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

'The act of March 12th, 1863, provided for the sale of enemies' property collected under the act, and payment of the proceeds into the treasury, and left them there subject to such action as the President might take under the Confiscation Act of the 17th July, 1862.'

Under this act the President could grant the owners pardon and amnesty, with full restoration of the rights lost or forfeited by rebellion, and thus entitle them to the return of their property or its proceeds. This policy he adopted, and this finally settled the question, that these proceeds were to be restored to the owners of the property, out of which they had accrued.

This restoration, so determined on, could only be made through the Court of Claims, whose jurisdiction was exclusive; and from the court, every person, in any way implicated in the rebellion was excluded by Congressional prohibition until pardoned.

The Status of this claimant was therefore this:

1st. Having aided the rebellion, his property was rightfully seized and sold, to be held by the United States, until they should determine, as a matter of public policy, whether it should be restored to the owner by pardon of his crime, or condemned and confiscated by judicial proceedings. Till then, his right to it was suspended.

2d. The jurisdiction of the Court of Claims was exclusive on the question whether he should recover these proceeds, and the legislation of Congress prohibited him from suing there at all. So that, not only his right to these proceeds, but the capacity to sue for them, was taken away by the capture and sale, and by the accompanying legislation of Congress.

3d. While this condition of things continued he could not sue, and consequently could not be barred by neglecting to do that which the law prohibited him from doing.

4th. No judicial condemnation having been decreed, and his offence having been pardoned, both his right to the property and his capacity to sue for it, were restored by that act of pardon, and from its date.

Haycraft's disabilities continued until the 25th December, 1868, when the President issued an unconditional proclamation of pardon and amnesty.

This pardon, confessedly, under many decisions of this court, put the person pardoned, in all legal aspects and relations, in the same condition as if he had never transgressed.

The condition or predicament of these proceeds, the owner being disloyal, is similar to property seized under our customs, or revenue, or neutrality laws. In either case the property, under certain conditions and limitations, may be sold. In such case, where the litigation for forfeiture or non-forfeiture is undetermined, and the offence unpardoned, or the forfeiture not remitted, the owner has no right to the proceeds and could not maintain a suit for them. His right to them accrues, and his ability to maintain a suit for them commences at the moment of remission of the offence for which they are held or final judgment of non-forfeiture in his favor. No statute of limitations would run against him before this time.

Now, this court has decided that the war, irrespective of a statute, suspended the running of the statute of limitations between private persons living in the loyal and insurrectionary States. But here, by the statutes of the United States, there was neither right to the money nor capacity in Haycraft to sue for it until December 25th, 1868. The same act that released the right of the United States restored his and also gave him ability to sue. From that time, therefore, the limitation commences to run against him. What limitation? Not that of the two years in the act of March 12th, 1863, because that had already passed; but if any, the only other one in existence, that of the tenth section of the act of March 3d, 1863, which provides—

'That every claim against the United States cognizable by the Court of Claims, shall be forever barred unless the petition, setting forth a statement of the claim, be filed in the court or transmitted to it under the provisions of this act within six years after the claim first accrues.'

Mr. G. H. Williams, Attorney-General, Mr. Samuel Field Phillips, Assistant Attorney-General, Mr. John Goforth, Assistant Attorney-General, contra:

1. The claimant, who it is not pretended came within any excepted class, could at any time after the 8th of December, 1863, have taken an oath to abstain from rebellion and to support the government, and been pardoned. But he was stiff-necked, and would not comply even with these terms, or, as the result showed, with the easier terms of later proclamations. He would never have been pardoned had not pardon been 'thrust' upon him by the proclamation of President Johnson, pardoning rebels in spite of themselves.

2. The argument of the other side puts all rebels including such a one as Haycraft, above described, whose property was captured, and deserved to be captured and confiscated, in a better position than loyal men where the capture was by mistake, and where a great injury was done to the owner. These last must sue in two years after the war is closed. The others, according to the argument of the claimant's counsel, might sue at any time within six after being pardoned in spite of a determination that they would not be pardoned. This reductio ad absurdum of the opposite argument proves the quod est demonstrandum, as well as any direct argument.

Reply: The first point in the argument of the government is, of course, that the legal effect and operation of a free and full pardon, is destroyed by proof of the extrinsic fact, that the offender could have been pardoned before, if he had asked for it, and complied with the conditions. If there be any principle or authority in the law, which gives support to such a position it is unknown to us.

The second point made in that argument-to wit, that our positions put rebels in better condition than loyal men-is not true, and would not prove what it is meant to prove if it were. The loyal man's right accrued so soon as his property was sold and the money paid to the United States officers, from the year 1861 till 1865, and that right continued till two years after the close of the war; continued, we may say, till 20th August, 1868. All this time the rebel was debarred: 1st. For lack of right to the possession of the proceeds; 2d. For want of capacity to sue; 3d. Because of actual legislative prohibition of the court to entertain his suit or render a judgment in his favor. In the next place, whatever benefit accrues to the former disloyalist is an incident rather than the object of the policy of reconciliation and reconstruction, adopted for their own benefit by the United States.

To recapitulate. The case is this: The United States took Mr. Haycraft's property and sold it, charged him with all the expenses, and paid the balance into the treasury. They might have libelled, condemned, and confiscated it, and have made it the property of the United States. But they said, 'We will not do so; the future interests and dignity of this great nation require that we pardon his offence and restore his property.' But now, when he applies to the designated tribunal to take his proofs, and give him the proceeds of his property that the United States hold as mere trustees for him, they interpose the plea of the statute of limitations. Can this promise of restoration-these fiduciary obligations of trustee-be thus fulfilled and discharged? Can the United States fully and freely pardon our client's offence and still punish it, by this confiscation of his property? The CHIEF JUSTICE delivered the opinion of the court.

The main question presented for our consideration in this case is whether one who gave aid and comfort to the late rebellion can, after the expiration of two years from its suppression, commence and successfully maintain an action in the Court of Claims for the recovery of money in the treasury arising from the sale of his cotton taken possession of by the United States, and sold under the provisions of the Captured and Abandoned Property Act.

The case has been argued to some extent as though it involved the consideration of a statute of limitations. To our minds the question is one of jurisdiction. A sovereign cannot be sued in his own courts except with his consent. This is an action against the United States in its own Court of Claims. The appellant must, therefore, show that consent has been given to its prosecution. That being done, the jurisdiction of the court is established and he may proceed. Otherwise, not.

It is conceded that the required consent is not contained in the Captured and Abandoned Property Act itself, for the only action there consented to is one to be commenced within two years after the suppression of the rebellion. But inasmuch as the United States has consented to be sued in the Court of Claims upon contracts, express or implied, it is contended that this action may be prosecuted on account of an implied promise by the United States to pay to every owner of captured and abandoned property, whether loyal or disloyal, the proceeds of his property taken and sold.

As the taking was under the authority of an act of Congress, we must look to the act to see if this promise has been made. It is not claimed that any exists if it is not to be found there. If it has been made at all, it was when the property was taken, and is equivalent to an undertaking by the United States at that time to receive and hold the property, or its proceeds if sold, in trust for the use and benefit of the owner, whoever he might be. The claim is, that the trust in favor of the owner having then been created, the remedy for its enforcement in the Court of Claims as a contract was restored to the disloyal owner by the operation of the President's proclamation of December 25th, 1868, granting unconditional pardon to all who participated in the rebellion.

The act authorizes the Secretary of the Treasury, from time to time as he shall see fit, to appoint special agents to receive and collect all abandoned or captured property in the insurrectionary States, not including, however, any which had been used, or was intended to be used, for waging or carrying on the war, such as arms, ordnance, ships, munitions of war, &c. Any part of the property collected might be appropriated to public use, on due appraisement or certificate thereof, or forwarded to any place of sale in the loyal States, as the public interests might require. All sales were to be at public auction to the highest bidder, and the proceeds paid into the National treasury. The Secretary of the Treasury was required to cause books of account to be kept, showing from whom the property was received, the cost of transportation, and the proceeds of the sale. And any person claiming to have been the owner of such property was authorized, at any time within two years after the suppression of the rebellion, to prefer his claim to the proceeds in the Court of Claims, and, on proof of his ownership, his right thereto, and that he had not given aid and comfort to the rebellion, receive the balance of the proceeds remaining in the treasury, after deducting certain expenses.

