his corporation, he stated, in no uncertain terms, the fact that the existing situation precluded and eliminated any possibility of performing the contract on their part. The referee allowed the claim with much hesitation. The doubts which assailed him do not trouble me. He thinks that the decided cases rather carry the idea that the refusal to perform, or the inability to perform, must be a wrongful refusal, or an inability growing out of a disposition to commit a wrongful act. I do not so read the cases. An absolute inability to perform, which is of such a nature that there is no reasonable probability that thereafter a situation will arise which will make performance possible, is enough. If to such inability is added a statement that it exists, then the party so informed is in a position to treat the contract as broken and to pursue his remedy. Immediately after the demand made by claimants through their attorney in December, 1904, and the reply made by Mr. Spittler on behalf of himself and his corporation, it was competent for the claimants to treat the contract as broken, and bring suit in the state courts for damages resulting therefrom. Counsel for trustee concedes that if such is the law, the claim is provable under section 63a (4). The adjudication was some weeks later; to be precise, on January 25, 1905. Bankruptcy simply established in concrete form the truth of the answer made by Mr. Spittler in December. It is not made the basis of the right to prove the claim, because it is not necessary to take that position, but, as already intimated, the court would be inclined to so rule if occasion demanded it. The court cannot discover the reason which forces any distinction between a refusal to comply, with no legal excuse therefor, and a refusal to comply, because absolutely unable to act otherwise. In both cases the other party may be damaged, and if obliged to wait until pay day, the hour for advantageous action may have gone, never to return. The case at bar happens to be an illustration of the evil which may come, if the trustee's view of the law is the true one. Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953, established the general principle which governs the case at bar. The question decided then and governing here is plainly set forth in the opinion on page 7 of 178 U. S., page 783 of 20 Sup. Ct. (44 L. Ed. 953): "But the other three contracts involve the question whether, when the contract is renounced before performance is due, and the renunciation goes to the whole contract, and is absolute and unequivocal, the injured party may treat the breach as complete and bring his action at once." So far as Daniels v. Newton, 114 Mass. 530, 19 Am. Rep. 384, may be said to conflict therewith, its reasoning is distinctly repudiated in the latter part of the opinion. No case decided since Roehm v. Horst will, upon strict analysis, be found to depart from the broad proposition therein determined, as shown by the quotation above recited, and upon that authority alone, it would be my duty to sustain the referee. His order is therefore affirmed. THOMPSON v. AUTOMATIC FIRE PROTECTION CO. et al. (Circuit Court, E. D. New York. February 12, 1907.) PLEADING AMENDMENT-SUPPLYING JURISDICTIONAL ALLEGATIONS. A complainant in a federal court will be granted leave to amend his bill by alleging that the matter in dispute exceeds in value the sum of $2,000, exclusive of interest and costs, where, at the time of the motion, the record shows such to be the fact, and the defect is merely one of pleading. [Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, § 647.] In Equity. On motion for leave to amend bill. Duncan & Duncan (Frederick S. Duncan, of counsel), for complainant. Griggs, Baldwin & Pierce (Martin Conboy, of counsel), for defendant Automatic Fire Protection Company. CHATFIELD, District Judge. This is a motion made by the complainant to amend its bill of complaint by inserting a clause to the effect that the subject-matter in dispute exceeds, exclusive of interest and costs, the sum of $2,000. The action is one in equity, for the specific performance by the defendant Shipman of an alleged contract to assign certain inventions and patent rights to the complainant, and for other relief. The complainant filed a bill in November, 1906, in the Eastern district of New York, and on the December rule day the defendant the Automatic Fire Protection Company filed a general appearance. It subsequently filed a demurrer, setting forth, first, that the court was without jurisdiction because the bill did not allege that the amount involved exceeded the sum of $2,000; and, second, that it appears from the bill that the complainant is a citizen and resident of the state of New Jersey, and one defendant, the Automatic Fire Protection Company, is a citizen and resident of the state of Maine, and that the bill is therefore brought in a district of which neither the complainant nor defendant is a resident. The complainant, admitting the defect claimed as the first ground of demurrer, obtained an order directing the defendant corporation to show cause why the bill of complaint should not be amended