in 'V. Ready, 2 Atk. 591: "If parties are entering intoan agreement. an<l the very will ant of which the forfeiture arose is before thew ltiJd their counsel While the drafts are preparing, the parties shall be supposed to be HcqllaintRd with the conseqllellct-s of law on this point, and shall lIot ,be relieved ullder, a pretense of being surprised with such slrong circu,metances attelldingit." Administrators cannot bind the estate by any representation made by them while conducting a sale. RichardIJon v. Palmer, 24 Mo. App. 480. This, inter alia, for the renson that their duties are· defined and limited· by law, and "no person may proJessignoranceof the extent of the power ofapublic agent, and individualS must take notice of the extent and authority conferred by law upon the person acting ina fiduciary capacity." State v. Hays, 52 Mo. 580, and citations. As applied to the facts of thiscase,we hold that where the purchaser is advised, by the deed of trust itself under which the trustee is proceeding, that any surplus,arising therefrom shall go to the mortgagor,
204, hal!
R;E,PORTER,
of the trustee's , and the doctrine of caveat 'rhe purchaser at his peril in relying upon the representations of the trustee as to any n)Odification or change in his powers. existing in pais. What safety has the mortgagor under any other rule? What claim of relief can any sane man have to the interposition of the court to relieve him against his own reckless negligence in the statement of the trustee, in direct conflict with thl!! expx:ess, direction in the very deed under which the trustee sells and the purchaser buys? The deed of trust advising the purchaser of surplus bid by him was to go he was the. a,t upon inquiry as to the existence of the outside authority claimed. ,by the trustee. I understand the rule of law to, be that, when 'Ill party"is:thus put upon inqUiry, he is with notice of every fact tdw'hieh',ltreasonable prosecution of the inquiry would lead. Olie conmeans of ltpowledge cannot his eyes'to "the means in for the purpose o,f:gainingf'}r,ther information:" !lhodcs v:. ,Mo. 370. ,As pertinently saId by BAKEWELL" J., lD Lee V.TUA'1le'l'i .15 Mo. App.213: , "It '#ell settled that every one' hi conclusively 'to, know those things which he might have known if he chose to ask a question that it was to ask. ·N utice' means the means of know ledge his Quty in ofdinary of, which a person willfully neglects or refuses to take advantage. * * * 'th( assu:rnes the risk of bargaining without inquiry cannot [plaintiffl a loss resulting from his own neglect and ItmctJOn.. i Bml,th v. Tracll,::l6 N. Y. 79.:..B7/' . . WheJ;lthese knew that the was asser,tingan authority inCOlltrlldiction of tQeexpress conditions of the trust-deed, the most. prudence wOllld haveprorppted the inquiry, "How and when did Y9U; getsllch authority from Gair?" The presumptlon is that the trW.1le6!cwouldQ/love informed them, just as he testified on th,e trial when thereof, that his cl&im of authority was predicated of the conGair at the time of t,he execution of the deed of trust; versation had which as we hl;tye already shOwn, amounted to no authority; " then, 'is the Ioundation for thedernier rcssort of counsel for a . ratification?, ,The rule of ratification applies "when an authorized agent, acthip; scope of his authority, perpetrates fraud for the benefit of his principal, and the latter receive the fruits of iti he if' liable ()wnwrong." Sm.ith v. TrMY,' 81,J,pra, It has, no :wherJlthe IS clothed WIth a speClalhmlted authonty, saledeparts from or makes lJ,ssurances out'lide of his pp.rent By receiving the proceeds of the sale, or suing thereof the departure of the trustee, the principal is no,\ wrong ,of the trustee, put is only claiming that which, by the express terms of power of l;lttorney, he is en.titled to. This is sharply drawn in the case last cited, where the Collrt case of WilBon v. 7'umman,6 Man. & G.236, in which itwashell,i "that, by adopting and ratifyjngwhat he had
8?
GAm 'V. TUT1LEi
205
he did not adopt and ratify the unauthorized acts of his agent." Predicable of this distinction, the principle is announced in White v. Sanders, 32 Me. 188: "If one wrongfully sells the plaintiff's goods. the receipt of money from him by the plaintiff. on account of such goods, would not be a ratification of the sale, provided the plaintiff would have had a right, without notifying the sale. to receive the money."