Such was the power to take given by the act, and such the obligation assumed by the United States upon the taking, with the remedy provided for its enforcement. It was evidently a war measure, and the statute is to be construed in the light of that fact. It was confined to private property of the enemy. Public property was expressly excluded. It embraced no private property except such as was abandoned by its owners or liable to capture. The property in this case was cotton, and, according to the uniform decisions of this court, the subject of capture. As was said in Mrs. Alexander's case, cotton was regarded by the insurgent government as one of its 'main sinews of war.' It was in fact the foundation upon which the financial system of the rebellion was built. It was a security the insurgents offered for the payment of their debts. Upon it they relied for their influence abroad. To obtain it, forced contributions were exacted from its owners. From time to time in the progress of the war it was found upon the enemy's territory occupied by the military forces of the United States. While, when so found, it might have been owned by non-combatant enemies and, in that sense, private property, it was in fact, under the circumstances, at least semi-public. If left undisturbed, and the insurgents should repossess themselves of the territory, it would again be placed where it might strengthen the rebellion. Its capture was, therefore, legitimate; not for booty, but to cripple the enemy. In that way it was kept out of the insurgent treasury. It might have been destroyed, but the unnecessary destruction of property ought always to be discouraged. The act of Congress looked to its preservation, but authorized its capture. In so doing Congress acted within its constitutional power to 'make regulations concerning captures on land and water.'

In the indiscriminate seizure which was likely to follow such an authority, it was anticipated that friends as well as foes might suffer. Therefore, to save friends, it was provided that any person claiming to have been the owner might, at any time within two years after the suppression of the rebellion, prefer his claim, and, upon proof of his ownership and loyalty, receive the money realized by the United States from the sale of his property. That expresses all there is of the trust or the remedy provided.

In Klein's case, the property collected under this act was said to be of 'a peculiar description, known only in the recent war, called captured and abandoned property,' and that 'the government recognized to the fullest extent the humane maxims of the modern law of nations which exempts private property of non-combatant enemies from capture as booty of war.' 'No similar legislation,' it was also said, 'is mentioned in history,' and 'the government constituted itself the trustee for those who were by that act declared entitled to the proceeds of captured and abandoned property, and for those whom it would thereafter recognize as entitled.' And again (p. 139), that 'the proceeds of the property have passed into the possession of the government, and the restoration of the property is pledged to none except those who have continually adhered to the government. Whether restoration will be made to others, or confiscation will be enforced, is left to be determined by considerations of public policy subsequently to be developed.'

In the same case it was also held that 'the restoration of the property became the absolute right of the persons pardoned on application within two years from the close of the war.' Under this construction the effect of the act was to provide a reward for submission to the government and the acceptance of amnesty, as well as authority for the seizure of property, and it is thus made to operate in two ways to weaken the insurgents: first, by depriving them of their property; and second, by inducing their adherents to submit to the authority of the United States as a means of regaining that which they had lost personally. In that view time is material. The length of a war depends largely upon the relative strength of the contending parties. As a rule, that belligerent is the first to surrender, other things being equal, who first loses the elements of warlike power. Especially is this true in a civil war. Strategy sometimes gives unnatural strength, and thus obtains success, but more commonly war resolves itself into a question of men and money, of strength and endurance.

According to the doctrine of Klein's case, if a suit was commenced within two years a pardoned enemy could recover as well as a loyal friend. But the commencement of the suit within the prescribed time was a condition precedent to the ultimate relief. The right of recovery was made to depend upon the employment of the remedy provided by the act. There was no promise even under the rulings in that case, except to such as should commence the suit in time, and upon the trial be in a condition to bring themselves within the requirements of the act. The promise, such as it is, was express. There is no room left for implication. Pardon and amnesty have no effect, except as to such as sue in time. In this, Klein's case but adopts the ruling in previous cases. Thus, in Mrs. Anderson's case, the doctrine is stated in these words: 'But by the act in question the government yielded its right to seize and condemn the property which it took in the enemy's country, if it belonged to a faithful citizen, and substantially said to him: 'We are obliged to take the property of friend and foe alike, which we will sell and deposit the proceeds of in the treasury; and if at any time within two years after the suppression of the rebellion you prove satisfactorily that of the property thus taken you owned a part, we will pay you the net amount received from its sale." And in Zellner's case, 'Any person claiming to be the owner of abandoned and captured property, within the meaning of the act, may, at any time within two years after the suppression of the rebellion, present his claim to the Court of Claims,' &c. And again, in Armstrong's case, decided at the same time with Klein's, this is the language of the court, speaking through the late Chief Justice: 'And that the person so pardoned is entitled to the restoration of the proceeds of captured and abandoned property if a suit be brought within 'two years after the suppression of the rebellion," the special provision as to the time being brought to the attention of the reader by the marks of quotation.

Provision might have been made for the institution of suits by loyal owners at any time, but it was not, and the reason may perhaps be found in Klein's case. According to that, an insurgent who accepted the offers of pardon which were from time to time extended to him, and became loyal in fact, received as one of the privileges and immunities to which he was restored, the right to recover the proceeds of the sale of his property taken under the act, if he made his claim in time. To obtain a pardon before the war closed an insurgent must withdraw himself from the enemy and become loyal. There could be no recovery even in a suit commenced until the pardon was obtained, and there could be as soon as it was. Hence the sooner the pardon the sooner the money could be had. So, too, after the contest was over, an early submission by all to the authority of the government was important. To this the act, as construed, furnished an additional inducement by its promise of restoration if application therefor was made in time.

Additional strength is given to this interpretation of the act by what followed its enactment. On the 17th of July, 1862, the President was authorized by Congress to extend pardon and amnesty by proclamation to persons engaged in the rebellion, with such exceptions and upon such conditions as he should deem expedient. On the 8th December, 1863, nine months after the passage of the Captured and Abandoned Property Act, he issued his first proclamation under this authority. By this he offered full pardon and restoration of property to all insurgents, except a few designated classes, who would take a prescribed oath to the effect generally that they would thereafter abstain from the rebellion, and support the government of the United States. On the 26th March, 1864, by a further proclamation, he excluded from the operation of the writ, prisoners of war and those confined for crime. Thus during the war actual withdrawal from the enemy and an oath of allegiance were made conditions precedent to amnesty; but on the 29th of May, 1865, and within three days after the surrender of the last organized army of the rebellion, another proclamation was issued, offering pardon and restoration of property to all, with certain exceptions, who would take an oath of allegiance alone. On the 7th September, 1867, but still within two years after the suppression of the rebellion, as it has been determined, another was issued extending the operation of the last to all save three of the excepted classes of persons. Thus, after the war, simple submission by an insurgent to the authority of the government was the only price to be paid for pardon and restoration to the right, according to Klein's case, of using the means provided by Congress for the recovery of the proceeds of the sale of his captured or abandoned property. Pardon was, therefore, easy to be had, and the promise of a restoration of this class of property was tendered as a reward for its acceptance to such as would qualify themselves within the prescribed time to receive it.

This appellant, though one of those who might, did not accept these easy terms. He would not render even this small equivalent for the restoration of his property, and consequently he has not availed himself of the only promise the United States has as yet offered to make looking to that end. The Court of Claims may act upon promises made, but cannot make them.

There is here no question of confiscation. The title of the United States, whatever may be the rights it carries with it, is by authorized capture or appropriation of enemy's property on land. But the same statute which authorized the capture gave a right to certain persons to demand and receive a restoration of their property taken. Coupled with the right to demand was a provision for the remedy by which it was to be enforced. Both the right and the remedy are, therefore, created by the same statute, and in such cases the remedy provided is exclusive of all others. The demandant in this case neglected to avail himself of the remedy provided, and consequently he is now without any. That remedy was the only one of which the Court of Claims or any other court has been authorized to take jurisdiction. It is for Congress, not the courts, to determine whether this jurisdiction shall be extended and other remedies provided.

JUDGMENT AFFIRMED.


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

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


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United States v. Insurance Companies

APPEALS from the Court of Claims.

The Home Insurance Company and the Southern Insurance and Trust Company, both being corporations created by the legislature of Georgia in 1861 and 1863, while the State was in armed rebellion against the government of the United States, brought suit in the court below against the United States, under the Captured and Abandoned Property Act (an act which, by its terms, gives a right to sue only to persons who have borne true faith and allegiance to the government and have never voluntarily aided, abetted, or given encouragement to rebellion), to recover the proceeds of the sale of cotton captured at Savannah, in 1864, and now in the treasury of the United States. The United States pleaded the general issue, and statute of limitations, but no other plea.

On the argument, however, of the case, the counsel of the government set up that the courts of the United States would not recognize the competency of those bodies known as the legislatures of the insurgent States, to create corporations, such as insurance, banking, and trust companies; and as the plaintiffs in the court below were incorporated under acts passed after the attempted secession of Georgia from the Union, and before the close of the war, it was argued that they could have now no legal existence. The question thus raised, in the argument-the grounds made by the pleas not having been at all supported by the evidence, and, in fact, not pressed-was accordingly whether such corporations as were now suing could be recognized as having a legal existence with capacity to own cotton and to sue in the Court of Claims.

