The case was accordingly brought on again to trial before the district court, without a jury, with the result that judg ment was rendered against the bank, in favor of Davisson, for $5,000 and interest (the amount of his commissions), and in

of the estate of Solon B. Owens, deceased, for the residue of the $9,173.32. Upon ap peal by the bank to the supreme court of the territory this judgment was affirmed (16 N. M. 689, 120 Pac. 304), and the bank appealed to this court.

deceased, with Berryman, and, upon its its peril, and should be held responsible execution, the sum of $9,173.32 was, by to Davisson and Mrs. Owens if, upon a reagreement of the parties, deposited in the trial, they should sustain their right to the bank, together with a copy of the agree- money as against Berryman. ment; that after examination of the title by Berryman, he required the executors to procure an order of court, authorizing them to sell and convey the land, whereupon it was agreed that the time for the conveyance of the title should be extended until such date as the executors should be able to ob-favor of Mrs. Owens and the other executors tain the order so required, and that in the meantime Berryman should enter into 216] possession of the land, and he did go into possession thereof; that after wards Berryman abandoned the possession of the land and removed to his former home in Arkansas, and because of his not being within the jurisdiction of the territory, the executors could not obtain service of process upon him, nor sue him for specific performance of the contract of sale; that under the provisions of the contract the executors had elected to declare said $9,173.32 forfeited by the failure and refusal of Berryman to carry out the contract; wherefore judgment was prayed against the bank as trustee for the executors with respect to the money in question. The bank answered both the complaint and the cross complaint, not denying the making of the contract between Mrs. Owens and Berryman, but denying that it was a party thereto or had any knowledge thereof or concern therewith, and asserting that the $9,173.32 was deposited with the bank by Berryman in escrow, and subject only to the terms of a written memorandum or agreement signed by the bank's cashier; and that because these terms had not been complied with by Mrs. Owens, the responsibility of the bank to her had been terminated, and therefore the bank had paid the whole of the sum of $9,173.32 to Berryman, in compliance with his demand. Upon the issues thus joined, the parties proceeded to trial before the judge of the district court, without a jury, who rendered judgment in favor of the bank, dismissing both the complaint and the cross complaint.

Davisson and Mrs. Owens appealed to the supreme court of the territory, which court

Under the act of April 7, 1874, chap. 80, § 2 (18 Stat. at L. 27, 28), our review is confined to determining the question whether the facts found by the court below sustain the judgment. And these facts are to be certified to us by the territorial supreme court, either by adopting the findings of the trial court, or by making separate findings of its own. Stringfellow v. Cain, 99 U. S. 610, 613, 614, 25 L. ed. 421, 422; O'Reilly v. Campbell, 116 U. S. 418, 421, 29 L. ed. 669, 670, 6 Sup. Ct. Rep. 421; Haws v. Victoria Copper Min. Co. 160 U. S. 303, 312, 40 L. ed. 436, 439, 16 Sup. Ct. Rep. 282; Gildersleeve v. New Mexico Min. Co. 161 U. S. 573, 577, 40 L. ed. 812, 813, 16 Sup. Ct. Rep. 663; Apache County v. Barth, 177 U. S. 538, 542, 547, 44 L. ed. 878, 879, 881, 20 Sup. Ct. Rep. 718; Crowe v. Trickey, 204 U. S. 228, 235, 51 L. ed. 454, 458, 27 Sup. Ct. Rep. 275; Eagle Min. & Improv. Co. v. Hamilton, 218 U. S. 513, 54 L. ed. 1131, 31 Sup. Ct. Rep. 27; Zeckendorf v. Steinfeld, 225 U. S. 445, 448, 56 L. ed. 1156, 1160, 32 Sup. Ct. Rep. 728; Rosaly v. Graham y Frazer, 227 U. S. 584, 590, ante, 655, 33 Sup. Ct. Rep. 333.

