116 Tenn. 470, 115 Am. St. Rep. 805, 95 S. the value of the business to be protected W. 1012. In the case last referred to, where and the rights of property which the comthe subject is elaborately reviewed, the suplainant sought to have recognized and enpreme court of Tennessee, in holding that forced. Hunt v. New York Cotton Ex[224]the *prohibitive statute was not unconstitu- change, 205 U. S. 322, 336, 51 L. ed. 821, tional as forbidding a lawful business, and 826, 27 Sup. Ct. Rep. 529. in affirming a criminal conviction for violating the statute, observed:

"That the sale as well as the purchase of nontransferable passage tickets is a fraud upon the carrier and the public, the tendency of which is the demoralization of rates, has been settled by the general concensus of opinion among the courts."

Concluding, as we do, that the commission of a legal wrong by the defendants was disclosed by the case as made, we are brought to consider the several contentions concerning the jurisdiction of the court and its right to afford relief. The bill contained an express averment that the amount involved in the controversy exceeded, exclusive of interest and costs, the sum of $5,000 as to each defendant. The defend

ants not having formally pleaded to the jurisdiction, it was not incumbent upon the complainant to offer proof in support of the averment. Nevertheless, the complainant introduced testimony tending to show that, on the New Orleans division of its road, a loss of from fifteen to eighteen thousand dollars a year was sustained through the practice by dealers of wrongfully purchasing and selling nontransferable tickets. That hundreds of the tickets annually issued for the Mardi Gras festivals in New Orleans were wrongfully bought and sold; that other nontransferable reduced-rate tickets were, in a like manner, illegally trafficked in to the great damage of the corporation, and that the defendants were the persons principally engaged in conducting such wrongful dealings. But, even if this proof be put out of view, we think the contention that a consideration of the whole

The contention that, though it be admitted, for the sake of the argument, that the acts charged against the defendant "were wrongful, tortious, or even fraudulent," there was no right to resort to equity, because there was a complete and adequate remedy at law to redress the threatened wrongs when committed, is, we think, also devoid of merit. From the nature and character of the nontransferable tickets, the number of people to whom they were issued, the dealings of the defendants therein and their avowed purpose to continue such dealings in the future, the risk to result from mistakes in enforcing the forfeiture provision, and the multiplicity of suits necessarily to be engendered if redress was sought at law, all establish the inadequacy of a legal remedy and the necessity for the intervention of equity. Indeed, the want

of foundation for the contention to the con

trary is shown by the opinions in the cases which we have previously cited in considering whether a legal wrong resulted from acts of the character complained of, since, the consequences of the legal wrong flowing in those cases, it was expressly held that from the dealing in nontransferable tickets

were of such a character as to entitle an in

jured complainant to redress in a court of equity.

There is an opinion of the supreme court of New York (not the court of last resort) which would seem to express contrary views (New York C. & H. R. R. Co. v. Reeves, 41 Misc. 490, 85 N. Y. Supp. 28), but the reasoning there relied on, in our opinion,

is inconclusive.

*The proposition that the bill was multi-[226] bill establishes that the jurisdictional farious because of the misjoinder of parties amount alleged was merely colorable and and causes of action was not assigned as fictitious is without merit. We say this error in the circuit court of appeals, and, because the averments of the bill as to the therefore, might well be held not to be open. number of such tickets issued, the recurring But, passing that view, we hold the objecoccasions for their issue, the magnitude of tion to be untenable. The acts complained the wrongful dealings in the nontransfer- of as to each defendant were of a like charable tickets by the defendants, the cost and acter, their operation and effect upon the the risk incurred by the steps necessary to rights of the complainant were identical, prevent their wrongful use, the injurious the relief sought against each defendant effect upon the revenue of the complain[225]ant, the *operation of the illegal dealing be interposed were common to each defendwas the same, and the defenses which might in such tickets upon the right of the complainant to issue them in the future, coupled ant and involved like legal questions. Under these conditions the case is brought within the principle laid down in Hale v. Allinson, 188 U. S. 56, 77, 47 L. ed. 380, 392, 23 Sup. Ct. Rep. 244.