That court thought that they had, and gave judgment against the government. The case, therefore, was now here on its appeal; the same question being now presented here in the argument, along with the further point, that if these plaintiffs were competent to sue in the Federal courts, they could not sue under the Captured and Abandoned Property Act, because as corporations they could not bear true faith and allegiance; that capability, as well as the contrary one of voluntarily aiding, abetting, or giving encouragement to rebellion being predicable of natural persons only; for whom and not for corporations the act must be meant. This point, however, was not made in the court below, nor its decision thereon assigned for error. The errors assigned were that the court erred—

'1st. In holding that the claimants had a legal existence; and

'2d. In holding that the rebel legislature of Georgia could create a corporation capable of suing the United States after the suppression of the rebellion.'

Mr. G. H. Williams, Attorney-General, and Mr. John Goforth, Assistant Attorney-General, for the United States; Messrs. C. F. Peck and W. W. McFarland, contra.

Mr. Justice STRONG delivered the opinion of the court.

title: United States v. Insurance Companies


text: Talk:United States v. Insurance Companies


text:
United States v. Insurance Companies/Opinion of the Court

It may well be doubted whether under the pleadings in the court below the appellants have any right to raise the objection here that the companies plaintiff have now no legal existence, because incorporated after the attempted secession of Georgia from the Union, and before the close of the war. There was no plea that traversed directly the corporate existence of the plaintiffs. A general denial of the averments of the petition was hardly sufficient. Notwithstanding the old rule that a corporation suing must prove its corporate existence, it has been many times decided that a plea of the general issue admits its capacity to sue, as does going to trial upon the merits. And such is the established practice in the Court of Claims.

We do not, however, rest our decision upon this ground. We prefer answering the question which the appellants attempt to raise. No doubt the legislature of Georgia in 1861 and 1863, when the enactments were made for the incorporation of these plaintiffs, was not the legitimate legislature of the State. The State had thrown off its connection with the United States, and the members of the legislature had repudiated, or had not taken, the oath by which the third section of the sixth article of the Constitution requires the members of the several State legislatures to be bound. But it does not follow from this that it was not a legislature, the acts of which were of force when they were made, and are in force now. If not a legislature of the State de jure, it was at least a legislature de facto. It was the only lawmaking body which had any existence. Its members acted under color of office, by an election, though not qualified according to the requirements of the Constitution of the United States. Now, while it must be held that all their acts in hostility to that Constitution, or to the Union of which the State was an inseparable member, have no validity, no good reason can be assigned why all their other enactments, not forbidden by the Constitution, should not have the force which the law generally accords to the action of de facto public officers. What that is was well stated by Kent in the second volume of his Commentaries. 'In the case of public officers,' he says, 'who are such 'de facto,' acting under the color of office by an election or appointment not strictly legal, or without having qualified themselves by the requisite tests, or by holding over after the time prescribed for a new appointment, as in the case of sheriffs, constables, &c., their acts are held valid as it respects the right of third persons who have an interest in them, and as concerns the public, in order to prevent the failure of justice.' And thus this court has ruled in regard to the legislatures of the insurgent States in several cases which have come up for our decision. In Texas v. White and Chiles, Chief Justice Chase in delivering the opinion of the court (while declining to attempt any exact definition within which the acts of an insurgent State government must be treated as valid or invalid), remarked: 'It may be said, perhaps with sufficient accuracy, that acts necessary to peace and good order among citizens, such, for example, as acts sanctioning and protecting marriage and the domestic relations, governing the course of descents, regulating the conveyance and transfers of property, real and personal, providing remedies for injuries to person and estate, and other similar acts which would be valid, if emanating from a lawful government, must be regarded, in general, as valid when proceeding from an actual, though unlawful government; and that acts in furtherance, or in support of the rebellion against the United States, or intended to defeat the just rights of citizens, and other acts of like nature, must in general be regarded as invalid and void.' This language was intended only as an outline, but it sufficiently indicates where is the line between valid and invalid acts of the legislatures of the insurgent States. Similar opinions were expressed in Sprott v. The United States, a case decided at this term. There, when speaking of the powers of the insurgent States, our language was, 'It is only when in the use of these powers substantial aid and comfort was given, or intended to be given to the rebellion, when the functions necessarily reposed in the State for the maintenance of civil society were perverted to the manifest and intentional aid of treason against the government of the Union, that their acts are void.' And with equal distinctness was it said in Horn v. Lockhart, 'We admit that the acts of the several States' (in insurrection) 'in their individual capacities, and of their different departments of government, executive, judicial, and legislative, during the war, so far as they did not impair, or tend to impair the supremacy of the National authority, or the just rights of citizens under the Constitution, are, in general, to be treated as valid and binding. The existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government, or the regular administration of the laws. . . . No one that we are aware of seriously questions the validity of judicial or legislative acts in the insurrectionary States, touching these and kindred subjects, when they were not hostile in their purpose or mode of enforcement to the authority of the National government, and did not impair the rights of citizens under the Constitution.' After these emphatic utterances controversy upon this subject should cease. All the enactments of the de facto legislatures in the insurrectionary States during the war, which were not hostile to the Union, or to the authority of the General government, and which were not in conflict with the Constitution of the United States, or of the States, have the same validity as if they had been enactments of legitimate legislatures. Any other doctrine than this would work great and unnecessary hardship upon the people of those States, without any corresponding benefit to the citizens of other States, and without any advantage to the National government.

Tried by the rule thus stated, the enactments by which the plaintiffs in these cases were incorporated must be treated as valid. They had no relation to anything else than the domestic concerns of the State. Neither in their apparent purpose, nor in their operation were they hostile to the Union, or in conflict with the Constitution. They were mere ordinary legislation, such as might have been had there been no war, or no attempted secession; such as is of yearly occurrence in all the States of the Union. We hold, therefore, that the Court of Claims correctly decided that the plaintiffs were lawfully incorporated, and that they had a legal capacity to sue in that court.

It remains only to notice one other position taken by the appellants during the argument. It is that even if the plaintiffs below are corporations which this court can recognize as such, they cannot sue in the Court of Claims for the proceeds of the sale of captured and abandoned property because, as it is argued, the Captured and Abandoned Property Act provides only for suits by persons who could have given aid and comfort to the rebellion. It is said, corporations were incapable of giving such aid, and that they cannot make proof that they have never given it. Nothing in the assignments of error justifies the presentation of such an argument. But were it otherwise, the argument would be plainly unsound. The act of Congress confers the right to sue upon any person claiming to have been the owner of the captured or abandoned property. It makes no distinction between natural and artificial persons, and it has not been doubted that corporations created before the war commenced might sue. Many such actions have been sustained. It is no objection to them that plaintiffs in all suits are required to make proof that they have never given aid and comfort to the rebellion. Such proof may be made as well by artificial as natural persons. Corporations may have rendered very substantial aid to the armed resistance to the laws of the United States. They may have made loans or contributions to the Confederate government. They may even have fitted out companies or regiments of soldiers. It they have rendered no aid, the fact is quite capable of proof.

JUDGMENTS AFFIRMED.

Mr. Justice BRADLEY did not sit in this case.


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


text:
Maryland v. Railroad Company

 * [Az v. Lz (57 U.S. 123)], ( 14 L.Ed. 123 ), ( 16 How. 123 )
 * [Az v. Lz (58 U.S. 456)], ( 15 L.Ed. 456 ), ( 17 How. 456 )

for re-use for additional court cases as the are identified

title: Maryland v. Railroad Company


text: Talk:Maryland v. Railroad Company

title: Talk:Maryland v. Railroad Company


text:
Maryland v. Baltimore and Ohio Railroad Company (89 U.S. 105)/Opinion of the Court

It is not contended in this case that the contract between the parties contains any express undertaking to pay what the company assumed to pay, either in coin or in any specified kind of money, or with anything other than that which might be a legal tender for the payment of debts, when the time for payment should arrive. But the argument on behalf of the State is, that the language used implies an undertaking to pay in coin, and that the case is therefore within the principle laid down in Trebilcock v. Wilson. Conceding that such an undertaking may be implied, when there is no express promise to pay in gold, still the implication must be found in the language of the contract. It is not to be gathered from the presumed or the real expectations of the parties. As was said in Knox v. Lee, 'the expectation of the creditor and the anticipation of the debtor may have been that the contract would be discharged by the payment of coined money, but neither the expectation of one party nor the anticipation of the other constitutes the obligation of the contract. There is a well-recognized distinction between the expectation of the parties to a contract and the duty imposed by it. Were it not so, the expectation of results would always be equivalent to a binding engagement that they should follow.' There is sound reason in what was said by Lord Denman in the Queen's Bench, in Aspdin v. Austin, which was an action upon a covenant. 'Where parties,' said his lordship, 'have entered into written engagements with express stipulations, it is manifestly not desirable to extend them by any implications. The presumption is that, having expressed some, they expressed all the conditions by which they intend to be bound under that instrument. It is possible that each party to the present instrument,' said he, 'may have contracted on the supposition that the business would in fact be carried on and the service in fact be continued during three years, and yet neither party be willing to bind themselves to that effect; and it is one thing for the court to effectuate the intention of the parties to the extent to which they may have even imperfectly expressed themselves, and another to add to the instruments all such covenants as upon a full consideration the court may deem fitting for completing the intention of the parties, but which they, either purposely or unintentionally, have omitted. The former is but the application of a rule of construction to that which is written; the latter adds to the obligation by which the parties have bound themselves, and is of course quite unauthorized, as well as liable to great practical injustice in the application.' Applying these principles, and looking to the contract, we discover no basis for such an implication as the plaintiff in error asserts.

