text:
United States v. Macdonald/Opinion of the Court

Principal question presented for decision in this case is, whether a collector of the customs is entitled to retain as compensation a sum not exceeding two thousand dollars per annum from his receipts as storage for the custody and safe-keeping of imported merchandise, entered for warehousing, under the acts of Congress upon that subject, and stored in bonded warehouses. First-named defendant was the collector of customs for the district of Portland and Falmouth, and the other defendants were his sureties. He was appointed collector prior to the twentieth day of January, 1858, and between that day and the eighteenth day of April, 1861, he received as storage for the custody and safe-keeping of imported merchandise, subject to duty and stored in bonded warehouses, the sum of six thousand two hundred and eighty-one dollars, as appears by the pleadings. Due returns were made by the collector, but he refused to pay over the moneys so received, and the plaintiffs sued him and his sureties, declaring on his official bond.

Defendants craved oyer of the bond, and pleaded performance. Replication of the plaintiffs alleged that the statement of the collector's accounts, as adjusted and settled at the Treasury Department, showed that he had received that amount of the moneys of the plaintiffs, and that he had neglected and refused to pay the same into the treasury. Rejoinder of the defendants alleged that the sum specified in the replication of the plaintiffs accrued and was received, accounted for quarter-yearly, and retained by the collector in virtue of his office for storage of merchandise in bonded warehouses, from the twentieth day of January, 1858, to the sixteenth day of April, 1861, inclusive, but not more than two thousand dollars in any one year, as he lawfully might do. Plaintiffs demurred, and the defendants joined in demurrer. Parties were heard, and the Circuit Court overruled the demurrer and rendered judgment for the defendants, and the plaintiffs sued out this writ of error.

I. 1. All controversy as to the material facts of the case, so far as they are set forth and well pleaded in the rejoinder of the defendants, is closed. Applying that well-known rule to the case, it follows that the demurrer admits that the whole amount retained by the collector, as alleged in the replication, accrued and was received by that officer in virtue of his office as storage of imported merchandise in bonded warehouses, and that he never received from that source during the period embraced in this controversy more than two thousand dollars in any one year. Views of the defendants are that the collector had a right, under the fifth section of the act of the third of March, 1841, as construed by this court, to retain to his own use all sums received from storage, not exceeding two thousand dollars in any one year, as compensation for his services. By the fifth section of that act collectors are directed to render a quarter-yearly account, in addition to the account previously required by law, and to include in it all sums collected for fines, penalties, and forfeitures, or from seizures of merchandise, or on account of suits for frauds against the revenue, or for rent and storage in the public storehouses, for which a rent is paid beyond the rents paid by the collector.

2. Construction of that section, as given by this court, was that collectors must include all sums received for rent and storage in the public stores beyond the rents which they paid, in their quarterly accounts, and if it appeared from such accounting that the aggregate sums so received in any one year exceeded two thousand dollars, they must pay the excess into the treasury, as part and parcel of the public money. Such excess, under that law as construed, belongs to the treasury, but if the sums received from that source in any one year did not exceed two thousand dollars, the court held that collectors might retain the whole amount to their own use, as additional compensation for their services.

3. Sources of their compensation prior to that time were certain fees or emoluments, commissions and allowances, to which was added a prescribed sum, called salary, which was much less than the compensation to which such officers were at all times entitled. They were also entitled to certain proportions of fines, penalties, and forfeitures, but were never before obliged to embrace such receipts in their quarterly accounts.

Statement of the court in that case was, and it was undoubtedly correct, that the bill, as originally reported, not only required that the sums so received should be included in the quarterly accounts of collectors; but if the aggregate from all those sources, including fines, penalties, and forfeitures, exceeded two thousand dollars in any one year, collectors were required to pay the excess into the treasury.

Radical amendments, however, were made in the bill during its passage, essentially changing its character in that respect. Fines, penalties, and forfeitures, as it passed into a law, are not required to be included in the aggregate of the accounts from which to deduct the two thousand dollars, in order to ascertain the excess to be paid into the treasury; and, inasmuch as fees and emoluments were previously required to be included in the quarterly accounts of collectors as the principal source of their compensation, under such previous laws, the court held, and well held, that there was nothing left for that part of the section which directed the payment of the excess into the treasury to operate upon, except the sums received from rent and storage. Conclusion of the court, therefore, was, and it was a unanimous conclusion, that collectors might, if the office earned so much, retain to their own use, as an addition to the compensation allowed to them by previous laws, the sum of two thousand dollars per annum for rent and storage, but that all excess beyond that sum must be paid into the treasury as public money.

II. 1. None of these principles are controverted by the plaintiffs, nor do they contend that the fifth section of that act has been repealed. Storehouses used for the storing of imported merchandise were such, at that date, as were owned by the United States, and such as were leased by the collectors under the direction of the Treasury Department. Imported merchandise might, in certain cases, be stored for a limited time without the payment of duties, unless sooner withdrawn for consumption. Where the entry of merchandise was incomplete, the fifty-second section of the act of the 28th of February, 1799, required that the importation should be conveyed to some warehouse or storehouse to be designated by the collector, there to remain, with due and reasonable care, at the expense and risk of the owner or consignee, under the care of some proper officer, until the invoice was exhibited and the value was ascertained by appraisement.

2. Goods damaged during the voyage were also required to be deposited in some wharehouse or storehouse to be designated by the collector, in the same manner and subject to the same conditions as where the entry of the goods was incomplete, to be kept until the extent of the damage could be ascertained in the same way.

3. Persons importing teas also might pay or secure the duties before a permit was granted for landing the same, on the same terms as prescribed in respect to other imported merchandise, or they might, at their option, give bond, without security, to the collector of the district for the payment of the duties in two years from the date of such bond; but the teas so imported, in that event, are required to be deposited, at the expense and risk of the importer, in one or more storehouses to be agreed upon between the importer and the revenue officer of the port.

4. Wines and distilled spirits might also, under the act of the 20th of April, 1818, be warehoused 'in such public or other storehouses' as might be agreed upon between the importer and surveyor, or other public officer of the revenue where the wines or other distilled spirits were landed.

Whether deposited in the public or 'other storehouses,' under either of those acts the goods imported were to be kept under the joint locks of the importer and inspector of the revenue, and no delivery of the same could be made unless the duties were first paid or secured, nor without a permit, in writing, under the hand of the collector and naval officer of the port.

Custody and control were the same, whether merchandise was deposited in the public or other storehouse; and, whether in the one or the other, the expenses of safe-keeping were to be paid by the importer, owner, or consignee. Importer and the proper revenue officer might agree upon a store as the place of deposit other than those few warehouses then owned by the United States; but when the locks of the inspector and of the importer were affixed to the doors of the same, as required by law, and the merchandise as imported was deposited therein, under the control of the collector, it became a public storehouse for the purpose of securing the importation until the duties should be paid or secured, and the same should be withdrawn by authority of law.

5. Provision was also made in the sixth section of the act of the 14th of July, 1832, that imported wool and the manufactures of wool might, at the option of the importer, be placed in the public stores, under bond, at the risk of the importer, subject to the payment of the customary storage and charges, and to the payment of interest at the rate of six per cent. per annum while so stored.

Effect of that law was to diminish the compensation of collectors, as it made large additions to the free list and to increase the demand for storehouses for public use, as it authorized the warehousing of a large class of importations never before entitled to those privileges.

Resort was had by Congress to additional compensation acts, passed annually for the period of eight years, to remedy the first difficulty, and the second was overcome without legislation, by storing the merchandise, as imported, at the expense and risk of the importer, in storehouses designated by the collector, or in such as were agreed upon between the importer and the revenue officer, or in stores owned by private persons, and leased for that purpose by the collector for limited periods. Commerce and trade revived, and the practice of leasing such storehouses at certain ports became general, and 'the customary storage' collected from the importers at such offices greatly exceeded the amount paid as rent to the owner of the stores; and, as there was no law of Congress requiring collectors to account for the excess, it was retained to their own use, and at some ports swelled their receipts beyond the standard of a reasonable compensation.

III. 1. Such was the state of affairs in this behalf when Congress passed the act of the 3d of March, 1841, to which reference has already been made. Express provision of that act was, that no collector shall, on any pretence whatsoever, hereafter receive, hold, or retain for himself, in the aggregate, more than six thousand dollars per year, including all commissions for duties and all fees for storage, or fees or emoluments, or any other commissions or salaries which are allowed and limited by law. Collectors were required by the second section of the act of the 2d of March, 1799, called the Compensation Act, to keep accurate accounts of all fees and official emoluments by them received, and to transmit the same to the Comptroller of the Treasury; but they were allowed to retain to their own use the whole amount of emoluments derived from those sources.

2. Maximum rate of compensation was first prescribed by the act of the 30th of April, 1802, and the provision was, that whenever the annual emoluments of any collector, after deducting the expenditures incident to the office, shall amount to more than five thousand dollars, he shall account for the surplus, and pay the same into the treasury.

