pute to it a fraud upon the administration of justice in such other proceeding. Philadelphia Ry. v. Howard, 13 How. 307, 334, 14 L. Ed. 157.

There was no objection to the evidence at the trial on the ground of variance. In fact, much of the evidence on this question was introduced by the defendant itself, substantially in the effort to impeach the proceedings before the justice showing on their face that the plaintiff was bound over on this warrant. It need not, however, be now determined whether objection on the ground of variance must be taken to the evidence or may thereafter be taken by exception to the charge. See 31 Cyc. 754, 758, and cases cited. Irrespective of this question, I am of opinion that the charge in question was correct, provided the plaintiff could prove the substantial averments of the declaration by an estoppel in pais without having specially alleged the same in the declaration or in a replication.

[7, 8] Generally speaking an estoppel in pais need not be pleaded. 1 Rawle's Bouv. 1084, citing Bigelow, Estoppel, 765; estoppel being, in effect, a rule of evidence. 1 Rawle's Bouv. 1078, and authorities cited. At common law, as distinguished from code pleading, an estoppel in pais is held available as a defense under the general issue. 8 Enc. Pl. & Pr. 67; 16 Cyc. 806.

[9, 10] Upon the specific question whether a plaintiff may rely upon an estoppel in pais as proving the cause of action alleged, without having averred the same originally or by way of replication, there is a conflict of authority.

In Plumb v. Curtis, 66 Conn. 154, 163, 33 Atl. 998, 1003, it was said: "At common law an estoppel in pais was never regarded as in itself a substantive ground of recovery, to be put forward in pleading as part of the plaintiff's case. It was merely a mode of shutting off a defense. A plaintiff who sued upon a cause of action, the existence of which the defendant was equitably estopped from denying, stated the facts necessary to constitute the cause of action in his complaint as if they existed, and if a denial were pleaded, did not reply specially, stating the matter of estoppel, but simply introduced it in evidence to support his original averments. Hawley v. Middlebrook, 28 Conn. 527, 536."

So, in Spears v. Walker, 1 Head (Tenn.) 166, 169, it was held that a plaintiff in ejectment might prove the boundary of the land sued for by an estoppel in pais against the defendant, arising out of the evidence, although, so far as appears, such estoppel had not been pleaded.

If intended as establishing a general rule of pleading in Tennessee this decision would of course now be binding on this court under the Conformity Statute, Rev. St. § 914 (Comp. St. § 1537). However, in Wood v. Jackson, 8 Wend. (N. Y.) 9, 36, 22 Am. Dec. 603, the plaintiff's right to prove his title by estoppel, without pleading, was referred to as an exception to the general rule. And see, to the same effect, 2 Abb. Tr. Brf. Plead. 1444.

On the other hand, in Philadelphia Railroad v. Howard, 13 How., supra, at p. 334, 14 L. Ed. 157, the Supreme Court, in speaking in reference to the plaintiff, said that the rule was well settled that if a party has a right to plead an estoppel and voluntarily fails to do so, tender

ing or taking issue on the fact, he waives the estoppel and commits to the jury the finding of the truth; citing 1 Saund. 325a, n. 4. So in Jacobs v. Bank, 15 Wash. 358, 361, 46 Pac. 396, it was held that the plaintiff could not rely, as a ground of recovery, upon an estoppel in pais not specially averred. And see, inferentially, City of Ironton v. Harrison (6th Cir.) 212 Fed. 353, 357, 129 C. C. A. 29, in which it was held that as the facts alleged showed the estoppel, the plaintiff might have the benefit of it, though he had not pleaded it in terms.

However, in Philadelphia Railway v. Howard, 13 How. supra, at p. 335, 14 L. Ed. 157, the court said, speaking of the plaintiff, that if a party have not an opportunity to show the estoppel by pleading, he may exhibit the matter thereof in evidence on the trial, and held that as the plaintiff had sued upon a sealed instrument and the defendant had merely pleaded non est factum, the plaintiff need not allege an estoppel by which the defendant was not permitted to deny that the instrument was under its seal, but might rely on this in evidence, without replication. To the same effect are Lord v. Bigelow, 8 Vt. 445, 448; Wood v. Jackson, 8 Wend. (N. Y.) supra, at p. 36, 22 Am. Dec. 603, and 2 Abb. Tr. Brf. Plead. 1444.

Without determining the broad rule of pleading which should be generally followed as to estoppel by a Federal Court sitting in Tennessee, I am of opinion that in any event the instant case fairly falls within the rule stated by the Supreme Court in the Howard Case. The plaintiff here had alleged a prosecution under this warrant. The defendant merely pleaded the general issue, without averring specially the invalidity of the proceedings before the justice. The proceedings before the justice showed, prima facie, at least, that the plaintiff was bound over to court on the warrant sworn out by the defendant's alleged agent. The defendant relied upon evidence impeaching or tend-' ing to impeach the proceedings before the justice, and showing or tending to show that in fact the plaintiff was not legally bound over on this warrant. Under these circumstances, I think the plaintiff, without any affirmative pleading, was entitled to reply to this that even if the evidence did not show that the plaintiff was in fact legally bound over on this warrant, it did establish an estoppel against the defendant from denying that fact. I therefore conclude that there was no error in the charge in this respect.

cause.