We are asked to consider the circumstances which at tended the legislative enactments, and induced them. The State was then in part the owner of an unfinished railroad. It was important to the interests of the people of the State, as well as to the State as a stockholder, that the road should be finished, and to accomplish its completion pecuniary assistance by the State was needed. For this purpose the State lent her credit. This was the object she had primarily in view. It is said she had also in view her own protection and that of her citizens against loss in so doing, and that it must be presumed the legislature discharged its duty, and made effectual provision for such protection. This is assuming what cannot be conceded. It assumes that it was the duty of the legislature to exact from the company all that could be exacted, and this though the company was in great need of assistance, and though it was the interest of the State that such assistance should be furnished. But if the assumption might be made, it would still be inadmissible to deduce an implication of a promise, not from the contract itself, but from the extraneous fact that such a promise ought to have been exacted. Ordinarily a reference to what are called 'surrounding circumstances' is allowed for the purpose of ascertaining the subject-matter of a contract, or for an explanation of the terms used, not for the purpose of adding a new and distinct undertaking.

The plaintiff in error further insists that the contract, as exhibited in the acts of the legislature, amounts to an engagement on the part of the company to indemnify the State for the payments she was under obligation to make in discharge of the interest upon her bonds, by means of which the money was raised to pay her subscription to the company's stock; and as that interest could only be discharged by gold, it is argued the company must be held to have undertaken to pay in gold, since payment by legal tender notes would not amount to indemnity. But we see nothing in the contract which justifies its being construed as a contract of indemnity. It may be conceded, and it probably was the fact, that both parties thought what the company undertook to pay would suffice to pay the interest upon the State bonds from time to time as it should fall due. But nothing in the statutes, read as a whole or read with reference to the required guarantee, or read in the light of the circumstances then existing, exhibits any undertaking that the company's stipulated payments should suffice to discharge the liabilities of the State. On the contrary there is much in the statutes to repel any possible implication of an engagement to indemnify, and to make it apparent that such an obligation was not intended to be imposed or assumed. As has been noticed, the company was required by the act of 1836 to pay, after the first three years, six per cent. interest out of the profits of the work, and pay it semi-annually, until the net profits should be adequate to pay a six per cent. dividend, and thereafter pay a perpetual dividend of six per cent annually. But the bonds first authorized to be issued by the State to pay her subscription were bonds bearing six per cent. interest payable quarterly, and running not less than fifty years. The commissioners for their sale were also authorized to make the interest on the bonds payable at the loan office of the State, in the city of Baltimore, or at some place or places in Europe, should they find it advantageous so to contract. It is manifest, therefore, that if the bonds had been made payable in Baltimore, principal and interest, the semi-annual payment required of the company would not have met the obligations of the State, which were to pay quarterly her interest. And if the bonds had been made payable in Europe, still less would the six per cent. due from the company, though paid in gold, have enabled the State to pay her interest abroad. In addition she must have paid exchange and the cost of transmission. This seems to indicate clearly that the act of 1836 not only was not, but that it was not intended to create an obligation to indemnify the State. And this is not all. The bonds first issued were exchanged under the act of 1839, and sterling bonds bearing five per cent. interest payable semi-annually in London were given to the company in their place. This act required the company to secure the payment of the interest at the rate of five per centum per annum on the stock (the sterling bonds) created by the act, semi-annually, at least ninety days before the first day of January and July in every year for the term of three years from the date of the bonds or certificates of stock, together with the cost of transmitting the interest to London to be there paid, and also the difference in exchange of currency between London and Baltimore. This was a stipulation for indemnity. It covered all that the State was required to pay as interest on her sterling bonds. But it was expressly limited to the interest for the first three years, and hence it excluded any implication of an obligation to indemnify against all liability of the State to pay the subsequently accruing interest. Unless this is true the limitation to three years is unmeaning. After the expiration of that period, nothing more was required than the semi-annual payment of six per cent. as stipulated by the act of 1836.

It is, we think, also a matter of some significance that by the contract the payments to the State were required to be made at first out of the profits, the gross receipts of the company. No distinction was made between the kind of money the company might be compelled to receive and that required to be paid to the State. Nor was any distinction attempted to be made between the kind of money with which the dividends to the State and other stockholders could be paid.

For these reasons, we think, the contract between the parties exhibits no just ground for an implication that the company assumed an obligation to pay its dues to the State in gold, or in any other manner than in money generally, and the fact that the company did pay the State's interest in sterling funds in London down to 1865, cannot change the construction of the contract.

We do not perceive that the case of Lane County v. Oregon has any bearing upon the present controversy.

JUDGMENT AFFIRMED.

Dissenting, Justices CLIFFORD and FIELD.


text: Talk:Maryland v. Baltimore and Ohio Railroad Company (89 U.S. 105)/Opinion of the Court


text:
Pleasants v. Fant

ERROR to the Circuit Court for the District of Maryland.

R. & H. Pleasants sued Fant in the court below, and the single question in dispute was whether the defendant was a partner in the firm of Keene & Co., so as to charge him with a debt conceded to be due by that firm to the plaintiffs, arising out of some transactions in cotton. The case was tried before a jury, and when the testimony was through, both plaintiffs and defendant prayed instructions of the court, which were all refused, and the court said to the jury,

'There is no evidence in this cause from which the jury can find that the defendant had such an interest in the purchase and sale of the cotton by Keene & Co. as will make him, the defendant, a partner as to third persons, and the jury will, therefore, find their verdict for defendant.'

The bills of exception disclosed the testimony on which this instruction was founded, and the question now before this court was whether the verdict founded on that instruction should be set aside and the judgment reversed.

The direct testimony offered to prove the partnership was confined to the statements of Fant in a conversation with one of the plaintiffs and a clerk in their office, and the deposition of Keene, a partner of Keene & Co. The substance of the former was that Fant denied that he was a partner, said he knew from some experience what was necessary to make him a partner, and admitted that he had procured for Keene a loan of $10,000 in gold from a bank of which he was president, and that he was to receive part of the profits of Keene's venture in purchasing cotton with that money, as compensation for procuring the loan. What portion of the profits he was to receive was not stated.

Keene in his deposition denied that Fant was a partner in the transaction, but said that Fant had negotiated for him the loan from the bank, and he had made Fant a promise, which was entirely voluntary, to give him a part of the profits he might realize, and that he had mentioned no particular part or proportion of the profits to be so given.

After the admission of this testimony, the plaintiffs, on the ground that they had sufficiently shown a relation between Fant and Keene to admit of Keene's declaration to third persons as to Fant's interest, offered to prove by one of the plaintiffs, that Keene had told him Fant was a partner, and asked that the plaintiffs would advance money enough on the cotton then in their possession as brokers to enable him to pay Fant his money and let him out of the firm. This offer was objected to and the objection sustained by the court.

A large amount of testimony, however, was admitted, the object of which was to show that Fant, as president of the bank, was in the habit of using the money of the bank in private speculations, without the knowledge of the directors, but which was very feeble and far from establishing that fact.

Verdict and judgment having been given for the defendant, the plaintiffs brought the case here.

Messrs. I. N. Steele and S. T. Wallis, for the plaintiffs in error:

1. The English rule laid down in Waugh v. Carver, makes a participation in profits conclusive proof of partnership under all circumstances.

