PHILIPS, District Judge,
alter stating the case as above, delivered the opinion of the court.
Had appellee in his bill disclosed on its face some of the positions taken in argument on this hearing, by his counsel, as to some matters of fact, the bill would have been quite vulnerable to attack for inconsistency and contradiction. While the pleader may allege any number of facts, all tending to show that in legal effect they entitle him to the relief sought, yet the facts pleaded must be consistent with each other. If one fact stated be immediately followed by another statement wholly contradictory of the other, the pleader would, in justice to the adversary, he compelled to elect upon which of the two allegations he would stand.
The first contention of counsel for appellee is that the tender of April 25, 1887, was not accompanied with a demand for delivery of the stock to him. He then argues his cause on the theory of such demand having been made. In the forum of conscience he ought to admit the fact of a conditional tender before being heard to base an argument thereon; for, if such be the actual fact, it is not true that he made a tender of the naked payment of $7,9G8.30 without demanding a delivery of the stock. In the absence of any opinion in this record of the circuit court, we are not advised as to the particular ground upon which the decree was based. Because of the various and independent positions assumed in argument in justification of the decree, we cannot assume that the court found as a matter of fact that the tender of April 25, 1887, was made unconditionally. And, in view of all the evidence and circumstances, we are unable to perceive any reasonable escape from the conclusion that the offer to pay the money was made to depend upon the simultaneous delivery of the [20]*20stock found by the decree to belong of right to appellee. In the first place, it is indisputable that appellee, in order to provide money for this tender, arranged therefor with one Drexler, at San Francisco, on the understanding between them that said stock was to be turned over to him as collateral security. To this end, Drexler never put the money into appellee’s hands, or subjected it to Ms absolute control, but protected himself by drawing a check for the amount on a New York bank, made payable to the bank at Little Rock, Ark., and sent it thereto, accompanied with a letter of special direction. So, when the money was drawn out of the bank to make a tender, it was not intrusted to the hands of appellee; but the clerk of the bank took it, and accompanied Mr. Martin, appellee’s solicitor, to make the tender. And, when the tender as made was refused, the money was returned into the bank, and Drexler’s check therefor was destroyed. Mr. Martin’s version of what occurred between him and Mr.'Moore, appellant’s solicitor, at the time of the alleged tender, is substantially as follows:
“In the afternoon of that day he got O. T. Walker, clerk of'the bank, to go, with the sum of $7,968.30, in legal-tender money, with him, to Moore’s office, and told Moore that, as the solicitor of Paul IP. Beardsley, he had come to make him a tender of said money. Moore said he wanted to put his answer in writing, and that it would be, in substance, that he would accept the money, but could not deliver the stock. That he (Martin) then said to him that he made the tender of the amount under decree of the court; that he could take it, and deliver the stock. Moore wanted him to reduce his tender to writing, but he replied that no writing was necessary, as he brought the money, with Mr. 'Walker as a witness to the transaction. Moore rexilied that he was willing to accept the money, and hold it pending the appeal to the supreme court.”
Without at all questioning that Mr. Martin acted within the admissible lines of fidelity to his client, it must be said that there was some refined diplomacy in his approach to Mr. Moore. His ingenuity to obtain the advantage of an apparent unconditional tender, while being sure that his client was to have the stock on parting with the money, is palpable. That the matter of the delivery of the stock was not only discussed between them, but must have first been suggested by Martin, is evident from Martin’s own statement, because he states that Moore said he would accept the money, “but could not deliver the stock.” Why should Moore make this response, unless it was understood that the tender was made on demand of the delivery of the stock? That the apprehension of Mr. Moore was well founded, that the acceptance of the money was designed by Mr. Martin to imply a Settlement of the pending appeal, is made manifest by the statement-then made by Martin to Moore, “that he made tender of the amount under decree of the court.” Mr. Moore, an astute and cautious lawyer, alive to the infirmity of human memory, and the liability to misconception of language employed in a verbal colloquy, suggested at the outset that he (Martin) put his tender in writing, and that he (Moore) would make Ms answer in writing. This reasonable and fair suggestion, Mr. Martin saw fit to decline. Mr. Moore, in order that his position might be made absolute, did at the time write out his answer, as follows:
[21]*21‘•Messrs. Martin and Jones: In response to the tender here now made by yon of the sum of $7,960.57 in payment oi" the amount decreed to the defendant John I). Beardsley under the decree in said cause, I hereby agree to accept and hold the same without prejudice to the supersedeas granted under the appeal taken by John D. Beardsley in said cause to the supreme court.
