Syllabus.

The question of negligence is one of law for the court only where the facts are such that all reasonable men must draw the same conclusion from them, or, in other words, a case should not be withdrawn from the jury unless the conclusion follows as matter of law that no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish. Railway Company v. Ives, 144 U. S. 408, 417; Railway Company v. Cox, 145 U. S. 593, 606; Railroad Company v. Miller, 25 Michigan, 274; Sadowski v. Car Company, 84 Michigan, 100.

Tested by this rule we are of opinion that the case should have been left to the jury under proper instructions, inasmuch as an examination of the record discloses that there was evidence tending to show that the crossing was in an unsafe condition; that the injury happened in consequence; that the defect was occasioned under such circumstances, and was such in itself, that its existence must have been known to defendant; that sufficient time for repairs had elapsed; and that the plaintiff was acting in obedience to orders in uncoupling at the place and time, and as he was; was ignorant of the special peril; and was in the exercise of due care.

The judgment is reversed, and the cause remanded with a direction to grant a new trial.

MR. JUSTICE FIELD did not hear the argument and took no part in the consideration or decision of this case.

EUSTIS v. BOLLES.

ERROR TO THE SUPREME JUDICIAL COURT OF THE COMMONWEALTH

OF MASSACHUSETTS.

No. 74. Argued November 9, 10, 1893. - Decided November 20, 1893.

The decision by the Supreme Judicial Court of Massachusetts that a creditor of an insolvent debtor, who proves his debt in insolvency, and accepts the benefit of proceedings under the state statute of May 13, 1884, entitled "An act to provide for composition with creditors in

Statement of the Case.

insolvency," Mass. Stats. 1884, c. 236, and the act amending the same, thereby waives any right which he might otherwise have had to object to the validity of the composition statutes, as impairing the obligation of contracts, presents no Federal question for review by this court. To give this court jurisdiction of a writ of error to a state court, it must appear affirmatively, not only that a Federal question was presented for decision by the state court, but that its decision was necessary to the determination of the cause, and that it was decided adversely to the party claiming a right under the Federal laws or Constitution, or that the judgment, as rendered, could not have been given without deciding it. Where the record discloses that, if a question has been raised and decided adversely to a party claiming the benefit of a provision of the Constitution or laws of the United States, another question, not Federal, has been also raised and decided against such party, and the decision of the latter question is sufficient, notwithstanding the Federal question, to sustain the judgment, this court will not review the judgment.

When this court, in a case brought here by writ of error to a state court, finds it unnecessary to decide any Federal question, its logical course is to dismiss the writ of error.

On February 14, 1887, Charles H. Bolles and George F. Wilde, as surviving members of the firm of B. Collender & Company, filed a petition in insolvency in the insolvency court within and for the county of Suffolk, State of Massachusetts. On February 16, 1887, they filed in the same insolvency court a written proposal for composition with their copartnership creditors, under the so-called "composition acts" of 1884 and 1885, and they therein proposed to pay fifty cents on the dollar of their debts in money. On February 24, 1887, the first meetings of creditors were held in both the ordinary insolvency proceedings which were begun on February 14, and in the composition proceedings which were begun on February 16, and William T. Eustis proved a claim on a promissory note for $16,000, dated January 1, 1880, and due on demand, and voted for assignees in the ordinary insolvency proceeding; but the record does not show that he proved his claim in the composition proceedings. On March 10, 1887, an adjourned hearing in the composition proceedings was held in the insolvency court, to determine whether said proposal for composition should be confirmed; and Eustis appeared by counsel at said hearing and opposed the confirmation of said

Statement of the Case.

proposal and the granting of a discharge to said Bolles and Wilde, on the ground that the said composition acts were unconstitutional and void. Eustis also filed written objections to the discharge of the debtors, alleging that the composition acts, having been passed after the execution and delivery of the note held by Eustis, were in violation of that part of the Constitution of the United States which forbids any State to pass a law impairing the obligation of contracts.

Bolles and Wilde, having filed in the insolvency court the written assent of a majority in number and value of their creditors who had proved their claims, and having deposited in court one-half the aggregate amount of their debts, were granted by the court, on March 31, 1887, certificates of discharge under and in pursuance of the composition acts. On May 14, 1887, Eustis received the sum of $8020, being onehalf the amount of his claim, and signed a receipt therefor, reciting that it was "according to the composition confirmed by the court in the case." All the other creditors of said Bolles and Wilde accepted the offer, and signed similar receipts.

Subsequently, in July, 1887, Eustis brought an action in the Supreme Judicial Court against Bolles and Wilde, wherein he sought to recover the balance of his note remaining unpaid after the receipt of the one-half received under the insolvency proceedings. The defendants pleaded the proceedings in insolvency, their offer of composition, its acceptance by the majority in number and value of their creditors, their discharge, and the acceptance by Eustis of the amount coming to him under the offer of composition, and to this answer the plaintiff demurred. Subsequently the death of William T. Eustis was suggested, and Isabel B. Eustis and Florence D. Eustis were permitted to appear and prosecute said action as executrices.