In Berthold v. Goldsmith, and in Seymour v. Freer, this court holds that the rule does not apply to 'a case of service or special agency, where the employ e has no power, as a partner, in the firm, and no interest in the profits, as property, but is simply employed as a servand or special agent, and is to receive a given sum out of the profits, or a proportion of the same, as a compensation for his services.' Beyond that exception the court does not go in its adjudication or its reasoning. There is nothing in either to countenance the idea that a party, not an employ e, but contributing, or lending, or procuring the capital of a concern, can stipulate, ab initio, for a share of its profits, as a compensation for doing so, and yet escape liability for its debts. And such an idea is contrary to the whole current of authority. This court has not followed some of the later English cases.

2. The instruction given to the jury improperly took the case away from it. The evidence undoubtedly did at least tend to prove a participation in the profits; and while the rule of evidence does not allow one partner to bind or speak for the other, until proof has been given of his authority, it nevertheless requires nothing more than proof tending to establish the authority; proof legally sufficient to go to the jury on the point.

It is settled law that a Circuit Court has no authority to order a peremptory nonsuit against the plaintiff's will. But very nearly the same result is reached if after a plaintiff has given what he deems sufficient evidence of his case, and which does confessedly tend to prove it, the court may tell the jury what this court told the jury below.

Mr. R. T. Merrick, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Pleasants v. Fant


text: Talk:Pleasants v. Fant

title: Talk:Pleasants v. Fant


text:
Pleasants v. Fant/Opinion of the Court

If the admission of Fant to plaintiffs, and the evidence of Keene, are insufficient to raise a prim a facie presumption of partnership, then Keene's declarations on that subject were inadmissible, and the court was right in its instruction to the jury. If it was sufficient for that purpose then it was erroneous, and the evidence here offered of Keene's statements to plaintiffs was improperly excluded.

The case rests after all on the question whether in Fant's declaration to the plaintiffs and Keene's deposition there was evidence of a partnership on which a verdict for plaintiff could have been sustained.

We have been favored by counsel with a reference, very learned and very exhaustive, to the authorities on the question of how far or when a participation in the profits subjects a party to the liability of a partner to third persons. And it must be confessed that some of the discriminations, where profits are used as compensation for definite services, are very nice.

We do not think that a close examination into these is necessary in this case. According to Keene's restimony there was clearly no contract binding him to divide the profits with Fant. He says the promise was entirely voluntary, and that no portion of the profits was mentioned. By voluntary he undoubtedly means that it was not a part of the agreement by which he obtained the money, but a gratuitous promise to reward his friendship if he succeeded in his venture.

Fant's statement to the plaintiff, as detailed by the latter, differs but very little from this. As a compensation for obtaining the loan, he says that Keene agreed to allow him a part of the profits, but how much or what proportion, or whether it was a definite sum to be paid out of the profits, or a proportionate part of the profits, is not shown.

If one of the most approved criteria of the existence of the partnership in such cases be applied to this, namely, the right to compel an account of profits in equity, the evidence totally fails. In a suit for that purpose, founded on this precise statement, no chancellor would hesitate to dismiss the bill.

But we are pressed with the proposition that it was for the jury to decide this question, because the testimony received and offered had some tendency to establish a participation in the profits, and the question of liability under such circumstances should have been submitted to them, with such declarations of what constitutes a partnership as would enable them to decide correctly.

No doubt there are decisions to be found which go a long way to hold that if there is the slightest tendency in any part of the evidence to support plaintiff's case it must be submitted to the jury, and in the present case, if the court had so submitted it, with proper instructions, it would be difficult to say that it would have been an error of which the defendant could have complained here.

But, as was said by this court in the case of the Improvement Company v. Munson, recent decisions of high authority have established a more reasonable rule, that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.

The English cases there cited fully sustain the proposition, and the decisions of this court have generally been to the same effect.

In the case of Parks v. Ross, this court held that the practice of granting an instruction like the present had superseded the ancient practice of demurrer to evidence, and that it answered the same purpose and should be tested by the same rules; and in that case it said the question for the consideration of the court was whether the evidence submitted was sufficient to authorize the jury in finding the contract set up by plaintiff. And in Schuchardt v. Allens, this case is referred to as establishing the doctrine that if the evidence be not sufficient to warrant a recovery, it is the duty of the court to instruct the jury accordingly.

In the case of Pawling v. The United States, the court, by Marshall, C. J., said: 'The general doctrine on a demurrer to evidence has been correctly stated at the bar. The party demurring admits the truth of the testimony to which he demurs, and also those conclusions of fact which a jury may fairly draw from that testimony. Forced and violent inferences he does not admit, but the testimony is to be taken most strongly against him, and such conclusions as a jury might justifiably draw the court ought to draw.'

It is the duty of a court in its relation to the jury to protect parties from unjust verdicts arising from ignorance of the rules of law and of evidence, from impulse of passion or prejudice, or from any other violation of his lawful rights in the conduct of a trial. This is done by making plain to them the issues they are to try, by admitting only such evidence as is proper in these issues, and rejecting all else; by instructing them in the rules of law by which that evidence is to be examined and applied, and finally, when necessary, by setting aside a verdict which is unsupported by evidence or contrary to law.

In the discharge of this duty it is the province of the court, either before or after the verdict, to decide whether the plaintiff has given evidence sufficient to support or justify a verdict in his favor. Not whether on all the evidence the preponderating weight is in his favor, that is the business of the jury, but conceding to all the evidence offered the greatest probative force which according to the law of evidence it is fairly entitled to, is it sufficient to justify a verdict? If it does not, then it is the duty of the court after a verdict to set it aside and grant a new trial. Must the court go through the idle ceremony in such a case of submitting to the jury the testimony on which plaintiff relies, when it is clear to the judicial mind that if the jury should find a verdict in favor of plaintiff that verdict would be set aside and a new trial had? Such a proposition is absurd, and accordingly we hold the true principle to be, that if the court is satisfied that, conceding all the inferences which the jury could justifiably draw from the testimony, the evidence is insufficient to warrant a verdict for the plaintiff, the court should say so to the jury. In such case the party can submit to a nonsuit and try his case again if he can strengthen it, except where the local law forbids a nonsuit at that stage of the trial, or if he has done his best he must abide the judgment of the court, subject to a right of review, whether he has made such a case as ought to be submitted to the jury; such a case as a jury might justifiably find for him a verdict.

Tested by these principles we are of opinion the Circuit Court ruled well. If plaintiffs had secured a verdict on the testimony before us we think that court ought to have set it aside as not being warranted by the evidence. It is not possible with any just regard to the principles of law as to partnership, and the rules of evidence as applied to this testimony, to come fairly and reasonably to the conclusion that Fant was Keene's partner in this transaction.

JUDGMENT AFFIRMED.

title: Pleasants v. Fant/Opinion of the Court


text: Talk:Pleasants v. Fant/Opinion of the Court


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Ogdensburg and Lake Champlain Railroad Company v. Pratt

ERROR to the Circuit Court for the District of Massachusetts, in which court J. Pratt and H. Brigham, of Boston, sued, by process of attachment, the Ogdensburg and Lake Champlain Railroad Company, a corporation of New York, to recover from that company damages for the loss of certain horses which Pratt, for the two parties, had put into the company's cars on its road in the said State, and which had been burned to death, not on the said company's road, but on the Vermont Central Railroad; a road in the State of Vermont, connecting with the former, but not belonging to the same corporation, but on the contrary belonging to a different corporation; to wit, a corporation of Vermont.

The case was thus:

In the northeastern part of New York there exists what is known as the Ogdensburg and Lake Champlain Railroad. The road begins at Ogdensburg, about ninety miles west of Lake Champlain, and runs eastwardly through a place called Potsdam to Rouse's Point on the said lake, at which point it strikes the boundary line between the States of New York and Vermont.

This Ogdensburg and Lake Champlain Railroad Company was incorporated under the general railroad law of New York, and possessed the powers possessed by railroad corporations generally, and was subject to the same liabilities as they generally are.

At Rouse's Point begins a new railroad, to wit, the Vermont Central Road; a different road, as already stated, and owned by a different corporation, one created by Vermont. The rails of the two roads, however, connect. This Vermont Central Road runs across the State of Vermont in a southeasterly direction till it comes towards the edge of Massachusetts, where it strikes a third road, which, passing through Concord in that State, enters the city of Boston.

