MOLONEY v. CRESSLER, 236 F. 636

KOHRSAAT, Circuit Judge (after stating the facts as above). Initially, it is urged that this suit is barred by the statute of limitations of the state of Illinois (Hurd’s Rev. Stat. 1915-16, c. 83). The first ground of that claim rests upon the charge that the contract sued on was a parol contract. Although this is not specifically set out in the assignment of errors, it may properly be urged as affecting the bar of the statute of limitations.

The contract of March 22, 1899, refers to “certain improvements to be made in the plant of said company as specified in certain plans and specifications already submitted by the said Cressler to the said Moloney,” which clause requires proof aliunde the contract. This fact, it is claimed by appellant, makes the contract one by parol, or one having a life of five years, rather than ten years.

It is appellee’s contention that the clause just quoted refers to the proposition made by him to appellant in the letter of December 26, 1898, while appellant asserts that it refers to the statement made by the Ottawa Gaslight & Coke Company, per J. W. Murdock, dated January 4, 1898, by mistake for. January 4, 1899. Thus it will be seen that it is attempted to incorporate into said contract a written statement, and not any parol matter, and the question is merely one of identity.

Inasmuch as both parties rely on the supplying of the description of the improvements contemplated, this objection does not seem to be definitely urged in the assignment of errors, and we do not discuss it further than to say that appellant’s contention cannot be successfully maintained as the law now stands. Jones v. Knights of Honor, 236 Ill. 113, 86 N. E. 191, 127 Am. St. Rep. 277; Nickerson v. Weld, 204 Mass. 346, 90 N. E. 589; Beckwith v. Talbot, 95 U. S. 289, 24 L. Ed. 496; Forst v. Leonard, 112 Ala. 296, 20 South. 587; and numerous other cases.

We therefore hold that the contract of March 22, 1899, was a written contract, and that appellee’s suit was governed by the ten-year clause of the Illinois statute of limitations. Appellant further insists that, even in that case, this action was not brought in time. Appellant filed his bill in the state court on September 15, 1906. The cause was removed to the United States Circuit Court November 3, 1906. Appellee filed his cross-bill, setting up substantially the same matters as those set up herein, on March 15, 1907.

The cause was, by order of the Circuit Court of Appeals, remanded to the state court on November 21, 1913. On November 22, 1913, this suit was instituted under and by virtue of

section 25 of the statute of Illinois, which reads in part as follows, viz.: “In any of the actions specified in any of the sections of the said act, if judgment shall be given for the plaintiff and the same he reversed by writ of error or upon appeal * * * then if the time limited for bringing such action shall have expired during the pendency of such suit the said plaintiff, his or her heirs, executors or administrators, as the case shall require, may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after.” This, we hold, was properly done under said clause of tire statute.

The facts of the case brought that suit within the provision of the act. Smith v. McNeal, 109 U. S. 426, 3 Sup. Ct. 319, 27 L. Ed. 986. In that case the suit was dismissed for want- of jurisdiction. Another action being brought after the statute had run unless extended by the Tennessee statute as here, the court said: “We are of opinion, therefore, * * * plaintiffs in error are entitled to the benefit of

article 2755 of the Code of Tennessee, for their judgment in the first suit was not upon any ground concluding their right of action, nor have they been guilty of such negligence or carelessness in the bringing of their first suit as should exclude them from the benefit of the said article.” See, also, Lamson v. Hutchings, 118 Fed. 321, 55 C. C. A. 245; McAndrews v. C. L. S. & F. Ry. Co., 162 Fed. 856, 89 C. C. A. 546; P. C. C. & St. L. Ry. Co. v. Bemis, 64 Ohio St. 26, 59 N. E. 745; Bennett v. Welch, 25 Tnd. 140, 87 Am. Dec. 354; and many other cases cited in appellee’s brief.