The supreme court of the territory, in affirming the judgment of the district court, resulting from the second trial, adopted the findings of that court, and supplemented them with certain findings of its own. From these findings, and from the admissions of the pleadings, the essential facts of the case may be summarized as follows:

On August 21, 1908, Mrs. Owens, residing reversed the judgment and remanded the at Roswell, Chaves county, New Mex-[218 record to the district court with instruc-ico, acting for herself and in behalf of othtions to reinstate the action and proceed in accordance with the views expressed in the opinion. 15 N. M. 680, 113′ Pac. 598. The grounds of decision, briefly, were that by the escrow agreement the bank became agent for both parties, that the memorandum did not 217]authorize it to pay over the money to either party, and that in taking sides and making payment to Berryman it acted at

ers who were her coexecutors of the estate of her deceased husband, Solon B. Owens, made an agreement in writing with C. C. Berryman of Arkadelphia, Arkansas, for the sale to him of certain lands, belonging to the estate, situate in Chaves county, containing 360 acres, with the live stock and other personal property thereon. Davisson negotiated the sale as broker, and was entitled

and tenders to the party of the second part at Roswell, New Mexico, a warranty deed as provided for, and the party of the second part shall fail, neglect, or refuse to comply with this contract, shall fail to accept deed and execute the said notes as provided for, then, in such event, the party of the second part shall forfeit the said $10,000 paid, at the option of the party of the first part, or at his option, and the party of the first part shall have a cause of action against the party of the second part, enforceable in the courts of Chaves county, New Mexico, for a specific performance of contract.

to a commission of $5,000 for his services | the abstract as provided for, and the title if the sale should be finally consummated. is shown to be good or can be made good, The price agreed to be paid by the pur chaser was $80,000, payable $10,000 in cash upon the making of the agreement (receipt whereof was acknowledged), $12,000 by as suming payment of a note for that amount held by an insurance company in Ohio, and not yet due, and the balance to be secured by five notes of $11,600 each, falling due September 10, 1909, and in the four successive years thereafter. The property was to be clear of all encumbrance excepting the $12,000 mortgage. By the terms of the agreement the party of the first part, within ten days from its date (that is, on or before August 31), was to furnish the party of the second part, at Roswell, a complete abstract of title showing a good merchantable title in the party of the first part; the purchaser was to have until September 10th to examine the abstract, and if it showed a good title, the transaction was to be closed at Roswell on or before September 10th, by the delivery of a warranty deed to the purchaser, he paying the consideration accord-cordance with this contract, then in such ing to the terms of the agreement. There were the following additional clauses, which should be quoted in full:

"6th. If, upon examination of the said abstract of title, it is found that the title is not a good merchantable title, then any objections made to said title shall be pointed out by the party of the second part, and then the party of the first part shall have ten days in which to cure said objections. Should it prove, upon examination 219] of said abstract, that the said title is not good, and same cannot be made good within such reasonable time, then it shall be the duty of the party of the first part to perfect said title at their expense, promptly, in accordance with the requirements of the party of the second part, within the time stated, and if the party of the first part fails, neglects, or refuses to perfect said title in accordance with the requirements of the party of the second part, then the party of the second part shall have the right to perfect said title at the expense of the party of the first part, who shall repay at Roswell, New Mexico, such sum of money as is expended by the party of the second part in perfecting said title, and if, upon examination of said title, it shall be shown that the title to the said property is not good and cannot be made good, then in such event this sale shall be annulled, and the said $10,000 paid as purchase money hereinbefore provided for shall be returned by the party of the first part to the party of the second part.

"7th. Now, if the party of the first part complies with this contract and furnishes

"8th. Should the party of the second part, upon examination of said abstract, find the title to the said property good, and within the time stated stand willing and *able to consummate this deal, to pay[220 the balance of purchase money, and execute the notes as above provided for, and the party of the first part shall fail, neglect, or refuse to execute said warranty deed in ac

event, the party of the second part shall have a cause of action against the party of the first part, enforceable in the courts of Chaves county, New Mexico, for a specific performance of contract.

"9th. Possession of said property shall be given on or before the 10th day of September, 1908."

Upon the making of this written contract, it was folded and placed in an envelop, together with a check made by Berryman and payable to Mrs. Owens for the sum of $9,173.32, and the envelop and its contents were taken by Mrs. Owens, Davisson, and Berryman to the Citizens National Bank of Roswell, to be held by the bank "in escrow" until September 10th, pending the furnishing an abstract of title, a favorable report thereon, and final settlement. With the consent and approval of all the parties a memorandum was indorsed upon the envelop in the folowing terms: "Check inclosed to be held in escrow until September 10, when final settlement is to be made. Deed and abstract to be placed in escrow with this. Abstract to be forwarded to Citizens Bank & Trust Company, Arkadelphia, Arkansas, for examination. No money to be paid over until abstract is ap proved by purchaser's attorneys. (Signed) J. J. Jaffa, Cashier."

