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where he could exercise a proper lookout, and give warning of the coming of the cars to persons who might be approaching the track. It is entirely probable that, if the conductor had been at the front end of the second section, where he could have seen the plaintiff as he came towards the track, by calling out he might have warned the plaintiff in time to have prevented the accident. The fact that the brake was at the rear end of the car, and for that reason the conductor was at that end of the car, does not excuse the company from the charge of negligence in this particular; for, if the conductor could not properly attend the brakes, and at the same time exercise a proper lookqut, then the company should have had another employe on this section. It is self-evident that one person could not attend to the brakes upon seven cars, and at the same time be in a position where he could watch the track, and give proper warning of the coming of the cars. There was certainly, therefore, evidence tending to show a failure to exercise proper care in the manner in which the train was handled in passing through that part of the town of Mazeppa where the accident happened, and which demanded that this issue of negligence be submitted to the jury. The dangers that attend the cutting of a train into several sections, and moving the same along the track in the mode adopted in the present case, are well known, and so many accidents have been caused thereby that the courts have been compelled to condemn, the practice unless great caution is exercised to prevent injury to persons who may be about to cross the track. Brown v. Railroad Co., 32 N. Y. 597; Butler v. Railway Co., 28 Wis. 488; Railroad Co. v. Schmidt, 126 Ind. 290, 25 N. E. Rep. 149, and 26 N. E. Rep. 45; Railroad Co. v. Converse, 139 U. S. 469-471, 11 Sup. Ct. Rep. 569.
There being evidence tending to show negligence on part of the company, it was the duty of the trial court to overrule, as it did, the motion directing the return of a verdict for the defendant, and to submit the issue of negligence to the jury; and the several assignments of error based upon the action of the court in this particular are wholly without merit.
In the charge to the jury the trial court very fully and clearly stated the rule of law applicable to the facts upon the question of negligence on part of the defendant, and the only exception taken thereto was to that part of the charge wherein the court stated that, although the plaintiff might have been at play on a street, that would not make him a trespasser; the contention of the counsel for the railway company being that "it was not a question of what his right was to be or play upon a public street but what was his right to play on the railroad track, at a place of the character shown by the evidence, The charge was, therefore, to the effect-and a jury would so understand it--that the plaintiff had a right to play upon the railroad track, because such track happened to cross what was claimed as a public street.” Taking the charge as a whole, we do not think the jury would put the construction upon it which counsel seek to do in their argument. The jury were instructed that children are entitled to the use of streets just the same as grown people, and that when upon them they must exercise proper care. The court did not charge,
nor would the jury necessarily so infer, that children had the right to make a playground of the railway track. It is certainly not illegal for children or adults to engage in what may be termed “play;" and if, while so engaged, need arises for going upon a street, they are justified in so doing, provided due care is used in guarding against accidents. Thus, if persons engage in playing ball at a place where such sport is permitted, and the ball happens to be thrown across or into a public street, certainly any one of the players, whether a child or adult, may go upon the street for the purpose of getting the ball, without being deemed a trespasser. The evidence in this case shows that the larger part of the persons who crossed the railway in the vicinity of the place where this accident happened did so for purposes of amusement; that is, for gathering wild flowers, or for fishing or swimming in the Zumbro river. The right to pass along or across streets or other highways is certainly not limited to those uses which pertain to business, as distinguished from pleasure or amusement, and therefore the mere fact that a person is engaged in what is called "play" at the time he goes upon a street does not necessarily make him a trespasser thereon. In this case the defendant company is seeking to avoid the charge of negligence in the manner in which the train was handled by claiming, in effect, that the plaintiff was a trespasser, to whom it was under no obligation, because, while engaged in play with his companions, the plaintiff ran upon the street; and the effect of the charge of the court was that there was no law forbidding the plaintiff from so doing, provided he exercised due care and watchfulness; and we do not find error in this ruling. Upon the question of contributory negligence the court fully instructed the jury, and no exceptions were taken to this part of the charge, and in the argument of the cause counsel for the defendant company admitted that they were concluded on that question before this court by the verdict of the jury.
The judgment of the circuit court is therefore affirmed.
ORMAN v. NORTH ALABAMA DEVELOPMENT CO., Limited.
Nos. 1,569 and 1,570.
