paid by the cattle company to the defendant for the undertaking should be and was $250, which was the sole consideration therefor; that on or about September 26, 1905, the cattle company informed the defendant that the replevin action and the controversy therein involved had been settled by mutual agreement, exhibited to the defendant a copy of the aforesaid agreement of September 19, 1905, and requested the defendant to remit a portion of its premium, which it did, in consideration of those representations, charging and receiving $175 in full payment for furnishing the undertaking, instead of $250, which it would have charged and received therefor had the plaintiff not entered into the aforesaid agreements and delivered the sheep as aforesaid; that at all times subsequent to the making of the agreements of September 2 and September 19, 1905, both Cook and the cattle company have acted under and recognized the existence, validity, and obligations thereof, and prior to the commencement of the present action those agreements were fully executed by both of the parties thereto; that Cook received and retains the $1,000 in the agreement of September 19th provided to be paid by the cattle company to him, in addition to the $3,000 paid to him by the cattle company on August 15, 1905, as a part of the purchase price of the sheep, and which he also still retains; that under the contract of September 19th he received from the cattle company its note for $29,813, negotiable in form, together with $30,000 worth of its capital stock to secure the said note, and that neither the note nor any part of the stock has ever been returned by him, and that he either retains the same and the whole thereof, or has otherwise disposed of the said property; that on or about the 18th day of December, 1905, the cattle company commenced an action in the district court of Buffalo county, Neb., against Cook, to recover $20,302 as damages alleged to have been sustained by it on account of the false warranty of Cook in relation to the sale of the said sheep. cattle, and other property mentioned in the aforesaid agreements and bill of sale; that on or about January 13, 1906, Cook appeared in that action, and filed his answer and cross-petition to the plaintiff's complaint; that in that answer and cross-petition Cook refers to the aforesaid replevin action in which the bond upon which the present suit is brought was given, and alleges that while said replevin action was pending, and for the purpose of settling the same, he and the cattle company entered into the aforesaid contract of September 2, 1905, and the option annexed thereto, and further set up that after the delivery and acceptance of the sheep as provided for in the said agreement of September 2, 1905, he and the cattle company entered into still another agreement concerning the subject-matter of said agreement of September 2d and the prior agreement of August 15th, to wit, the aforesaid agreement of September 19, 1905, which last-mentioned agreement the said Cook in his answer and cross-petition alleged was the final agreement made between him and the cattle company. And in his said answer and cross-petition Cook alleged that in accordance with the contract of September 19, 1905, the cattle company executed and delivered to him its promissory note for the sum of $29.813, payable December 15, 1905, and 300 shares of the par value of $100 each of its capital stock, and that he, Cook, delivered the cattle referred to in the said agreement, which were received and accepted by the cattle company without objection or complaint. And in his said cross-petition Cook set forth a copy of the said note for $29,813, and alleged that the same was executed by the cattle company in his favor as the balance of the purchase price of the sheep and cattle referred to in the aforesaid agreements and bill of sale, and in his said answer and crosspetition prayed for judgment against the cattle company for the full amount of the said note, with interest thereon from September 19, 1905, the date of the note, which answer and cross-petition was verified by him and filed with the clerk of the said court on or about January 13, 1906, copies of which answer and cross-petition are annexed to and made a part of the answer of the defendant to the present action. The various agreements and exhibits referred to in the amended answer were introduced in evidence, and the record also shows that the $4,000 in cash paid by the cattle company to Cook was retained by him, and that he never offered to return any part thereof, and that he also retains the note of that