Up to September 10th the Owens estate had not made good title to Berryman, and on or about that date it was orally agreed between them that the estate should have thirty or forty days' time in which to secure an order of court, and in consideration of this, Berryman, who was stopping on

|

And, on general principles, the findings are to be interpreted in the light of the issue. Reynolds v. Stockton, 140 U. S. 254, 268, 35 L. ed. 464, 468, 11 Sup. Ct. Rep. 773, and cases cited.

expense at the hotel in Roswell, was put in It is clear that the instrument of August possession of the property on September 21st came into existence as a binding con10th, and he remained in possession thereof, tract betwen the parties thereto at, if not exercising acts of ownership thereon until before, the time it was lodged with the September 22d, on which date (the bank. We say this, notwithstanding the 221] *time agreed upon for securing an or- ambiguity of the findings in this regard; der of sale through the courts not having for the supreme court, after having stated yet expired) Berryman, without just cause, that the parties "entered into" the contract, repudiated and abandoned the contract and afterwards stated that "the contract itself departed from the territory. Meanwhile, and was never delivered to either of the parties, in consideration of the verbal arrangement other than being placed in escrow." Since of September 10th, the estate took immedi- the making of the contract was clearly ate steps at considerable expense to secure averred in both the complaint and the cross the required order of court, and did in fact complaint, and was not denied by the bank secure it on October 5th. But at some time in its answer, it followed, under the local after September 10th (the precise date does practice (Comp. Laws, N. M. 1897, § 2685, not appear) Berryman demanded of the subsec. 67), that, for the purposes of this bank the return of his check. The bank action, the averment must be taken as true. had been notified by Davisson of the verbal agreement of September 10th, extending the time in which to perfect the title to the land, but had no other knowledge of this, and the granting of this extension was denied by Berryman. The bank complied with his demand and returned to him the check of $9,173.32, or its equivalent. It appears that no officer of the bank ever read the contract of sale or knew of its terms; and the bank, so far as appears, had no knowledge of what had taken place between Mrs. Owens and Berryman after the contract and check were left with it, except for Davisson's notification respecting the verbal arrangement made on September 10th. After the bank had turned over to Berryman the check or its equivalent, Mrs. Owens and Davisson demanded from the bank their respective shares of the money, and the demands not being complied with, the present action resulted. Berryman, being ab sent from the territory, was not joined as a party.

Therefore the deposit of the agreement and check with the bank was not technically an "escrow," in the sense that the agreement was not to take effect until performance of the condition. In the light of all the facts of the transaction, as shown by the findings, it is clear that the parties treated the agreement as in force between them. And the terms of the memorandum indorsed on the envelop are consistent with this.

The contract of August 21, 1908, being in force as a contract between the parties, it is plain that the memorandum indorsed upon the envelop was not intended to modify its provisions.

*Upon the whole case, we are clear [223 that the effect of the deposit of the contract and check with the bank was to constitute it a custodian or stakeholder for the benefit of both parties, holding the money without right or interest in it, bound above all things not to take sides between the parties, and answerable ultimately to the one or the other, according to their respective rights as between themselves.

The indorsement upon the envelop was a mere memorandum, not containing any clear expression respecting the agreement of the parties, and evidently unintelligible unless

The fundamental proposition that under lies the whole argument for the appellants is that the bank had no concern with any thing beyond the terms of the escrow, as manifested in the written memorandum indorsed upon the envelop. But this memorandum is evidently not a complete expression of the agreement between the parties, and indeed is unintelligible except by reference to the contract of sale. It does not 222] mention the names of the *parties or either of them; does not specify what "set-read in connection with the contract of sale. tlement" is to be made, nor where; does not state by whom "deed and abstract" are to be placed in escrow, nor when, nor for what purpose. Above all, and more important for the present purpose, it does not either state or intimate what is to be done with the check or money if settlement is not made on September 10th, or if abstract is not "approved by purchaser's attorney."

Quite as manifestly the deposit had no reason for existence except in aid of that contract, and as a protection to both contracting parties.

The fact that no officer of the bank read this contract or knew of its terms is of no avail to the bank. By the very circumstances of the deposit it was put upon notice that it was assuming a duty that could

1913.

N ERROR to the District Court of the
United States for the Eastern District

toxicating liquors implied repeal. 1. An intent to effect the complete repeal of the prohibitions of the act of March 1, 1895 (28 Stat. at L. 693, chap. 145), § 8, against the bringing of intoxicating liquors of Oklahoma to review a judgment sustaininto the Indian territory, cannot be inferreding a demurrer to an indictment charging from the provisions of the act of January the introduction of intoxicating liquors into 30, 1897 29 Stat. at L. 506, chap. 109), the Indian country. Reversed. punishing sales of intoxicants to Indian allottees, or their introduction into the Indian country, the later act not mentioning the earlier one, although containing an express repealing clause.

