text:
Pennywit v. Eaton on Merits (82 U.S. 382)

ERROR to the Supreme Court of Arkansas; the case being this:

On the 3d day of January, 1862, during the late rebellion, the Fourth District Court of New Orleans (then held by a judge appointed by a military governor of Louisiana) issued a writ of attachment against the steamer "Thirty-fifth Parallel," of which one Pennywit and certain other persons were owners; each owning a part. These owners had given a promissory note at New Orleans, on the 8th day of October, 1861, for $6,795.71, to Eaton & Betterton. Bond with sureties was given, and the attachment was released. Judgment was subsequently rendered against the defendants personally for the amount of the note with interest. Suit was instituted upon this judgment against Pennywit, in a court of Pulaski County, in Arkansas. The defence was that at the time of the original suit, Pennywit was not a citizen of Louisiana, and had not been served with process, but that he was a citizen of Arkansas, then domiciled there, and had ever since remained such. The judgment of the Pulaski County Court was for the defendant, and on appeal taken by the plaintiffs, the judgment was reversed in the Supreme Court of the State. In the meantime Pennywit died, and the suit was revived against his executors, and judgment was rendered against them in pursuance of the mandate of the Supreme Court. This latter judgment was affirmed in the Supreme Court, and the case was brought by writ of error to this court.

Mr. A. H. Garland, for the plaintiffs in error:

1. The case originated upon what purported to be a judgment, rendered in a New Orleans court, by attaching a steamboat. The suit in that court was not an attachment against [p383] the interest or property of Pennywit in the steamboat, but was a proceeding in rem and directly against the boat itself. No such proceeding could be valid except when the process issued from an admiralty court of the United States. The court could not by its process thus seize upon the boat.

2. The judge who presided in the court that pretended to render judgment was appointed by the military authority then holding the territory of Louisiana, and his commission was issued by that authority. Neither the military commander nor the military governor of Louisiana had any such power, and the appointment in this case was a nullity. If, as this court has decided, in Texas v. White, the seceding States were still States of the Union, then it is as true, no military appointments of judges for Louisiana, one of those seceding States, can be upheld. If it be held, however, that Louisiana, being then in war against the General Government, and the forces of the latter having had possession of her territory, a government there by those forces was a necessity, that may be admitted, so far as the necessities of military occupation were concerned, and no further.' When this court said, in The Grapeshot,' that a court organized by the President of the United States in Louisiana, during the occupation by the Federal troops, was a lawful court, it did not state or intimate that any military commander or governor there could organize a court and appoint judges. How does the President himself get the authority? Obviously as commander-in-chief of the army, under the Constitution of the United States. When it is given to him as such, it is given to no one else. It is not shown that Mr. Lincoln, the then President, attempted to delegate his authority to his subordinates in Louisiana; and if he had it would not help the matter. A delegated authority cannot be delegated.

Mr. W. M. Rose, contra.

The CHIEF JUSTICE delivered the opinion of the court.


text: Talk:Pennywit v. Eaton on Merits (82 U.S. 382)

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


text:
Pennywit v. Eaton on Merits (82 U.S. 382)/Opinion of the Court

The CHIEF JUSTICE delivered the opinion of the court.

[p384] Two questions are presented, both of which have been adjudicated. The first relates to the proceeding of the court of Louisiana, by which the original judgment was rendered. It is claimed that this was a proceeding in admiralty. It was, in fact, a proceeding against the persons of the defendants, instituted by attachment. Such a suit, we have held, is not proceeding in admiralty.

The second question relates to the validity of the appointment of the judge who presided in the court of the Fourth District of New Orleans. His commission came from the military governor, who was appointed by the President during the late war. We have already decided that such appointments were within the power of such a governor.

There can have been no good ground for the writ of error under the former adjudications of this court, and there is no attempt to question these adjudications. We are obliged, therefore, to regard this writ of error as prosecuted for delay.

The judgment of the Supreme Court of Arkansas must be

A, ..


text: Talk:Pennywit v. Eaton on Merits (82 U.S. 382)/Opinion of the Court


text:
Ex parte Roberts (82 U.S. 384)

ON petition of M. O. Roberts for a writ of mandamus to the Court of Claims to require that court to hear, entertain, and decide a certain motion made there by him for a new trial, and also to correct the records of the court in certain particulars set forth in the petition, the main question arising on the motion being whether the allowance of an appeal to this court by the Court of Claims, absolutely and of itself removes a cause from its jurisdiction, so that no order revoking such allowance can be made.

Messrs. T. Wilson and E. N. Dickerson, in support of the motion; Mr. C. H. Hill, Assistant Attorney-General, contra.