under equity rule No. 29. The complainant cites many cases substantiating the general proposition that where the record of the case, up to the time of the motion, shows jurisdiction in the particular court, but there is a defect in the allegations of the pleadings with relation to the setting forth of the grounds of that particular jurisdiction, amendment will be allowed upon motion. This may occur either before or during the taking of evidence. In the case at bar the allegation in the moving. affidavits as to the amount involved is not controverted, and the record therefore now shows a subject of controversy exceeding in value the jurisdictional sum of $2,000. The cases of Whalen v. Gordon, 95 Fed. 305, 37 C. C. A. 70; Bowden et al. v. Burnham et al., 59 Fed. 752, 8 C. C. A. 248; Carnegie, Phipps & Co. v. Hulbert et al., 70 Fed. 209, 16 C. C. A. 498; Carr v. Fife (C. C.) 45 Fed. 209; Id., 156 U. S. 494, 151 F.-60 15 Sup. Ct. 427, 39 L. Ed. 508; Robinson v. Suburban Brick Co, 127 Fed. 804, 62 C. C. A. 484; Clausen v. American Ice Co. (C. C.) 144 Fed. 723-support the proposition that an amendment should be allowed. In Continental Insurance Co. v. Rhoads, 119 U. S. 237, 7 Sup. Ct. 193, 30 L. Ed. 380, the Supreme Court not only seems to recognize the rule, but directs that the case be remanded to the Circuit Court, in order that an opportunity may be given to the complainant to amend his complaint. Halstead v. Buster, 119 U. S. 341, 7 Sup. Ct. 276, 30 L. Ed. 462, and Denny v. Pironi, 141 U. S. 121, 11 Sup. Ct. 966, 35 L. Ed. 657, approve of the doctrine that a pleading may be amended even after an appeal to the Supreme Court of the United States. The defendant corporation cites three cases in opposition to the application, one of which (Oleson et al. v. Northern Pacific Ry. Co. [C. C.] 44 Fed. 1), after holding that the bill of complaint should aver that the value of the matter in controversy exceeds $2,000, if the jurisdiction of the court depends upon diversity of citizenship, and therefore deciding that the bill in that particular action was bad for this reason, went on to consider other grounds which would also be fatal, but which it was unnecessary to consider, unless an amendment of the bill should cure the particular defect mentioned. Other cases mentioned are Tod v. Cleveland & M. V. Ry. Co., 65 Fed. 145, 12 C. C. A. 521, and Pliable Shoe Co. v. Bryant (C. C.) 81 Fed. 521, which sustain a demurrer to a complaint upon the ground that the amount of the controversy is not set forth. No motion to amend is involved, and no disposition of the case is made other than to decide as to the sufficiency of the demurrer. In the case of Dickinson v. Consolidated Traction Co. (C. C.) 114 Fed. 232, Judge Gray sustains a defect of jurisdiction, and refuses to allow an amendment upon the ground that: "This court cannot permit a bill to be amended in a case over which it has no jurisdiction. Jurisdiction must affirmatively appear at every stage of the case." The many cases in which an amendment has been allowed would seem to be differentiated from the idea which was present in Judge Gray's mind, by the fact that the record in each of these cases. at the time of the motion, had shown that jurisdiction did exist, and that the defect in the allegation was technical. As to the further question suggested, the defect in jurisdiction in this district arising from the citizenship of the parties in other states, it need only be said that the general notice of appearance would seem to be a waiver of this defect. St. Louis & San Francisco Railway Co. v. McBride, 141 U. S. 127, 11 Sup. Ct. 982, 35 L. Ed. 659; Southern Pacific Co. v. Denton, 146 U. S. 202, 13 Sup. Ct. 44, 36 L. Ed. 942; Fosha v. Western Union (C. C.) 114 Fed. 701; Interior Construction Co. v. Gibney, 160 U. S. 217, 16 Sup. Ct. 272, 40 L. Ed. 401. That question can, however, be more carefully considered upon a hearing. of the demurrer, if the defendants see fit to demur to the amended complaint which this motion asks leave to file. Motion to amend within 10 days is granted, without costs to either party. WEITERSHAUSEN et al. v. CROATIAN PRINTING & PUBLISHING CO. et al. (Circuit Court, S. D. New York. March 6, 1907.) 1 LIBEL-PLEADING ALLEGATION OF SPECIAL DAMAGE. The necessity for allegation and proof of special damage, in an action for libel, does not inhere in the form of the action, but in the nature of the alleged defamatory words. [Ed. Note. For cases in point, see Cent. Dig. vol. 32, Libel and Slander, § 213.] 