company for $29,813 secured by a deposit of its capital stock of the par value of $30,000, none of which has he ever returned or offered to return. It further appears from the record that the cattle company, which is a corporation of the state of Nebraska, complied with the laws of Wyoming governing foreign corporations doing business in that state. The execution by Cook of the bill of sale and various agreements is not disputed, nor is it anywhere pretended that he did not understand their purport, but the attempt was made on his behalf to show, by the witness McLaughlin, frand and misrepresentations leading up to the execution of the agreements entered into subsequent to August 15, 1905. Upon the conclusion of all of the evidence in the case, the court, on motion of the defendant company, directed a verdict in its favor, which was returned, and upon it judgment against the plaintiff in error was entered. Jesse R. S. Budge, Frank K. Nebeker, and Stewart & Stewart, for plaintiff in error. John W. Parish and D. Worth Clark, for defendant in error. ROSS, Circuit Judge (after stating the facts as above). Even if it be conceded that by the agreement of August 15, 1905, the title to the personal property thereby embraced did not pass to the cattle company (see Arkansas Cattle Co. v. Mann, 130 U. S. 69, 76, 77, 78, 9 Sup. Ct. 458, 32 L. Ed. 854), still it cannot be doubted that by the subsequent agreements between the parties, and by the subsequent delivery of the property by Cook's direction to the cattle company, title thereto did pass to it. And even if it should be conceded that in this action at law the plaintiff in error was entitled to show, if he could, that the agreements entered into subsequent to August 15, 1905, were executed by reason of fraud and misrepresentations, still, upon the most obvious principles of right, he could not avoid them while retaining the money and other property received by him by virtue of their execution. Hill v. Northern Pacific Railway Co., 113 Fed. 914, 51 C. C. A. 544, and cases there cited. But we think it very clear that the court below was right in refusing to permit the plaintiff in error to prove in the action at law that the agreements between Cook and the cattle company executed subsequent to August 15, 1995, were procured by fraud and misrepresentations. Pacific Mutual Life Insurance Company of California v. Webb, 157 Fed. 155, 84 C. C. A. 603, and the numerous cases there cited. In respect to the suggestion that the plaintiff in error was at least entitled to nominal damages, it is enough to say that courts of justice do not reverse causes to award nominal relief only. Kelly et al. v. Fahrney, 97 Fed. 176, 38 C. C. A. 103, and cases there cited. The judgment is affirmed. CAMPBELL et al. v. JOHNSON. (Circuit Court of Appeals, Ninth Circuit. No. 1,617. February 1, 1909.) 1. COURTS (§ 325*) — JURISDICTION OF FEDERAL COURTS-ALLEGATIONS IN PLEADINGS-WAIVER. The objection that a complaint in a federal court omits to allege the place of residence of defendants, or that they are residents of the district in which they are sued, is one that they may waive, and they are held to have waived it when they make a general appearance and in a demurrer join such objection with the objection that the complaint does not state facts sufficient to constitute a cause of action. [Ed. Note.-For other cases, see Courts, Dec. Dig. § 325.* Waiver of right as to district in which suit may be brought, see notes to Memphis Sav. Bank v. Houchens, 52 C. C. A. 192; McPhee & McGinnity Co. v. Union Pac. R. Co., 87 C. C. A. 634.] 2. COURTS (§ 322*)—JURISDICTION OF FEDERAL COURT-ALLEGATIONS IN PLEAD INGS. Where the original complaint in a federal court contained proper allegations of the citizenship of the parties at the time of the commencement of the action, the court on service of process thereon acquired jurisdiction, which it did not lose by a repetition of such averments in an amended complaint in the present tense. [Ed. Note.-For other cases, see Courts, Dec. Dig. § 322.*] 3. PLEADING (§ 252*)—AMENDMENTS-CONSTRUCTION. An amended complaint will be deemed to speak as of the time of the commencement of the action. [Ed. Note. For other cases, see Pleading, Cent. Dig. § 736; Dec. Dig. § 252.*] 4 CONSPIRACY (§ 11*)-CIVIL LIABILITY-ACTIONS-DEFENSES. The fact that the members of a labor union have the right under its laws and rules to suspend a member does not deprive him of a right of action against them for a conspiracy to suspend him unlawfully. [Ed. Note. For other cases, see Conspiracy, Dec. Dig. § 11.