[11, 12] (c) The plaintiff in an action for malicious prosecution is not require to go further than to prove malice and want of probable He need not prove his own actual innocence to support the action. Moore v. Sauborin, 42 Mo. 492, 494; McGowan v. Rickey, 64 N. J. Law, 402, 404, 45 Atl. 804; 26 Cyc. 27. And while, as a matter of public policy, such action will not lie in favor of a guilty plaintiff, and the defendant may hence, by way of defense, show the plaintiff's actual guilt (Ann. Cas. 1914C, 809), I am of opinion that the burden of establishing such defense necessarily rests upon the defendant, as the jury were instructed.

[13] 4. The verdict cannot be set aside on the ground that it was arrived at as a quotient verdict; evidence of the jurors on this point being inadmissible. McDonald v. Pless, 238 UJ. S. 264, 267, 35 Sup.

Ct. 783, 59 L. Ed. 1300. And see Hyde v. United States, 225 U. S. 347, 383, 32 Sup. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614. Furthermore the evidence, in so far as introduced on the hearing on the motion for new trial, did not establish the fact that there was a quotient verdict; the defendant, in view of the ruling then made by the court, resting before the proof on this question had been completed.

[14] 5. Under all the circumstances, and in view of the serious nature of the charge upon which the plaintiff was prosecuted, I do not find that the verdict was so excessive as to justify the granting of a new trial.

6. The motion for new trial will accordingly be denied and judgment entered on the verdict.

UNION BAG & PAPER CORPORATION v. BISCHOFF.

(District Court, E. D. New York. December 13, 1918.)

1. PRINCIPAL AND AGENT ~123(7)—AUTHORITY OF AGENT EVIDENCE. In a suit to compel defendant to purchase property from plaintiff pursuant to an agreement, evidence held to establish the authority of defendant's agent, who signed the agreement, and to show defendant's knowledge thereof.

2. SPECIFIC PERFORMANCE 31-SUIT-RIGHT TO MAINTAIN.

Where defendant's agent signed a letter, written by plaintiff, offering to sell property, and the minds of the parties met, specific performance cannot be denied, because the parties contemplated that a formal contract would be later substituted for the more or less informal agreement. 3. FRAUDS, STATUTE OF 116(5)—AUTHORITY OF AGENT-PURCHASE OF LANDS. Written authority is not necessary for agent to bind his principal by an agreement to purchase land.

4. PRINCIPAL AND AGENT 21-AUTHORITY OF AGENT-DECLARATIONS OF AGENT-CREATION.

While agency cannot be proved by the declarations of an agent, the agent may testify to statements made by his principal, in order that the court may determine whether an agency was created.

5. SPECIFIC PERFORMANCE 31-ACTION-DEFENSE.

In a suit to compel defendant to purchase land pursuant to an agree ment, it is no defense that the draft contracts did not conform to the agreement contained in an offer by letter, which was accepted by defendant's agent, where the draft contracts were rejected for a different reason. 6. COURTS 365-SPECIFIC PERFORMANCE 32(3)—FOLLOWING STATE DECISIONS-CONTRACT-MUTUALITY.

The federal court will not deny specific performance of a contract whereby defendant was to purchase New York lands, on the ground that the contract lacked mutuality, though the rule in the courts of New York is to the contrary.

7. VENDOR AND PURCHASER 134(2)-INCUMBRANCE-MORTGAGE-PARTIAL

RELEASE.

Where a mortgage on all of the vendor's property provided for release of portions for sale, and it appeared the vendor had complied with the requirements which absolutely entitled it to a release, held, that specific performance of defendant's contract to purchase part of the vendor's lands will not be denied, because of the mortgage, though defendant could not be required to make payment, unless he receives a title free from the mortgage lien.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

In Equity. Suit by the Union Bag & Paper Corporation against Frederick Bischoff. Decree for plaintiff on condition.

Thomas Mills Day, of New York City, for plaintiff.
Edward T. Horwill, of Brooklyn, N. Y., for defendant.

GARVIN, District Judge. This is an action brought to compel the defendant to purchase from plaintiff a mill property at Ballston Spa, N. Y. Defendant rested at the close of the plaintiff's case.

On February 21, 1918, the following letter was signed by the plaintiff, and upon it was indorsed by one Briggs:

"Accepted:

J. Meade Briggs, Agent for F. Bischoff."
"Union Bag & Paper Corporation.
"Woolworth Building, New York City.

"February 21, 1918.