A purchaser of land situated in Alabama executed his two notes or obligations for the deferred purchase money. The notes contained a condition, which, after reciting the execution of a mortgage on the land, provided that in case of foreclosure the purchaser should be personally liable only for the proceeds of the sale, and that such proceeds should be a caucellation of the notes. The land was thereafter sold, and in the deed of conveyance the grantee covenanted to assume the payment of the notes as part of the purchase price. Held, that an action in assumpsit for money had and received could be maintained against the grantee on the contract for the payment of the mortgage. At Law. Action in assumpsit by William A. Orman against the North Alabama Development Company, Limited. Motion to dismiss an attachment. Denied.
Statement by BRUCE, District Judge: The facts of this case are that about the 4th day of April, 1890, the plaintiff, William A. Orman, sold certain lands, containing about 1,223 acres, in Franklin county, Ala., to Alfred Parrish, for which Parrish paid him one third of the price, $7,2 15.22, and executed his two notes or obligations to Ormau for $7,245.22, each for the deferred purchase money, dated May 12, 1890, anii puyable on the Ith days of April, 1891 and 1832, respectively, with interest from April 4, 1890. On June 18, 1890, Alfred Parrish sold to the defendant, the North Alabama Development Company, Limited, the same land he bought from Orman; and in the deed it is stipulated and covenanted by the grantee, with Parrish, that the North Alabama Development Company, Limited, shall assume and pay, as a part of the purchase inoney of its purchase from him, the two notes or obligations above named, of Parrish to Oriau. The obligations of Parrish to Orman contained a condition by which, after reciting that he had executed a mortgage to Orman on certain lands in Franklin county, Ala., it is provided that, if said mortgage had to be foreclosed, Parrish should be personally liable only for the proceeds of such sale, and no niore, and that the proceeds of such sale should be a cancellation of the notes.
The present suits were begun in the state circuit court of Franklin county, by attachment, as against a nonresident, and were removed by the defendant to the federal courts. The present hearing is on a rule to show cause why the attachment should not be dissolved.
Geo. C. Almon and W. I. Bullock, for plaintiff.
BRUCE, District Judge, (after stating the facts.) There are two points, only, which seem to require remark on the disposition of the motion in this cause. This action is upon a written contract or assumption of payment of a mortgage by a grantee in a deed of real estate. The complaint has in it also the common counts, one of which is for money had and received by the defendant for the use of the plaintiff.
It is said to be a rudimentary principle that a party may sue on a promise made, on a sufficient consideration, for his use and benefit, though it be made to another, and not to himself. There can be no question here as to the consideration; for that was a part of the purchase money of land sold and conveyed to the defendant development company, which it, by the acceptance of the deed, obligated itself to pay, and the bringing of the suit by the plaintiff brought the parties into privity, if it may be said there was no privity of contract existing before that time. Now, can such a suit be maintained, under the law of Alabama? It is said in Insurance Co. v. Tunstall, 72 Ala. 142, that assumpsit for money had and received is essentially an equitable action; and in King v. Martin, 67 Ala. 182, the court says:
"This action, which was an action in assumpsit for money had and received, in its spirit and purpose, is likened to a bill in equity, and is an exceedingly liberal action, and will always lie, where a defendant has in his hands money which, ex aequo et bono, he ought to refund to plaintiff.”
It may be said, and is argued, that this is one of the exceptions to the rule pointed out by the supreme court of the United States in the case of Keller v. Ashford, 133 U. S. 621, 10 Sup. Ct. Rep. 494; but it seems to me the rule itself has been relaxed in Alabama, so that this suit may be maintained.
That the defendant company is estopped from denying the validity
of the debt sued on, seems clear. Pratt v. Nixon, 91 Ala. 192, 8 South. Rep. 751, and authorities there cited. And the defendant does not take issue on this proposition, but contends that under the law of Alabama the plaintiff's right to sue, in a case like this, is in equity, only, and not at law. His proposition is that there are or may be equities to settle between the plaintiff, Orman, and Parrish, the mortgagor, which can only be done in a court of equity; that the contract sued on is to pay Parrish’s notes to Orman; that these notes have in them a condition"That, should said lands have to be sold under the mortgage, then I am ouly liable under this note to the amount of the proceeds of such sale, and no mure.”
