18 F.2d 749 | 2d Cir. | 1927
(after stating the facts as above). Counsel for the appellant has argued that the allowance of these two items was in contravention of sections 823 and 824 of the Revised Statutes (Comp. St. § § 1375,1378). In our view of the case, these statutes relating to taxable costs have no bearing. The sole question is whether a contempt of court was committed. If a contempt was committed, there is no doubt that the court may fine the contemnor and may direct such fine to be paid to the injured party as damages, including as such reasonable attorney’s fees and expenses. In re Tift (D. C.) 11 F. 463; In re North Bloomfield Gravel Mining Co. (C. C.) 27 F. 795; Stahl v. Ertel (C. C.) 62 F. 920; Doubleday v. Sherman, 7 Fed. Cas. 959, No. 4020; Christensen Engineering Co. v. Westinghouse Air B. Co., 135 F. 774 (C. C. A. 2).
These proceedings were conducted in a fashion to make it quite impossible to discover the precise act of contempt which counsel for the receiver conceive to have been committed. Their brief gives no assistance. It merely asserts generally that there was a gross and open contempt of court practiced by both Dimon and Collyer.
We will take up first the case of Coll-yer. The order of December 31 recites that Collyer bid as agent for Dimon, and that Dimon made the initial deposit. It orders that the sale be confirmed and bills of sale be tendered, first to Collyer, and, if he fails to accept and pay, then to Dimon. This is consistent only with the theory that the contract of sale is with Dimon, not with Collyer. An agent who contracts for a disclosed principal may, of course, assume personal obligation under the contract if such is the expressed intention of the parties. But the evidence is not to this effect. The auctioneer’s affidavit states expressly that he sold on Dimon’s credit, not on Collyer’s. Although the bid was in Collyer’s name, the contract was with Dimon, and therefore the order which confirms the sale confirms this contract. Both agent and principal are not liable on a contract made by an authorized agent for his disclosed principal. See Whitney v. Wyman, 101 U. S. 392, 25 L. Ed. 1050. Dimon, not Collyer, was bound by the contract to pay the purchase price. Hence the order directing that the bills of sale be tendered first to Collyer cannot be construed as equivalent to an order that he pay the purchase price out of his personal funds. The tender was made to him as Dimon’s agent. His refusal to accept the title documents and pay because Dimon had not supplied the funds did not constitute a contempt of court by Collyer.
We come, then, to a consideration of whether Dimon committed contempt. A purchaser of property sold under order of court submits himself to the jurisdiction of the court, and, when he refuses without cause to carry out his contract, he may be compelled to do so by rule or attachment issuing out of the court under whose decree the sale is had. In re Jungmann, 186 F. 302 (C. C. A. 2); Camden v. Mayhew, 129 U. S. 73, 9 S. Ct. 246, 32 L. Ed. 608; and see Quidnick Co., v. Chafee, 13 R. I. 367, 423-438. If the court had entered an order expressly directing Dimon to pay the purchase price upon tender by the receiver of title documents to his agent, Collyer, and he had refused to do so after notice of the order, he would have committed a contempt. The court might then have entered a formal order finding him guilty of the contempt, imposing a fine in the amount of the purchase price and damages, and directing that out of the fine a sum be paid to receiver’s attorneys. Such formality, however, would not, in our opinion, have been essential. The court could have permitted him to purge himself by paying the purchase price and damages incurred by his contumacy, including in such damages reasonable fees of the receiver, without the entry of a formal order finding him guilty of contempt.
This is what we conceive to be the effect of the proceedings subsequent to the order to show cause of January 7th. The validity of the order appealed from, therefore, depends upon whether Dimon had, prior to January 7th, committed contempt.
The order of December 31, confirming the sale and directing that title documents be delivered in exchange for the purchase price, we regard as equivalent to an express order on the purchaser to pay the purchase price. It may be urged that the order directed a tender to Dimon in ease Collyer rejected the tender to him, and that therefore there was no order that Dimon pay until a tender to Dimon personally. However, since Dimon had made his bid by agent and contemplated taking title in his agent’s name, we believe the tender to Collyer imposed an instant duty upon Dimon to pay the purchase price, and that all subsequent delay in paying was a contempt of court. We regard the direction that a tender be made to Dimon as well as Collyer as an additional but unnecessary precaution in the effort to put him in contempt.. Dimon, therefore, being in contempt, sends into court by his agent the funds with which to purge his contempt by completing the purchase. The court may impose terms upon which the contempt be purged. That Dimon through his agent willingly accedes to some of the terms and protests against others is immaterial. The agent deposits the money to await the court’s decision on his protest. Argument is heard, and the court decides against him. We find no error in such decision.
The decree is affirmed, but with directions that the appellant may have leave to prove to the District Court that the funds deposited were his own and not Dimon’s, and, if that fact be established, that the decree be reversed and a decree entered in favor of the appellant.