Dissenting Opinion: Jackson, Shiras, JJ.

The attempt to draw distinctions between decisions which involve no substantial differences in principle is not only unwise, but is attended inevitably with embarrassment in the administration of the law. The cases of Arkansas Valley Smelting Co. v. Belden Mining Co., 127 U. S. 379, and Delaware County v. Diebold Safe and Lock Co., 133 U. S. 488, cited in the opinion of the court, fall far short of asserting the proposition that a member of the firm of Taylor, Babcock & Company (the substituted contractors with the State) could not transfer an interest in the profits to arise out of the building contract without the consent of the State. There is a class of cases where the services to be rendered are of such a personal character that they cannot be assigned; but where is the authority that holds that where a firm is a contractor to do certain work a member of such firm cannot assign or transfer his share of the profits to arise therefrom? I have looked in vain for such an authority.

The real question before the court upon the bill, and the demurrer thereto, is not whether Schnell could have assigned to A. A. Burck the right to take part in or assert any control over the construction of the state capitol, or to have recovered from the State the compensation it had promised to pay therefor? But the question is, can Taylor retain a share of the profits which belong to Schnell by the partnership agreement, made with himself and his associates upon full consideration, a portion of which profits Schnell, "with his knowledge and consent," transferred to A. A. Burck, who assigned a part thereof to the complainant? Under and by what provision of the contract, described in the record, did Taylor become entitled to hold that share for his own benefit?

The bill shows that the building cost about $3,700,000; that the lands received from the State as compensation for the work, and since sold, were worth from ten to eleven millions of dollars, and the profits made on the transaction were between seven and eight millions of dollars. By the terms of the partnership contract, all the expenditures connected with the completion of the building were to be refunded with interest, and the remaining profits were to be divided "as the interest of the

Counsel for Defendant in Error.

parties or their assigns might appear." The complainant as an "assign" holds title to one-thirty-second th interest of those profits. The bill clearly discloses his right thereto, and I fail to see upon what principle Taylor can dispute his claim or deny the account which he seeks. To allow him to do so, under the allegations in this bill, and upon the ground on which it is rested, that the State did not assent to the complainant's acquisition of the interest he holds, is not only a perversion of right and justice, but finds no sanction or support in either principle or authority.

MR. JUSTICE SHIRAS Concurs in this dissent.

MR. JUSTICE WHITE was not a member of the court when this case was argued, and took no part in its decision.

NORTHERN PACIFIC RAILROAD COMPANY v.

BOOTH.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA.

No. 327. Submitted March 28, 1894. - Decided April 9, 1894.

The verdict and judgment in the court below having been for $5000, and that judgment having been a few days later amended on the motionapparently ex parte - of the defendant, by adding to it the sum of $116.73, interest, this court, as the defendant made the motion with the sole object of obtaining a writ of error not otherwise allowable, declines to permit what was done to be efficacious in the accomplishment of the purpose designed, and dismisses the writ of error.

THE case is stated in the opinion.

Mr. James McNaught, Mr. A. H. Garland, and Mr. H. J. May for plaintiff in error.

Mr. C. D. O'Brien for defendant in error.

Opinion of the Court.

THE CHIEF JUSTICE: This was an action to recover damages for the death of Fred. D. Booth, alleged to have been occasioned by the wrongful act or omission of the defendant, brought under the statute of the State of Minnesota in that behalf, which limited the recovery to not exceeding five thousand dollars. The case being tried to a jury resulted in a verdict in plaintiff's favor, January 10, 1890, for five thousand dollars, and, after motions for a new trial and in arrest had been overruled, judgment was rendered for that amount on May 12, 1890. On the following nineteenth of May the Circuit Court, on motion of the defendant's counsel, apparently made ex parte, ordered the judgment to be amended so as to read that the plaintiff recover the sum of five thousand dollars, "the amount found to be due by the jury, together with the sum of one hundred and sixteen and 13 dollars, ($116.73.) the amount of interest thereon from the rendition of the verdict to date."

These proceedings were had at December term, 1889. On July 3, 1890, one of the days of the succeeding June term, plaintiff moved the court to vacate the amendatory order of May 19, which motion was overruled. Defendant thereafter sued out this writ of error. But the writ cannot be maintained unless it appear that the matter in dispute, exclusive of costs, exceeds the sum or value of five thousand dollars, and in this case the judgment would be the measure of the jurisdiction. As originally rendered this did not exceed that sum, and we are of opinion that it could not be amended on motion of the defendant by the addition of an amount not claimed by plaintiff, so as to bring the case within our jurisdiction. Since the defendant confessedly made its motion with the sole object of obtaining a writ of error not otherwise allowable, and, in doing so, conceded that the amount sought to be added was not in dispute, we decline to permit what was done to be efficacious in the accomplishment of the purpose designed.

Writ of error dismissed.

Opinion of the Court.

ROBERTSON v. CHAPMAN.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA.

No. 255. Argued March 9, 12, 1894. — Decided April 2, 1894.

The evidence does not bring this case within the operation of the following principles of law, laid down by the court in its opinion, namely: (1) That an agent is precluded from taking advantage of his principal, or from dealing with the property committed to his care in any other capacity than as an agent, who is bound to subordinate his own interests to those of his principal;

(2) That an agent cannot directly or indirectly become the purchaser of property of his principal, entrusted to him to sell, and cannot maintain a title thus acquired as against his principal; for, in so purchasing, his duty and his interest would come in conflict; (3) That if an agent to sell effects a sale to himself, under the cover of the name of another person, he becomes, in respect to the property, a trustee for the principal, and, at the election of the latter, seasonably made, will be compelled to surrender it, or, if he has disposed of it to a bona fide purchaser, to account not only for its real value, but for any profit realized by him on such resale; and this will be done upon the demand of the principal, although it may not appear that the property, at the time the agent fraudulently acquired it, was worth more than he paid for it;

(4) That the law will not, in such case, impose upon the principal the burden of proving that he was, in fact, injured, and will only inquire whether the agent has been unfaithful in the discharge of his duty; for, while the agency continues he must act, in the matter of such agency, solely with reference to the interests of his principal; and the law will not permit him, without the knowledge or assent of his principal, to occupy a position in which he will be tempted not to do the best he may for the principal.

THE case is stated in the opinion.

Mr. Alexander H. Robertson and Mr. William A. Fisher for appellant.

Mr. George E. Hamilton for appellees.

MR. JUSTICE HARLAN delivered the opinion of the court.

VOL. CLII-43

Opinion of the Court.

This appeal brings up for review a decree dismissing a bill brought by the appellant for the purpose, among others, of obtaining a decree setting aside and cancelling of record certain deeds and mortgages alleged to have been made in fraud of his rights.

The principal question in the case is whether the real estate, covered by those deeds and mortgages, was acquired by the appellee Polk in violation of his duty to the appellant.

Ella V. Davis, a citizen of Maryland, died in 1881, leaving a will, by which Augustine C. Dalrymple was appointed a trustee with power to sell and convey such estate of the testatrix as did not yield an income, and could not be leased to advantage.

Dalrymple renounced the trusteeship, and on the 3d of June, 1881, by an order of the proper court of Maryland, William A. Stewart was appointed in his place as trustee. Stewart, subsequently, on the 6th day of April, 1885, resigned that position, and the present appellant was substituted in his place.

The testatrix, at her death, was the owner of numerous lots in Plattsmouth, Cass County, Nebraska. In the fall of 1885 the appellant Robertson visited that city for the purpose of effecting a sale of them, if, upon investigation, it was deemed best to do so. He employed the appellees Samuel M. Chapman and Milton D. Polk, partners in the practice of the law as Chapman & Polk, to attend to the probating of the will in Cass County, and to obtain a judgment of the proper court construing the will and authorizing a sale of the lots: While in Plattsmouth, after conferring with real estate agents and others to whom he was introduced by Chapman, and who were familiar with the value of property in that city, he fully determined to sell these lots; the only question, he testified, "was to find a purchaser at $4000."

After returning to Baltimore, the place of his residence, Robertson received a letter from Chapman, dated October 22, 1885, in which the latter said: "We have been canvassing the sale of the realty belonging to the Davis estate and $4000 is the best offer we can get $1000 down and the balance