Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-02-09
HYER CASE ARGUED.
nEorESED IN THE U. s. APPELLATE
COURT, CHIEF JUSTICE FULLER
WILL BE CONCLUDED TO-DAY
Richmond and baltimore Counsel
Represent the Traction Company
Able Pleading. on Both Sides
other Cases Heard.

The afternoon session OF the United
States Circuit Court Of Appeals was oc-
cupied yesterday with argument in the
case of J.. II. Hyer, appellant, against
the Richmond Traction Company ana
others. appellees. This is an appeal
from a decision rendered by Judge Con
in the Circuit Court for the Eastern
District Of Virginia.
Chief-Justlce Fuller. with Judges
simonton and Brawley, presided. Messrs
Stiles and Holiday appeared for Mr..
liver. and the Traction Company was
represented by Messrs. Henry and Will
liams and Mr.. George Whtelock, Of
Baltimore.
STATEMENT OF THE CASE.
On october 30, 1856, Mr.. Hyer filed his
original bill in the Circuit Court of the
United States for this district, in which
he prayed the Court to enforce specific
execution Of a contract embodied in
letter dated August 9, 1895, addressed TO
s. H. G.. Stewart No. 10 Wall street,
New York, and signed by L. II. Hyer
and Philip b. SHIELD. This agreement
set forth: THAT both OF us being in
terosted in the procuring Of a fran
chise for and construction of street
railway on Broad street. in the city OF
Richmond, Va, with collateral lines,
have made the following agreement:
That we hereby bind ourselves in our
own behalf and for our associates
mutually TO cooperate one with the
other in securing franchise for said
railway, and to divide equally between
tot trri,f sfs.rra
realized from the enterprise; first deduct
ing from said amount whatever actual
expenses may have been incurred by
either side, such expenses to be paid out
of the first money realized from said
enterprise
Mr.. Hyer claims that he fully per-
formed his part and obligation under
said contract; that, by virtue thereof,
and by means Of the consideration there
under furnished by complainant, the
Richmond Traction Company secured
franchise for the construction of
street railway on Broad street, and that
he was fairly and justly entitled to
full one-half interest in the company's
enterprise and franchise; that the de-
PENDANTS to this bill refused to recognize
compliments right in the premises, and
that complainant had been unjustiy and
unfairly defrauded of his rights, and
would be exposed to irreparably injury,
unless the Court should interfere by in
junction TO prevent said franchise, or
any part thereof, from being assigned,
transferred, or encountered TO or in
favor of innocent parties. unaffected with
notice Of compliments rights under
and by virtue Of the contract aforesaid,
Of which contract complainant prayed
the Court to enforce specific execution.
JUDGE GOFFS OPINION.
To this bill defendants filed demurres,
Judge Gon, in his opinion, which WV
printed in the Dispatch at the time Of it'
delivery, discussed the matter quite fully
dealing with the several grounds OF de-
murrer in detail. In concluding, he said;
81 think that the contract, the specific
enforcement of which was TO withdraw
competition from before the City Council
Of the city Of Richmond, is void,
because. against public policy. and
shall, therefore, decline TO enforce the
same Reaching this conclusion, it viii
be unnecessary to consider the remain
ing grounds Of demurrer"
JUDGE HOLIDAYS ARGUMENT.
The argument was opened yesterday
by Judge Holiday Cor the complainant.
He submitted that counsel for the Trac-
ton Company had abandoned several OF
their ten grounds OF the demurrer, upon
which they rested in the lower court, so
that there now remaiped in the case only
the following: First. That the contract
upon which Hyer sues Is void, as against
public policy. He submitted that here
the latter ground seems to be whether
the Traction counsel are confined 10 ths
case as made in the last amended oil.
He argued that they are so confined ana
have no right 10 argue upon the features
Of the bin as It stood before the last
amendment Judge Holiday contended
that. looked upon only as stated in the
last amended bill. the contract and
transaction were not contrary to public
policy. ,-,,-,,.
Second. That there IS no jurisdiction
NJ the case upon the equity side Of the
court. and that Mr.. Hyer should be sued
at law. At.
thai what liver claimed was a specific
performance Of his contract; that he
could not get this at law, and that no
other remedy would serve his turn. InaI
there was always remedy IN equiv
unless the remedy at law was not ohly
main. adequate, and complete, but as
p as adequate. and as complete at
L., &c I'm equity; and, that no one could
oon,end that such was the case here.
Tbird The Traction counsel commended
.1ot ono xyarranto was the proper remedy
Of Mr.. Hyer. Judge Holiday sald
he could not possibly comprehend this
nojnt that It was evident quo warranto
would not accomplish what Mr.. Hyer
claimed and desired; that he was not
ottempting to destroy the Traction Com
many. but to recover his interest," III IT,
and the enterprise conducted by IT,
THE TRACTION COMPANY'S SIDE.
Mr. Ceorge Whitelock, Of Baltimore,
who was the first TO present the Traction
Cronnany's side of the case. lie SAID
that the plaintiff could not, by amend
inc his BILL take away from the conSloe-
ration of the court the original allega-
tions. The original and amended pllis
constitute one record. me oIisiilaI OIL
shows plainly on its face that lobby SER
uices we're contemplated by the parties
,n their contract: and the contract ITSELF
an6 Uver's interview in the State. show
,,ny,,istakably that the real consideration
Cor the agreement was the withdrawal
- ,ba conduit company's ordinance from
~ consideration of the City Council.
IT, was therefore, invalid, according to
the decisions Of all the leading courts.
Mr. Whitelock had not concluded MS
ARGUMENT when the court rose. The ar
g,,ment will be concluded to-day.
Two other Cases Argued
Tho morning session Of this court was
taken up with the argument III tne case
90 George TAYLOR, claimant OF the tug
Jiarc,,les appellant, VS. w. w. Crossley,
,aoster Of the schooner Robert Morgan,
appellee; appeal from the District Court
~ Norfolk The cause was argued be-
fore Judges Gon. Simonton. and Draw
lev by Robert NJ. Hughes. OF Norfolk,
for fol- appellant; and by Floyd Hughes. Of
Norfolk. for appellee. and submitted.
The case of Philip It. Woodhn. appel
,o,, va the Hampton and Old Point
p Ia Company, appellees. an appeal
fron, the Circuit Court Of the Eastern
D,strict Of Virginia, was dismissed. on
the suggestion Of appellant, without pre-
/ fudicQ