Districts for the collection of the customs were, by the act of the 7th of May, 1822, divided into two classes, usually denominated the enumerated and the non-enumerated ports, and the maximum rate of compensation to collectors was diminished. Emoluments of collectors for the seven enumerated ports might reach, under the provisions of that act, the sum of four thousand dollars, but could not exceed that amount under any circumstances.

Annual compensation allowed to the collectors of the non-enumerated ports, of which Portland was one, might amount to three thousand dollars; and the provision in respect to both classes was, that the excess, after deducting the expenses incident to the office, should be paid into the treasury as public money.

3. The contest in Walker's case was, whether or not he was entitled, as the collector of a non-enumerated port, to an annual compensation of six thousand dollars. He claimed that he was, because, as he insisted, the maximum rate of compensation to the collectors of those ports, as prescribed by the act of the 7th of May, 1822, was repealed, and, consequently, that he was entitled to four thousand dollars under the ninth section of that act, and two thousand dollars from the receipts of his office for storage, as allowed by the fifth section of the act under consideration. But this court held, that the maximum rate prescribed in the prior law allowed to the collectors of the non-enumerated ports was not repealed, but was in full force as to all the emoluments of collectors prescribed or recognized in that act.

Unanimous conclusion of the court, therefore, was that collectors of the non-enumerated ports might receive, as the annual compensation for their services, the sum of three thousand dollars, from the sources of emoluments prescribed and recognized in that act; and, in addition thereto, might retain whatever sums came to their hands within the year from rent and storage, provided the storage did not exceed two thousand dollars. Plaintiffs concede that such was the decision of this court in that case, and they do not deny that it was correct; but they contend that it does not control the present case, because, as they insist, the storage received in that case was storage in stores leased to the government, for which rents were paid beyond the rent paid by the collector.

4. Amount retained by the collector in this case accrued and was received for storage of imported merchandise in bonded warehouses; and the plaintiffs contend that bonded warehouses are not public storehouses within the meaning of that act. They are mistaken, however, in supposing that the amount retained by the collector in that case was wholly received for storage of goods stored in the public storehouses, for which rents were received beyond the rent paid by the collector. On the contrary, the bond of the collector in that suit was dated the seventh day of September, 1850, more than four years after the act of the sixth of August, 1846, establishing the warehouse system, was passed.

Date of the writ in that case was the twenty-first day of November, 1856, more than seven years after the treasury regulations of the seventeenth of February, 1849, making provision for bonded warehouses, were adopted and promulgated.

IV. 1. Importations of every kind might be entered for warehousing under the first section of the act establishing the warehouse system, and when so entered the requirement was that the goods 'shall be taken possession of by the collector,' and be deposited in 'the public stores or other stores,' to be agreed on by the collector and the importer, owner, or consignee. Public stores, as well as the 'other stores,' are required to be under the joint locks of the importer and the proper revenue officer, as provided in the act respecting the deposit of wines and distilled spirits, and the 'other stores,' as well as the public stores, so called, are expressly recognized in the same section as public storehouses, because it is there provided that if the goods so deposited shall remain 'IN PUBLIC STORE beyond one year, without payment of the duties and charges thereon, then the goods' shall be appraised and sold by the collector at public auction.

Such goods are not only required to go into the possession of the collector, and be thus deposited under his control, but they are also required to be kept by him in the place of deposit, at the charge and risk of the importer, owner, or consignee. Every provision of the section assumes that the goods, whether deposited in the public stores or the other stores therein mentioned, are in the possession and under the control of the collector, and they cannot be withdrawn for consumption without paying the duties, nor for transportation or exportation without paying the appropriate expenses.

2. Authority to make rules and regulations was conferred upon the Secretary of the Treasury by the fifth section of that act. Pursuant to that authority, he promulgated the regulations of the seventeenth of February, 1849, and from that time it was the policy of the department to discontinue leased stores as far as possible, and substitute bonded warehouses in their place. Bonded warehouses, under those regulations, were divided into three classes:

First. Public stores and stores leased by the department prior to the date of the regulations.

Second. Stores in the possession and sole occupancy of the importer, and placed under a customs lock and that of the importer, to be used only for the purpose of storing his own importations. Such importers furnished their own stores, and, of course, paid no rent, but they were required, as importers, to pay a sum equivalent to the salary of an inspector, or half-storage to the collector.

Third. Stores in the occupation of persons desirous of engaging in the business of storing dutiable merchandise. Importers storing goods in such stores paid rent to the owner, but they also were required to pay a sum equivalent to the salary of an inspector, or half-storage to the collector, as in the other class of stores.

Both of those classes are called private bonded warehouses, because they were the property of their owners, and were not formally leased to the United States; but no store could be constituted such a warehouse unless it was a first-class fire-proof store, according to the classification of insurance offices, and was first proved to be such to the satisfaction of the Secretary of the Treasury, and was by him authorized to be used for the storage of dutiable merchandise. Until so selected by the Secretary of the Treasury, and the bond given by the owner as required, no store of a private owner could be used for the storing of dutiable importations; and when so selected and bonded, and placed under the customs locks, the store was under the control of the collector, and was as much a public storehouse as one owned or formally leased by the United States.

3. Same regulations provide that all moneys received by collectors from owners or occupants of private bonded stores in payment for half-storage, or for the attendance of an inspector at the premises, will be accounted for as receipts for storage in their accounts with the department. Evidence is not wanting to show that the department has constantly recognized the subsisting operation of the provision under consideration in relation to storage. Throughout the period since its passage the department has required collectors to include the sums received from storage in their quarterly accounts, and if the provision is in force for that purpose, it is difficult to see why it is not also in force as authorizing the allowance to collectors.

Express recognition of its subsisting operation is also found in one of the adjudications of the department, in which it was decided that where 'goods are stored under bond in a private store the importer shall either make monthly payment of a sum equivalent to the pay of an inspector placed in charge of the same, or one-half the amount which would accrue as storage on the goods so stored if placed in public store.'

Implied recognition of the rule, as here laid down, is found in the daily transactions of the department with the collectors of the seven enumerated ports. They are not only required to return all sums received as storage, but they are allowed six thousand dollars per annum as compensation for their services, which is exactly two thousand dollars beyond what they are entitled to receive, unless the latter sum can properly be allowed from the amount which annually accrues, and is collected and returned by them as storage.

4. Direct decision of this court in the case of Walker was that they were not entitled to but four thousand dollars under previous laws, and there has been no legislation upon the subject since that time, except that the fortieth section of the act of the eighteenth of July, 1866, provided that all moneys received by collectors for the custody of goods, wares, and merchandise in bonded warehouses, shall be accounted for as storage, under the provisions of the act which is the foundation of the collector's claim in this case.

Sums received for storage not exceeding two thousand dollars in any one year, if duly included in their quarterly accounts, are as much due to the collectors of the non-enumerated ports as to the incumbents of the larger offices, and their right to the same rests on the same foundation. Purpose of the act establishing the warehouse system, and of the regulations which followed that enactment, was to discontinue leased stores, and to substitute bonded warehouses in their place, and the leases of such stores were accordingly required to be cancelled, by the subsequent act extending the system, at the shortest period of their termination, and the making of new leases was expressly forbidden at ports where there were private bonded warehouses.

5. Necessity has always existed, since the Treasury Department was established, for more storehouses for the deposit and safe-keeping of imported merchandise than the government owned, and it cannot be doubted that all such as have been placed under the control of the collectors, and put under the customs locks, and used for that purpose in conformity to law and the regulations of the Treasury Department, were, during the period they were so controlled, used, and occupied, public storehouses within the meaning of the provision requiring collectors to include receipts for storage in their quarterly accounts, and allowing them to retain out of the same a sum not exceeding two thousand dollars in any one year.

JUDGMENT AFFIRMED.


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Page:The Confidence Man.djvu/205

Rh who loves not bread, dotes not on dough. As little of your man-child as your logical arrangements will admit."

"Anew regard the man-child," with inspired intrepidity repeated he with the brass-plate, "in the perspective of his developments, I mean. At first the man-child has no teeth, but about the sixth month—am I right, sir?"

"Don't know anything about it."

"To proceed then: though at first deficient in teeth, about the sixth month the man-child begins to put forth in that particular. And sweet those tender little puttings-forth are."

"Very, but blown out of his mouth directly, worthless enough."

"Admitted. And, therefore, we say to our patrons returning with a boy alleged not only to be deficient in goodness, but redundant in ill: 'The lad, madam or sir, evinces very corrupt qualities, does he?' 'No end to them.' 'But, have confidence, there will be; for pray, madam, in this lad's early childhood, were not those frail first teeth, then his, followed by his present sound, even, beautiful and permanent set. And the more objectionable those first teeth became, was not that, madam, we respectfully submit, so much the more reason to look for their speedy substitution by the present sound, even, beautiful and permanent ones.' 'True, true, can't deny that.' 'Then, madam, take him back, we respectfully beg, and wait till, in the now swift course of nature, dropping those transient moral

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Page:The Confidence Man.djvu/205


text: Talk:United States v. Macdonald/Opinion of the Court


text:
Milwaukee Railroad v. Soutter and Knapp

APPEAL from the Circuit Court of the United States for the district of Wisconsin.