*] 5. CONSPIRACY (§ 19*)--CIVIL LIABILITY-ACTIONS-SUFFICIENCY OF EVIDENCE. Evidence considered, and held to sustain a verdict and judgment for damages in favor of a member of a typographical union against other members for a conspiracy to cause his suspension as a member unlawfully and contrary to the rules of the union. [Ed. Note.-For other cases, see Conspiracy, Dec. Dig. § 19.*] 6. CONSPIRACY (§ 21*)-CIVIL LIABILITY-ACTIONS-INSTRUCTIONS. Instruction in an action for damages for injury caused plaintiff by a conspiracy between defendants considered and approved. [Ed. Note. For other cases, see Conspiracy, Dec. Dig. § 21.*] In Error to the Circuit Court of the United States for the Northern Division of the Western District of Washington. The defendant in error was the plaintiff in an action against the plaintiffs in error, who were alleged to be partners doing a fraternal beneficiary business under the firm name of Seattle Typographical Union No. 202, organized under the laws of the state of Washington, with its chief oflice in the city of Seattle. The complaint alleged that on October 31, 1905, and for many years prior thereto, the plaintiff in the action was a member in good and regular standing of the said partnership; that the defendants therein were also members; that prior to October 29, 1905, they "wrongfully and unlawfully enter*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes ed into a conspiracy to suspend this plaintiff from the Seattle Typographical Union No. 202, and to thereby deprive this plaintiff of the advantages and privileges of such membership therein, and to prevent him from following his usual occupation and from earning for himself and family a living"; that in pursuance of the said wrongful and unlawful conspiracy, at a meeting held on October 29, 1905, of said Union No. 202, the members thereof wrongfully and unlawfully suspended the plaintiff from the union. The complaint proceeded to allege further that, by reason of such wrongful and unlawful conspiracy and suspension of the plaintiff, he was discharged from his position as night foreman on the Seattle Daily Times, and was prevented from obtaining any other position. The facts in that regard were further set up in detail in the complaint. To this complaint a demurrer was interposed for want of jurisdiction, also for want of an allegation that either the plaintiff or the defendants or either of them were residents of the Western district of Washington, and because the complaint failed to state facts sufficient to constitute a cause of action, also for defect of parties defendant, in that the complaint did not show that all the members of the partnership were made defendants. The demurrer was overruled. The answer admitted that the defendants were members of the union. It alleged that the union is affiliated with the national association known as the International Typographical Union, and is governed by the rules made by that union; that, by such rules, a member of the union who has been declared guilty of contempt, either of the union or of a committee thereof, may be fined, reprimanded, or suspended from membership by a two-thirds vote of the union; that such member may appeal from such decision to the president of the International Typographical Union, and from his decision may again appeal to the executive council of said International Union, and from the decision of the executive council to the International Union in regular session; that prior to October 29, 1905, the plaintiff was charged by a committee of said Union 202 with contempt of said committee; that on a hearing and consideration of said charges had at a meeting duly held by said Union on October 29, 1905, at which 103 members were present, the plaintiff was declared guilty of said charge of contempt, and was suspended from said association for a period of 30 days by a vote of 100 of said members; that, if injustice was done him by said suspension, he had a full, complete, and adequate redress therefor by appeal. To this affirmative defense the plaintiff in the action demurred for want of facts sufficient to constitute a defense. The demurrer was sustained. Upon these issues on a trial before a jury, a verdict was returned for the plaintiff for $500 damages and judgment was entered thereon. The following facts appeared in the evidence at the trial: The plaintiff was night foreman on the Seattle Daily Times, receiving a weekly salary of $35. Some time prior to October 29, 1905, the members of the union being informed that matters occurring at meetings of the union which were supposed to be private were reaching the Times office, the union appointed