Cook v. Fidelity & Deposit Co. of Maryland

Ninth Circuit

Cook v. Fidelity & Deposit Co. of Maryland

167 F. 95, 92 C.C.A. 547, 1909 U.S. App. LEXIS 4327

CourtCourt of Appeals for the Ninth Circuit

DecidedFebruary 1, 1909

DocketNo. 1,591

StatusPublished

Cited by9 cases

This text of 167 F. 95 (Cook v. Fidelity & Deposit Co. of Maryland) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cook v. Fidelity & Deposit Co. of Maryland, 167 F. 95, 92 C.C.A. 547, 1909 U.S. App. LEXIS 4327 (9th Cir. 1909).

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Opinion

ROSS, Circuit Judge

(after stating the facts as above). Even if it be conceded that by the agreement of August 15, 1905, the title to the personal property thereby embraced did not pass to the cattle company (see Arkansas Cattle Co. v. Mann, 130 U. S. 69, 76, 77, 78, 9 Sup. Ct. 458, 32 L. Ed. 854), still it cannot be doubted that by the subsequent agreements between the parties, and by the subsequent delivery of the property by Cook’s direction to the cattle company, title thereto did pass to it. And even if it should be conceded that in this action at law the plaintiff in error was entitled to show, if he could, that the agreements entered into subsequent to August 15, 1905, were executed by reason of fraud and misrepresentations, still, upon the most obvious principles of right, he could not avoid them while retaining the money and other property received by him by virtue of their execution. Hill v. Northern Pacific Railway Co., 113 Fed. 914, 51 C. C. A. 544, and cases there cited. But we think it very clear that the court below was right in refusing to permit the plaintiff in error to prove in the action at law that the agreements between Cook and the cattle company executed subsequent to August 15, 1905, were procured by fraud and misrepresentations. Pacific Mutual Life Insurance Company of California v. Webb, 157 Fed. 155, 84 C. C. A. 603, and the numerous cases there cited.

In respect to the suggestion that the plaintiff in error was at least entitled to nominal damages, it is enough to say that courts of justice do not reverse causes to award nominal relief only. Kelly et al. v. Fahrney, 97 Fed. 176, 38 C. C. A. 103, and cases there cited.

The judgment is affirmed.

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ROSS, Circuit Judge

(after stating the facts as above). Even if it be conceded that by the agreement of August 15, 1905, the title to the personal property thereby embraced did not pass to the cattle company (see Arkansas Cattle Co. v. Mann, 130 U. S. 69, 76, 77, 78, 9 Sup. Ct. 458, 32 L. Ed. 854), still it cannot be doubted that by the subsequent agreements between the parties, and by the subsequent delivery of the property by Cook’s direction to the cattle company, title thereto did pass to it. And even if it should be conceded that in this action at law the plaintiff in error was entitled to show, if he could, that the agreements entered into subsequent to August 15, 1905, were executed by reason of fraud and misrepresentations, still, upon the most obvious principles of right, he could not avoid them while retaining the money and other property received by him by virtue of their execution. Hill v. Northern Pacific Railway Co., 113 Fed. 914, 51 C. C. A. 544, and cases there cited. But we think it very clear that the court below was right in refusing to permit the plaintiff in error to prove in the action at law that the agreements between Cook and the cattle company executed subsequent to August 15, 1905, were procured by fraud and misrepresentations. Pacific Mutual Life Insurance Company of California v. Webb, 157 Fed. 155, 84 C. C. A. 603, and the numerous cases there cited.

In respect to the suggestion that the plaintiff in error was at least entitled to nominal damages, it is enough to say that courts of justice do not reverse causes to award nominal relief only. Kelly et al. v. Fahrney, 97 Fed. 176, 38 C. C. A. 103, and cases there cited.

The judgment is affirmed.

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167 F. 95, 92 C.C.A. 547, 1909 U.S. App. LEXIS 4327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-fidelity-deposit-co-of-maryland-ca9-1909.

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