This was an appeal by the Milwaukee and Minnesota Railroad Company from an order of court confirming a sale made by the marshal under a decree of foreclosure of a mortgage on the western division of the La Crosse and Milwaukee Railroad.

The facts out of which the appeal grew were these: The original decree of foreclosure was rendered by the District Court of Wisconsin, then possessing full Circuit-Court powers, on the 13th of January, 1862; and on the 2d of October, 1862, the marshal made a sale under that decree. In the meantime, to wit, on the 15th July, 1862, Congress, by an act of that date, had established a Circuit Court for the district of Wisconsin, whereby all causes then pending in the District Court, which might have been brought, or which could have been originally cognizable in a Circuit Court, were transferred to the Circuit Court; and the District Court was deprived of all Circuit-Court powers. The marshal therefore returned the report of his sale into the Circuit Court. This was on the 6th day of October, 1862.

After several orders partially confirming the sale, the Circuit Court, January 17th, 1863, set it aside, and ordered the marshal to sell again according to the original decree. On the 25th of April, thereafter, the marshal made another sale.

Congress, however, on the 3d March, 1863, had passed a statute authorizing the District Courts where they had rendered final judgments or decrees, prior to the act of July 15th, 1862, in cases which might have been brought, and could have been originally cognizable in a Circuit Court, 'to issue writs of execution or other final process, or to use such other powers and proceedings as might be in accordance with law, to enforce the judgments and decrees aforesaid.' Acting under this law, the marshal reported this sale to the District Court, and that court made an order of confirmation. The appellants here, applied to the Circuit Court for a rule on the marshal to make a report of his sale to that court, which application was refused.

They now appealed from these orders of the Circuit and District Courts, and sought their reversal, on the ground that the District Court had no power to act in the matter of the confirmation of the sale, and that it properly belonged to the Circuit Court.

Messrs. Cram and Cushing, for the appellants; Messrs. Cary and Carlisle, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Milwaukee Railroad v. Soutter and Knapp


text: Talk:Milwaukee Railroad v. Soutter and Knapp


text:
Milwaukee Railroad v. Soutter and Knapp/Opinion of the Court

The decision of this question must depend upon the construction of the act of March 3d, 1863; for without that act it is very clear that the jurisdiction belonged to the Circuit Court. We have, on a former occasion, given a construction of that act from which we see no reason to depart. In the case, Bronson v. La Crosse Railroad Co., we held that the powers conferred by this act on the District Courts, were only such as were necessary to control the ministerial duties of officers in the execution of final powers; and that if other powers became necessary, recourse must be had to the Circuit Court.

The act of confirming or setting aside a sale made by a commissioner in chancery, often involves the exercise of judgment and discretion as delicate as that called for by any function which belongs to the court. In the case before us, over forty exceptions were taken to the marshal's report of the sale, by three different parties, who resisted its confirmation; and the court delivered an elaborate opinion on the matter involved in these exceptions, when they were under consideration on the first sale. This strongly illustrates the fact, that judicial judgment may be called into exercise by the action of the court.

In the case of Blossom v. The Railroad Co., we held that the confirmation or rejection of a sale under a chancery decree, required the exercise of such judicial discretion; and therefore an appeal could be taken to this court from such an order.

These principles must control the case before us. They lead to the conclusion that the action of the District Court complained of by appellants was without authority, and must be set aside; and that this case must be remanded to the Circuit Court, with directions to enter a rule against the marshal who made the sale, to report it to that court for further proceedings, not inconsistent with this opinion.

ORDER ACCORDINGLY.

At the same time with this appeal was heard an appeal, on the same record, by the opposite party, Soutter & Knapp, who were complainants in the court below. They had appealed from the original decree of foreclosure, on the ground that it did not include certain property which they were entitled to have sold under the mortgage. Upon the questions involved in that appeal, the members of the court who heard the argument-which was by the same counsel as the appeal by the other side, their positions only as respected appellant and appellee being reversed-were equally divided in opinion, and the decree and orders complained of were therefore affirmed.


text: Talk:Milwaukee Railroad v. Soutter and Knapp/Opinion of the Court


text: Thompson v. Riggs

title: Thompson v. Riggs


text: Talk:Thompson v. Riggs

title: Talk:Thompson v. Riggs


text:
Thompson v. Riggs/Opinion of the Court

ERROR to the Supreme Court of the District of Columbia.

Riggs & Co. were bankers in the District of Columbia: Thompson was a business man there, keeping a bank account with them, depositing specie, treasury notes, bank notes, bills for collection, in the ordinary way of bank customers. Prior to April, 1861, no distinction apparently had been made in the mode of entering, in his pass-book, credits of coin and credits of current bank notes, then payable throughout the country in coin, on demand. All kinds of money deposited had been entered in the pass-books alike. In April, 1861, the banks generally suspended specie payments, and a difference between the value of coin and of bank notes, or 'current funds,' as these were called, began to show itself, becoming by degrees, for some time, greater. Riggs & Co., at that date, began to make a difference in receiving and paying deposits, paying in coin when the deposit was made in coin, and in currency when made in currency. On the 18th June, 1861, Thompson had made deposits—

Coin,............................ $2,920

Currency,......................... 2,463

$8,226

title: Thompson v. Riggs/Opinion of the Court


text: Talk:Thompson v. Riggs/Opinion of the Court


text:
Wolcott v. Des Moines Company

ERROR to the Circuit Court for the Southern District of New York.

In August, 1846, Congress granted to the then Territory, and now State, of Iowa—

'For the purpose of aiding said Territory to improve the navigation of the Des Moines River from its mouth to the Raccoon Fork, so called, in said Territory, one equal moiety, in alternate sections, of the public lands, in a strip five miles in width on each side of said river.'

The Des Moines River, to assist the improvement of whose navigation this grant was made, rises in the very north part of the State, somewhat to the west of the middle line of the northern boundary. Flowing to the southeast, it traverses the entire commonwealth of Iowa, and falls into the Mississippi in the southeast corner of the State. [See the sketch on p. 682.]

Somewhere near the middle of the State, at Des Moines City, it receives, as a tributary, a stream called the Raccoon Fork. It thus happens that about one half the river is above the point where this Fork enters, and one half below. Each half traverses, of course, a region of great extent and value.

The phraseology of the above-quoted grant of Congress, as the result proved, contained the germs of a controversy; the point in issue being, whether Congress meant to grant to the State land on the Des Moines River above the point where the Raccoon Fork enters, as well as the land below this point, or whether it meant to grant only land below. On the one hand, the grant was for the purpose of improving the navigation of the river 'from its mouth TO the Raccoon Fork.' On the other, the grant was of one equal moiety, &c., 'on each side of the said river.'

In August, 1859, the Des Moines Navigation Company, to which the State had conveyed the land in May, 1858, conveyed to one Wolcott a half section of one of the alternate sections, within five miles of the river, &c., above the Fork, and warranted the title.

Soon afterwards this court decided, in another case, that, on a true construction of the grant of the 8th of August, 1846, above mentioned, it did not include land above the point where the Raccoon Fork entered.

Wolcott now sued the Navigation Company for breach of covenant, alleging, in his declaration, that the title to the tract sold by the company to him had failed. This allegation the company denied; setting up that whatever might be the conclusion on a construction of the mere act of original grant (8th August, 1844), this case rested on another basis, to wit, on the basis of a great variety of action by different departments of the government having authority in the matter, and on acts of Congress subsequent to that of the grant.

This great variety of action, and the other acts of Congress, will be found below, in the preliminary part of the opinion of this court.

The court below thought that the title had not failed; and whether it had or not, was now the question here.

Mr. Gilbert, for the plaintiff in error; Messrs. Litchfield and Tracy, for the defendant in error; Messrs. Trumbull, Cook, and Smith, for parties allowed to intervene.

Mr. Justice NELSON delivered the opinion of the court.

title: Wolcott v. Des Moines Company


text: Talk:Wolcott v. Des Moines Company

title: Talk:Wolcott v. Des Moines Company


text:
Wolcott v. Des Moines Company/Opinion of the Court

The defendants conveyed by deed-poll to the plaintiff, on the 1st August, 1859, the east half of section 17, township 88, range 27, situate in Webster County, State of Iowa, containing three hundred and twenty acres, for the consideration of $3040, and warranted the title. It is charged in the declaration that the title has failed, which is denied on the part of the defendants. This presents the main issue in the case.

On the 8th August, 1846, Congress passed an act by which they granted to the Territory of Iowa, for the purpose of aid in the improvement of the navigation of the Des Moines River, from its mouth to the Raccoon Fork, in said Territory, an equal moiety, in alternate sections, of the public lands in a strip of five miles in width on each side of said river, to be selected within said Territory by an agent of the governor, subject to the approval of the Secretary of the Treasury of the United States.

