March 21, 1885, to April 9, 1892, Graham, the complainant, was in possession of the tract of land upon which the buildings in question were erected, under a contract with one Merchant, the owner, by which the latter agreed to convey said land to Graham upon certain payments stipulated as the price therefor. About April 9, 1902, the complainant rescinded the contract, and "relinquished and surrendered to Merchant all rights, issues, and profits theretofore arising from said land." Graham brought an action against Merchant, and recovered judgment for all moneys paid by him on the contract of purchase, with interest. During Graham's possession of the land in question, and prior to 1897, he was the general manager of the defendant company, and during such time he built, with the defendant's money, the dwellings and other buildings for the use and occupation for which the suit is brought. These improvements have been occupied from time to time by miners employed at the mine of the defendant and at the mine of the Beaver Coal Company, of which latter company Graham was also at the time manager, and the defendant has received as rents for such use various sums aggregating $1,463.67. During a portion of the years 1898 and 1899, one W. W. Catlin was the receiver of the property of the defendant in a suit wherein said Graham was plaintiff and this defendant and others were defendants, and during such receivership such receiver rented the improvements referred to, to the Beaver Coal Company, at an agreed rental aggregating $856.95. Graham was the manager of the latter company at the time. The receiver never, in fact, collected this rental. He recovered judgment therefor, but, because of the bankruptcy of the Beaver Coal Company, nothing was ever collected on the judgment. The answer further alleges that Merchant, the owner of the premises, has demanded that the defendant attorn to him for such occupation and use. It is also alleged that the complainant ought not to be permitted to assert any claim "for said alleged rents, issues, profits, or any other matters or things whatsoever happening or occurring prior to the 8th day of June, 1899, for that on said date said complainant, for good consideration, executed and delivered a written release to and in favor of this defendant, wherein and whereby he acknowledged full and complete satisfaction of all claims and demands which he then had or might claim to have against this defendant." The complainant excepts to the answer for insufficiency.

As stated in complainant's brief, "The rescission put an end to the contract, and the parties thereafter stood in the same relation to each other as they would if there had never been any contract between them." The property and its earnings belonged to Merchant, precisely as though no contract of purchase ever existed. To the extent that these earnings are in the form of a liability from those who have had the use of the premises, Merchant, as the person entitled to them, may compel payment to himself. The complainant, for all that appears, may be an irresponsible person, and it would be a remarkable procedure if a court of equity should lend its aid to him to collect what in fact belongs to Merchant,

contrary to the latter's wish and against his interest. If Merchant is satisfied to look to the defendant for the earnings in question, Graham's responsibility ceases, and he cannot complain. He can have no interest in compelling payment to himself, notwithstanding Merchant's willingness to look to the defendant for the rentals, unless he expects to collect what is due from the defendant and then plead the judgment in his action against Merchant in bar of Merchant's right to recover from him, and, of course, to such an expedient equity will not give its aid.

The fact that the improvements for the use of which this suit is brought were made by Graham while he was the manager of the defendant, and paid for with defendant's money, is a good defense. The buildings so constructed belonged, so far as Graham is concerned, to the defendant. Without a rescission of the contract of purchase between him and Merchant, the most that he could claim from defendant under such circumstances is the value of the use of the premises without the improvements.

The exceptions to the answer are overruled.

DERK P. YONKERMAN CO., Limited, v. CHARLES H. FULLER'S ADVER TISING AGENCY.

(Circuit Court, N. D. Illinois. February 23, 1905.)

No. 27,348.

1. FEDERAL COURTS-JURISDICTION-PARTNERSHIP-CITIZENSHIP. Where a declaration by a partnership organized under Comp. Laws Mich. 1897, c. 160, §§ 6079, 6089, providing for the organization of limited partnerships in joint-stock corporations, etc., alleged that plaintiff was such a partnership, organized as stated, having its principal place of business in K., and authorized to sue and be sued in the name of Y. Company, Limited, and that each and every member and partner of such association was a citizen of Michigan, such allegation sufficiently charged the citizenship of the parties comprising the firm to confer jurisdiction; such associations being quasi corporations.

[Ed. Note.-Averments of citizenship to show jurisdiction of federal courts, see note to Shipp v. Williams, 10 C. C. A. 261; Mason v. Dullagham, 27 C. C. A. 303.]

2. SAME-PLEA IN ABATEMENT.

Where a declaration in an action by a partnership averred that the members thereof were all citizens of the state of Michigan, the defendant was entitled to challenge such averment, under the Illinois practice, by plea in abatement, unless waived by pleading to the merits.

