The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 619
This legislative document is part of the collection entitled: The Federal Reporter and was provided to UNT Digital Library by the UNT Libraries Government Documents Department.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
FRAAD TALKING MACH. CO. V. EMPIRE MFG. CO.
tered a judgment on the law side of the court, and as we gather from
the briefs the judgment was on a verdict. The writ is to that judg-
ment, yet not even the judgment itself, much less the judgment roll,
is contained in the record on the writ. It needs apparently mention
(certainly no more) that, unless there be a bill of exceptions settled to
present what is not in the judgment roll, a writ to the judgment brings
up nothing but the regularity of entry-a matter determinable by in-
spection of the roll. A writ, accompanied by neither roll nor bill of
exceptions, is a novelty which might well be dismissed without fur-
ther comment.
The substance of the assignment of error is that, after judgment
entered, the court below refused to vacate or cancel it, upon inspection
of a stipulation or agreement of counsel, then first exhibited. By that
writing the attorneys in this suit, after verdict, agreed to "settle" it
by the Fraad Machine Company giving certain notes, one payable
on demand, the others on time, and assigning certain accounts. The
writing continues that, if default in payment of any note be made,
judgment is to be entered in another action at law, then apparently
pending in the courts of the state. The defendants agreed in sub-
stance "neither passively nor otherwise" to do anything "endangering
the collection of plaintiff's claim"-i. e. in this suit (so far as we can
see)-and, further, the Fraad Machine Company was, until said claim
was paid in full, to render to plaintiff biweekly statements of sales,
purchases, receipts, and disbursements, and give access to its books
for purposes of examination. Defendant Fraad individually was not
party to the suit in the state court, nor was he on the settlement notes.
The plain object of the transaction was to give the Fraad Machine
Company more time, and enable Fraad individually thereby to escape
judgment.
After the execution of this written agreement, and before (appar-
ently) even the demand note was paid, the Fraad Machine Company
assigned for the benefit of creditors under the state act, and a peti-
tion in bankruptcy was then filed against it. Thereupon plaintiff en-
tered judgment herein, and defendants, having moved to set the same
aside and been denied, took this writ, making up a sort of record that
would be imperfect upon appeal under New York Code of Civil Pro-
cedure from an order affecting a substantial right.
We dismiss this writ, with costs, because it brings up nothing we
can either affirm or reverse; but as to the matter complained of we
may add that in our opinion the assignment of the Fraad Company
was distinctly a step that endangered the collection of plaintiff's claim,
and it of course rendered impossible the giving of statements of busi-
ness to plaintiff. In short, there was a breach that went far beyond
mere failure to pay a settlement note, and amounted to a repudiation
of the agreement by defendants. This entitled plaintiff to exercise
the right given it by verdict, if there had ever been any other agree-
ment in that respect than to give time. Further, in any view of the
matter, it was an attorneys' agreement, against which the court could
relieve on cause shown; there is nothing printed in the papers sub-
mitted which suggests any abuse of discretion in that regard.
Writ dismissed, with costs.
Upcoming Pages
Here’s what’s next.
Search Inside
This document can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Legislative Document.
The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38821/m1/634/: accessed April 25, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.