The second section provided that the lands so granted should not be sold or conveyed by the Territory, nor by any State to be formed out of it, except as the improvements progressed; that is, sales might be made so as to produce the sum of thirty thousand dollars, and then cease, until the governor or State, as the case might be, should certify the fact to the President of the United States that one half of this sum had been expended on said improvements, when sales again might be made of the remaining lands sufficient to replace this amount; and the sales were thus to progress as the proceeds were expended, and the expenditure so certified to the President. Agents were appointed by the governor, who selected the sections designated by odd numbers, throughout the whole extent of the grant, which, as claimed, extended from the mouth of the river to the northern boundary of the State.

The lot in question is one of the sections thus selected and approved by the Secretary of the Treasury, and duly certified by the governor of the State to the President, according to the second section of the act, and was sold and conveyed, among other parcels of land, by the State to the defendants. The section of land of which the lot in question is a part was situated above the Raccoon Fork.

Some year and a half after the passage of this act a question arose before the commissioner of the land office whether the grant of the odd sections within the five miles extended above this Fork. He determined that it did, and that it extended throughout the whole line of the river within the limits of Iowa. It appears, however, that he afterwards changed his opinion, and on the 19th June, 1848, a proclamation was issued by the President, countersigned by him, ordering a sale of some of these odd sections, among other lands lying above the Fork, and which was to take place in the following October. On the attention of the Secretary of the Treasury being called to the subject, he, after an examination of the act, determined that, upon a true construction of it, the grant extended above the Raccoon Fork, and directed that the odd section should be reserved from the sale, which was done accordingly, and the State of Iowa duly notified. This was on the 16th June, 1849. On the 6th April, 1850, the Secretary of the Interior, whose department had in the meantime been established, and to which the supervision and control of the General Land Office had been assigned, reversed the previous decision of the Secretary of the Treasury, and determined that the grant did not extend beyond the Raccoon Fork. But he directed that the lands should be reserved from sale which were embraced within the State's selections. The question was then brought before the President, and was referred by him to the Attorney-General, who differed with the Secretary of the Interior, and concurred with the Secretary of the Treasury. But before the promulgation of this decision the President (Taylor) died, and a new cabinet coming in-and among others, a new Attorney-General-he overruled the decision of his predecessor, and affirmed that of the Secretary of the Interior. The case was then brought before the new President and cabinet, and the result is stated by the then Secretary of the Interior, under date of October 29th, 1851, which was 'that in view of the great conflict of opinion among the executive officers of the government, and also in view of the opinions of several eminent jurists which have been presented to me in favor of the construction contended for by the State, I am willing to recognize the claim of the State, and to approve of the selections, without prejudice to the rights, if any there be, of other parties.' Under this arrangement, the Secretary of the Interior approved of the odd sections above the Fork as certified, according to the act of Congress, till, in December, 1853, the number of acres amounted to over 271,572. On the 21st March, 1856, the commissioner of the land office again decided that the grant was limited to the Raccoon Fork, and the question was again referred to the Attorney-General, who advised the Secretary of the Interior to acquiesce in the view of his predecessor (a change having taken place as to the incumbent), and to continue the approval of the lands as certified to him under the law which was done accordingly. In the meantime, the improvement of the Des Moines River had been carried on by the State, and by the Des Moines Navigation and Railroad Company, who, on the 9th June, 1854, had entered into an engagement with the State to finish the improvements, as contemplated by the act of Congress, and to expend for that purpose some $1,300,000.

The question as to the true construction of this grant of 8th August, 1846, and in respect to which such great diversity of opinion existed among the executive officers of the government, came before this court, and was decided at the December Term, 1859-60. The court held that it was limited to the Raccoon Fork, and did not extend above it.

Whereupon, on the 2d March, 1861, Congress passed a joint resolution providing that 'all the title which the United States still retain in the tracts of land along the Des Moines River, and above the Raccoon Fork thereof, in the State of Iowa, which have been certified to said State improperly by the Department of the Interior, as part of the grant by act of Congress approved August 8th, 1846, and which is now held by bona fide purchasers under the State of Iowa, be, and the same is hereby relinquished to the State.' And, on the 12th July, 1862, Congress enacted 'that the grant of lands to the then Territory of Iowa for the improvement of the Des Moines River by the act of August 8th, 1846, is hereby extended so as to include the alternate sections (designated by odd numbers) lying within five miles of said river, between the Raccoon Fork and the northern boundary of said State; such lands are to be held and applied in accordance with the provisions of the original grant, except that the consent of Congress is hereby given to the application of a portion thereof to aid in the construction of the Keokuk, Fort Des Moines, and Minnesota Railroad, in accordance with the provisions of the act of the general assembly of the State of Iowa, approved March 22, 1858.'

If the case stopped here it would be very clear that the plaintiff could not recover; for, although the State possessed no title to the lot in dispute at the time of the conveyance to the Des Moines Navigation and Railroad Company, yet, having an after-acquired title by the act of Congress, it would enure to the benefit of the grantees, and so in respect to their conveyance to the plaintiff. This is in accordance with the laws of the State of Iowa.

But another act of Congress is relied on by the plaintiff, passed May 15, 1856, as showing that the United States had already parted with the lands, of which the lot in question is a part, previous to this act of 12th July, 1862. It becomes necessary, therefore, to examine this act. It grants to the State of Iowa, for the purpose of aiding in the construction of certain railroads specified, every alternate section of land (designated by odd numbers), for six sections in width on each side of said roads, with the following proviso: 'That any and all lands heretofore reserved to the United States by any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any objects of internal improvements, or for any purpose whatsoever, be, and the same is hereby reserved from the operation of this act, except so far as it may be found necessary to locate the routes of the said railroads through such reserved lands, in which case the right of way shall be granted, subject to the approval of the President.' This grant to the State for the benefit of the railroads, it is admitted, covers the tract within which the lot in question is situate, unless excluded by this proviso. The question turns upon the construction of the proviso. And in reading it in connection with the act of 1846, granting lands to the State of Iowa for the improvement of the Des Moines River, and in connection with the serious and prolonged conflict of opinion that arose among the executive officers of the government, extending over a period of some eight years, and which related to the title above the Raccoon Fork, in respect to which this act of 1856 was dealing in the grant for the benefit of the railroads, we think it difficult to resist the conclusion that Congress, in the passage of the proviso, had specially in their minds this previous grant, and conflict of opinion concerning it, and intended to reserve the lands for future disposition, if the title under the first grant should turn out to be defective. The decision of this court had not then taken place, though the litigation was probably pending in the court below, in the district of Iowa. The words of the proviso point almost directly to this grant, and to the dispute arising out of it among the public authorities: 'All lands heretofore reserved,' &c., 'by any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any objects of internal improvements,' &c. These improvements of the Des Moines River were then in progress. Now, if it had turned out that the true construction of the act carried the grant above the Raccoon Fork, then the lands would have been reserved by act of Congress, and no further legislation necessary. But, not satisfied with this, as if to provide for any result in respect to the title to them, if reserved in any other manner by competent authority, for the object of internal improvements, then the enacting clause should not operate to carry them under the new grant.

It has been argued that these lands had not been reserved by competent authority, and hence that the reservation was nugatory. As we have seen, they were reserved from sale for the special purpose of aiding in the improvement of the Des Moines River first, by the Secretary of the Treasury, when the Land Department was under his supervision and control, and again by the Secretary of the Interior, after the establishment of this department, to which the duties were assigned, and afterwards continued by this department under instructions from the President and cabinet. Besides, if this power was not competent, which we think it was ever since the establishment of the Land Department, and which has been exercised down to the present time, the grant of 8th August, 1846, carried along with it, by necessary implication, not only the power, but the duty, of the Land Office to reserve from sale the lands embraced in the grant. Otherwise its object might be utterly defeated. Hence, immediately upon a grant being made by Congress for any of these public purposes to a State, notice is given by the commissioner of the land office to the registers and receivers to stop all sales, either public or by private entry. Such notice was given the same day the grant was made, in 1856, for the benefit of these railroads. That there was a dispute existing as to the extent of the grant of 1846 in no way affects the question. The serious conflict of opinion among the public authorities on the subject made it the duty of the land officers to withhold the sales and reserve them to the United States till it was ultimately disposed of.

It should be stated, also, in connection with this proviso, that the improvements of this river were in progress at the time of the passage of the act of 1856, and had been for years, but were suspended soon after, on account of the refusal of the Land Department to certify any more sections under the act of 1846; and, as appears from the certificate of the governor of Iowa, the sum of $332,634.04 had already been expended by these defendants under their contract.

JUDGMENT AFFIRMED.