"Office of the President. Mr. John L. Hurlburt, General Manager, "F. Bischoff, 150 Sand Street, Brooklyn, N. Y.-Dear Sir: This is to confirm arrangement made with you to-day, through your representative, Mr. J. Meade Briggs, of Brooklyn, whereby we sell to you our property located at Ballston Spa, New York, consisting of real property, mill, machinery, and factory buildings and warehouses, as contained in those properties known as Union Mill property, which you have just gone over (with the exception of our Glen Mill property, which was not shown your representative), and all rights and titles connected therewith, with the exception of any merchandise that may be stored therein, for the sum of fifty thousand dollars ($50,000), on the following terms:

"Five thousand dollars ($5,000) upon the drawing up and signing of the contract, on or before March 1st.

"Fifteen thousand dollars ($15,000) as soon as the deeds for conveying the property are completed, on or before April 1st.

"A mortgage of thirty thousand dollars ($30.000) for two years, interest 6%, of which $10,000 shall be paid one year from this date, and $20,000 to be paid two years from date, and the privilege of paying off any amount in multiples of $5,000 or all on any interest-paying date. Insurance and taxes to be prorated at the date of delivery of deed.

"This sale, of course, is subject to the approval of the trustee under our general mortgage, and the approval of our executive committee, and also is made with the understanding that the property will not be used for a period of ten (10) years for the manufacture of paper bags.

"Very truly yours, "MBW:EMH

[Signed] M. B. Wallace,

President."

Plaintiff claims that this constitutes a contract binding on the defendant.

[1] It must first be determined whether Briggs had authority to bind defendant. On February 12, 1918, defendant went to Ballston Spa to view the property, accompanied by John L. Hurlburt, who was his general manager, and Briggs. As they were returning, defendant told Briggs that he thought very well of the property, but that the matter was entirely in the hands of Hurlburt, and whatever the latter did was all right. Hurlburt testified that the defendant told him to go ahead and purchase that property. Briggs subsequently called at plaintiff's office, discussed the terms of purchase, and telephoned them to Hurlburt, who was then with defendant in the latter's office. Hurlburt in turn communicated them to the defendant, who said, “All

right." All this, taken together, indicates an intention on the part of defendant to be bound by Briggs' act. The letter in question was addressed to Hurlburt, because the method of taking title had been discussed with defendant, and the latter had indicated that he desired to have the transaction consummated in that manner. Five days after the letter was signed, defendant, after seeing it, returned it to Hurlburt, saying that, although he had changed his mind about some other matters, the purchase of the Ballston Spa property was not affected thereby. The letter provided that the first payment was to be made on or before March 1st, on which day the formal draft of contract was presented to defendant, who then repudiated the entire transaction, not criticizing any act of plaintiff, but claiming he had been tricked (in what manner it does not appear) by Hurlburt.

Defendant claims that the testimony does not make it clear that all the terms of sale were disclosed to him on February 21st. Any doubt upon this is dispelled by the statement made by him February 26th, when he expressed his approval of the purchase after the letter had been submitted to him.

Defendant also urged that the plaintiff's witnesses made confusing and contradictory statements, and that the testimony of at least oneHurlburt-is wholly improbable. The court had an opportunity to observe the witnesses and their manner of testifying, and has reached a different conclusion. The variations were due almost, if not wholly, to misunderstandings of questions, or to mistakes that are apt to occur in describing the events of several consecutive days. No disposition to conceal or evade was manifested, and in the absence of any proof in behalf of defendant the court accepts plaintiff's witnesses as credible.

[2] It is insisted that no action can lie, because a formal contract was not signed. The true test is to ascertain whether the minds of the parties did in fact meet on February 21st. The proof is convincing that they did, for which reason no formal contract is required: U. S. v. P. J. Carlin Construction Co., 224 Fed. 859, 138 C. C. A. 449; Thomas B. Whitted & Co. v. Fairfield Cotton Mills, 210 Fed. 725, 128 C. C. A. 219; N. Y. & Philadelphia Coal Co. v. Meyersdale Coal Co., 217 Fed. 747, 133 C. C. A. 441.

[3] Defendant urges that Briggs had no written authority from the defendant, and so could not bind him in this way as agent. This was not a transfer of land; it was a contract of sale. As such the authorities hold that the memorandum of the contract need not be signed by the vendee, and that an agent may bind his principal by a contract for the sale of land without having written authority. No reason suggests itself for any different requirement in connection with a contract to purchase land.

[4] While it is quite true, as defendant insists, that agency cannot be proved by the declarations of an agent, the latter may testify to statements made by his alleged principal, in order that the court may determine whether any agency was created.

[5] Whether the draft contracts conformed to the terms of the letter is immaterial. They were rejected for quite a different reason.