At the town of Potsdam, above spoken of as near the west end of the Ogdensburg and Lake Champlain road, Pratt, already mentioned, a transporter of horses, went, in March, 1868, to one Graves, who was the station agent at Pottsdam of the Ogdensburg and Lake Champlain road, and informed him that he wished two good 'stock cars' to carry certain horses for himself and Brigham to Boston. Pratt thus testified:

'I have been for twenty years in the habit of buying horses (one or two hundred a year), and of transporting them over the Ogdensburg and Lake Champlain and the Vermont Central roads to Boston. I have known Graves five or six years as station agent at Potsdam. His office was in the freight-house. He always furnished me stock cars. This occurred from five to ten times a year. The cars thus furnished by him went without any change right through over these roads, and the arrangements made by him were always recognized by the roads through to Boston. A week before the horses for whose loss this suit is brought, were brought to Potsdam, Mr. Graves engaged to give me two good stock cars to carry them to Boston. He did at the time appointed give me two cars, and I took my horses to them. I objected to one of the cars. Graves said that I must take it or wait for a week, as no others than these were there. I took the car rather than wait, and repaired it as well as I could. I put in some hay-wet and rotten hay-to keep the horses from slipping. I always did that. One of the railroad hands and I put it in on this occasion; and in full view of the office. This railroad hand had been in the service of the company for three or four years. I then told Mr. Graves that I wished to put in other horses at Rouse's Point. He agreed to this. We agreed upon the price, $85 per car, through to Boston; being the same price as if all the horses had been put in at Potsdam; the horses to be transported from Potsdam; some taken on there and some at Rouse's Point. We had passes to go on the train which took our horses. I always put my horses in and go on the cars myself to take care of the horses, or else send a man. On this occasion Mr. Brigham was in charge all the way. I had no other man. You can't go in the same car with the horses. A place called a box car was furnished for us. The way-bill was thus made out:

Way-bill of merchandise transported by Ogdensburg and Lake Champlain Railroad Company, from Potsdam Junction to Boston, via Concord, March 20th, 1868.

Name and Description       Back     Total

residence. of articles.Weight.Rate. Freight. charges. charges. Remarks.

Designation.

J.Pratt,Boston, 1 car horses20,000....    $85.00  ....       $85.00       Coll.

1 man in charge, free,

O'g.

H.Brigham,     1 car horses20,000 ....    85.00  ....      85.00.......

1 man in charge, free,

--

40,000 $170.00     $170.00

'I saw the bill at Potsdam after it was made out.'

The plaintiffs here put this question to the witness:

'In these acts of Graves in furnishing cars and making arrangements for transportation through to Boston as testified by you, for whom did he assume to act?'

The defendant objected to the question, asserting that the witness could be asked only as to what was said and done, and that the question was incompetent on this account, and as calling from the witness an expression of his own opinion or inference. The court admitted the question, and defendant excepting, the witness answered:

'He assumed to act for the Ogdensburg and Lake Champlain Railroad Company.'

In consequence of the cars being broken and very much exposed, and sparks from the locomotive getting into them the hay took fire, and the horses were burnt to death. This took place on the road of the Vermont Central Company. Some of the horses were put in at Rouse's Point.

No freight was paid on this particular occasion at Potsdam; and indeed it was generally paid, in transactions between these parties, in the depot in Boston.

The defendants produced Graves, the station master already mentioned. He testified that there were several cars at Potsdam when Pratt brought the horses to the station, and that he could have had his choice, and as he, the witness, supposed did have it; that all cars were examined before being sent off, and if unfit were reported; that the cars were 'billed' as per the way-bill above shown; that the freight might have been paid in advance, but was not; that the witness knew of no hay put into the cars; that it was against the rules of the Vermont Central road to put any litter in them. Two men were allowed to go free, one in each car.

The defendants also put in evidence certain rules printed on a single sheet, entitled 'Vermont Central Railroad Special Live-stock Tariff,' which after reciting certain rates of freight per ton, contained, under the head of 'DIRECTIONS,' the following provisions:

'In consideration of drovers being permitted to ride free on the same train with their stock for the purpose of taking charge of it, it will, in all cases, be their duty, or that of shippers of live stock, to examine cars before loading, and if they accept them the stock will be at their risk of loss or damage occasioned by doors being displaced or otherwise. Hay, straw, and like combustibles will, under no circumstances, be allowed in a car with live stock. Persons violating this rule will not only suffer all loss which the same may cause to his or their own stock, but will be held responsible for all damage caused by such violation, whether it be to individuals or to the railroad.'

They then introduced evidence tending to show that these rules were posted up in the Potsdam station, and that the plaintiffs were often there, and so must have seen them. The plaintiffs denied being often in the station-house, and testified that they had never seen or heard of the said rules until after this loss occurred.

On the trial, the court having charged that the defendants would not be liable for a loss occurring on any other railway in the line unless, at least, they specifically and expressly contracted to transport the horses through or beyond their own road to where the accident happened; that otherwise they would be forwarders, and their liability would be discharged by safely delivering to the next road in the line, was asked by the defendants to charge further thus:'If the jury are satisfied that the plaintiffs at Potsdam Junction, when they took the car in question, knew of its defects, and that it was unsafe, and liable to catch fire and burn, having full opportunity to see and examine it, and that they did see and examine it, and had full knowledge of its condition, and either selected or accepted this when they might have had another car; or if they consented to take this, and were allowed to take it at their request and wish, they electing and proposing to do so, and insisting upon it rather than wait a reasonable time for another car, they by so selecting or accepting the car took their risk of these defects, and cannot recover for losses occurring because of them.'

In lieu of the charge requested, the court charged as follows:

'The common carrier is bound to furnish suitable vehicles and means of transportation for the carriage of such articles as he undertakes to carry and transport. If he furnishes unsafe or unfit cars he is not exempted from liability by the mere fact that the shipper knew them to be defective and used them. Nothing less than an agreement by the shipper to assume that risk would have that effect. In this case, if the plaintiffs expressly agree to assume the risks of defective cars rather than to wait a reasonable time for other cars, they cannot recover.'

The jury found for the plaintiff, and the Ogdensburg and Lake Champlain Railroad Company brought the case here on different causes of error, which were resolvable into these four questions:

1. Had the Ogdensburg and Lake Champlain Railroad Company power or right to contract as a common carrier to transport the horses to Boston over another railroad, and beyond its own terminus?

2. Was there competent evidence given on the trial that the company did so contract in relation to the horses in question?

3. Did the plaintiffs, by putting their horses into a car which they knew was defective and unsuitable, thereby assume the risk of such defects, and relieve the company from responsibility for the same?4. Was there error in admitting in evidence the way-bill made and forwarded with the property by the defendants, or in allowing the witness to state for whom the station agent assumed to act?

Mr. C. H. Hill, for the plaintiff in error; Messrs. E. L. Pierce and A. Churchill, contra.

Mr. Justice HUNT delivered the opinion of the court.


text: Talk:Ogdensburg and Lake Champlain Railroad Company v. Pratt


text:
Ogdensburg and Lake Champlain Railroad Company v. Pratt/Opinion of the Court

The several causes of error assigned present four separate principles, and we will consider the questions which they raise in their order. The questions may be thus stated:

First. As to the power of the railroad company to contract as a common carrier for the transportation of property beyond the terminus of its own road.

The distinction between the liability of a carrier, in carrying goods upon his own line, and in forwarding them when the duty to carry is at an end, is well defined. In the language of Mr. Justice Davis, in Railroad Company v. Manufacturing Company, 'It is the duty of the carrier, in the absence of any special contract, to carry safely to the end of his line, and to deliver to the next carrier in the route beyond.' What constitutes a sufficient delivery to the succeeding carrier is often a difficult question, but we have no occasion to embarrass ourselves with it here.

The fair result of the American cases limits the carrier's liability as such, when no special contract is made, to his own line, although there are cases which hold the liability as continuing the same throughout the whole route, and such is the English doctrine. A discussion on this point is unnecessary, as the judge on the trial held the rule as we have stated it, and as was most favorable to the defendants. He charged the jury that the defendants were only liable upon a contract to be proved that they had assumed a liability beyond that imposed by law.

The defendants were an incorporation organized under the general railroad law of the State of New York. They possessed the powers given to corporations generally and were subject to the corresponding liabilities.

Assuming the case to stand upon the general principles applicable to the question, the doctrine that a railroad company may subject itself to the obligations of a carrier beyond its own line, has been distinctly held in the State of New York, where this contract was made; in the State of Massachusetts, where its performance was to be completed, and in the State of Vermont, where the alleged injury occurred.

In the case of Burtis v. ''Buffalo and Sl. Lawrence Railroad, supra'', it was held that this principle applied to connecting roads extending beyond the limits of the State. The single exception to this holding, so far as we are aware, is in the State of Connecticut, where the contrary has been held by its Supreme Court.

This case, however, does not stand upon the general principle only. By the statutes of New York it is enacted as follows: 'Any railroad company receiving freight for transportation shall be entitled to the same rights and subject to the same responsibilities as common carriers. Whenever two or more railroad companies are connected together, any company owning either of said roads receiving freight to be transported to any place on the line of either of said roads so connected shall be liable as common carriers for the delivery of such freight at such place. In case any such company shall become liable to pay any sum by reason of the neglect of any other company or companies, the company paying such sum may collect the same of the company by whose neglect it became so liable.' This statute is declared by Rappallo, J., in Root v. Great Western Railroad, to be declaratory merely.

We do not see that there is room to doubt the power of the company to make the contract in question.

Second. Was there evidence in this case that the Ogdensburg and Lake Champlain Railroad Company did contract as a common carrier to transport this property beyond its own terminus over other roads to Boston?

The weight, the force, or the degree of the evidence is not before us, if there was competent evidence, on which the jury might lawfully find the existence of the contract alleged.

Both the authority of Graves, the station agent, to make the contract, and the evidence of Pratt and others of the making of the contract, were questions of fact for the consideration of the jury. If the jury have found in the plaintiffs' favor on these points, upon evidence legally sufficient to justify it, this court cannot interfere with their findings.

The evidence on both these points may properly be considered at the same time. Pratt testified that he had for many years been in the habit of transporting horses over the defendants' road to Boston, to the number of two hundred a year, and that Graves had been the station agent at Potsdam for five or six years; that nearly a week before the present shipment Graves engaged to give him on that day two good stock-cars to carry his horses to Boston, and that the cars furnished by Graves had always come over these roads and delivered the horses in Boston, and that the arrangements made by him were recognized by the other roads; that Graves's office was in the Potsdam freight-house, and that he paid the freight through, sometimes at Potsdam and sometimes at Boston; that on this occasion he agreed with Graves upon the price through to Boston, viz., $85 a car, and that a way-bill was made out for the horses and cars to Boston at the price mentioned. Other witnesses give testimony in corroboration, which it is not necessary to refer to. Graves testified that he was the station-master at Potsdam, and that the cars were billed from Potsdam to Boston, via Concord, as per bill; that the price agreed upon was not paid in advance, but it might have been.

The way-bill was headed thus: 'Way-bill of merchandise transported by Ogdensburg and Lake Champlain Railroad Company from Potsdam Junction to Boston via Concord, March 28th, 1868.' It describes the two cars with horses, and as consigned to Pratt & Brigham, at Boston.

We see no sound objection to the admission of this way-bill as evidence. If a written contract, it was not only evidence, but the best evidence of what the contract was. It was exhibited to Pratt before the cars were started, as a part of the transaction.

If not a contract, it was an act done and a declaration made by the agent in the very act of transacting the business, and as a part of it, which brought it within the principle of the res gestoe.

This evidence shows that the oral engagement was 'to carry his horses to Boston,' not to carry to Rouse's Point and thence to forward to Boston, but 'to carry' as well and as fully over the Vermont and Massachusetts roads as over the Ogdensburg road.

Again, a specific price was agreed upon for transportation over the whole route. This was in accordance with the practice, and whether paid at Potsdam or at Boston was unimportant. This practice had been continued for years, and the jury had the right to hold the contract to be the same, without reference to prepayment or postpayment. The jury were justified in inferring that where a carrier fixes a price for transportation over the whole route, that he makes the entire contract his own. One who carries simply over his own line, and thence forwards by other lines, would ordinarily, the jury may say, make or collect his own charges and leave the remaining charges to be collected by those performing the remaining service. Receipt of the entire pay affords a fair presumption of an entire contract.

The language of the way-bill is quite expressive. It describes 'merchandise transported. . . from Potsdam to Boston.' Transported or carried are equivalent terms, and quite distinct from the idea of forwarding. Whether looked upon as a contract, or as a declaration, or an admission simply, the way-bill furnishes evidence that the Ogdensburg company undertook to carry the horses to Boston.

In Root v. Great Western, in speaking of the contract to transport as a common carrier over other lines, the court say: 'Such an undertaking may be established by express contract, or by showing that the company held itself out as a carrier for the entire distance, or received freight for the entire distance, or other circumstances indicating an understanding that it was to carry through.'

We think there was competent evidence before the jury that the company undertook to carry this property to Boston, and the jury having found such to be the fact, the other companies are to be deemed the agents of the defendants, for whose faults they are responsible.

Third. The loss, it is contended, arose from the defective condition of the car in which the horses were placed, whereby it was exposed to danger from fire. It is said that Pratt was aware of the defective condition of the car; that he voluntarily made use of it, and that the risk of loss by its use thus became his and ceased to be that of the company. The judge charged the jury that it was the duty of the carrier to furnish suitable vehicles for transportation; that if he furnished unfit or unsafe vehicles he is not exempted from responsibility by the fact that the shipper knew them to be defective and used them; that nothing less than a direct agreement by the shipper to assume the risk would have that effect.

There was a conflict in the testimony upon the point whether other cars were to be had. Pratt testified that he was compelled to take these cars or wait with his horses for a week. The station-agent testified that there were other cars which Pratt might have had if he preferred them.

The authorities sustain the position taken by the judge at the trial.

In New Jersey Steam Navigation Company v. Merchants' Bank, Mr. Justice Nelson says: 'If it is competent at all for the carrier to stipulate for the gross negligence of himself and servants or agents in the transportation of goods, it should be required to be done at least in terms that would leave no doubt as to the meaning of the parties.'

To this effect are the New York and Massachusetts cases before cited.

In Railroad Company v. Manufacturing Company it was declared that the court did not intend to relax the rule by which the liability of carriers was established. In Railroad Company v. Lockwood the following, among other propositions, were reiterated and established by the unanimous judgment of the court:

1st. That a common carrier cannot lawfully stipulate for exemption from responsibility when such exemption is not just and reasonable in the eye of the law.

2d. That it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants.

The judge at the trial in this case might have gone much further than he did, and have charged that if the jury found the company to have been negligent and careless in furnishing cars, they would not be relieved from responsibility, although there had been an agreement that they should not be liable therefor.

Fourth. It is contended that there was error in the admission of evidence on the trial. The admission of the waybill we have considered, and we think it was properly admitted.

When the plaintiff, Pratt, was on the stand as a witness the following question was put to him: 'In these acts of Graves in furnishing cars and making agreements for transportation through to Boston, as testified by you, for whom did he assume to act?' This question was objected to by the defendants, and the objection was overruled. We think this question was erroneous in its form, and that, as insisted by the defendants, he should have been asked to state only what was said and done. The error was, however, harmless. That Graves was acting for the Ogdensburg company was disputed by no one. All that had been testified to, showed it. Graves himself testified that he was so acting, and there was no evidence or pretence to the contrary, either on the trial or the argument. The question is as to the effect of his acts, and not as to whether he acted for the company. His authority has not been repudiated by the company at any time or in any form. We have often held that we will not reverse a judgment on account of an error which clearly appears to have produced no injury.

Two suggestions are made by the counsel for the plaintiffs in error which require consideration.

The first is that the rules of the Vermont Central road forbade the use of combustible material in the cars on their road, and that if known to the plaintiffs, and the contract were made in reference to them, the presence of this material in the car while on their road was a bar to the action. The answer to this suggestion is, first, that there is no competent evidence of such contract and agreement; and second, that the contract was made with the Ogdensburg road alone. The shippers were strangers to the rules as well as to the owners of the Vermont road. Their dealings were with the Ogdensburg road only, one of whose agents aided in putting the litter into the car, and the rules of which company were not violated by that act.

The second suggestion is that some of the horses injured were not placed in the cars till they were at Rouse's Point, beyond the terminus of the defendants' road. The contract was in substance for transportation over the Ogdensburg road of all the horses. For the convenience of the shipper he was allowed to put them on board at different points. This was an incidental circumstance merely, and does not affect the contract. If it receives the full price for the transportation of all the property from Potsdam to Boston it is evidently to the advantage of the company if it escapes the danger incident thereto for a portion of the distance. The power to contract for the whole distance of all the horses, and the making of such contract, and the receipt of the compensation specified, fix the rights of the parties. The precise details of its performance are not essential.

JUDGMENT AFFIRMED.


text: Talk:Ogdensburg and Lake Champlain Railroad Company v. Pratt/Opinion of the Court


text:
St. John v. Erie Railway Company

APPEAL from the Circuit Court for the Southern District of New York; the case was thus:

By an act of the legislature of New York of the 24th of April, 1832, a corporation known as the New York and Erie Railroad Company was created. The road which the company built extended from Piermont, a town on the west side of the Hudson, some sixty miles north of New York, and just above the line which divides the State there from New Jersey, to Dunkirk on Lake Erie. To reach Piermont from the city of New York by rail, the company ferried its passengers and freight across the Hudson to Jersey City, opposite to New York, and carried them from its depot there northward alongside of the Hudson, upon roads in New Jersey which it rented.

The company had also other rented roads.