The CHIEF JUSTICE stated the case and delivered the opinion of the court.

title: Ex parte Roberts (82 U.S. 384)


text: Talk:Ex parte Roberts (82 U.S. 384)

title: Talk:Ex parte Roberts (82 U.S. 384)


text:
Ex parte Roberts (82 U.S. 384)/Opinion of the Court

The act of Congress, 3d March, 1863, authorizes appeals from the Court of Claims to this court under such regulations as this court may direct, provided such appeals be taken within ninety days after such judgment or decree.

By our third rule, regulating these appeals, we directed that this limitation of ninety days should 'cease to run from the time of the application for the appeal.' In other words, the appeal was taken, in the sense of the act, when the defeated party in the Court of Claims signified, by his motion for the allowance of an appeal, his desire to take one. But, by the same rule, we declared that an allowance by the court or the Chief Justice in vacation was essential to the perfecting of an appeal; so that there might be, between the motion for the appeal and its allowance, an interval of time, greater or less as might be determined by the convenience of counsel, subject to the discretion of the court.

The judgment in the case before us was rendered on the 27th of February, 1871. On the 16th of May, a motion for new trial was made, and, on the 22d of the same month, there was filed a motion for the allowance of an appeal. This motion was in time, and, unless there be some rule of the Court of Claims to the contrary, we perceive no objection to hearing the motion for new trial at any time after it was made, or, if that should be refused, to the subsequent allowance of the appeal. It appears, however, that the attorney for the petitioners, apprehending some prejudice to his motion for new trial from the motion for an appeal, entered into a stipulation with the Assistant Attorney-General, representing the United States, which was filed with the motion for an appeal, that the latter motion should not injuriously affect the former, or prevent a full hearing and decision upon the merits. Both motions were thereupon continued. Subsequently, while both were pending, one of the counsel for the plaintiffs, not the attorney of record, and without the assent or knowledge of the attorneys of record, moved the court, on the 2d day of May, 1872, for the allowance of an appeal as prayed by the motion of the 22d of May, 1871, and the appeal was allowed. As soon thereafter as the motion could be made, the same counsel moved for and obtained an order, May 8th, 1872, revoking this allowance. Afterwards, the motion for new trial coming on to be heard, on the 22d November, the court refused to entertain it, on the ground that an appeal had been allowed on the 2d May, 1872, and that, the cause having been thus removed from its jurisdiction, the subsequent order, revoking that allowance, was a nullity. The attorney for the petitioners then moved the court to strike out the allowance of appeal, on the 2d of May, 1872, but the court refused to entertain that motion.

The question whether the court erred is now before us.

We are clearly of opinion that the Court of Claims had power to hear and ought to have heard and determined both motions, and that its order of revocation, made on the 8th of May, 1872, was within its jurisdiction.

That it ought to hear and decide the motion for new trial is obvious; for, when that motion was called up on the 22d of November, 1872, the order revoking the allowance of appeal stood itself unrevoked. A new order was necessary to get rid of its effect. As long as it remained on the record, no question could be made of its operation.

But was it a nullity in fact?

It cannot be denied that the order allowing the appeal was improvidently made. It was moved for without authority, or, if with authority, under a total misapprehension of fact and in disregard of the stipulation entered into by the attorneys in the cause. Its effect was to destroy the previous motion for a new trial, contrary to the express terms of the agreement. It had hardly been made when the counsel who had inadvertently moved for it, moved for its revocation, and the motion was granted. We do not doubt the power or the propriety of that action. The whole record was still in the possession of the Court of Claims; and the stipulation, showing that the motion for an allowance of the appeal could not properly be disposed of before the motion for new trial had been heard and determined, was a part of that record.

We shall, therefore, award a mandamus, requiring the Court of Claims to hear, entertain, and decide the motion for new trial, and also the motion to correct the records of that court, as set forth in the motion to this court, made in behalf of the petitioners.

AWARD ACCORDINGLY.


text: Talk:Ex parte Roberts (82 U.S. 384)/Opinion of the Court


text: Moses v. The Mayor

title: Moses v. The Mayor


text: Talk:Moses v. The Mayor

title: Talk:Moses v. The Mayor


text:
Moses v. The Mayor/Opinion of the Court

ON motion of Mr. P. Phillips, to dismiss for want of juris diction; the case being thus:

Moses and another had filed their bill in a State court of Alabama, asserting that a law of that State authorized them, on payment of a certain sum, to establish a lottery; that they had paid the sum and established a lottery accordingly. They now complained that they had been several times arrested by the mayor's police, charged with gambling, and had been thus obstructed in the pursuit of their business. The bill then prayed an injunction to restrain the mayor, &c., from interfering in their 'carrying on the scheme of the roulette table and ball, or in the use of the scheme of the revolving oblong box and balls on the principle of the game called keno,' &c., &c. The chancellor granted the injunction as prayed for. The answer of the mayor denied among other things that the complainants had fulfilled the conditions of the act under which they claimed the right of lottery, and asserted that under pretext of its authority they were carrying on a corrupting system of gambling, which it was admitted the mayor was determined to put down. It insisted that after a default of payment as required by the act, while it was still due and before it was paid, the legislature repealed the said act under which the complainants claimed this right to carry on the lottery or 'system of gambling' described in the bill; and further, that the mode used in conducting this business was unauthorized by the act.