The trial court, which overruled the demurrer, made a finding of facts, and reported the case for the determination of the full court. The Supreme Judicial Court was of opinion that Eustis, by accepting the benefit of the composition, had waived any right that he might otherwise have had to object

Argument for Plaintiffs in Error.

to the validity of the composition statutes as impairing the obligation of contracts. 146 Mass. 413. Final judgment was entered for the defendants on November 26, 1889, and on January 29, 1890, a writ of error was allowed by the Chief Justice of the Supreme Judicial Court to this court.

Mr. Conrad Reno, (with whom was Mr. William A. MacLeod on the brief,) for plaintiffs in error.

I. This court has jurisdiction. The question of Federal law was specially set up or claimed by the original plaintiff in the proper way and at the right time. When a state court of last resort justifies its refusal, neglect or failure to decide in favor of a Federal right, title, privilege, or immunity which is specially set up or claimed in the proper way and at the right time, by the application of some general rule of law to the facts of the case, such as waiver, estoppel, or acquiescence, its judgment is reviewable by this court on writ of error. If, in the opinion of this court, the justification assigned by the state court is well grounded, the state judgment will be affirmed. But if, in the opinion of this court, the justification is not well grounded, the aggrieved party is entitled to the benefit of the Federal law, and the state judgment will be reversed if a correct decision of the Federal question requires such reversal. Given. v. Wright, 117 U. S. 648, 655-656; Huntington v. Attrill, 146 U. S. 657; Des Moines Navigation Co. v. Iowa Homestead Co., 123 U. S. 552; Green v. Van Buskirk, 5 Wall. 307, and 7 Wall. 139; Railroad Co. v. Koontz, 104 U. S. 5; Renaud v. Abbott, 116 U. S. 277; Chapman v. Goodnow, 123 U. S. 540, 548.

II. A creditor whose demand is saved from the operation of a state statute or of a state decree by the Constitution of the United States does not waive the benefit of this constitutional immunity by accepting the part of his demand which the state statute or decree says shall constitute full satisfaction; and, there being no other defence, he is entitled to recover the unpaid balance of the debt. Embry v. Palmer, 107 U. S. 3; Kimberly v. Ely, 6 Pick. 440; Montague v. Massey, 76 Vir

Argument for Plaintiffs in Error.

ginia, 307; Woodbridge v. Wright, 3 Connecticut, 523; Douglass v. Craig, 13 S. C. 371. See also Insurance Co. v. Morse, 20 Wall. 445 (reversing Morse v. Home Ins. Co., 30 Wisconsin, 496); Barron v. Burnside, 121 U. S. 186; Railroad Company v. Maryland, 21 Wall. 456.

It appears that, during the entire pendency of the composition proceedings, the plaintiff's whole course of conduct was one of opposition and protest. He declined to accept the offer when first made, and he opposed the granting of the discharges. It was not until after the court had granted certificates of discharge that the plaintiff accepted a dividend.

It is well settled that a creditor who accepts the amount of a judgment or decree for less than he claims to be due is not thereby estopped to show that the judgment or decree is erroneous or void; nor does he thereby waive any of his former rights. Erwin v. Lowry, 7 How. 172, 183-184; Planters' Bank v. Union Bank, 16 Wall. 483, 497; Reynes v. Dumont, 130 U. S. 354; Bowers v. Hammond, 139 Mass. 360; Catlin v. Wheeler, 49 Wisconsin, 507; Morriss v. Garland, 78 Virginia, 215, 234; Chicago & Eastern Illinois Railway v. Kamman, 119 Illinois, 362.

III. The composition acts so affected the plaintiff's remedy as it subsisted in the State when and where the contract was made and where it was to be performed, as substantially to impair and lessen the value of the contract; and, therefore, they impair the obligation of the contract in suit and are void. Edwards v. Kearzey, 96 U. S. 595; Bronson v. Kinzie, 1 How. 311, 317; Curran v. Arkansas, 15 How. 304, 309–310; Hawthorne v. Calef, 2 Wall. 10; Von Hoffman v. Quincy, 4 Wall. 535, 553; Walker v. Whitehead, 16 Wall. 314; Louisiana v. New Orleans, 102 U. S. 203, 206; Hartman v. Greenhow, 102 U. S. 672; Matter of Wendell, 19 Johns. 153.

The single defence to this action is the defendants' discharge under and pursuant to the "composition acts" of Massachusetts, being Acts of 1884, 195, c. 236, and Acts of 1885, 811, c. 353. The single reply of the plaintiffs is that the composition acts are unconstitutional and void, chiefly on the ground that they impair the obligation of the contract in suit.