with the admissions of the answer, sustain the express averment as to the requisite jurisdictional amount. Besides, the substantial character of the jurisdictional averment in the bill is to be tested, not by the mere immediate pecuniary damage resulting from the acts complained of, but by

As we have stated, the circuit court granted a preliminary injunction, restraining the defendants from illegally dealing

in tickets issued on account of the United | ets. The action of the circuit court of apConfederate Veterans' Reunion, and, before peals, therefore, in causing the injunction final hearing, granted a second injunction, to apply not only to the illegal dealings restraining such dealing in like tickets is as to the then outstanding tickets, but to sued for the approaching Mardi Gras fes- like dealings as to similar tickets which tival. By the final decree these injunctions might be issued in the future, was but the were perpetuated, the court declining to exertion by the court of its power to regrant the relief sought by the complain- strain the continued commission against ant in relation to nontransferable tickets the rights of the complainant in the future to be issued for the future, without preju- of a definite character of acts adjudged to dice, however, to the right of the complain- be wrongful. Indeed, in view of the state ant to seek relief by independent proceed- of the record, the inadequacy of the relief ings on each occasion when it might issue afforded by the decree as entered in the such nontransferable tickets. The circuit circuit court is, we think, manifest on its court of appeals decided that error had been face. The necessary predicate of the decommitted in refusing to grant an injunc- cree was the illegal nature of the dealings tion against dealing in nontransferable by the defendants in the outstanding ticktickets to be issued in the future, and di-ets, and the fact that such dealings, if alrected that the decree below be enlarged in lowed, would seriously impair the right of that particular. It is insisted that the the complainant in the future to issue the circuit court of appeals erred in awarding tickets. Doubtless, for this reason the dean injunction as to dealings "in nontrans- cree was made without prejudice to the [228] ferable tickets that may be hereafter issued right of the complainant to apply for relief . . since it thereby undertook to pro- as to future issues of tickets by independmulgate" a rule applicable to conditions ent proceedings whenever, on other occaand circumstances which have not yet sions, it was determined to issue nontransarisen, and to prohibit "the petitioners ferable tickets. But this was to deny adefrom dealing in tickets not in esse quate relief, since it subjected the complainand is, therefore, violative of the most fun- ant to the necessity, as a preliminary to damental principles of our government." the exercise of the right to issue tickets, to But when the broad nature of this proposi- begin a new suit with the object of retion is considered, it but denies that there straining the defendants from the commis[227]is power in a court of equity in any case sion in the future of acts identical with to afford effective relief by injunction. Cer- those which the court had already adjudged tain is it that every injunction, in the na- to be wrongful and violative of the rights ture of things, contemplates the enforce- of the complainant. ment, as against the party enjoined, of a rule of conduct for the future as to the wrong to which the injunction relates. Take the case of trespasses upon land where the elements entitling to equitable relief exist. See Slater v. Gunn, 170 Mass. 509, 41 L.R.A. 268, 49 N. E. 1017, and cases cited. It may not be doubted that the authority of a court would extend, not only to restraining a particular imminent trespass, but also to prohibiting like acts for all future time. The power exerted by the court below which is complained of was in no wise different. The bill averred the cus tom of the complainant at frequently occurring periods to issue reduced-rate, nontransferable tickets for fairs, conventions, etc., charged a course of illegal dealing in such nontransferable tickets by the defendants, and sought to protect its right to is sue such tickets by preventing unlawful dealings in them. The defendants in effect not only admitted the unlawful course of dealing as to particular tickets then outstanding, but expressly avowed that they possessed the right, and that it was their intention to carry on the business as to all future issues of a similar character of tick