8. SAME ASSUMPSIT-MONEY RECEIVED.

An original declaration contained ordinary common counts on promises, after which complainant filed an amended declaration alleging the employment of defendant as plaintiff's advertising agent under an agreement to pay defendant the actual cost price of such advertising, and 10 per cent. additional as compensation, and alleged that defendant fraudulently rendered false accounts of the cost of advertising inserted, and that plaintiff, being wholly ignorant thereof, overpaid defendant large sums of money sued for, which defendant unlawfully withholds from plaintiff,

and for which it refuses to account. Held, that the averment of fraud in the amended declaration should be disregarded as immaterial, and that both declarations therefore stated a similar cause of action to recover money under a quasi contract.

Charles C. Gilbert, for plaintiff.

Arthur W. Underwood, for defendant.

SANBORN, District Judge. Demurrer to amended declaration. Plaintiff is a partnership association organized under chapter 160, Comp. Laws Mich. 1897, §§ 6079 to 6089. Such associations are legal entities, and are quasi corporations, controlled by the law applicable to corporations rather than partnerships. Staver, etc., Mfg. Co. v. Blake (Mich.) 69 N. W. 508, 38 L. R. A. 798; Rouse, Hazard & Co. v. Detroit Cycle Co. (Mich.) 69 N. W. 513, 38 L. R. A. 794.

The amended declaration alleges that the plaintiff is a partnership association organized as above stated, having its principal place of business in the city of Kalamazoo, and authorized to sue and be sued under the name of Derk P. Yonkerman Company, Limited, each and every member and partner of which partnership association is a citizen of the state of Michigan. This allegation is challenged by the demurrer on the ground that it does not properly state or set forth the citizenship of the parties, and that it appears that the plaintiff is a partnership composed of more than one person, and none of such persons is made a party to said suit, or named in the declaration, or either count thereof. If the name of the partners had been given in the declaration, there could be no question of the sufficiency of this allegation to show jurisdiction. While it is usual to give the names of the parties whose citizenship is alleged, as in Great Southern Fireproof Hotel Co. v. Jones, 177 U. S. 479, 20 Sup. Ct. 690, 44 L. Ed. 842, yet as stated by Judge Caldwell in Carnegie, Phipps & Co., Limited, v. Hulbert, 53 Fed. 10, 3 C. C. A. 391, "when a copartnership sues, the citizenship of the parties composing it must be averred, and must be such as to confer the jurisdiction." No reason is perceived why the allegation is not sufficient, since the averment is express that each and every member and partner of the plaintiff association is a citizen of the state of Michigan. Thomas v. Board of Trustees, 195 U. S. 207, 25 Sup. Ct. 24, 49 L. Ed.-. In the Great Southern Hotel Case it is said, "It was necessary to set out the citizenship of the individual members of the partnership association which brought this suit." While it is not sufficient to aver that a company or association is a citizen of a particular state, an additional averment that it is a corporation being necessary, yet this rule does not seem to extend to the case of an individual.

The defendant may challenge the averment that the members of the association were not at the beginning of the suit citizens of Michigan by plea in abatement, under the Illinois practice. In states which have adopted the Code of Civil Procedure, such allegation may be challenged by general or special denial in a plea to the merits, but under the common-law system of procedure all pleas in abatement to the jurisdiction are waived by pleading to the merits. Roberts v. Lewis, 144 U. S. 653, 12 Sup. Ct. 781, 36 L. Ed. 579; Southern Pacific Co. v.

Denton, 146 U. S. 209, 36 L. Ed. 377, 13 Sup. Ct. 47; Mexican Cent. Ry. v. Pinkney, 149 U. S. 206, 37 L. Ed. 704, 13 Sup. Ct. 864; Greene v. Tacoma (C. C.) 53 Fed. 563; Jones v. Rowley (C. C.) 73 Fed. 288.. To the point that a plea in abatement is waived by pleading to the merits, as a general rule, see Allen v. Watt, 69 Ill. 655; Lindsay v. Stout, 59 Ill. 491; Hawkins v. Albright, 70 Ill. 87; Thomas v. Lowy, 60 Ill. 512.