Upon the coming in of the answer a motion was made to dissolve the preliminary injunction, but this was denied. An appeal was taken from this order refusing to dissolve to the Supreme Court of the State, and the order of the chancery court was reversed and the said injunction dissolved. From this decree Moses and the other took an appeal to this court, under the assumption that the case came within the first paragraph of the 25th section of the Judiciary Act of 1789 (quoted supra, p. 3), or the similar section of the act of 1867; for that the complainants having paid the sum required by the act authorizing the lottery had 'a contract' with the State, and that the subsequent act of the State repealing the former one impaired the obligation of that contract.

1. There is no Federal question.

2. If there be, there is no final judgment.

As to the first ground. The pretensions of the complainants are under a State act, and their complaint is that certain trespassers were interfering with their rights under it. The defence is that the rights insisted on were not warranted by the true construction of that act, that its conditions had not been complied with, and that while the default existed the legislature had repealed it.

The decision of the chancellor extends only to a refusal to dissolve the preliminary injunction. He decides no question of Federal jurisdiction.

On this refusal to dissolve, the case is taken to the Supreme Court, where that refusal is overruled and the injunction dissolved. There is here no Federal question decided.

Independent of this is the second ground, that there is no final judgment. The dissolution of the injunction still left the bill pending to be disposed of on its merits.

The judgment of the court is particularly invoked on the first ground for dismissal, as it would tend to bring this litigation to a speedier end.

Messrs. J. A. Elmore, S. F. Rice, and J. T. Morgan, contra:

In Manaway v. The State, #fn-s-s the Supreme Court of Alabama held that the provisions of this law, when complied with by Moses and his partner, conferred on them the rights of a contract.

If this is so, the contract is protected by the Constitution of the United States, and this court cannot be ousted of its appellate jurisdiction by a decision of the highest court of the State that there was no contract, which was what was decided when the decree of the court of chancery giving an injunction was reversed. Such a rule would exclude this court from all appellate power in all cases of contract, if the State courts should differ with it on the fact as to whether a contract existed, and would place it in the power of the State courts to shelter their decisions against review, and enable them, by the selection of the grounds of decision, to deny to a person a constitutional right, and also to admeasure and restrict the appellate power of this court. In such cases the appellate power of the Supreme Court rests, in a measure, on the nature of the question in the case, arising on the pleadings and proofs, and the State court cannot shut the question out of the case, and exclude it from the cognizance of the Supreme Court of the United States by ignoring it, or pretermitting all notice of it, or even by denying its existence.

The motion to dismiss is rested upon two grounds: First, that none of the questions specified in the Judiciary Act of 1867 were raised in the Supreme Court of Alabama; second, that there was no final judgment.

As we are clearly of opinion that we have no jurisdiction of the case for the second reason it is unnecessary to consider the first. Obviously, there was no final decree. The only decree rendered in the Supreme Court was that the injunction of the court below be dissolved. That decree was in no sense final. It left the whole case to be disposed of upon its merits. This has been frequently decided.

WRIT DISMISSED.

title: Moses v. The Mayor/Opinion of the Court


text: Talk:Moses v. The Mayor/Opinion of the Court


text:
Davenport City v. Dows

On motion to advance on the docket an appeal from the Circuit Court for the District of Iowa, and to assign it specially for hearing. The case was thus:

Prior to June 30th, 1870, the order of hearing causes here was regulated by rule. Criminal cases were advanced, by leave of court, on motion of either party. Revenue cases and cases in which the United States are concerned, which also involve or affect some matter of general public interest, were advanced, by leave of court, on motion of the Attorney-General. All other cases were required to be heard in their regular order, unless special and peculiar circumstances were shown to the court. An act of Congress of the date just named, made it the duty of the court to give to causes wherein a State was a party or where the execution of the 'revenue laws of a State' is enjoined or suspended by judicial order, preference and priority over all other civil causes; and gave to the State, or the party claiming under the laws of the State, the execution of whose revenue laws is enjoined or suspended, the right to have such cause heard at any time after docketing in preference to any other civil cause between private parties.

The appeal, which it was now moved to advance, was from a decree on a bill in the court below, filed by one Dows, a stockholder in a railroad company, whose road passed through the city of Davenport, to enjoin the collection of a tax levied by the city on the property of the company situated within it. The bill was based on the alleged non-liability of the company to such taxation. The decree below awarded a perpetual injunction, from which the city had taken this appeal.

The charter of the city authorized it to levy and collect taxes on 'all taxable property, real, personal, and mixed, within the city.'

Mr. J. N. Rogers, in support of the motion:

The case is within both the letter and the spirit of the act of June 30th, 1870, as to advancing causes. The phrase, 'revenue laws of a State,' includes any State law authorizing taxation; whether for the benefit of the State at large, a county or other municipal corporation. The city of Davenport in laying taxes, exercises the taxing power of the State of Iowa, delegated to it for certain purposes. And it claims in this suit under the law of the State.

It is important to the city to have a speedy determination in this case, as the decree appealed from is of course used to defeat the collection not only of the particular tax directly in controversy in the case, but of subsequent taxes on the same property.

Mr. T. F. Withrow, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: Davenport City v. Dows


text: Talk:Davenport City v. Dows

title: Talk:Davenport City v. Dows


text:
Davenport City v. Dows/Opinion of the Court

The question in this case is, whether the laws for collection of taxes imposed by the city of Davenport are revenue laws of the State of Iowa.

We do not think that the ordinances of municipal corporations levying taxes can be classed as revenue laws of a State. Congress seems to have intended to give to the State the right to preference in hearing when itself a party to a cause pending in this court, and a like preference when the execution of the revenue laws of a State is enjoined or suspended, to any party claiming under such laws. This preference is given, plainly enough, because of the presumed importance of such cases to the administration and internal welfare of the States, and because of their dignity as equal members of the Union. The reasons for preference do not apply to municipal corporations, more than to railroad and many other corporations.

Nothing is shown to us which requires the advancement of the cause on account of special and peculiar circumstances.

MOTION DENIED.


text: Talk:Davenport City v. Dows/Opinion of the Court


text:
Page:Dictionary of National Biography volume 59.djvu/37

 1327. He received a commission of oyer and terminer as late as 28 March 1330, but died before 26 June 1331 (Pat. Rolls, pp. 558, 146).

[Authorities cited in text; Abbr. Rot. Orig. pp. 50, 52; Foss's Judges of England.]

WALERAND, ROBERT (d. 1273), judge, was the son of William Walerand and Isabella, eldest daughter and coheiress of Hugh of Kilpeck (Excerpta e Rot. Fin. ii. 252; Calendarium Genealogicum, p. 770). The family claimed descent from Walerand the Huntsman of Domesday Book (, Modern Wiltshire, ‘Hundred of Cawden,’ iii. 24). Robert's brother John, rector of Clent in Worcestershire, was in 1265 made seneschal and given joint custody of the Tower of London. His sister Alice was mother of Alan Plugenet [q. v.]; and another sister, also named Alice, was abbess of Romsey.

Walerand was throughout Henry III's reign one of the king's ‘familiares’ (Chron. Edw. I and Edw. II, i. 68;, Chron. de Bello, p. 118, Camden Soc.). Among the knights of the royal household he stands in the same position as his friend John Mansel [q. v.] among the clerks. In 1246 he received the custody of the Marshall estates, and in 1247 of those of John de Munchanes (Excerpta e Rot. Fin. i. 458, ii. 14). In Easter 1246 he was appointed sheriff of Gloucestershire (List of Sheriffs to 1831, p. 49;, Baronage, i. 670). In 1250 the castles of Carmarthen and Cardigan were granted to him, together with the lands of Meilgwn ap Meilgwn and the governorship of Lundy (Excerpta e Rot. Fin. ii. 87; and, Rôles Gascons, vol. i. No. 2388). From June 1251 till August 1258 he was a regular justiciar (Excerpta e Rot. Fin. ii. 107–286). As early as 1252 he is described as seneschal of Gascony (Royal Letters, Henry III, ii. 95), and in 1253 he accompanied Henry III thither, sailing on 6 Aug. 1253 from Portsmouth and reaching Bordeaux on 15 Aug. Walerand was present at the siege of Bénauges (Rôles Gascons, vol. i. No. 4222). The affairs of Bergerac seem to have been especially confided to him (ib. Nos. 3773, 4301), and he was one of the deputation sent by Henry III to the men of Gensac on the death of Elie Rudel, lord of Bergerac and Gensac (ib. No. 4301). Throughout the Gascon campaign Walerand steadily rose in Henry's favour. He was one of the most important members of the king's council in Gascony.

On Henry accepting for his second son Edmund the crown of Sicily from Innocent IV and Alexander IV, Walerand was in 1255 associated with Peter of Aigueblanche [q. v.] as king's envoy to carry out the negotiations with the pope (Cal. of Papal Registers, