Eighth. It is further agreed that said telegraph companies may furnish said quotations to any other telegraph company with which either of them now have or may hereafter have any operating contract or any other arrangements, provided that every such. telegraph company shall first sign a contract or agreement, running to said party of the first part, to abide by and conform to clauses two, six, seven and ten of this agreement. Ninth. And the said party of the first part hereby agrees that it has not entered into and will not enter into any contract or arrangement with any other person or company who has or may acquire the right to distribute said quotations, in which contract or arrangement the said party of the first part has agreed or shall agree to pass upon applications of persons applying for the quotation service in a shorter period than those above provided for in the second clause of this contract. And it is further agreed that in passing upon applications for said quotation service presented by either of the second or third parties it will act without discrimination as between said second or third parties, or as between either of them, and any other person or corporation sending in applications for its patrons. And whenever the said party of the first part shall have before it at the same time applications from the same person, firm or corporation presented through two or more persons, telegraph, telephone or ticker companies, if it approves any of said applications, it shall approve them all at the same time and shall notify at the same time all of said persons or companies through whom said applications were presented of such approval. This shall apply either when an application is approved affirmatively or by the failure of the said party of the first part to act upon any application. Whenever either party of the second or third parts shall obtain and deliver to the party of the first part an application for the quotation service from any person, firm or corporation, who at the time of making said application is receiving said quotations with the approval of said first party, then the party of the second or third part may furnish said quotations on said application without waiting for an approval by the party of the first part as herein before provided in other cases. Tenth. The words "continuous quotations" wherever used in the second and eleventh sections hereof shall be construed to mean every service of quotations wherein the price of any commodity shall be quoted oftener than at intervals of ten minutes. Each of said telegraph companies agrees not to furnish said continuous quotations to any person, firm or corporation, except as provided in sections two and eight hereof, the only intent and purpose hereof being to prevent the misuse of said quotations for said unlawful purposes, or in said unlawful business, and not to discriminate between persons desiring them for other than said prohibited purposes. Eleventh. This agreement shall be in force for one year from the date hereof and thereafter until the first party shall give to said second party and third party, or said second party and third party shall give to said first party, sixty days written notice of its or their intention to terminate the same. In witness whereof, the parties hereto have hereunto affixed their signatures and corporate seals, the day and year first above written. [Seal.] Attest: Geo. F. Stone, Board of Trade of the City of Chicago, President. The Western Union Telegraph Company. [Seal.] Attest: A. R. Brewer, By Thos. F. Clark, Postal Telegraph-Cable Company, [Seal.] Attest: Chas. P. Bruch, Ass't. Secretary. By W. H. Baker, Vice-President and Gen'l M'gr. (Endorsed on back) Filed Aug. 5, 1901. S. W. Burnham, Clerk. A like agreement was made with the Cleveland Telegraph Company. The bill then charges appellants with having entered into a conspiracy to steal such quotations, either as the same were transmitted over the Telegraph Companies' wires to their customers, or from the offices of said customers when said quotations are received; and asks for an injunction restraining appellants from obtaining, receiving, selling or distributing such quotations, and for other and further relief. Affidavits were filed, showing that the appellants obtained the quotations after the same were taken from the wires by the patrons of the Telegraph Companies, and written upon their blackboards for the use and information of such people as came into their offices. The motion for a temporary injunction was heard in the Circuit Court, upon demurrer to the bill, and affidavits; resulting in an order restraining appellants, their respective officers, directors, agents and employees, until the further order of the court, from obtaining, receiving, selling or distributing the market quotations of the Board of Trade of the City of Chicago; and from aiding, abetting or assisting others in the taking or selling, or distributing, of such quotations. From this order the appeal is prosecuted. Frank F. Reed, for appellants. Before JENKINS, GROSSCUP, and BAKER, Circuit Judges. GROSSCUP, Circuit Judge, after stating the facts as above, delivered the opinion of the Court: The real questions presented on this appeal we decided in National Telegraph News Co. v. Western Union Tel. Co., 119 Fed. 294. Neither in this case, nor in the one cited, do we decide that the Telegraph Company is not a common carrier of news; that any proposing patron may not have the news upon conforming to the regulations, and the payment of charges, proffered to other patrons; or that the Board of Trade may make an exclusive contract for the transmission of news. None of these questions are material to the judgment to which we have come. The appellants in neither case have brought themselves into a situation where they may claim the service of the Telegraph Company as common carrier, or where they may deny to the Board of Trade its right to make the contract referred to. In this state of the record we are content, on the reasoning of National Telegraph News Co. v. Western Union Tel. Co., to affirm the order below. Affirmed. CASSERLEIGH v. WOOD et al. (Circuit Court of Appeals, Eighth Circuit. November 3, 1902.) 