“John M. Moore,
“Attorney for Defendant J. D. Beardsley.
“The above is my response to the tender in said cause. Mr. Martin demanded that I deliver the stock. 1 advised Mm I did not have it.”
If, indeed, it was Mr. Martin’s purpose to make an unconditional tender of the money, it would have been the simplest and frankest method of making that fact known, to have at once said to Mr. Moore, “I make you this tender, whether or not you or your client deliver the stock.” More than this, if it was the purpose in good faith of Mr. Martin to pay over this money without more, the sure and certain way was afforded him by the decree of the court, which authorized the payment of the money into the court registry. Had he done this, all controversy would have been ended as to the character and effect of the tender. This opportunity and right, however, the ap-pellee was unwilling to avail himself of, for the obvious reason that under his arrangement with Drexler he could not leave the money on deposit with the clerk of the court without putting up with Drexler, as collateral security therefor, the said shares of stock.
Unwilling to rest the decree upon the question of fact, that no demand was made foi' the delivery of the stock at the time of the tender of the money, counsel for appellee contends that, even if such demand was made, it was only such condition as the appellee had a right to insist on, as payment of the money and delivery of the stock were made by decree of the court interdependent or simultaneous acts, to be performed by the respective parties; citing in support the language of the court in Halpin v. Insurance Co., 118 N. Y. 165-176, 23 N. E. 482, 485:
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PHILIPS, District Judge,
alter stating the case as above, delivered the opinion of the court.
Had appellee in his bill disclosed on its face some of the positions taken in argument on this hearing, by his counsel, as to some matters of fact, the bill would have been quite vulnerable to attack for inconsistency and contradiction. While the pleader may allege any number of facts, all tending to show that in legal effect they entitle him to the relief sought, yet the facts pleaded must be consistent with each other. If one fact stated be immediately followed by another statement wholly contradictory of the other, the pleader would, in justice to the adversary, he compelled to elect upon which of the two allegations he would stand.
The first contention of counsel for appellee is that the tender of April 25, 1887, was not accompanied with a demand for delivery of the stock to him. He then argues his cause on the theory of such demand having been made. In the forum of conscience he ought to admit the fact of a conditional tender before being heard to base an argument thereon; for, if such be the actual fact, it is not true that he made a tender of the naked payment of $7,9G8.30 without demanding a delivery of the stock. In the absence of any opinion in this record of the circuit court, we are not advised as to the particular ground upon which the decree was based. Because of the various and independent positions assumed in argument in justification of the decree, we cannot assume that the court found as a matter of fact that the tender of April 25, 1887, was made unconditionally. And, in view of all the evidence and circumstances, we are unable to perceive any reasonable escape from the conclusion that the offer to pay the money was made to depend upon the simultaneous delivery of the [20]*20stock found by the decree to belong of right to appellee. In the first place, it is indisputable that appellee, in order to provide money for this tender, arranged therefor with one Drexler, at San Francisco, on the understanding between them that said stock was to be turned over to him as collateral security. To this end, Drexler never put the money into appellee’s hands, or subjected it to Ms absolute control, but protected himself by drawing a check for the amount on a New York bank, made payable to the bank at Little Rock, Ark., and sent it thereto, accompanied with a letter of special direction. So, when the money was drawn out of the bank to make a tender, it was not intrusted to the hands of appellee; but the clerk of the bank took it, and accompanied Mr. Martin, appellee’s solicitor, to make the tender. And, when the tender as made was refused, the money was returned into the bank, and Drexler’s check therefor was destroyed. Mr. Martin’s version of what occurred between him and Mr.'Moore, appellant’s solicitor, at the time of the alleged tender, is substantially as follows:
“In the afternoon of that day he got O. T. Walker, clerk of'the bank, to go, with the sum of $7,968.30, in legal-tender money, with him, to Moore’s office, and told Moore that, as the solicitor of Paul IP. Beardsley, he had come to make him a tender of said money. Moore said he wanted to put his answer in writing, and that it would be, in substance, that he would accept the money, but could not deliver the stock. That he (Martin) then said to him that he made the tender of the amount under decree of the court; that he could take it, and deliver the stock. Moore wanted him to reduce his tender to writing, but he replied that no writing was necessary, as he brought the money, with Mr. 'Walker as a witness to the transaction. Moore rexilied that he was willing to accept the money, and hold it pending the appeal to the supreme court.”