A further ground of demurrer is that the amended declaration is framed as an action of trespass on the case, while the original proceeding was an action of trespass on the case upon promises. The original declaration contained the ordinary common counts on promises. The amended declaration states an agreement by which defendant was to become plaintiff's advertising agent. Defendant was to cause to be inserted in divers newspapers and magazines advertisements at the lowest prices which could be obtained. The plaintiff agreed to pay the defendant the actual cost price for such advertising matter, and 10 per cent. additional as compensation. It is further alleged that the defendant procured to be inserted such advertising matter in numerous papers and magazines, and rendered plaintiff accounts therefor at the end of each month during the advertising period, and that it was the duty of the defendant to obtain the lowest possible prices, and truly state the same in said accounts, but the defendant, disregarding its duty in that behalf, did not state the true prices for the advertising matter, but, on the contrary, falsely and fraudulently, and with intent to deceive and defraud the plaintiff, rendered false, fraudulent, and fictitious accounts, well known to the defendant to be false, fraudulent, and fictitious; the plaintiff being wholly ignorant of the true prices, and relying on the statements and accounts rendered by the defendant. Under these circumstances it is alleged the plaintiff overpaid the defendant large sums of money, being not less than $10,000, which the defendant unlawfully withholds from the plaintiff, and for which it refuses to account. I think the averment of fraud is entirely immaterial, and that the suit is an action on the case in assumpsit to recover the amount of the overpayments alleged to have been made. In effect, the declaration alleges benefits to the defendant paid by the plaintiff in ignorance of the true situation. This would give the plaintiff the right of recovery quasi ex contractu, whether or not the defendant acted fraudulently. Even where money or goods have been wrongfully taken from the plaintiff, so that an action of tort would lie, yet, in all cases where the defendant has received the benefits of the transaction, either by sale or retention of the property converted, or in some other manner, the plaintiff has the election to waive the tort and sue in assumpsit. Horne v. Mandelbaum, 13 Ill. App. 607; Morrison v. Rogers, 3 Ill. 317; Kellogg v. Turpie, 93 Ill. 265, 34 Am. Rep. 163; Johnston v. Salisbury, 61 Ill. 316. See, also, Carter v. White, 32 Ill. 509; Willenborg v. Î. C. R. R., 11 Ill. App. 302; Sherburne v. Tobey Furniture Co., 19 Ill. App. 619.

There are two further grounds of demurrer, to the effect that the remedy is solely in equity, and that the declaration is obnoxious to the statute of frauds. The above considerations seem to dispose of both

of these grounds of demurrer against the defendant. Defendant may, if so advised, plead specially in abatement to the jurisdiction or to the merits, and the ordinary rule to plead over will be entered.

Demurrer overruled.

THE CHELSEA.

(District Court, S. D. New York.

March 4, 1905.)

COLLISION-Steamer and SCHOONER MEETING-EXCESSIVE SPEED IN FOG. A steamer held in fault for a collision with a schooner in Long Island Sound in a fog because of her excessive speed of 10 knots, and her change of course after the schooner was seen on nearly a meeting course. The schooner held not chargeable with contributory fault, although her speed was about six knots, it appearing that the fog was not thick where she was, and that she was reducing sail as she entered the dense fog. [Ed. Note.-Collision rules-Speed of steamers in fog, see note to The Niagara, 28 C. C. A. 532.]

In Admiralty. Suit for collision.

Peter S. Carter, for libellants.

Carpenter, Park & Symmers, for claimant.

ADAMS, District Judge. This action was brought by C. W. Crane & Company, as managing owners of the 3 masted schooner A. P. Emerson, to recover from the steam-propeller Chelsea, the damages caused to the schooner by a collision which happened between the vessels in Long Island Sound, about 3/4 of a mile southwest of Execution Rock Light, about 7 o'clock in the evening of the 8th day of April, 1904. The tide was ebb.

The schooner was 125 feet long and 29.6 beam and bound to New York from St. John, New Brunswick, with a load of lumber, partly on deck. She was sailing free, with her booms on the starboard side. At the time of the collision, she had all her lower sails set, consisting of a spanker, mainsail, foresail, fore head sails, fore staysail, jib, flying jib and outer jib. The topsails were furled as the schooner was passing Execution Light and the last of them was being clewed up when the lights of the steamer were first seen. When in the vicinity of the collision the schooner was steering a S. W. course. The wind was about North-east by East or East North-east. It is claimed by the schooner that she was sailing just before the collision, at the rate of 41⁄2 or 5 knots, the weather being rainy and nasty but lights easily seen. The master was at the wheel and a lookout duly stationed forward. A Hell Gate Pilot and his son were also on deck. Her proper lights were set and burning. It is also claimed by the schooner, that the Chelsea's masthead light appeared shortly before the collision, about 1⁄2 or 3/4 of a point on her starboard bow; that the steamer's green light then appeared and subsequently red so that at the time of the collision, she was showing both. The schooner was struck by the steamer's stem on the starboard side forward of the fore rigging. The schooner commenced to sound fog signals when in the vicinity of Execution Light.