Before JENKINS and BAKER, Circuit Judges, and BUNN, District Judge. JENKINS, Circuit Judge. The two propositions upon which the case here must turn are: First, whether the court below erred in admitting evidence of the alleged fraudulent transfer by the Lamsons of the 519 shares of the capital stock owned by them in the debtor company; second, whether the claim of the defendant in error is barred by the statute of limitations. When this cause was previously before us (Hutchings v. Lamson, 37 C. C. A. 564, 96 Fed. 720), we held, following our ruling in Rhodes v. Bank, 13 C. C. A. 612, 66 Fed. 512, 34 L. R. A. 742, that the action to enforce liability under the statute of one state may be maintained in a federal court sitting in another state. It is urged in behalf of the plaintiffs in error that evidence of the fraudulent transfer by plaintiffs in error is not admissible in an action at law. We think this contention cannot be upheld. A transfer of stock without consideration, and merely to avoid the statutory liability of the stockholder to creditors, is as to such creditors, void, and the stockholder may be treated as still a stockholder in the corporation. The inquiry was, were these plaintiffs in error stockholders of the corporation, and by reason thereof liable under the statute for the debt of the corporation? While this corporation was insolvent and owing the debt demanded, the plaintiffs in error, stockholders in that corporation, and under the statute of Kansas liable for this debt, transferred their stock to a dummy, without consideration, to avoid that liability. The question, therefore, was whether they absolved themselves of liability to the defendant in error by such fraudulent transfer. The proceeding was not to follow property fraudulently conveyed, but to enforce a statutory liability existing at the time of the transfer. It is claimed that such liability is defeated by reason of the fraudulent transfer. But since that could not result from the fraudulent act they are, as to the creditors and notwithstanding such transfer, members of the corporation. We perceive no reason why the inquiry as to the fraudulent nature of the transaction may not be inquired of in a court of law. Dauchy v. Brown, 24 Vt. 210; Marcy v. Clark, 17 Mass. 330; McClaren v. Franciscus, 43 Mo. 452; Middletown Bank v. Magill, 5 Conn. 30; Paine v. Stewart, 33 Conn. 516; Rider v. Morrison, 54 Md. 429. It seems to us not other or different from a case where a demand is sought to be enforced at law, and a receipt or release of the claim is interposed as a defense, which was obtained fraudulently. In such case a court of law is undoubtedly qualified to sweep away the fraudulent transaction which stands between the plaintiff and recovery upon his demand. Or the case may be likened to replevin for personal property fraudulently obtained, the title to which, because of the fraud, does not pass. In such case the fraud may be inquired into by a court of law, for the recovery does not proceed because of, nor is it dependent upon, the fraud. A more difficult question is presented by the plea of the statute of limitations. We ruled, when the case was previously here, that the Illinois statute of limitations of five years should be applied. The right of action accrued not earlier than June 18, 1886, the date of the dissolution of the corporation. In 1890 the chancery suit was brought in the state of Illinois, and was dismissed on February 4, 1897, and this suit was commenced within one year after such dismissal. By the act of July 1, 1873 (2 Starr & C. Ann. St. p. 2642, c. 83, par. 25), which amends the general statute of limitation of that state, it is provided: "In any of the actions specified in any of the sections of said act, if Judgment shall be given for the plaintiff, and the same be reversed by writ of error, or upon appeal; or if a verdict pass for the plaintiff, and, upon matter alleged in arrest of judgment, the judgment be given against the plaintiff; or, if the plaintiff be nonsuited. then, if the time limited for bringing such action shall have expired during the pendency of such suit, the said plaintiff, his or her heirs, executors, or administrators, as the case shall require, may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after." Does this section include suits in chancery? The question has not been decided by the supreme court of Illinois, so far as we have been able to learn, and we are free to give it such construction as will best meet the intention of the law-making power. It would be profitless to review the history of the growth and interpretation of statutes of limitation. Formerly, they were construed strictly, the courts seeming to lean to the thought that they should only be applied to cases within the strict letter of the statute; treating the statute with disfavor, because, as was supposed, it was a weapon by which to defeat an honest debt. In modern times courts have looked favorably upon the statute as one of repose, to prevent the prosecution of stale claims when the witnesses to the transaction