The money put into the road as capital stock being insufficient to complete it and carry it on, it issued five successive sets of bonds, amounting in the aggregate to $20,000,000. The first set was secured by a lien upon the road given by statute. The other sets were secured by mortgages, according to the order of their issue. It also issued bonds, not thus secured, to the amount of $7,000,000. In 1859 the company became bankrupt. Proceedings in foreclosure were instituted to enforce the last two mortgages, and a receiver was appointed.

In this state of thigs, on the 22d of October, 1859, the shareholders and creditors of the company entered into an amicable agreement providing for the adjustment of its liabilities. In pursuance of this agreement all the property and effects of the company, including the then existing leases of the roads rented, were sold under a decree in the foreclosure suits, and bought in by trustees for the benefit of the parties in interest, pursuant to a clause in the agreement. A new corporation, under the name of the Erie Railway Company, was organized, pursuant to acts of the legislature of New York of the 4th of April, 1860, April 2d, 1861, and March 28th, 1862, and all the property of the old company bought by the trustees was transferred to it, subject however to all the liens and incumbrances upon it which subsisted before the foreclosure and sale. The agreement above mentioned of the 22d of October, 1859, was incorporated into the decree of sale, and was recognized and sanctioned by the several acts of the legislature under which the new corporation was organized. It was also made a part of the articles of association or charter of that company. Its obligatory effect in this case was not questioned. The third article declared:

'The capital stock of said company is divided into common capital stock and preferred capital stock. The whole amount of said common stock of said company is 115,500 shares, each of the par value of $100, being in amount equal to the outstanding capital stock of the New York and Erie Railroad Company. The whole amount of the preferred capital stock of said company is to be equal to the amount of the total unsecured and judgment debt of the New York and Erie Railroad Company, with interest thereon as provided by the contract referred to in said acts, and by the provision of the said act, passed April 2d, 1861, when ascertained pursuant to the provisions of said act.'

The fifth article of the agreement was as follows:

'Such of us as are holders of the convertible sinking fund and other unsecured bonds of said company hereby agree to exchange our respective bonds for preferred stock of like amount with the principal of our bonds, with coupons now overdue, and for two years in advance added, and to deposit our bonds with said trustees to be so exchanged, receiving therefor receipts. Such preferred stock is to be entitled to preferred dividends out of the net earnings (if earned in the current year, but not otherwise), not to exceed 7 ''per cent. in any one year, payable semi-annually, after payment of mortgage interest and delayed coupons in full''.'

The act of April 2d, 1861, in its fourth section, thus enacted:

'SECTION 4. Said preferred stock shall be entitled to preferred dividends out of the net earnings of said road if earned in the current year, but not otherwise, not to exceed seven per cent. in any one year, payable semi-annually, after payment of mortgage interest and delayed coupons in full. And the holders thereof may vote personally or by proxy at all meetings of the corporation, in the same manner as the holders of common stock, but not otherwise.'

In virtue of these arrangements, one St. John became the holder of three hundred shares of the preferred stock.

After the issuing of the preferred stock the new company took leases of several additional roads, some of which proved profitable and others not so; and borrowed 1,000,000, for which it gave sterling bonds bearing interest at the rate of six per cent. per annum, payable in gold. The money was borrowed for the repair and equipment of the roads of the company, and was expended accordingly.

The company paid the 'delayed coupons,' and a dividend of five per cent. on all the preferred stock for the year 1863, and seven per cent. annually thereafter until the year 1868; but after that time paid nothing upon that stock. On the contrary, it paid, in preference, the rents on the leases, the new as well as the old, and the interest on 1,000,000 sterling loan, as well as on the old secured $20,000,000.

The net earnings of the company during the year 1868, after deducting the interest paid on the mortgage debts existing when the preferred stock was issued, were so inconsiderable that payment of all the rents and of interest on the sterling bonds absorbed more than all of them. If no rents and no interest upon the sterling bonds had been paid during that year, there would have been more than enough of the net earnings left to pay the dividends claimed by the complainant. If no interest had been paid on the sterling bonds, and no rents under the leases made since the preferred stock was issued, there would have been enough remaining to have paid a small part of the dividends; but no part of such dividends could have been paid without leaving unpaid some part of the interest upon the sterling bonds, and of the rents under the leases made since the preferred stock was issued.

To explain the matter by figures—

The rents payable for the old leases, assumed in 1862,$372,000

""      " new leases made after 1862,   376,000

Interest, &c., payable on the £1,000,000 sterling

gold bonds, 388,500

- $1,136,500

The net earnings for 1868, of the main road and of all

the rented roads, after deducting interest

($1,286,000) on the old, that is to say the

secured bonds, was    $680,000

The preferred stock, both in 1862 and 1869, was about      $8,536,000.

In the keeping of the accounts of the company, the leased roads were treated as part of the whole road. No separate accounts of each were kept. Coal traffic, however, passing over one of them, taken after 1862, was stated to be very profitable.

In this state of things St. John filed in 1869 a bill in the court below against the company, asserting that he was entitled to have full dividends paid to him before any part of the net earnings were applied in payment of the interest on the sterling bonds and the rents under the leases of roads after 1862 to the new corporation. His position was that his rights were to be determined by the state of things which existed when his stock was issued, and that they were not affected by the leases taken and the bonds issued by the company afterwards.

The company on the other hand insisted that this interest and the rents of all the leases were necessarily to be first fully paid.

The court below was of the company's view, and dismissed the bill. St. John took this appeal.

Mr. D. B. Eaton, for the appellant:

I. Both the circumstances surrounding the parties when the contract was made and the language of the contract itself support the view which we take.

1. As to surrounding circumstances. The now preferred stockholders were, prior to the contract, creditors; and, to say nothing of their right to attack mortgagees, they could get judgments on their bonds, which would secure to them payment immediately after payment of what was due on the mortgages, and take precedence of all future obligations to pay rent on new roads or interest on new loans. With the right to get judgments on their bonds, and so to come in immediately after the mortgagees, it is unreasonable to suppose that they meant to open a measureless space between themselves and the mortgagees by giving the company power not only to create an unlimited number of leases, but power also to create enormous amounts of debt; to let in, prior to themselves, other unsecured bond creditors and the lessors of new roads leased-both to an indefinite amount-and to put in those persons-strangers-instead of themselves, next to the mortgagees; to expose themselves, in short, not only to enterprises untried, but to obligations unlimited. It is to suppose more according to what these bond creditors would have naturally done, if we suppose that in giving up the valuable right which they did give up, they meant to secure for themselves a certain and abiding position next to the then existing mortgagees upon the net earnings of the company well defined; to get a right to a dividend from specific net earnings from specific property next after the payment of specific mortgage interests, and that while they deprived themselves of the power of seizing the road and everything belonging to it on execution, and gave up the chance of getting the principal of their debt, they did not, as creditors, waive their then existing right of priority to interest. The state of the road, its income and outgoes, were before them; and on the prospects thus presented they could act intelligently. But on the view taken by the opposite side, they were out at sea, and dashing ahead without chart or compass, in waters where there were no soundings, and in a fog where they could discern nothing before them.

2. The language of the contract conforms with the probabilities indicated by surrounding circumstances. Had the company's now views been those of the parties to the contract, it would have been sufficient to have said that the holders of the unsecured bonds should have a preferred stock. That, of itself, would, in law and common understanding, mean a stock entitled to a preferred dividend. Or if the parties desired to be pleonastically certain, they might have added that the holders of 'such preferred stock should be entitled to preferred dividends, each year, if earned.' But the language is very different. 'Preferred stockholders' are to have 'preferred dividends' out of 'net earnings,' after payment of 'mortgage-interest,' not 'before dividends on common stock.'

The reading of the other side assumes that the makers of the agreement thought that, except for language to the contrary, a preferred dividend would be payable before mortgage-interest; an assumption impossible to make, conceding to the persons who drew the contract any knowledge of the law at all.

The fact that the existing security may be called 'stock,' and that its holders may vote with the common stockholders is unimportant. The security, however, is not called stock, but is called preferred stock, and its holders are preferred stockholders. The only question is, to whom and to what are they preferred? Suppose that the contract declared in terms that what the preferred stockholders were to receive should be paid in preference to rent on new leases, or interest on new debts? How then? Would the calling that on which they are to receive a payment preferred stock impair their rights? Plainly not. Indeed, are not debt and stock often used as convertible terms? Do we not speak continually of stocks of the States, and of the United States, meaning debts due by them respectively? Certainly we do. Indeed this very court does so. In the Bank Tax Case, Nelson, J., delivering its unanimous opinion, speaking of the New York Banking laws says:

title: St. John v. Erie Railway Company


text: Talk:St. John v. Erie Railway Company

title: Talk:St. John v. Erie Railway Company