Without at all questioning that Mr. Martin acted within the admissible lines of fidelity to his client, it must be said that there was some refined diplomacy in his approach to Mr. Moore. His ingenuity to obtain the advantage of an apparent unconditional tender, while being sure that his client was to have the stock on parting with the money, is palpable. That the matter of the delivery of the stock was not only discussed between them, but must have first been suggested by Martin, is evident from Martin’s own statement, because he states that Moore said he would accept the money, “but could not deliver the stock.” Why should Moore make this response, unless it was understood that the tender was made on demand of the delivery of the stock? That the apprehension of Mr. Moore was well founded, that the acceptance of the money was designed by Mr. Martin to imply a Settlement of the pending appeal, is made manifest by the statement-then made by Martin to Moore, “that he made tender of the amount under decree of the court.” Mr. Moore, an astute and cautious lawyer, alive to the infirmity of human memory, and the liability to misconception of language employed in a verbal colloquy, suggested at the outset that he (Martin) put his tender in writing, and that he (Moore) would make Ms answer in writing. This reasonable and fair suggestion, Mr. Martin saw fit to decline. Mr. Moore, in order that his position might be made absolute, did at the time write out his answer, as follows:
[21]*21‘•Messrs. Martin and Jones: In response to the tender here now made by yon of the sum of $7,960.57 in payment oi" the amount decreed to the defendant John I). Beardsley under the decree in said cause, I hereby agree to accept and hold the same without prejudice to the supersedeas granted under the appeal taken by John D. Beardsley in said cause to the supreme court.
“John M. Moore,
“Attorney for Defendant J. D. Beardsley.
“The above is my response to the tender in said cause. Mr. Martin demanded that I deliver the stock. 1 advised Mm I did not have it.”
If, indeed, it was Mr. Martin’s purpose to make an unconditional tender of the money, it would have been the simplest and frankest method of making that fact known, to have at once said to Mr. Moore, “I make you this tender, whether or not you or your client deliver the stock.” More than this, if it was the purpose in good faith of Mr. Martin to pay over this money without more, the sure and certain way was afforded him by the decree of the court, which authorized the payment of the money into the court registry. Had he done this, all controversy would have been ended as to the character and effect of the tender. This opportunity and right, however, the ap-pellee was unwilling to avail himself of, for the obvious reason that under his arrangement with Drexler he could not leave the money on deposit with the clerk of the court without putting up with Drexler, as collateral security therefor, the said shares of stock.
Unwilling to rest the decree upon the question of fact, that no demand was made foi' the delivery of the stock at the time of the tender of the money, counsel for appellee contends that, even if such demand was made, it was only such condition as the appellee had a right to insist on, as payment of the money and delivery of the stock were made by decree of the court interdependent or simultaneous acts, to be performed by the respective parties; citing in support the language of the court in Halpin v. Insurance Co., 118 N. Y. 165-176, 23 N. E. 482, 485:
“That, where there is no dispute as to the amount o£ the debt, a tender may always be restricted by such conditions as by the terms oí: the contract are conditions precedent or simultaneous to the payment o£ the debt, or proper to be performed by the party to whom the tender is made.”
