Kelly v. Fahrney

JENKINS, Circuit Judge, after stating the facts, delivered the opinion of the court. The questions embodied in the first two assignments of error had reference to the action of the plaintiff in prosecuting two suits against the defendant in the state of Arkansas upon the same alleged agreement declared upon in this action; the testimony elicited tending to show that the agreement alleged was made with the plaintiff and John Kelly jointly, and not with the plaintiff individually, and also tending to show that the demand for the stock was made when no sale of bonds had been effected, and the contemplated sale was never in fact consummated. These assignments are not seriously insisted upon at the bar, and we perceive no well-founded objection to the evidence. It went directly to plaintiff’s cause of action. The third, fourth, and fifth assignments of error may be considered together. They go to the right of the defendant to prove under the plea of the general issue that the plaintiff prevented the defendant from performing the contract. Under such plea the defendant may prove any fact which shows that the contract is not obligatory upon him, and, as Mr. Chitty observes, “most matters in discharge of the action which show that at the time of the commencement of the suit the plaintiff had no subsisting cause of action.” 1 Chitty on Pleading, 476, 478. So, also, in Mines v. Moore, 41 Ill. 273, 276, it is said: “And in an action of assumpsit almost any defense showing the satisfaction or discharge of the debt may be shown under the general issue.” See, also, Wilson v. King, 83 Ill. 233, 238. The contract here, if such there was, manifestly contemplated the transfer by the defendant to the plaintiff of 4,400 shares of the 11,500 shares under his control or influence; he having in his own name but 2 of the shares. That was the only source from which the defendant could procure the stock, as the plaintiff well knew. The obligation of the defendant, then, was to transfer to the plaintiff, upon fulfillment of the contract on his part, 4,400 shares of these 11,500 shares so controlled by him. It is undoubted law that the conduct of one party to a contract, which prevents the other party from performing his part, is an excuse for nonperformance. United States v. Peck, 102 U. S. 64, 26 L. Ed. 46. The evidence produced tended to show that Coulter was a creditor of the plaintiff to the amount of $10,000; that the plaintiff procured that creditor to bring suit thereon in Arkansas, and therein.to attach these 11,500 shares of stock, and subject them to the payment of that debt, under the law of that state that a transfer of stock is void as to creditors if certificate of the transfer be not filed as required; that in such suit so brought the 11,500 shares of stock were sold, purchased by Coulter, and the amount paid therefor was applied upon the judgment against the plaintiff. We see no reason why this defense could not be proven under the general issue. The authorities cited to the effect that fraud as a defense must be specially pleaded are not applicable. The question is whether the plaintiff by his conduct [283] prevented performance by the defendant. The moral obliquity of the act, if any, is not material to the fact. If it were a moral fraud for the plaintiff to procure his creditor to attach the stock, still the fraud is not of the essence of the defense, which is that the plaintiff by his act, whether fraudulent or not, prevented the defendant from performance ; and that fact, we think, may be shown under the general issue. The sixth assignment has reference to the charge to the jury stated in the assignment. We see no just objection which the plaintiff can make to the charge. The excerpt in the assignment contains all that the court said upon the subject of this particular defense. It certainly was most favorable to the plaintiff. The law of the case is properly stated, and we think it was proper for the jury to consider all the facts and circumstances which surrounded the action of the plaintiff, with respect to the part which he took in connection with the Coulter suit, that bore upon the question whether he was thereby seeking to prevent performance by the defendant. The engagement of Kelly to sell the bonds was not carried out until July, 1898. If in the April previous he procured, as the testimony tended to show and as the jury have found, the 11,500 shares of stock, which he knew was the only stock which the defendant could deliver to him, to be attached and sold to pay his own debt, he cannot justly claim compensation for his subsequent successful efforts to sell the bonds by holding the defendant liable upon a contract to deliver stock which the plaintiff had_procured to be taken to pay his own debt. „The seventh assignment of error involves the motion for a new trial. It is the settled rule in the federal courts that the ruling of the trial court upon motion for a new trial is not the subject of review.