So it is held that the receipt of a portion of money realized from property improperly sold by a. sheriff will not amount toa ratification of the sale. Harris v. Miner, 28 Ill. 135,136. "Without notifying the sale," the plaintiff here, had the surplus money been paid over to him, would have been entitled to it, under the express provisions of his deedauthor-, the sale. There is not one word of evidence to show that when he brought this action he had knowledge of any representations thetru8tee is now; claimed to have made. By bringing this action he ratifies nothing; he onlyJaysclaim to that wbich, byihe plain letter of the trustdeed, he is entitled to. It is not deemed necessary to go further, and commentQn the effect of defendantEl' accepting deed from the trustee,' and alterwards ousting tbeplaintiff's tenant from the land, and withholding the premises to ,the date of this trial. It would present the question of estoppel as, against the defendants. udyard v. Phillips, 32 Mich. 13. Nothing could better illustrate the improvidence and irregu1arityof the course pursued in this transaction thun what followed the effort of the purchasers at the first foreclosure sale to escape their resp0!1Si})i1ity to Gair. The answer diseloses tl:ie fact that, at the instance of Davis','who was not the holder of the note, the trustee. Morris, sold a sec;:ond time. At tbis sale these same defendants bought in the property at $100, 'which is admittedly worth $4,300, which after they shall' have paid off the Lombard debt, if they ever do, would cost them only about $2,600, while the evidence at this trial shows that at the first sale there were .bidders who were ready and willing to bid at le!lst tbe amount of the Davis debt, $1,800. So by this second rrianeuverof defendants they seek to obtain Gair's entire equity for $100, and leave him indeLtedto the holder ()f tbe Davis note for $1,700 and interes,t. , The objection that this action, if maintainable at all, can only be in the name of the trustee, is not tenable. The debtofGair to Davis ing been satisfied by the sale, the surplus :money belonged to the mort.gagor. Rethen became the real and orilyparty in interest, either he or the trustee might bring action formorteyhad and received;' . ()lcZs v. Henne88ey, 2 Atl. Rep. 701,15R. 1.215; Flanders v. TMmas. 12 Wis; 410; Ballinger v. Bourlq,nd, 87 Ill. 513; Rogers v. GeMmll, 51 Mo. 466; McOomas v. Insurance' 00., 56 Mo. 575; Fitzgerald 't.' Barker, 70 Mo. '." ',' Again, the defect of party plaintiff,ifsuchdefect were conceded., be.ing appa1'erit on the face of the petitiotl,should be raised by Hnot so raised, tbe objection is dee¢ed in law ail waived. State V. pingtcm;; 68 454; Walker v. 79 Mo: 672; Roger8 v 9,4 Mo. 362,7 S, W. Rep. 414. 'Embarrassing, indeed, would 'be tb'esitua-
206
I'EDERAL
tion of this. plaintiff if his. on the Morri&1 taking the initiative in this matter, whell it appears that he cause with the defendants to defeat the plaintiff's action. Theissl.lesare found for the plaintiff., Judgmentaccordingly.
ATCHIBON;
T. & S.' F. R. Co.
tI.
HOWARD.
(OCrouit OOU'I't of ,AppeaZs, Eighth. Circuit. February 8, 1892.)
1.
NEW TRIAL-DISCRETION OJ' TRIAL COtfRT.
I,
Tbe question of anew trlaJ. rests In the sound discretion or the trial judge, and a refusal thereof is not reviewable In the circuit court of appeals.
It is not error for a federal judue to express hlsopinloil as to the weight which ought to be a'!ven to the lltatemeu,t of '& witness, When the jury is in fact left free to discredit ihe Btatement.. . ' ,. 8. . , WtieD, Uuder such circumstances, the lIubstance only of thecourt'i language is IlIlvenrUi the bill of excelltions, it must be . preaumed that it did not transcend the llmltaQ1 judicial dlscretlolk .: .. .' '. . " MAsTBa ,.iN» SBRVANT-PERiONAL lNroRIES-CONTRtBUTORY NBGLIGENCB.
INSTRUCTlONS-OPDrION ONlllvJDENCL
In an action by a locilmotive fireIDllDfor JlerllonallojurleSSUS1Jaliied by the blowlDg out. of a boiler flue,tl\e statemllnt of Witnesses t1;lat the accident "might" have been due In part to the manner In which the fireman cast lumps of coal into the fire.box .Ii losuftlcient to justify submitting to the jury the question of cootributory when there Is no evidence as tp his manner of in coal.
In,E1T()r to the Circuit Court of States for the District of ColoradQ.· ;, Action, by. Frank Howard against the Atchison, Topeka & Santa Fe Railroad Company for ,personal injuries,. Verdictanli judgment for plaintHf. · brings error. Aflirm.ed· . Charles E. GU8t, 'for plaintiff in error:'. Belore CALDWELL, Circ:uitJudge, and SHIRAS and THAYER, District Judges. THAYER, District Judge. This iSll suit for persona] injuries which the defendant in tlrror sustained in Mareh, 1890, while in the service of' the Atchison,Topeka & Santa Fe Railroad Company as a locomotive fireman. On the trial in. the circuit court. it appeared that a fl ue-pocket was blown out of the boiler of the locomotive on which the deJendant in error was employed, lind that he wall very severely scalded by hot 1\ flue-pocket," so termed, is a steam which escaped from sh,!.>rt flue whi()h extends i l1 to the boiler for about six, or eight inches behind the flue-sheet, and is closed at thtl inner end. Such>" blindflues; " or "fi ue-pockets, as they are generally called ,a.1'6 located near the bottoDl,of the ,fj.ue-sheet, P-!1d Open into th,e fire-box. T,hey are so that they ,tJ;l,ay be tl;I,l:t.,en out .or withdrawn when it to remove sediment or in()rustations that have colb;ottom of the boiler. Theusuul method of /lttaching flue.lected