1. CONTRACTS-CONSIDERATION. No. 1,728. Whether a contract rests upon a valuable consideration or otherwise must be determined by conditions as they exist when it is made; and, if the promisor supposes that the thing which he seeks to obtain and promises to pay for will be beneficial to him, he cannot avoid his promise on the strength of a subsequent discovery that it was really nonessential, or of no value. 9. FEDERAL COURTS-FOLLOWING STATE DECISIONS-APPLICATION OF STATUTE TO PARTICULAR FACTS. While the federal court is bound by the construction placed by the highest court of a state upon a local statute, yet, when it becomes necessary to apply the statute, as construed by the local court, to a particular contract, and determine, upon a consideration of all of the provisions of the contract, whether it is violative of the statute as it has been construed, a federal court is entitled to express an independent judgment, the question involved being one of general law, rather than of statutory construction. 8. SPECIFIC PERFORMANCE-CONTRACTS AGAINST PUBLIC POLICY. Complainant contracted with defendant to furnish evidence deemed essential to establish the defendant's interest as an heir in certain mining property, and to commence litigation, if necessary, to recover such interest. The agreement contemplated that he would produce the witnesses to establish the case, and that, in effect, he should have full direction and control of the litigation through attorneys whom he individually was to select and employ, and that he was "to be at all cost in the matter," in consideration of which the defendant contracted to give the complainant two-thirds of all his interest recovered through law, if legal proceedings were commenced. Held that, even if the contract in question was not voidable under the local statute against maintenance, being, as it would seem, a contract entered into for the purpose of gambling in litigation, yet that such an agreement was voidable on grounds of public policy; and that, even if it should be regarded by a court of law as not so voidable, yet that it was so far meretricious, and tainted with illegality, that a court of equity would not enforce it specifically. Appeal from the Circuit Court of the United States for the District of Colorado. This is a bill in equity, which was filed by John H. Casserleigh, the appellant, against James O. Wood and the Aspen Mining & Smelting Company and Jerome B. Wheeler, the appellees, to compel the specific performance of a contract made by James O. Wood on July 21, 1887, which is in words and figures following, to wit: "This agreement, made and entered into this 21st day of July, A. D. 1887, by and between James O. Wood, of Milwaukee, Wisconsin, party of the first part, and J. H. Casserleigh, of Denver, Colorado, party of the second part, witnesseth: That whereas, the said party of the first part, son of the late William J. Wood, deceased, is desirous to recover at law, or by settlement otherwise, all interest he may have or may have had in and to a certain mining claim located near Aspen, Colorado, in Roaring Fork mining district, known as the 'Emma,' and now claimed by Jerome B. Wheeler and others, and as certain evidence necessary to establish the citizenship of the said Wm. J. Wood, who was the locator of said mine, is now in the possession of said party of the second part, procured by him at a large expense of money and use of time, and in consideration of the premises herein stated, I, the party of the first part, do hereby agree to give unto the said party of the second part a two-thirds (%) of all my interests in and to the amount recovered for me through law, if legal proceedings are commenced, and, if a settlement is had without legal proceedings, then and in that case the said second party is to receive a one-quarter (4) of all my said interest in and to the amount recovered by such settlement. The said second party is to be at all cost in the matter, and such proceedings as are necessary to a settlement to be commenced forthwith by the said second party or his assignee. "James O. Wood. [Seal.] "Signed and acknowledged before me this 21st day of July, A. D. 1887. "[Seal.] Geo. A. McGarigle, Notary Public, Wis." 12. State laws as rules of decision in federal courts, see notes to Griffin v. Wheel Co., 9 C. C. A. 548; Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553. The bill alleged, in substance, that after the execution of the aforesaid contract the complainant, Casserleigh, being unable to obtain a settlement of the claim, retained an attorney by the name of Thomas A. Green to bring an action against Jerome B. Wheeler and the Aspen Mining & Smelting Company, two of the appellees herein, for the recovery of such interest in the Emma mine as James O. Wood, who executed the aforesaid agreement, was entitled to in right of his father, William J. Wood, deceased; that he furnished the said attorney all the necessary information and documentary evidence then in his possession upon which to institute said suit, and arranged with said attorney for compensation for his services, and assigned to him, in payment for his services in prosecuting the litigation, a one-half interest in the aforesaid contract; that the action in question was brought by said Green on April 14, 1888,-only a short time before the right of action to recover said interest would have been barred by the statute of limitations,and that after various proceedings had in said suit it resulted in a decree on July 30, 1896, under and by virtue of which decree James O. Wood became entitled to one forty-second of whatever interest Jerome B. Wheeler and the Aspen Mining & Smelting Company had in the stock of the Compromise Mining Company growing out of a conveyance of a part of the Emma mine to said Compromise Mining Company, and to a one-tenth interest in a judgment against said Wheeler in the sum of $195,252.97, with interest thereon at the rate of 8 per cent. per annum from July 16, 1894, and also to a onetenth interest in a judgment against said Wheeler and the Aspen Mining & Smelting Company in the sum of $209,328.95, with interest thereon at the rate of 8 per cent. per annum from July 16, 1894. The complainant below further alleged, in substance, that on or about August 1, 1892, he had served on Jerome B. Wheeler individually, and upon him as president of the Aspen Mining & Smelting Company, a notice of his interest in the aforesaid judgment, which he had acquired under and by virtue of the aforesaid contract with James O. Wood; that he had fully performed all the conditions of the aforesaid contract with James O. Wood; that, besides compensating said attorney. Thomas A. Green, who brought said suit, for his services in attending to the litigation so that Wood would not be at any further cost in the matter, he had furnished said attorney the necessary information and documentary evidence then in his possession to enable said attorney to bring and prosecute said suit, and had furnished him with documentary evidence showing that William J. Wood, deceased, had declared his intention to become a citizen of the United States in Allen county, Kan., long prior to his removal to Colorado, and before he had taken part in the location of the Emma mine. He further averred that he had consulted with the attorney whom he had employed to bring said suit from time to time, and had carefully watched all of the proceedings in said cause, and had held himself ready at all times to yield any aid and assistance therein, if he was called upon; that he had theretofore made a demand upon the defendants for a recognition of his interest in the judgment which was recovered in said action under and by virtue of his contract with Wood, but that, notwithstanding such demand, the defendants below had refused to recognize his interest under said existing contract, and that the defendant Wood had failed and refused to keep and perform the terms of said agreement. In view of the premises, the complainant prayed that it might be decreed that James O. Wood held in trust for him the title to one-third of an undivided one forty-second interest in said Emma mine; that he was also entitled to one-third of one forty-second of whatever interest Wheeler and the Aspen Mining & Smelting Company had in the stock of the Compromise Mining Company growing out of a conveyance of a part of the Emma mine to said company, and that it might be decreed that the complainant was entitled to one-third of one-tenth of the two money judgments rendered as aforesaid on July 30, 1896, against Jerome B. Wheeler and against the Aspen Mining & Smelting Company; and that it might be further decreed that the complainant had a lien upon all and everything which was recovered by James O. Wood in the suit which had been brought as aforesaid in his behalf under and by virtue of the provisions of the aforesaid contract. The defendants below demurred to the bill generally upon the ground that it did not contain any matter of equity entitling the complainant to any relief against the defendants. This demurrer was sustained, and the bill was dismissed. To obtain a reversal of the decree the complainant below has brought the case to this court by appeal. George W. Taylor (F. J. Mott, on the brief), for appellant. C. S. Thomas and L. M. Cuthbert (W. H. Bryant, H. H. Lee, Henry T. Rogers, and Daniel B. Ellis, on the brief), for appellees. Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District Judge. THAYER, Circuit Judge, after stating the case as above, delivered the opinion of the court. * * The general question which arises on this appeal is whether the contract that was entered into by James O. Wood, one of the appellees, under date of July 21, 1887, is a contract of such a nature that it can be specifically enforced by a court of equity; and the determination of this question depends upon the further inquiry whether the contract was founded upon a valuable consideration, as well as upon the inquiry whether it is voidable either on account of its champertous character or because its enforcement would be opposed to public policy. In the lower court the bill was dismissed, as it seems, upon the ground that, as this court had held on July 5, 1892, in the case of Billings v. Smelting Co., 10 U. S. App. 1, 2 C. C. A. 252, 51 Fed. 338, that the evidence which Casserleigh had in his possession, namely, "evidence necessary to establish the citizenship of * William J. Wood," was in fact immaterial to the successful prosecution of the suit by the Wood heirs to recover their interest in the Emma mine, the promise of James O. Wood to give a two-thirds part of his interest in the mine for the production and use of that evidence was a promise without consideration, and therefore voidable at the election of the promisor. We are of opinion, however, that if James O. Wood, at the time the contract was entered into, supposed that the evidence to establish the citizenship of his father, which was in Casserleigh's possession, was material and necessary to the successful prosecution of his claim to an interest in the Emma mine, then the contract which he signed was founded upon a valuable consideration, although it was subsequently decided by this court that such testimony was not essential to the establishment of his claim. A promise to pay a given sum for property, or for information which the promisor supposed that he needed, at the time of the making of the promise, surely does not become voidable because of a subsequent discovery that the property or the information was not needed. Whether a contract rests upon a valuable consideration or otherwise must be determined by conditions as they exist when it is made; and, if the promisor supposes that the thing which he seeks to obtain and promises to pay for will be beneficial to him, he cannot avoid his promise on the strength of a subsequent discovery that it was really nonessential, or of no value. The important question in the case is whether the contract in question is voidable for either of the other reasons mentioned above; that is to say, because it is champertous, or because it is opposed to public policy. That the contract is champertous when tested by the |