In Scott v. Donald, 165 U. S. 107, 41 L. ed. 648, 17 Sup. Ct. Rep. 262, on holding a particular seizure of liquor under the South Carolina dispensary law to be invalid, dressed to the seizure in controversy, but an injunction was sustained, not only adwhich also operated to restrain like seizures of liquors in the future, and the exertion of the same character of power by a court of equity was upheld in the cases of Donovan v. Pennsylvania Co. 199 U. S. 279, 50 L. ed. 192, 26 Sup. Ct. Rep. 91, and Swift & Co. v. United States, 196 U. S. 375, 49 L. ed. 518, 25 Sup. Ct. Rep. 276.

Nor is there merit in the contention that the decision in New York, N. H. & H. R. Co. v. Interstate Commerce Commission, 200 U. S. 404, 40 L. ed. 526, 26 Sup. Ct. Rep. 272, supports the view here relied upon as to the limited authority of a court of equity to enjoin the continued commission of the same character of acts as those adjudged to be wrongful. On the contrary, the ruling in that case directly refutes the claim based on it.

There certain acts of the carrier were held to have violated the act to regulate commerce. The contention of the government was that, because wrongful acts of a particular character had been committed,

to

therefore an injunction should be awarded | by which the negotiation was commenced, against any and all violations in the future where the context and subsequent correof the act to regulate commerce. Whilst spondence showed that these words were this broad request was denied, it was careused as implying that, inasmuch as the fully pointed out that the power existed freight to Manila was to be included in the to enjoin the future commission of like acts purchase price, it was to be primarily defrayed by the seller. to those found to be illegal, and the inPublic contracts junction was so awarded. The whole arguexecution ment here made results from a failure to distinguish between an injunction generally restraining the commission of illegal acts [229] in the *future and one which simply restrains for the future the commission of acts identical in character with those which have been the subject of controversy, and which have been adjudged to be illegal. Affirmed.

UNITED STATES, Appt.,

V.

R. P. ANDREWS & COMPANY.

(See S. C. Reporter's ed. 229–243.)

- requirement as - executed contracts. 3. The invalidity of a public contract because of noncompliance with the requirement of U. S. Rev. Stat. § 3744, U. S. Comp. Stat. 1901, p. 2510, that such contracts be reduced to writing and be subscribed by the contracting parties, is immaterial after the contract has been performed.

[No. 44.]'

Argued and submitted November 8, 11, 1907.
Decided December 2, 1907.

A

PPEAL from the Court of Claims to re

view a judgment against the United States for the contract price of paper purchased for use in the public printing office in the Philippine Islands. Affirmed. See same case below, 41 Ct. Cl. 48. The facts are stated in the opinion.

Assistant Attorney General Van Orsdel argued the cause, and, with Mr. Charles F. Kincheloe, filed a brief for appellant:

Of the facts as to the status and duties of the insular division of the War Department the court will take judicial notice.

United States - liability for paper pur-
chased for use in Philippine Islands.
1. The United States, and not the gov
ernment of the Philippine Islands, must be
deemed the purchaser of paper to be used
by the public printing office in those Islands,
where the Division of Insular Affairs, under
an order of the Secretary of War, conduct
ed the negotiations for such purchase with
no intimation that it was acting as the
agent for the government of the Philippine
Islands, other than can be inferred from
the statement of the purpose for which the
paper was intended, the contrary infer-
ence being supported by a reference to the
An agent cannot be held personally liable
"Philippine funds" as the source of pay-on a contract made for his principal, where
ment, and by the subsequent correspondence his principal and the fact of his agency were
and dealings, which showed that both par- disclosed to the other party.
ties regarded the contract as one made in
the name of, and for the account of, the
United States.

Delivery to carrier as delivery to pur

chaser.

Greenl. Ev. 12th ed. §§ 6, 6a; Meade v. United States, 9 Wall. 691, 19 L. ed. 687; De Celis v. United States, 13 Ct. Cl. 126; Fendall's Case, 16 Ct. Cl. 121.