At the same time, with the preceding case, was adjudged Des Moines Navigation and Railroad Company v. Burr, which NELSON, J., delivering the judgment of the court, said, 'involved the same questions' decided in it. He referred to the opinion there given as decisive of them. The judgment was reversed with a venire de novo.


text: Talk:Wolcott v. Des Moines Company/Opinion of the Court


text: Nash v. Towne

title: Nash v. Towne


text: Talk:Nash v. Towne

title: Talk:Nash v. Towne


text:
Nash v. Towne/Opinion of the Court

ERROR to the Circuit Court for Wisconsin; the case being thus:

Towne & Washburne, of Boston, Massachusetts, bought of Nash & Chapin, of Milwaukee, Wisconsin, in February, 1863, a thousand barrels of flour, and paid for them by a sight draft. The flour was not delivered, and the purchasers, Towne & Washburne, aforesaid, brought assumpsit for the non-delivery. The declaration contained a special count, and also the common counts.

'That the defendants, on the 5th of February, 1863, at Milwaukee, in Wisconsin, in consideration of $5500 dollars to them in hand paid, sold to the plaintiffs one thousand barrels of flour, then at Neenah, in the said State, of the value of $5500, and agreed that they, the defendants, on the request of the plaintiffs, after navigation at Neenah aforesaid should open in the spring of 1863, and a reasonable time before the 31st day of May, 1863, would procure, furnish, or provide a steamer on which to ship said flour, and ship the same to the plaintiffs at Boston, in the State of Massachusetts, and deliver the same on such steamer at Neenah, where said flour then was, free of charge to said plaintiffs, and to be transported in the ordinary manner and with necessary and customary transshipments to the plaintiffs at Boston.'

Plea, the general issue.

On the trial, the plaintiffs offered in evidence a letter from the defendants to the plaintiffs, dated at Milwaukee, February 5, 1863, as follows:

'Your Mr. W. left here yesterday, and before going off we sold him one thousand barrels round hoop flour, Empire Mills, Iowa, free, on board steamer at Neenah, for $5.50, for which find bill inclosed. We have the flour stored and insured,. . . and will value on you at sight for the amount.'

Inclosed in that letter was this bill of sale:

'Messrs. Towne & Washburne,

Bought of Nash & Chapin, general commission merchants, 1000 barrels of flour, Empire Mills, Iowa, round hoop, 5 1/2, $5500.

Received payment, sight draft,

NASH & CHAPIN.'

This evidence was objected to by the defendants, because it tended to prove a different contract from the one declared on. The court, however, overruled the objection.

The plaintiffs then offered the sight draft with evidence of its payment, and that it was drawn in payment of this flour. This, too, was objected to as variant from the declaration; but the objection was overruled.

The plaintiffs then read two warehouse receipts, one dated January 31st, 1863, as follows, and the other February 5th, 1863.

'NEENAH, January 31st, 1863.

'Received in store of Nash & Chapin, five hundred barrels Empire, Iowa, r. h. flour, to be delivered, on return of this warehouse receipt, free, on board steamer.

S. G. BURDICK.'

'Indorsed: NASH & CHAPIN.'

They then brought witnesses who proved that the defendants had allowed this Burdick to take the flour from his storehouse at Neenah, where it was stored, and to sell it to other persons (so to prove a conversion by the defendants to their own use), and that they refused to deliver it; setting up that the plaintiffs at the time of the sale of the flour agreed to take the warehouse receipts of S. G. Burdick, just above referred to, in lieu of the defendants' responsibility for the flour, and had requested the defendants to hold the receipts for them, which they the defendants had done.

In the course of proving this, they asked a witness who had inquired of the defendants, in behalf of the plaintiffs, why the flour was not delivered, &c., this question:

'What was said by the defendants, as to where the flour, described in the letter and bill, was stored; whether it had been delivered, and if not, as to why it had not been delivered?'

To the admission of that question the defendants objected that inasmuch as the plaintiffs had failed to prove the special count in their declaration, and had proved an existing contract to deliver flour to the plaintiffs, it was not competent for the plaintiffs to prove any other contract than the one set out, nor to prove a breach of such other contract under the other counts in the declaration. But the court overruled the objection.

The defendants on their side offered to prove that in selling the flour they had acted as agents for Burdick, above named, and so told the plaintiffs at the time of the sale; and that they paid over the money, the proceeds of the sale, to Burdick. This was objected to by the plaintiffs because it was conversation prior to or contemporaneous with a written contract (the bill of sale and letter), and would modify or contradict it, and alter the liability of the defendants under that contract. The objection was sustained and the ruling excepted to.

They set up also that the warehouse receipts of Burdick were accepted by the plaintiffs in lieu of their responsibility for the flour; a matter which went to the jury on the evidence.

1. 'That if the jury found that the plaintiffs had paid money to the defendants for a consideration which had failed, and which in equity the defendants ought to pay back, their verdict must be for the plaintiffs. And if they found that the defendants executed the bill of sale and letter or contract read in evidence, and the plaintiffs paid them for the flour specified, $5500, and the defendants afterwards failed and refused to deliver the flour when demanded, then their verdict should be for the plaintiffs for the amount paid by them and interest, unless the defendants delivered to, and the plaintiffs accepted the warehouse receipts in evidence in lieu of the flour.'

At the request of the defendants below, it also charged:

2. 'That the plaintiffs cannot recover in this cause against the defendants damage for the conversion of that flour without proof that the defendants have, after such conversion, sold the flour and received pay for it, and in that case, for only the amount actually sold, and paid for, and only the price paid to them.'

'The converse of such instruction is also true; that if the jury find from the evidence that the defendants had sold said one thousand barrels of flour, or any part of it, and had received the money therefor, or the benefit of such sale and payment thereof, then their verdict should be for the amount so received by said defendants, unless they had delivered to the plaintiffs, and the plaintiffs had accepted, the warehouse receipts as a delivery of the flour.'Verdict and judgment having gone for the plaintiffs, the case was now here on exception to the ruling of the court admitting the testimony, and to its instructions to the jury.

I. The declaration sets out the time of delivery to have been after the opening of navigation in the spring of 1863 (April 20th, 1863), and before the 31st day of May, 1863. The utmost that can be said of the letter is, that inasmuch as the delivery must be on board steamer, the delivery should be within a reasonable time after the opening of navigation, which is a very different period. This was a variance.

Again, the declaration avers, in effect, that the plaintiff in error agreed to provide a steamer and make the shipment, and pay the charges of the warehouseman for storage and delivery to the steamer, while the letter only agrees to pay the warehouseman's charges for storage and delivery to steamer.

These papers were also inadmissible under the general counts, as they tended to prove an existing agreement to deliver flour which must be counted upon specially.

II. The declaration alleged a payment in cash. Proof of payment by a bill was immaterial to the issue and variant from the count.

III. The court erred in allowing the question: 'What was said by the defendant as to where the flour was stored, &c., and as to why it had not been delivered?'

The plaintiff had averred a contract to deliver flour at a future time. He had proved that a different one than the one he alleged had been made. Proving a breach of that contract would not prove the breach of his first count, nor of any of his counts.

IV. But the great error was in excluding evidence that the defendants were acting as agents in making the sale, and that the plaintiffs knew this, and that the money received by the defendants had been paid over to their principals. The court erred also in charging 'that if they found from the evidence that the plaintiff had paid money to the defendants for a consideration which had failed, and which in equity the defendants ought to pay back, then their verdict must be for the plaintiff.'

The plaintiffs had wholly failed to prove the special count. It was not competent to prove an agreement to deliver flour under the common counts. No other right of recovery is asserted except moneys had and received to recover the consideration paid. There is no contract to pay back that money between the parties. It could only be recovered in a case where the defendant had received money of the plaintiff, which ex aequo et bono he should return.

The evidence was excluded upon the authority of a special class of cases. But in those cases the action was directly upon the contract; in this case it was not, and the contract here is only valuable in evidence as an admission of a fact, which admission could be contradicted or explained.

Now, when the action is brought, not upon the contract, but upon the facts and the equities growing out of them, why should not all the facts be proved? How could the jury say that the defendants ought, in equity, to pay back this money, without knowing whether the plaintiffs intended to pay and did pay their money to Burdick or the defendants; and whether Burdick or the defendants actually had the benefit of the money?

Again, the court erred in charging 'that if they found that the defendants executed and delivered the bill of sale and letter or contract read in evidence, and the plaintiff paid them for the flour specified, $5500, and the defendants afterward failed and refused to deliver the flour when called for, their verdict should be for the plaintiffs for the amount paid by them and interest.' This instruction directs a recovery upon the contract. The jury were not allowed to inquire whether the contract was rescinded or not. There are two objections to this charge:

1. There is no such contract set out in the declaration, as is evidenced by the letter and bill of parcels; and, the record would not be a bar to a new action on the letter and bill of parcels.

2. The measure of damages is incorrectly stated. The amount of the recovery for a breach of the contract would be the value of the flour at the time when it should have been delivered.