[For other cases, see Indians, II.; Statutes,
III. d, in Digest Sup. Ct. 1908.]
Indians Federal regulation

toxicating liquors

inimplied repeal.

The facts are stated in the opinion.

Assistant Attorney General Denison argued the cause and filed a brief for plaintiff in error:

The utmost effect which the Indian territory prohibition act could have had upon the other series of statutes constituting the general rule throughout the United States to Indian country would have been merely to effect an exception from that general rule.

as

2. The prohibition against the introduction and sale of intoxicating liquors in the Indian country, made by the act of July 23, 1892 (27 Stat. at L. 260, chap. 234), amendatory of U. S. Rev. Stat. § 2139, was Chicago, M. & St. P. R. Co. v. United not superseded, so far as the Indian terri-States, 127 U. S. 406, 32 L. ed. 180, 8 Sup. tory was concerned, by the act of March 1, Ct. Rep. 1194; Frost v. Wenie, 157 U. S. 46, 1895, made specially applicable to such ter- 39 L. ed. 614, 15 Sup. Ct. Rep. 532; Ex parte ritory by name, and covering by its 8th Crow Dog (Ex parte Kang-Gi-Shun-Ca) 109 section the general subject of the introduc-U. S. 556, 570, 27 L. ed. 1030, 1035, 3 Sup. tion and sale of intoxicating liquors there: in, but declaring in its 13th section that laws theretofore put in force in the Indian territory shall remain in full force and effect unless in conflict therewith.

[For other cases, see Indians, II.; Statutes,
III. d, in Digest Sup. Ct. 1908.]
Indians Federal regulation
implied repeal

Ct. Rep. 396; Chew Heong v. United States, 112 U. S. 536, 28 L. ed. 770, 5 Sup. Ct. Rep. 255; South Carolina v. Stoll, 17 Wall. 425,

21 L. ed. 650.

The supposed exception was repealed by the Oklahoma enabling act (Ex parte Webb, in-225 U. S. 663, 56 L. ed. 1248, 32 Sup. Ct. Rep. 769), and the repeal wiped out the exception, and left the general acts free in their operation.

toxicating liquors admission of state. 3. The existing prohibitions against the introduction of intoxicating liquors into the Indian country, made by U. S. Rev. Stat. § 2139, as amended by the acts of July 23, 1892, and January 30, 1897, were not superseded as to transactions wholly within the state by the admission of Oklahoma into the Union under the enabling act of June 16, 1906 (34 Stat. at L. 267, chap. 3335), which, in addition to a requirement that the state Constitution should prohibit the manufacture and sale of intoxicants in that part of the proposed state known as the Indian territory, and their shipment from other parts of the state into such protected territory, contained a reservation to the government of the United States of authority to make laws and regulations in the future respecting the Indians, and declared that the laws of the United States not locally inapplicable shall have the same force NOTE. On repeal of statute by implication-see note to United States V. 356 Cadies of Tobacco, 20 L. ed. U. S. 235.

Chicago, M. & St. P. R. Co. v. United States, 127 U. S. 406, 32 L. ed. 180, 8 Sup. Ct. Rep. 1194; 1 Sutherland, Stat. Constr. 2d ed. §§ 275, 295.

Furthermore, the Indian territory prohibition act never created any such exception, but both acts were applicable to Okla. homa.

United States Exp. Co. v. Friedman, 112 C. C. A. 219, 191 Fed. 673; Mosier v. United States, 117 C. C. A. 162, 198 Fed. 54; Petri v. F. E. Creelman Lumber Co. 199 U. S. 487, 497, 50 L. ed. 281, 286, 26 Sup. Ct. Rep. 133; Chicago, M. & St. P. R. Co. v. United States 127 U. S. 406, 32 L. ed. 180, 8 Sup. Ct. Rep. 1194; The Industry, 1 Gall. 114, Fed. Cas. No. 7,028; The John C. Brooks, 3 Ware, 273, Fed. Cas. No. 7,336; Wood v. United States, 16 Pet. 342, 362, 10 L. ed. 987, 995; Great Northern R. Co. v. United States, 84 C. C. A. 93, 155 Fed. 945; Mc