Whitney v. Wyman, 101 U. S. 392, 25 L. ed. 1050; Cliquot's Champagne (Cliquot v. United States v. The Burdett, 9 Pet. 682, 9 United States) 3 Wall. 114, 18 L. ed. 116; L. ed. 273.

2. Delivery of paper purchased by the United States for the public printing office While, according to commercial usage, dein the Philippine Islands to the carrier des-livery by a vendor to the carrier is, in the ignated by the government, coupled with absence of special agreement to the contrathe acceptance by the government of the bills of lading made to the consignee or his y, delivery to the vendee, yet no one will order, constitute a delivery to the United question the right and power of the parties States, relieving the seller of risk of in- to vary this rule by contract provisions rejury during shipment, although the words quiring delivery to be made by the vendor "f. o. b. Manila" were used in the proposal at the point of final destination.

NOTE.-As to passing of title to property by delivery thereof to carrier for transportation to consignee or vendee-see note to Ramsey & G. Mfg. Co. v. Kelsea, 22 L.R.A.

415.

Dunlop v. Lambert, 6 Clark & F. 620; Pacific Iron Works v. Long Island R. Co. 62 N. Y. 272.

The fact of the consignment of the goods to Governor Taft, even were it not one of As to necessity and sufficiency of delivery the contract provisions, would afford no generally to transfer title-see notes to material proof of any intention on the part Schutz v. Jordan, 35 L. ed. U. S. 705 and of the parties to the contract to waive the Briggs v. United States, 36 L. ed. U. S. 180. 'plain and unequivocal provision of the con

tract requiring delivery to be made at | N. J. 320, 22 L.R.A. 415, 20 Atl. 907; Orcutt Manila, or of intention that the shipment v. Nelson, 1 Gray, 536.

was to be at the vendee's risk, as the consignee is as often the mere agent of the shipper as he is the owner of the shipment.

Benjamin, Sales, 282, 289; Dunlop v. Lam bert, supra; Moakes v. Nicholson, 19 C. B. N. S. 290; Castle v. Playford, L. R. 5 Exch. 165.

The delivery by the contractor of copies of bills of lading to the insular division furnishes no evidence of transfer of title and an imposition upon the vendee of the risk of transportation, as this was also one of the specific contract provisions; and especially since Governor Taft was, under the contract, the consignee, and the bills of lading were delivered to the insular division for transmission to him, in order that he might secure the delivery of the paper.

Dunlop v. Lambert and Moakes v. Nicolson, supra; Shepherd v. Harrison, L. R. 4 Q. B. 196; Castel v. Playford, supra; Kitson Mach. Co. v. Holden, 74 Vt. 104, 52 Atl. 271; Congar v. Galena & C. U. R. Co. 17 Wis. 477; Abbott, Shipping, 326, 331, 337.

The selection of the carrier, route of ship. ment, and consignee, the delivery of duplicate bills of lading, and the alleged payment of freight charges by the government, in no way affect or abrogate the contract provision for delivery at Manila.

Where, however, the purchaser designates the mode of conveyance and a particular carrier, the latter becomes the agent of the purchaser, and delivery to such carrier constitutes, in law, a delivery to the purchaser.

Vale v. Bayle, 1 Cowp. 294; Dawes v. Peck, and Dunlop v. Lambert, supra; The Mary & Susan, 1 Wheat. 26, 39, 4 L. ed. 27, 30; Putnam v. Tillotson, 13 Met. 517; Merchant v. Chapman, 4 Allen, 362; Spencer v. Hale, 30 Vt. 314, 73 Am. Dec. 309; Stanton v. Eager, 16 Pick. 467; Magruder v. Gage, 33 Md. 344, 3 Am. Rep. 177.

The facts conclusively establish, it is submitted, a complete legal delivery of the goods to vendee.