It is evident that appellee removed this cause, seeking the aid of federal jurisdiction, in good faith, and not for delay or other ulterior cause. In Gaines v. City of New York, 215 N. Y. 533, 109 N. E. 594, Ann. Cas. 1916A, 259, where a similar statute prevails, it is said: “A suitor who Invokes In good faith the aid of a court of justice, and who initiates a proceeding by the service of process, must be held to have commenced an action within the meaning of this statute, though he has mistaken his forum.

We are asked what ought to be held, if a litigant sues on a promissory note in the Surrogate’s Court, or files a bill in equity with a justice of the peace. It may be that a different rule should be applied where the earlier action has been brought with knowledge of the lack of jurisdiction, and in fraud of tho statute.” We do not deem it necessary to pass upon the point raised as to whether a federal court of equity is bound by state statutes of limitations. We therefore hold the question of the statute of limitations to be not well taken.

It is our conclusion from the evidence that the reference to improvements in the contract of March 22, 1899, related to the proposition of sale contained in appellee’s letter of December 26, 1898. We are satisfied that Murdock, in his capacity of superintendent, was not acting with the direction or consent of appellee; that the latter was not responsible for any statements he may have made, although he (Murdock) does not seem to have willfully misrepresented anything.

His statement was made at appellant’s suggestion, for use in procuring a loan from Harris & Co., and was not submitted or known to ap-pellee until long afterwards. It was kept by Harris & Co. and not disclosed to appellee, though with no intention to keep it secret. It therefore could not have been in appellee’s mind when he entered into the contract of March 22, 1899. We deem appellee’s action a substantial compliance with the terms of the contract of sale. He placed the improvements called for in what seem to be competent hands. The gas holder appears to have been a difficult piece of work.

Its leakings were obscure, and were finally located in the foundation. The record does not show that appellant suffered any loss from the delay. There seems to have been a misunderstanding as to the terms of the sale agreement. The correspondence shows some slackness on appellee’s

part in making his position clear upon that point, even to the extent of doing more than the contract required of him. We find, however, no justification for the withholding of the bulk of the money due appellee. Appellant was not entitled to the proceeds of the bonds and stock until appel-lee was paid up in full, nor was he entitled to the sums claimed by him for services and damages. These almost entirely grew out of appellant’s misconstruction of the provision in the contract with regard to improvements aforesaid.

We are satisfied that the balance of $23,-580.88, found by the trial court herein, and also in the former proceedings' hereinbefore enumerated, to be due appellee upon the purchase price, was correct! There is no merit in the contention that appellee was guilty of laches irl the premises: There was continual contention between the parties.

It was appellant’s duty to pay what he owed, and the mere fact that appellee was not continually hounding him for the balance due would not justify such a contention. 'Nor do we find merit in the claim that a suit for specific performance would not lie under the facts of this case. The transaction involved the whole capital stock of the corporation, which was property not to be obtained in the open market. The stock itself was to be held by the bank, until payment should be made to appellee in full, for the benefit of both parties.

The $20,000, required by the contract of March-22, 1899, to be deposited by appellant with Harris & Co. to insure performance by appellee of his part of that contract, never having been so deposited, still remained in appellant’s possession and enjoyment. Appellee’s undertakings were completed by November 15, 1901. This sum should then have been paid over by appellant. For this sum appellee is entitled to interest at the rate of 5 per cent, under the statute of Illinois. It was a liquidated sum, and not affected by the existence of an unliquidated claim for damages because of the delay in completing the work.

Appellee was also entitled to payment of the .balance of the purchase price of the plant, at the latest on August 18, 1909. This balance, amounting to $3,580.88, should likewise bear interest at the rate of 5 per cent, from the last-named date. There is no merit in the claim that appellee did not deliver all the stock to appellant. The latter was not entitled to it until full payment had been made. The remaining shares of stock are in the possession of and subject to the order of the court, and will undoubtedly be' turned over when payment is shown.

As before stated, no substantial damages are shown to have been sustained by appellant by reason of the delay in perfecting the gas holder, nor is any basis established for ascertaining the same. We find no error in the decree of the trial court, and it is therefore affirmed.