Page:Federal Reporter, 1st Series, Volume 5.djvu/495

 MARYE V. STROUSE. 483 therefore, the court determines that the plaintiff had no case for its equity side, it can do nothing, if it proceeds, except make a decree upon a legal matter. When the plaintiff is dismissed as to his equitable matter, it amounts to an adjudication that he has an adequate remedy for his legal claim in a court of law, and consequently that he never should have come with his suit into a court of equity. Bill dismissed without prejudice to the complainant's legal cause of action. SAWYER, C. J., concurred. 1. AGENT. MARYE v. STROUSE. (Circuit Court, D. Nevada. January 20, 1880.' An agent to buy cannot be the seller. 2. BROKER'S CONTRACT. An ordinary broker's contract for the purchase of mining stock, each share of which has an independent value, is not an entire con- tract. 3. SAME-CUSTOM. A custom of charging customers an arbitrary sum for telegrams, usually much more than the actual cost, if it can be considered rea- sonable, ought to be established by very satisfactory proof, and it should appear that both parties knew of it. 4. ACCOUNT STATED-BROKER'S PASS-BOOK. Under the circumstances of this case, the balances struck in a "broker's pass-book" held accounts stated. 5. SAME-INTEREST-APPROPRIATION. 1 Where a statute does no more than prohibit a recovery of interest in excess of 10 per cent. unless the contract is in writing, but does not otherwise make the rate of interest. unlawful, interest in excess of that rate may be included in an account stated, and money paid on account by the debtor may be applied to the payment of such interest by the creditor in the absence of any appropriation by the debtor.

Kirkpatrick & Stevens and Lewis & Deal, for plaintiff, Jonas Seely, for defendant.