Mr. Waldo, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

Controversy in this case grew out of a contract for the purchase, sale, and delivery of one thousand barrels of flour, and the parties concur that the flour was never delivered by the original defendants. Special count, as amended, alleged, in substance and effect, that the defendants, on the fifth day of February, 1863, at Milwaukee, in the State of Wisconsin, in consideration of five thousand five hundred dollars, sold to the plaintiffs one thousand barrels of flour, stored at Neenah, in that State, and agreed to deliver the same, when requested, free of charge, to the plaintiffs, on board of a steamer to be by them procured or furnished at the place where it was stored, after navigation should open, and a reasonable time before the thirty-first day of May following, to be conveyed to the plaintiffs, at Boston, in the ordinary manner of transportation. They also alleged demand and refusal to deliver the flour as agreed, and claimed damages for the non-fulfilment of the contract. Declaration also contained the common counts as set forth in the record.

Plea was the general issue, and the verdict and judgment were for the plaintiffs, and the defendants excepted and sued out this writ of error. Exceptions were taken by the defendants to certain rulings of the court during the trial, and to certain instructions of the court as given to the jury after the testimony was closed, which will be considered in the order they are exhibited in the record.

I. Plaintiffs produced and offered to read in evidence, to prove the issue on their part, a certain letter, dated Milwaukee, February 5, 1863, and written by the defendants to the plaintiffs, and a bill of sale of the flour, executed at the same time and place, and signed by the defendants, and which was inclosed in the letter of the defendants so offered in evidence. Material parts of the letter were as follows: 'Your Mr. W. left here yesterday, and before going off we sold him 1000 barrels round hoop flour, Empire Mills, Iowa, free, on board steamer at Neenah, for $5.50, for which find bill inclosed. We have the flour stored and insured,. . . and will value on you at sight for the amount.' Inclosed in that letter was the following bill of sale, which was also signed by the defendants:

'Messrs. Towne & Washburne,

Bought of Nash & Chapin, general commission merchants, 1000 barrels of flour, Empire Mills, Iowa, round hoop, 5 1/2, $5500.

Received payment, sight draft,

(Signed) NASH & CHAPIN.'

Such being all the evidence offered by the plaintiffs, under the special count, the defendants objected that the evidence was not admissible in the case, because it tended to prove a different contract from that set out in the declaration, but the court overruled the objection, and the letter and bill of sale were read in evidence to the jury.

Defendants excepted to the ruling of the court, and that exception raises the first question presented for decision in the record. Obviously, the exception involves the construction of the special count, and of the contract exhibited in the letter and bill of sale offered in evidence.

Argument of the defendants is that the contract offered in evidence varied from the allegations of the special count in two particulars:

1. That it differed from the declaration as to the time when the flour was to be delivered.

2. That it also differed from the declaration as to the shipment of the flour, and because it contained no agreement to furnish a steamer.

Undoubtedly, the rule is that the proofs must correspond with the allegations in the declaration, but the requirement in that behalf is fulfilled, if the substance of the declaration is proved.

1. Allegations of fact in the pleadings, affirmed on one side and denied on the other, must in general be tried by a jury, and the purpose of the rule which requires that the allegations and the proofs must correspond, is that the opposite party may be fairly apprised of the specific nature of the questions involved in the issue. Formerly, the rule in that respect was applied with great strictness, but the modern decisions are more liberal and reasonable. Decided cases may be found, unquestionably, where it has been held that very slight differences were sufficient to constitute a fatal variance. Just demands were often defeated by such rulings until the Parliament interfered, in the parent country, to prevent such flagrant injustice.

Federal courts have possessed the power, from their organization to the present time, to amend such imperfections in the pleadings, except in cases of special demurrer set down for hearing, and are directed to give judgment according to law and the right of the cause.

Recent statutes in the States also confer a liberal discretion upon courts in allowing amendments to pleadings, and those statutes, together with the change they have superinduced in the course of judicial decision, may be said to have established the general rule in the State tribunals that no variance between the allegations of a pleading and the proofs offered to sustain it, shall be deemed material, unless it be of a character to mislead the opposite party in maintaining his action or defence on the merits.

Irrespective of those statutes, however, no variance ought ever to be regarded as material where the allegation and proof substantially correspond. Contract in this case was executed in midwinter, when the navigation was closed, and both parties knew that the flour could not be transported until the navigation opened in the spring. 'Free on board the steamer at Neenah' meant that the defendants should deliver the flour on board the steamer without charge to the plaintiffs. Time of delivery is not specified, but it was to be on board a steamer at Neenah, and it would be unreasonable to suppose that the parties contemplated that it should be withdrawn from the warehouse where it was stored in safety and insured and deposited in a steamer, even if one was there, before the navigation opened in the spring.

Courts, in the construction of contracts, look to the language employed, the subject-matter, and the surrounding circumstances. They are never shut out from the same light which the parties enjoyed when the contract was executed, and, in that view, they are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and so to judge of the meaning of the words and of the correct application of the language to the things described.

Applying those rules to the case, it is quite clear that the parties did not contemplate that the flour should be withdrawn from the warehouse, where it was safely stored and insured, until the navigation opened in the spring, because the withdrawal of the same before that time would have been worse than useless, as it could not be earlier transported to the place of destination, and if withdrawn and delivered it would involve unnecessary expense and the necessity of re-warehousing it and procuring a new insurance. Plain inference, therefore, is that it was to remain in the storehouse where it was until the navigation opened in the spring, but that it was to be withdrawn and delivered on board a steamer at that place, free of charge to the plaintiffs, before the spring season of navigation closed.

Such being the true construction of the contract as to the time the delivery of the flour was to be made, it is evident that the objection that there is a variance in that respect between the proofs offered in evidence and the special count cannot be sustained. Averment of demand and refusal in the count is not unusual in such cases, and, even if not strictly necessary, it certainly can afford no ground to support the present exception.

2. Second objection taken at the argument is that the contract, as proved, does not support the allegation that the defendants agreed to procure or furnish a steamer at the place of delivery, or to ship the flour on board a steamer free of charge to the plaintiffs, as alleged in the special count.

Express words of the contract are, 'free on board steamer at Neenah,' and the terms of the contract also show that the flour, at the date of the contract, was safely stored in a warehouse at the place where it was to be delivered. Those words necessarily imply that the flour was in the possession and under the control of the defendants, and that the delivery was to be made in the future. Terms of the contract also imply as clearly that the place of delivery was on board a steamer at that port as they do that the delivery was to be made by the defendants. Freight was to be paid by the plaintiffs, but the delivery on board the steamer was to be made by the defendants, and it follows, in the absence of any stipulation to the contrary, that the defendants were to procure or select the steamer to transport the flour down the bay, and to the place of transshipment, over the usual route. Our conclusion is, that the allegations of the special count, and the proofs given in evidence, were substantially the same, or, in other words, that the differences between them, if any, were not of a character which could have misled the defendants at the trial, and therefore the objection must be overruled.

II. Evidence was also introduced by the plaintiffs showing that the defendants drew on them for the whole amount of the purchase-money, in a sight draft, and that they paid the draft, as given in evidence, when it was presented.

Exceptions were taken by the defendants to the rulings of the court in admitting that evidence, but the rulings of the court were so clearly correct that it seems unnecessary to remark further upon the subject.

III. Plaintiffs also proved that the flour, at the date of the contract, was stored in a railroad warehouse at Neenah, and that the defendants had admitted that it had been sold and delivered to a third person prior to the commencement of the suit. They went further, and proved demand and refusal, and showed that the defendants, at the date of the contract, had but one thousand barrels of flour stored in that warehouse, and that the whole of that parcel was sold and delivered prior to the suit, with the defendants' knowledge and consent.

Witnesses were examined on the subject, and in the course of their examination two other exceptions were taken by the defendants to the rulings of the court in admitting testimony. Substance of the testimony objected to and introduced was that the flour was withdrawn from the warehouse where it was stored, at the date of the contract, under the orders of the defendants, and deposited in another place, and finally delivered to other parties, in part fulfilment of a much larger contract. Testimony previously introduced showed that the plaintiffs accepted the sight draft, and paid the same for the purchase-money, and that the defendants refused to deliver the flour; and the evidence objected to was doubtless offered to show that they had converted the flour to their own use, and, in our judgment, it was properly admitted for that purpose. Where the seller of goods received the purchase-money at the agreed price, and subsequently refused to deliver the goods, and it appeared at the trial that he had converted the same to his own use, it was held at a very early period that an action for money had and received would lie to recover back the money, and it has never been heard in a court of justice since that decision that there was any doubt of its correctness.

Assumpsit for money had and received is an equitable action to recover back money which the defendant in justice ought not to retain, and it may be said that it lies in most, if not all, cases where the defendant has moneys of the plaintiff which, ex equo et bono, he ought to refund. Counts for money had and received may be joined with special counts; and where, as in this case, the special counts are for damages for the non-delivery of goods, it is perfectly competent for the plaintiff, if the price was paid in money or money's worth, to prove the allegations of the special counts and introduce evidence to support the common counts; and if it appears that the defendant refused to deliver the goods, and that he has converted the same to his own use, the plaintiff, at his election, may have damages for the non-delivery of the goods, or he may have judgment for the price paid and lawful interest. Evidence in this case was clear, not only that the plaintiffs paid the price in money, but that the defendants refused to deliver the flour, and converted the same to their own use, by selling and delivering it to other persons.