As applied to the subject-mailer under consideration by the court therein, the above quotation may be conceded to have expressed a proper rule. But as applied to the facts in this case it is very misleading. When this alleged tender was made on the 25th day of April, 1887, John D. Beardsley had taken an appeal from the decree to the supreme court. He had given therein a supersedeas bond, not only as evidence of his good faith in taking the appeal, but as ample security and protection to the appellee for any damage sustained by him in consequence of such appeal. The record shows that on such appeal he claimed an account against Paul F. Beardsley for over $16,000, and he complained that the court in its decx*ee cut off his claim by over one-half. He also controverted by Ms appeal the right oí Paul F. Beardsley to the amount of stock awarded him by the decree of the circuit court. There is nothing presented in this record to justify this court in impugning the good faith of John D. Beards[22]*22ley in prosecuting said appeal. He could not have accepted the money tendered on the 26th day of April, 1887, on the theory of ap-pellee’s counsel, that it carried with it, ex vi termini, a demand for the stock, and that its acceptance therefore would have been tantamount tó a surrender of the stock, without abandoning the prosecm tion of his appeal. Mr. Moore was right in his contention that he should be required to accept the money on condition only that it should not prejudice the appeal, for the reason that the very moment the fact should have been brought to the attention of the supreme court that appellee had performed the decree on his part, and that appellant had accepted its performance, the court would have dismissed the appeal. The supreme court is rigid in its adherence to the rule' of practice that whenever the matter appealed from has been adjusted between the parties, or the judgment of the lower court has been performed, the appeal thereafter presents only a moot case, and should be dismissed. Little v. Bowers, 134 U. S. 557, 10 Sup. Ct. 620, and cases cited. Therefore the tender made by appellee involved not only the immediate delivery of the stock in question to the appellee, but it involved a surrender of appellant’s right to the opinion and judgment of the supreme court on the matter in controversy between the parties. Such a tender was in the worst form of a conditional tender, denounced by all the authorities as insufficient to stop the running of interest. It is the common learning of the books that the tender of a sum, even when the amount is not controverted, coupled with a demand that the other party perform some other act, or surrender some other right, as a condition of its acceptance, is bad, for the simple reason that the party making the tender “has no right to attach a penalty to the condition.” Henderson v. Cass Co. (Mo. Sup.) 18 S. W. 992; L’Hommedieu v. Dayton, 38 Fed. 926; Brown v. Gilmore, 8 Greenl. 107; Roosevelt v. Bank, 45 Barb. 579. Waiving the question as to whether or not 'the rule that a tender made pendente lite, in order to stop the running of interest, requires that the money should be paid into court, should be applied to the facts of this case, there is another rule firmly established in the law governing tenders,— that, in case of a tender in pais, to make it effectual to stop accruing interest, the money so tendered, or other like lawful money, should be kept on hand by the party pleading the tender, so that he would be ready and able to pay the same to the payee at any time the latter should elect to take it. The debtor in such case avoids the payment of interest upon the supposition that the creditor should have accepted the money, and that thereafter the debtor had set it apart for him, subject to his order, and the debtor has thus been deprived of its use, and any profit therefrom. In Gyles v. Hall, 2 P. Wms. 378, it is laid down that:
“To entitle the mortgagor to a discharge of the interest, it must appear that ever since the tender and refusal he has kept the money ready for the paying of the mortgage, and that no profit has been made of it. That the party making the tender must he at all times thereafter in readiness to pay does not appear to be anywhere questioned.”
And so are all the authorities. State v. Illinois Cent. R. Co., 33 Fed. 730; Thayer v. Menkie, 86 Ill. 474; Shields v. Lozear, 22 N. J. [23]*23Eq. 451; Gray v. Angier, 62 Ga. 597; Park v. Wiley, 67 Ala. 312; Slack v. Price, 1 Bibb, 274; Roosevelt v. Bank, 45 Barb. 579; Bissell v. Heyward, 95 U. S. 587. In Park v. Wiley, supra, the court said:
“In llie present case it is apparent tlio tender was not kept open, nor did the vendee continue in readiness to pay. A part of the. money liad been borrowed, and it was immediately returned to the lender; the vendee deriving the benefit from its use. When a' tender is relied on, the duty resting on the party making it is to keep the money safely, — not the identical coin or bank notes, but money of like kind, — so that lie may produce it when required. The tender is then kept open, ready for the acceptance of the other party when he manifests a willingness to receive the money.”
It is too clear to admit of reasonable debate that appellee, after the 25th day of April, 1887, to the 7th day of August, 1891, neither had ou hand the identical money, nor any other like money. It is true, he stated in his deposition that he could have obtained the money at any time, but the controlling facts affirmatively appear that the check which represented the money tendered was destroyed; that he thereafter had no money in bank; and he does not show that he had any money anywhere. On the contrary, it appears that when the court made the order on the intervening application of his attorneys, impounding the shares of stock to enforce the lien thereon for the fees of Jones & Martin, he applied to the court for a modification of this order, on the ground, staled by him, that he could not raise the money with which to make the tender of August, 1891, without the use of this stock as collateral security. And, furthermore, the fact appears that when he obtained the money from Drexler to make the tender of August 7, 1891, he again pledged said stock as collateral security therefor.
The final contention of appellee is that between the 25th day of April, 1887, and the time of the payment of the money, in August, 1891, the appellant made use of the stock, which should have been turned over to appellee, and made a profit therefrom, while the ap-pellee suffered a loss from not having the possession and control of this stock. This contention is predicated on the assumption that, to enable the appellant to obtain from Jay Gould $51,000, he not only sold to Gould 51 per cent, of the stock of the Arkansas Railway Company, but pledged the remaining 19 per cent, of said stock, and that he got the benefit in said transaction of the shares of stock belonging 1o appellee. The case of Cheney v. Bilby, 36 U. S. App. 720, 20 C. C. A. 291, and 74 Fed. 52, is relied upon to support this contention. But we do not think that a. fair analysis of the testimony touching this transaction hears out this contention. It is true that the entire stock in question was turned over to Gould’s agent in said transaction, as at the time the said certificates of'stock were not so divided up as to segregate 33 per cent, thereof from (he mass; and, when it was so turned over, Gould distinctly understood that he had bought from John D. Beardsley, in fact, only 53 per cent, of said stock, while John D. Beardsley was entitled to 66 §■ per cent. Gould at the time understood that the stock was subject to the decree of the court awarding it to Paul F. Beardsley, and it was in no wise essential to the completion of the contract of the sale of 51 per cent. This fact is supported by [24]*24the testimony of Gould’s own agents and representatives. On tbe contrary, the very reverse of this proposition is made to appear conclusively by the record in this case. In the supplemental proceedings, set out in the statement of facts by the decree of the court, the Arkansas Railway Company was awarded a recovery against John D. Beardsley for the sum of $21,072.16, with interest from the 5th day of August, 1889, to the date of the filing of the master’s report. This sum expressed the net earnings of the said Arkansas Railway Company from the original decree in the cause to the date of the appointment of the receiver in the supplemental cause, — December 3,1887. Of this sum, Paul F. Beardsley was entitled to one-third, which, with interest to the date of payment, amounted to $10,000;' and this amount John D. Beardsley paid to him. This record further shows that from the period of the appointment of the receiver to the time of final payment, August 7, 1891, and until both the Beardsleys disposed of'their interests in the Arkansas Railway Company, the receiver paid over to said St. Louis Railway Company the net earnings of the road, in discharge of a debt which the Arkansas Railway Company owed it. This payment was made in accordance with the request of the supplemental bill filed by Paul F. Beardsley. , So that it does appear that Paul F. Beardsley in fact got the benefit of one-third of the net earnings, through the benefit to the Arkansas Railway Company, from the date of his purchase until August 7,1891; and in this way he got, during the time his stock was withheld from him by the action of John D. Beardsley, the benefit thereof, for the simple reason that the liquidation, out of the earnings of the road, of the indebtedness of the Arkansas Railway Company to the St. Louis Railway Company enhanced to that extent the value of Paul F. Beardsley’s shares of stock. Recurring to the case of Cheney v. Bilby, supra, it is well to observe that the facts of that case do not warrant the conclusion sought to be drawn therefrom by appellee, that unless it appears in this case that between April 25,1887, and August 7,1891, Paul F. Beardsley himself realized interest on the money tendered in April, 1887, no interest is allowable against him thereafter. An examination of the record in the Cheney Case shows that Wisherd, the debtor in that case, testified:
“I got tlie money at the First National Bank of Lincoln, Nebraska. The money was in gold. I arranged to have the money kept at that bank, and the bank was instructed to pay to Oheney at any time he might ask for it, and I so informed Bussell & Holmes. On the day that the tender was made, the bank was instructed to pay the money to Oheney, or any one demanding it for him. My arrangement with the bank was to keep the money there- for the use of Oheney at any time he might ask for it.”
It was therefore iu respect of this state of facts that the court held that no interest was chargeable against the debtor after the tender, for the reason that he had kept his tender good, and the money thereafter at all times was subject to the order of the creditor. As he had thereby lost the use of the money, it was inequitable to charge him with interest. Whereas in this case Paul F. Beardsley did not keep the money in bank subject to the order of John D. Beardsley. And while John D. Beardsley did not enjoy the use of the money because [25]*25it was tendered, on condition that be could not accept without a surrender of the valuable right of appeal, and as during the time Paul F. Beardsley received the full benefit of the shares of stock, which were to be delivered to him on the payment of the money, that principle of justice which says that equality is equity demands that the appellant should have his interest. It results that the decree of the circuit court is reversed, and the cause is remanded, with directions to vacate its decree, dissolve the injunction granted therein, dismiss the bill, and tax the costs against the complainant. .