may be dead. The latter theory appeals to us as equitable, and that in the interest of peace such statutes should be given liberal interpretation; that one who lies by dormant and fails to present his claim to a court of justice at a time when the witnesses to the transaction are living, ought not to receive the assistance of a court of justice. By that same token we think that this statute of Illinois, which seeks to relieve the diligent but mistaken claimant from the consequences of his mistake, should receive a like liberal interpretation in the interests of justice and of fair play. The general statute of limitation of the state of Illinois would seem to cover, in some instances at least, not only legal, but equitable, claims. It would seem to comprehend all proceedings with reference to real estate, whether legal or equitable. It provides by paragraph II that no one shall commence an action to foreclose a mortgage or a deed of trust unless within the specified time. The action here referred to is undoubtedly the suit in equity to foreclose. Ordinarily, the terms "suit" and "action" are synonymous or convertible. In a general sense, civil actions include actions at law, suits in chancery, proceedings in admiralty, and other judicial controversies in which rights of property are involved. And so, also, the terms "judgment" and "decree," while, strictly speaking, applicable, the former to suits at law and the latter to suits in chancery, are usually employed as convertible terms. The statute of Illinois provides that "all general provisions, terms, phrases and expressions shall be liberally construed in order that the true intent and meaning of the legislature may be fully carried out." 3 Starr & C. Ann. St. Ill. p. 3833, c. 131, par. I. And so it is ruled that a thing within the intention is within the statute, though not within the letter; and a thing within the letter is not within the statute unless within the intention. People v. Gaulter, 149 Ill. 39, 36 N. E. 576. Turning now to the statute in question, we find that it employs the word "actions" with reference to any of the proceedings specified in the general act, which, as we have seen, may include a suit to foreclose a mortgage. It provides that, if the judgment in any such action shall be reversed by writ of error or upon appeal, and during the pendency of such suit the time limited for bringing an action shall have expired, the plaintiff may commence a new action within one year after such judgment reversed. The terms "action" and "suit" are here employed as convertible terms. It will also be seen that it speaks of a reversal by writ of error or upon appeal. In a common-law state, unless otherwise regulated by statute, judgments at law are not reviewed by appeal, but by writ of error only. We think this language must refer to all actions, legal or equitable, reviewable by writ of error or by appeal. The intent of the statute was that the time occupied in an unsuccessful litigation touching a demand-the statutory limitation expiring during the litigation-should not prove a bar, where the merits of the controversy had not been determined, but that a period of one year should be allowed after the expiration of the unsuccessful litigation to bring a proper action to enforce the demand; and this whether the unsuccessful litigation be at law or in equity. The legislature was not dealing with form merely, but with substance, to relieve from mistaken proceedings. We have been referred to several cases, notably Dawes v. Railroad Co., 96 Va. 733, 32 S. E. 778; Gray's Adm'x v. Berryman, 4 Munf. 181; Elam v. Bass' Ex'rs, Id. 301; Roland v. Logan, 18 Ala. 307. It is sufficient to say, without approving or disapproving the reasoning of the court in those cases, that they are founded upon statutes unlike the one here. The reasoning of the courts in those cases is founded upon the precise terms of the statute, which sought to bar legal actions only, and extends the time only when the judgment, not going to the merits, is reversed by a writ of error, the language "or upon appeal" not being within the terms of the statute; while in the statute we are considering the words “suits” and "actions" are used as convertible terms, and the reversal provided for may be by writ of error or by appeal, indicating that the word "judgment," as used, comprehends the decree of a court of chancery as well as the judgment of a court of law. This construction is upheld in the decision of the circuit court of appeals for the Eighth ctrcuit in Alexander v. Gordon, 41 C. C. A. 228, 101 Fed. 91, construing the statute of Arkansas, like to the one here. It is there held that a suit at law commenced within one year after the dismissal of a chancery suit was within the saving statute, and that the statute of limitations did not bar the action. The dismissal of the chancery suit here did not go to the merits of the cause. The judgment of the appellate tribunal instructed the claimant that he had mistaken his forum. The case, in our judgment, is clearly within the intent of the statute, and we think also within the letter. The judgment is affirmed. RICHARDSON & CO. v. CORNFORTH.* (Circuit Court of Appeals, Seventh Circuit. October 7, 1902.) No. 882. 1. SALES-STANDARD OF WEIGHT-APPLICATION. Where oats were sold without any agreement as to the standard of weight governing the number of pounds to the bushel, the standard in force at the place where the oats were purchased governs the contract. 8. SAME-CONSTRUCTION-PAROL EVIDENCE. Telegrams constituting a sale of a quantity of clipped oats purchased in Chicago for shipment to the buyer in Seattle recited that the oats would test from 36 to 37 pounds per bushel, and the telegram of acceptance accepted offer for white clipped oats, 36 pounds to bushel, Chicago Board grade. Defendant shipped a sufficient quantity of oats at 32 pounds per bushel to fulfill the contract, but plaintiff, claiming that the contract called for 36 pounds per bushel, sued for breach of contract, in which evidence was offered that, according to the customs of the Chicago market, 32 pounds was the standard bushel of oats, and that the "test 36 and 37 pounds per bushel" had reference solely to the quality of the oats. Held, that the contract did not show a meeting of minds on the standard by which the oats should be measured, and that the evidence of the Chicago custom was admissible. In Error to the Circuit Court of the United States for the Northern Division of the Northern District of Illinois. Seymour Edgerton and George P. Merrick, for plaintiff in error. H. K. Tenney, for defendant in error. Before JENKINS, GROSSCUP, and BAKER, Circuit Judges. GROSSCUP, Circuit Judge, delivered the opinion of the court. Richardson and Company, a corporation organized under the laws of Illinois, plaintiff in error, was the defendant below, and Joseph T. Cornforth, defendant in error, a citizen of the State of Washington, was the plaintiff below. The suit in the Circuit Court, was to recover seven thousand, eight hundred dollars, damages for failure to ship about eighteen thousand, three hundred and thirty-four bushels of number two white clipped oats, on a contract calling for one hundred and sixty thousand bushels, payment for one hundred and sixty thousand bushels having been made by the purchaser to the vendor. Defendant below pleaded that the full quantity of one hundred and sixty thousand bushels had been shipped. It is admitted that five million, one hundred and twenty thousand pounds of oats were delivered and accepted under the contract. Defendant below insisted that this fulfilled the contract, taking thirty-two pounds as the standard of a bushel. Plaintiff below claimed that thirty-six pounds should have been taken as the standard of a bushel. The controversy turns solely upon the question whether thirty-two pounds or thirty-six pounds was, under the contract, the standard of the bushel. • Rehearing denied November 15, 1902, 118 FEDERAL REPORTER. The contract was by telegraphic correspondence. Plaintiff below desiring to bid upon a government contract calling for twenty five hundred tons (five million pounds of oats) to be delivered at Tacoma or Seattle, asked the agent of the Chicago, Milwaukee & St. Paul Railroad, at Portland, Oregon, to ascertain on what terms the oats necessary to the contract, could be purchased in Chicago. Thereupon the following telegrams passed: E. S. Keeley, Chgo. "Seattle, Wash., 26 Sept., 1900. Wire F. O. B. prices Chicago on 160,000 bushels clean white oats in new burlaps 100 pounds each also in bulk. Rate per ton required Chicago to St. Paul 125. Destination China. Answer here by Friday. C. J. Eddy, (Signed) C. J. Eddy." "Chgo. Sept. 28. C. M. & St. P., Seattle, Wash. Can get quantity desired immediate shipment best quality Green Bay inspection white fanned oats in bulk 25 cents, burlaps 262 cents with 7c. added for burlaps. Clipped oats test 36 to 37 pounds per bushel acceptance this week F. O. B. Green Bay. Can quote a delivered price Asiatic ports to Seattle on very low freight basis. Connection Canadian Pacific. (Signed) H. E. Pierpont." H. E. Pierpont, Chgo. "Portland, Sept. 29. Your wire 28th quote price oats with lowest through rate to Seattle. (Signed) C. J. Eddy." C. J. Eddy, "Chgo. Oct. 1, 1900. On offer for 160000 bushels white clipped oats can get price of 25 cents per bushel F O B Chicago. H. E. Pierpont, Chgo. (Signed) H. E. Pierpont." "Seattle, Oct. 2. Mr. Comings asks are oats white what weight per bushel for clipped how soon could they be shipped? R. M. Boyd, We quoted Eddy price of white oats clipped, test, thirty-six to thirty-seven pounds. Is there any prospect of securing this contract? H. E. Pierpont, (Signed) H. E. Pierpont." "Seattle, Oct. 5/00. Chgo. Your wire yesterday Comings claims to control awaiting award of contract will advise later. Comings has contract how soon can all be loaded? (Signed) R. M. Boyd." H. E. Pierpont, Chgo. "Seattle, Oct. 8. Arrived here today Comings advises he has the oats contract and finances arranged through bank how soon can they move after satisfactory settlement is arranged answer here. |