2 SAME-LIBEL OF PARTNERSHIP-JOINT ACTION BY PARTNers. Where a libelous article charges dishonesty in the conduct of a partnership business, the partners may sue either jointly or severally, and, if the matter is libelous per se, it is not necessary to allege special damage in either a joint or a several action. [Ed. Note. For cases in point, see Cent. Dig. vol. 32, Libel and Slander, $ 174, 213.] At Law. On demurrer to complaint. HOUGH, District Judge. The plaintiffs are copartners under the firm name of "Chas R. Weitershausen Agency." Their dealings are largely with persons speaking the Croatian language or dialect, while the defendants publish a newspaper in that tongue. In this newspaper was printed an article concerning "Agent Weitershausen" (as the Croatian phrase is translated) clearly libelous per se, within the definition of Clifford, J., in Pollard v. Lyon, 91 U. S. 227, 23 L. Ed. 308. The demurrants assume that the libel refers only to the plaintiff Charles J. Weitershausen, and they therefore urge that, inasmuch as in this action the partners complain of the defamation as injurious to their partnership vocation, the action does not lie without proper allegations of special damage. This doctrine is supported by the argument that a partnership business is a "thing" as distinct from a person; that the "thing" (i. e., the partnership as an entity) cannot sue, wherefore the persons composing the partnership cannot sue without specially showing and proving how and why defamation of the entity or its business injured them; and, further, that a fortiori is this true when the printed defamatory words mentioned one partner only. Examination of the English translation of this Croatian libel does not bear out the assumption that the male plaintiff only was referred to. The phrase "Agent Weitershausen" is accompanied by sundry uncomplimentary words in the plural number, and, in my opinion, the whole article refers to the persons or person doing business at or under the name of the "Weitershausen Agency.' Assuming that the libel speaks of a business enterprise, which the defamer perhaps did not know to be conducted by a partnership, it is not a defamation of a "thing." The printed article is an accusation of personal dishonesty, and falls far short of that abusive description. of a place, or a building referred to as a "libel on a thing," in Kennedy v. Press Publishing Co., 41 Hun (N. Y.) 422. On the contrary, the ruling in Russell v. Webster, 23 W. R. 59, that "a libel of the 'management of a newspaper is a libel of its proprietors jointly in the way of their trade, and therefore actionable without special damage," is exactly in point. If I am right in believing that the libel at bar referred to the partnership business, and not to one partner only, Forster v. Lawson, 3 Bing. 456, is clear authority against the demurrer. It had there been written of certain bankers that they had failed; they were partners, and all sued, attempting to allege special damage. On demurrer to the form of the declaration the court held the action maintainable without setting forth special damage, Best, C. J., remarking that if a copartnership be libeled, and the libel contains something particularly affecting the character of one of the firm, a general action may be maintained against the libelor. And this case renders it plain that a particular reference to one partner (such as the defendant here asserts or assumes) does not necessarily prevent an action by all the partners. Robinson v. Marchant, 7 Q. B. 223, is the converse of the case last cited. A partnership of three having been libeled, one particularly vilified member of the firm sued alone, and on plea setting up nonjoinder of the rest of the firm, Coleridge, J., held that "this action might have been maintained without proving special damage." The rule that all partners may join is authoritatively stated in Sergt. Williams' note on Cook v. Batchelor, 3 Bos. & Pul. 150, found in 2 Wms. Saunders, 117 A: "If the words were only actionable, because they were spoken of persons in the way of their trade, I should conceive that two or more partners might join in an action for those words, though they had sustained no special damage thereby." It results, therefore, that all persons injured by libel or slander, and having a community of interest as to the subject-matter of defamation, may sue either jointly or severally, and, if the matter complained of be libelous per se, it is no more necessary to allege special damage in the joint action than it is in the several suits. The necessity for allegation and proof of special damage does not inhere in the form of the action, but in the nature of the alleged defamatory words. The decisions relied upon by the defendants are but illustrations of this. In Havemeyer v. Fuller, 60 How. Prac. (N. Y.) 316, it is stated that "no facts or circumstances are pleaded from which the deduction can be made that the damage alleged" to the single plaintiff was the "natural and probable effect of the words" uttered about the plaintiff's partnership -meaning that such words did not appear to be actionable per se. In Ryckman v. Delavan, 25 Wend. (N. Y.) 191, the learned chancellor doubted whether "the copartnership" could sustain an action for libel of business without averring special damage; but an examination of the report shows clearly that the words complained of, whether considered with regard to the single partner who did sue, or all the partners who might have sued, were not actionable per se. The same criticism applies to Donaghue v. Gaffy, 53 Conn. 43, 2 Atl. 397, and Langdon v. Shearer, 43 App. Div. 607, 60 N. Y. Supp. 193. The demurrer is overruled, and the defendants having stipulated for judgment absolute in that event, judgment is accordingly ordered. |