a committee to investigate. The committee met and summoned before it the members of the union who were employed in the Times office. All summoned except the plaintiff answered the questions propounded to them, but the plaintiff refused to answer upon the ground that his answers might tend to incriminate him. The next regular meeting of the union was held on October 29, 1905. The plaintiff knew that at this meeting the committee would report on his refusal to answer questions. He did not attend the meeting. The committee reported that the plaintiff had refused to answer its questions. A motion was made that the plaintiff be declared in contempt of the committee. The presiding officer ruled that under the laws of the union it was unnecessary to give the plaintiff a trial on the question of his contempt of the committee. One of the members gave warning to the meeting that the plaintiff could not be found guilty of anything of which he was not directly charged, and that he ought to have a trial. The motion was carried by a vote of 100 in favor thereof to 3 against it. It was stipulated on the trial that all of the defendants now plaintiffs in error were present at that meeting. Two days after that meeting, the plaintiff was notified of such suspension, and notice thereof was given to the managing officers of the Daily Times. The plaintiff was thereupon suspended from his position, and another was put in his place, and he was notified by his employers that he must win his appeal from the action of the union within two weeks or be discharged. The plaintiff appealed to the president of the International Typographical Union, and the appeal was sustained, and the action of the Union 202 was reversed on November 18, 1905. In the meantime, on November 11th, plaintiff was discharged by the managers of the Daily Times. W. H. Bogle and Charles P. Spooner, for plaintiffs in error. Before GILBERT, ROSS, and MORROW, Circuit Judges. GILBERT, Circuit Judge (after stating the facts as above). The plaintifs in error contend that the Circuit Court was without jurisdiction of the action, for the reason that it was not alleged in the amended complaint that the defendants therein were residents of the Western district of Washington, and because the amended complaint filed on April 6, 1907, alleged the citizenship of the parties in the present tense, and did not allege their citizenship at the time of the commencement of the action; citing Laskey et al. v. Newtown Mining Co. (C. C.) 56 Fed. 628. The objection that the complaint omits to allege the place of residence of the defendants, or that they are sued in a district other than that of their residence, is one that may be waived by them, and they are held to waive it when they make a general appearance and in a demurrer to the complaint join such objection with the objection that the complaint does not state facts sufficient to constitute a cause of action. St. Louis, etc., Railway v. McBride, 141 U. S. 127, 11 Sup. Ct. 982, 35 L. Ed. 659; In re Moore, 209 U. S. 490, 28 Sup. Ct. 585, 706, 52 L. Ed. 904; Western Loan Co. v. Butte & Boston Min. Co., 210 U. S. 368, 28 Sup. Ct. 720, 52 L. Ed. 1101. In answer to the other jurisdictional objection, it is sufficient to say that the original complaint alleged citizenship of the parties. at the time of the commencement of the action. By that complaint and the service of process thereunder the Circuit Court acquired jurisdiction. By the repetition of the averments of citizenship in the present tense in the amended complaint the court did not lose jurisdiction. The amended pleading will be deemed to speak as of the time of the commencement of the action. Toledo Traction Co. v. Cameron, 137 Fed. 48, 69 C. C. A. 28; Mexican Ry. Co. v. Pinkney, 149 U. S. 195, 13 Sup. Ct. 859, 37 L. Ed. 699. In the case of Laskey et al. v. Newtown Min. Co., supra, a demurrer to the original complaint had been sustained for want of proper jurisdictional averments. Therein it differs from the case at bar. Error is assigned to the ruling of the court in sustaining the demurrer to the affirmative defense alleged in the answer. The substance of that defense was that the rules of Union 202 provided for the suspension of a member who has been declared guilty of contempt by a two-thirds vote of the union, and for an appeal from such decision; that, in fact, the defendant in error was so suspended for a period of 30 days by the vote of the union; and that, if injustice was done him thereby, he had a remedy by appeal. But the gist of the cause of action alleged in the complaint is that the plaintiffs in error wrong |