It is insisted that this means that Parrish was not to be held personally liable for anything on these notes, but the property alone should stand for the unpaid purchase money. There may be a question whether Orman did not have the option to pursue his remedy upon the notes, and not seek a foreclosure of the mortgage; but, however that may be, it is not correct to say that the defendant assuned the payment of Parrish's debt, with all the conditions attached to it. The defendant assumed and obligated itself to pay the mortgage, which represented the unpaid purchase money due upon the land; and, when it accepted the deed from Parrish, the debt it assumed lecame, and is, its debt and its obligation, not simply that of Parrish. True, the notes are set out in the complaint, but the suit is not on the notes, and they merely serve to show the amount of the debt assumed by the defendant company.
On the question of the attachment, the cause seems to be within the provision of the attachment law, and the motion to dismiss the attachment is denied.
THIRD NAT. BANK OF CHATTANOOGA v. GORDON et al.
Where a judgment of a federal court in Alabama has been affirmed by the supreme court, and the condition of the supersedeas bond given under rule 29 of the latter court has been thereby broken, judgment may be had thereon by motion against the sureties, as well as the principal. At Law. Action by the Third National Bank of Chattanooga against Eugene C. Gordon and others upon certain promissory notes. Verdict and judgment were rendered for plaintiff, and the judgment was affirmed on writ of error by the supreme court. 12 Sup. Ct. Rep. 657, 144 U. 8. 97. The cause is now heard on motion for judgment against the sureties on the supersedeas bond. Granted.
Wm. Richardson, Geo. T. White, and Francis Martin, for plaintiff. R. C. Brickell, for defendants.
BRUCE, District Judge. In this cause the plaintiff bank received a judgment in this court against the defendant Gordon for the sum
of $5,286.67 on the 14th day of April, 1888. An appeal was prayed and allowed to the supreme court of the United States, and a supersedeas bond was approved and filed in this court on the 17th day of April, 1888. The judgment was affirmed in the supreme court of the United States, (12 Sup. Ct. Rep. 657, 144 U. S. 97,) and a mandate in the usual form was received and filed in this court on the 6th day of June, 1892.
The plaintiff bank now comes, and by motion asks that he have judgment and execution against the sureties on the supersedeas bond for the amount of his judgment, interest, and costs, including the costs in the supreme court. The defendant in the judgment has had his appeal and hearing in the appellate court, and he has had a supersedeas of the judgment in the court below, which he obtained by giving the bond according to rule 29 of the supreme court of the United States, which provides:
"Supersedeas bonds in the circuit courts must be taken with good and suffi. cient security that the plaintiff in error or the appellant shall prosecute liis writ or appeal to effect, and answer all damages and costs if he fail to make his plea good."
In this case the appellant has failed to make his plea good,—the condition of the supersedeas bond has been broken; and, in the words of rule 29, “the sureties on the supersedeas bond are to answer all damages and costs,” which means they are to answer the plaintiff's judgments and costs. Does that mean simply that the sureties are to be liable in a suit against them? Is their liability on a bond of this character to be the subject of another suit? Or is there not a more summary remedy on the bond contemplated? It has been held that it is not necessary, in order to charge the sureties upon an appeal bond, that an execution on the judgment recovered in the appellate court should be issued against the principal. Babbitt v. Finn, 101 U. S. 15. And in that case the court says:
"When they execute the bond, they assume the obligation that they will answer all damages and costs, if the principal fails to prosecute his appeal to cffect, and make his plea good; from which it follows that if the judgment is affirmed by the appellate court, either directly or by a mandate sent down to the subordinate court, the súreties, proprio vigore, become liable to the same extent as the principal obligor."
It is true the case the court was considering was not the case huse, but certainly the reasoning of the court is to the effect that an appeal and supersedeas bond is something more than a mere liability for the amount of the plaintiff's judgment and costs, to be made effective only upon a suit upon the bond. If it is not required to exhaust the reinedy against the principal in the bond before proceeding against the sureties, and if the sureties are liable to the same extent as the principal obligor, then what more is required than that there should be judgment and execution against the sureties, as there is against the principal obligor? The nature and character of a supersedeas bond seem to imply a more summary remedy upon it than a suit to enforce it. The plaintiff's judgment is superseded, and he is for the time deprived of his remedy by execution to obtain the fruits of his judgment. The supersedeas bond is given and approved by the