Such a reception of the price, refusal to deliver, and conversion of the goods constitute plenary evidence of an implied promise to refund the price paid, and an action for money had and received is an appropriate remedy for the plaintiffs.

Principal defence was that the flour belonged to one Samuel G. Burdick, and that the defendants, in negotiating the sale, acted merely as the agents of the owner of the flour, and that they, during the negotiation for the sale, informed the plaintiffs of their agency, and gave to them the name of their principal as the owner of the flour. They also claimed that the plaintiffs agreed at the sale of the flour to take the warehouse receipts of their principal for the flour, and that the defendants merely held those receipts at the request of the plaintiffs, and for their benefit, and were therefore under no obligations to deliver the flour.

Such was the theory of the defendants, but there was no proof of any such agreement, except that one of the plaintiffs testified that the defendants, when the demand was made for the delivery of the flour, claimed that such was the understanding of the parties at the date of the contract. Defendants introduced no testimony, but offered to prove that in negotiating the sale they acted as agents, and that they so informed the plaintiffs, and gave them the name of their principal. Plaintiffs objected to the testimony, and it was excluded by the court, and the defendants excepted. They still insist that the ruling of the court in that behalf was erroneous, but they admit the general rule that parol evidence is not admissible to supply, contradict, enlarge, or vary the words of a written contract; and it is equally well settled that when a contract is reduced to writing all matters of negotiation and discussion on the subject antecedent to and dehors the writing are excluded as being merged in the instrument.

Parol evidence can never be admitted for the purpose of exonerating an agent who has entered into a written contract in which he appears as principal, even though he should propose to show, if allowed, that he disclosed his agency and mentioned the name of his principal at the time the contract was executed.

Where a simple contract, other than a bill or note, is made by an agent, the principal whom he represents may in general maintain an action upon it in his own name, and parol evidence is admissible, although the contract is in writing, to show that the person named in the contract was an agent, and that he was acting for his principal. Such evidence, says Baron Parke, does not deny that the contract binds those whom on its face it purports to bind, but shows that it also binds another, and that principle has been fully adopted by this court.

Cases may be found, also, where it is held that the plaintiff may prove by parol that the other contracting party named in the contract was but the agent of an undisclosed principal, and in that state of the case he may have his remedy against either, at his election.

Evidence to that effect will be admitted to charge the principal or to enable him to sue in his own name, but the agent who binds himself is never allowed to contradict the writing by proving that he contracted only as agent, and not as principal.

Exceptions were also taken to the charge of the court, but they involve, for the most part, the same questions as are presented in the objections taken to the admissibility of the evidence, and therefore do not require to be further answered. Slight as the evidence was to show that the plaintiffs accepted the warehouse receipts in lieu of the flour, still the court left that question to the jury, and their finding upon the subject is conclusive. Complaint is also made that the rule of damages given to the jury was not correct, but the complaint is so clearly without merit that we forbear any further comments upon the subject.

JUDGMENT AFFIRMED, WITH COSTS.

title: Nash v. Towne/Opinion of the Court


text: Talk:Nash v. Towne/Opinion of the Court

title: Talk:Nash v. Towne/Opinion of the Court


text:
City of Galena v. Amy

THE fourth section of a statute of Illinois, passed June 21, 1852, and incorporating the city of Galena, declares that the city council 'may, if the said city council believe that the public good and the best interests of the city require,' annually collect a tax, not exceeding one per cent. on a dollar on the assessed value of all estate taxable in the city, in addition to all other taxes; the fund to be kept separate, and annually, on the 1st of January, paid over, pro rata, upon the funded indebtedness of the city. 'This section to continue and be in force until the whole amount of the city's indebtedness, with the interest to accrue thereon, is fully paid.'

With this provision in force, the city issued a large amount of bonds to enable it to make various public improvements. One Amy having become possessed of a number of them, and the interest being unpaid, he brought suit and obtained judgment against the city upon them in the Circuit Court for Northern Illinois. The validity of the bonds was not drawn in question. The judgments being wholly unsatisfied, and the city having no property liable to execution, Amy demanded of the mayor and aldermen that they should levy a tax to pay principal, interest, and costs of the judgment. They refused to do so. He then filed an information in the Circuit Court for the Northern District of Illinois, for a mandamus. He set forth the above quoted fourth section of the act of June 21st, 1852, empowering the city council to levy a specific tax of one per cent. to pay the interest on its funded debt, and that this tax had not been levied. That, by an act of June 30th, 1857, the city council was authorized to levy, 1st, a tax of one per cent. for general and contingent expenses; 2d, five mills for school purposes; 3d, one per cent. to pay interest on public debt; 4th, an unlimited tax for market halls, &c., and other public improvements. That none of the taxes to which the plaintiff, as a bond creditor, has a right had been levied and applied to his principal or interest after a period named, long past. And he prayed the court to issue a mandamus, commanding the city council and their successors in office, at their next regular term, to levy a special tax upon the taxable property of the city of one per cent. to pay the principal, and one per cent. to pay the interest and costs of the judgments; 'and to pay the same out of the proceeds, and to continue to levy a like amount for each succeeding year until said judgments, interests, and costs are wholly paid.'

The city made a return, that in 1865 they levied a tax of one per cent. to pay interest on public debt, and that it had been applied to a proper and lawful purpose.

They set up in bar of the plaintiff's right, that they only powers to tax which they had were by the acts of June 30th, 1857, already mentioned, and an act of February, 1865, amendatory of the act of 1852. Sections of these last two acts relating to taxation, and stating for what purposes taxes might be laid, were set forth. In the act of 1857 were these:

'Section 1. The city council shall have power, by ordinance, to levy and collect annual taxes not exceeding one per cent. on the dollar on the assessed value of all real and personal estate and property within the city, &c., made taxable by the law of the State for State purposes, to defray the general and contingent expenses of the city, not herein otherwise provided for; which taxes shall constitute the general fund.

'Section 3. To levy and collect taxes not exceeding one per cent. on the dollar per annum on all property subject to taxation, to meet the interest accruing on the debt of the city.'

In the act of 1865 the following:

'Section 12. The city council shall levy and collect a tax of one per cent. on the dollar per annum on all property subject to taxation; which tax, when collected, shall be set apart for the sole and exclusive purpose of paying the interest upon the public debt of the city, whilst the same is in existence.'

The latter act, the act of 1865, also contained the section set forth in the return.

'Section 19. All acts, or parts thereof, which conflict with the provisions of this act are also repealed; but nothing in this act shall be so construed as to deprive the city council of said city of any power or authority conferred upon the same by the act incorporating the city, and the various acts amendatory thereof, except so far as such powers and authority have been expressly modified or repealed by this act or the acts heretofore mentioned.'

The return further set forth that the principal of the debt was $142,272, and the assessed value of the property, real and personal, within the city jurisdiction, was $740,000, and that the annual interest upon the debt now exceeded one per cent. upon the assessed value of the property in the city liable to taxation. It added that the councils intended, in good faith towards the city and its creditors (the relator included), to levy all the taxes which it had a right by law to levy. But that the General Assembly having, by the acts aforesaid, placed a limit upon the power of taxation, the councils were wholly unable to raise money for the payment of the judgments, excepting by means of proper ordinances passed under and in pursuance of section one of the act of January 30, 1857 (above quoted), and that by that section moneys raised were first to be applied to the payment of the ordinary and contingent expenses of the city, and unless so applied that the government of the city could not be administered.

To this answer the relator demurred. The court sustained the demurrer; and the respondents electing to stand by the return, it was ordered that a peremptory mandamus should issue. The respondents now brought the case before this court for review.

Mr. Jewett, for the city, plaintiff in error; Mr. Grant, contra.

Mr. Justice SWAYNE delivered the opinion of the court, having first stated the case.

title: City of Galena v. Amy


text: Talk:City of Galena v. Amy

title: Talk:City of Galena v. Amy


text:
City of Galena v. Amy/Opinion of the Court

Most of the legal principles which are involved in this case, and which must govern its determination, have been settled in other cases decided at this term.

Was there any error in the rulings of the Circuit Court?

The fourth section of the act of 1852 declares that the city council, if they believe the public good and the best interests of the city require it, may levy and collect an annual tax of not exceeding one per cent., and that the amount thus collected shall be kept separate; and that annually, on the 1st of January, it shall be paid over pro rata upon the funded debt of the city, that may be presented by the holders; and that this section shall continue in force until the principal and interest of the indebtedness is fully paid.

This power has not been exercised by the city authorities, and they have made no other provision for liquidating the debts due to the relator. They have no other means of payment, in possession or prospect. Under such circumstances, the discretion thus given cannot, consistently with the rules of law, be resolved in the negative.

The rights of the creditor and the ends of justice demand that it should be exercised in favor of affirmative action, and the law requires it. In such cases the power is in the nature of a trust for his benefit, and it was the plain duty of the court below to give him the remedy for which he asked, by awarding a peremptory writ to compel the imposition of the tax, as was done.

These principles were fully considered in The Supervisors of Rock Island County v. The State Bank, of this term, and it is sufficient to refer to that case for a fuller exposition of our views upon the subject.

This section of the act of 1852 is not repealed by either the act of 1857 or the act of 1865. There is no express repeal, and we think there is none by implication. The latter is not favored in the law. Repeal by implication, when the prior and the later act can consistently stand together, is never admitted. Here there is no irreconcilable conflict, if indeed there be any. This point seems not to be relied upon by the counsel for the plaintiffs in error.

It is conceded that this act was in force when the bonds in question were issued. If so, it was beyond the power of the legislature to repeal it, so far as it concerns the bonds in question, unless some other adequate remedy were substituted in its place.

The third section of the act of 1857 and the twelfth section of the act of 1865 each authorizes the collection of one per cent., to be applied to the payment of the interest upon the city debt. The latter re-enacts the former. The efficacy of this provision is not denied. The order of the Circuit Court with respect to this tax was correct.

The return of the respondents showed no sufficient reason why a peremptory writ of mandamus should not issue, as was ordered. The demurrer of the relator was properly sustained.

It is insisted that the city owes a large amount of other debts, and that if these taxes are collected the other creditors will be entitled to share in the distribution of the proceeds.

It is not competent for the respondents to make this objection. When any other creditor complains in a proper proceeding, and asks that the funds be marshalled, it will be time enough to consider the subject.

The counsel for the plaintiffs in error has called our attention, with emphasis and eloquence, to the diminished resources of the city, and the disproportionate magnitude of its debt. Much as personally we may regret such a state of things, we can give no weight to considerations of this character, when placed in the scale as a counterpoise to the contract, the law, the legal rights of the creditor, and our duty to enforce them. Such securities occupy the same ground in this court as all others which are brought before us. When clothed with legal validity, it is our purpose to sustain them, and to give to their holders the benefit of all the remedies to which the law entitles them. When invalid, we have not hesitated and shall not hesitate to say so. But we cannot recognize a distinction, unknown to the law, between this and any other class of obligations we may be called upon to enforce.

AFFIRMED.


text: Talk:City of Galena v. Amy/Opinion of the Court


text:
Page:The Confidence Man.djvu/206

192 you complain of, he replacingly buds forth in the sound, even, beautiful and permanent virtues.' "

"Very philosophical again," was the contemptuous reply—the outward contempt, perhaps, proportioned to the inward misgiving. "Vastly philosophical, indeed, but tell me—to continue your analogy—since the second teeth followed—in fact, came from the first,—is there no chance the blemish may be transmitted ?"

"Not at all." Abating in humility as he gained in the argument. "The second teeth follow, but do not come from, the first; successors, not sons. The first teeth are not like the germ blossom of the apple, at once the father of, and incorporated into, the growth it foreruns; but they are thrust from their place by the independent undergrowth of the succeeding set—an illustration, by the way, which shows more for me than I meant, though not more than I wish."

"What does it show?" Surly-looking as a thunder cloud with the inkept unrest of unacknowledged conviction.

"It shows this, respected sir, that in the case of any boy, especially an ill one, to apply unconditionally the saying, that the 'child is father of the man', is, besides implying an uncharitable aspersion of the race, affirming a thing very wide of—" "—Your analogy," like a snapping turtle.

"Yes, respected sir."

"But is analogy argument? You are a punster."

"Punster, respected sir?" with a look of being aggrieved.

title: Page:The Confidence Man.djvu/206


text:
Bates v. Brown

THIS was a writ of error to the Circuit Court for the Northern District of Illinois.

Kinzie Bates, the plaintiff in error, brought an action of ejectment in that court against Brown, the defendant in error, to recover certain premises. The cause was submitted upon an agreed statement of facts, which, so far as it was necessary to consider them, were as follows:

1. On the 29th of September, 1830, Alexander Wolcott bought of the State of Illinois certain lands, of which those in controversy were a part. At the time of the transaction he paid the purchase-money, and received the usual certificate.

2. He died on the 30th of October, 1830, leaving a daughter, Mary Ann Wolcott, his only child, and his wife, Eleanor, him surviving. He left a will, duly executed, which contained the following provision:

'I further give and devise to my said wife, Eleanor M. Wolcott, and my said daughter, all my freehold estate whatsoever, to hold to them, the said Eleanor M. Wolcott and Mary Ann Wolcott, their heirs and assigns forever.'

3. Mary Ann Wolcott, the daughter, died on the 16th of January, 1832, aged seven years, intestate and without issue.

4. On the 13th of May, 1833, Eleanor M. Wolcott conveyned to David Hunter, his heirs and assigns, with a covenant of general warranty, the premises in controversy.

5. On the 5th of July, 1833, a patent was issued by the Governor of Illinois for the land purchased by Alexander Wolcott, as before stated, to his 'legal representatives, heirs, and assigns.'

6. Eleanor M. Wolcott, his widow, married George C. Bates on the 26th of May, 1836.

7. The plaintiff, Kinzie Bates, was the issue of that marriage, and was born on the 13th of April, 1838, and was the only child of his parents.

8. His mother died on the 1st of August, 1849, leaving her husband, George C. Bates, then and still surviving.

The plaintiff claimed title as the heir at law of his deceased half sister, Mary Ann Wolcott, under the rule of the common law, generally known as that of 'shifting inheritance;' maintaining that although at the time of the decease the mother was the presumptive heir of the said Mary Ann, yet that by his own birth a nearer heir was created, and that the estate thus placed in the mother was divested from her, and vested in him, the son.

To understand the matter fully it may be well to state that the Congressional Ordinance of 1787 for the government of the Northwestern Territory, of which Illinois was originally part, created a court which it declared should have 'common law jurisdiction;' and the Ordinance guaranteed also to the people of the territory 'judicial proceedings, according to the course of the common law.' This Ordinance declared that the estates of persons dying intestate.

'Shall descend to and be distributed among their children, and the descendants of a deceased child, in equal parts; the descendants of a deceased child or grandchild to take the share of their deceased parent in equal parts among them; and when there shall be no children or descendants, then in equal parts to the next of kin, in equal degree; and among collaterals the children of a deceased brother or sister of the intestate shall have, in equal parts among them, their deceased parent's share; and there shall in no case be a distinction between kindred of the whole and half blood.'

In 1819, after Illinois had become a State, a statute adopted 'the common law of England' in general terms; and in 1845 another statute declared that the common law of England, 'so far as the same is applicable and of a general nature, shall be the rule of decision, and shall be considered as in full force until repealed by legislative authority.'

At the time of the decease of Mary Ann Wolcott, the statute of Illinois governing the descent of the real estate of persons dying intestate was as follows:

'Estates, both real and personal, of resident or non-resident proprietors in this State, dying intestate, or whose estates, or any part thereof, shall be deemed and taken as intestate estate, and after all just debts and claims against such estate shall be paid as aforesaid, shall descend to and be distributed to his or her children, and their descendants, in equal parts; the descendants of a deceased child, or grandchild, taking the share of their deceased parent in equal parts among them; and when there shall be no children of the intestate, nor descendants of such children, and no widow, then to the parents, brothers, and sisters of the deceased person, and their descendants, in equal parts among them, allowing to each of the parents, if living, a child's part, or to the survivor of them, if one be dead, a double portion, and if there be no parent living, then to the brothers and sisters of the intestate and their descendants; when there shall be a widow, and no child or children, or descendants of a child or children of the intestate, then the one-half of the real estate, and the whole of the personal estate, shall go to such widow as her exclusive estate forever, subject to her entire and absolute disposition and control, to be governed in all respects by the same rules and regulations as are, or may be, provided in cases of of estates of femes sole; if there be no children of the intestate or descendants of such children, and no parents, brothers, or sisters, or descendants of brothers and sisters, and no widow, then such estate shall descend in equal parts to the next of kin to the intestate, in equal degree, computing by the rules of the civil law; and there shall be no representation among collaterals, except with the descendants of the brothers and sisters of the intestate; and in no case shall there be a distinction between the kindred of the whole and half blood, saving to the widow, in all cases, her dower of one-third part of the real for life, and the one-third part of the personal estate forever.'

The court below gave judgment for the defendant.

Mr. Beckwith, for Bates, plaintiff in error; Mr. Fuller, contra.

Mr. Justice SWAYNE delivered the opinion of the court, having first stated the case, and quoted the statute relating to descents just above set out:

title: Bates v. Brown


text: Talk:Bates v. Brown

title: Talk:Bates v. Brown