Evans v. Marlett, 1 Ld. Raym. 271; Brown v. Hodgson, 2 Campb. 36; Griffith v. Ingledew, 6 Serg. & R. 429, 9 Am. Dec.

444.

The bill of lading, as expressed in the decisions, is the symbol of the property, and represents it.

Straus v. Wessel, 30 Ohio St. 211; Forbes V. Fitchburg R. Co. 133 Mass. 154; Gates v. Chicago, B. & Q. R. Co. 42 Neb. 379, 60 N. 57, 50 Am. St. Rep. 540, 63 N. W. 114; 559, 42 L.R.A. 353, 84 Am. St. Rep. 468, 47 Kentucky Ref. Co. v. Globe Ref. Co. 104 Ky. S. W. 602; Pennsylvania R. Co. v. Stern, 119

W. 583; Union P. R. Co. v. Johnson, 45 Neb.

Pa. 24, 4 Am. St. Rep. 626, 12 Atl. 756;

Dunlop v.. Lambert, 6 Clark & F. 622. The contract was in violation of law, and Conard v. Atlantic Ins. Co. 1 Pet. 386, 7 L. void, on account of its not having been re-ed. 189; Gibson v. Stevens, 8 How. 384, 12 L. duced to writing and signed by the parties, ed. 1123; Stanton v. Eager, supra. in accordance with U. S. Rev. Stat. § 3744, U. S. Comp. Stat. 1901, p. 2510, and there can therefore be no recovery on the contract.

Clark v. United States, 95 U. S. 539, 24 L. ed. 518; South Boston Iron Co. v. United States, 118 U. S. 37, 30 L. ed. 69, 6 Sup. Ct. Rep. 728.

Mr. A. A. Hoeling, Jr., submitted the cause for appellee:

The expression "f. o. b.," in its ordinary acceptance and use, means simply "free on board," that is, that the expense of carriage and delivery of a consignment at a given point shall be paid by the consignor. Re Rosevear China Clay Co. L. R. 11 Ch. Div. 565; Stock v. Inglis, L. R. 12 Q. B. Div. 573; Browne v. Hare, 3 Hurlst. & N. 484; Silberman v. Clark, 96 N. Y. 522.

Ordinarily, and in the absence of anything appearing to the contrary, delivery of goods by a consignor to a common carrier is, prima facie, a delivery to the consignee.

Mr. Justice White delivered the opinion of the court:

We

The United States appeals from a judg-
ment against it for the contract price of
paper purchased for use in the public print-
ing office in the Philippine Islands.
summarize from the findings the status of
the Philippine Islands at the time of the
the organization in the War Department of
contract, stating besides the facts concerning

what is now known as the Bureau of Insular
Affairs.

After the occupation of Manila, up to September 1, 1900, a *military government pre-[232] vailed. From September 1, 1900, to July, 1901, authority of a legislative nature was vested in the Philippine commission, under and subject to rules and regulations to be prescribed by the Secretary of War. From July 4, 1901, the executive authority as to civil affairs was transferred to the president of the Philippine commission under the title Duttin v. Solomonson, 3 Bos. & P. 582; of civil governor, his authority being exerDawes v. Peck, 8 T. R. 330; Dunlop v. Lam-cised under instructions from the President, bert, 6 Clark & F. 600; Prince v. Boston & subject to the direction and control of the SecL. R. Corp. 101 Mass. 542, 100 Am. Dec. | retary of War. The Secretary of War organ129; Kelsea v. Ramsey & G. Mfg. Co. 55 ized the Division of Insular Affairs, which

War Department, Office of the Secretary, Division of Insular Affairs, Washington, D. C., August 28, 1901. R. P. Andrews & Co.,

627 Louisiana avenue, Washington, D. C. Gentlemen:

Please deliver f. o. b. Manila, P. L (via

Inspection at Insular Division, where sam- Suez canal) the following: ples are to be sent.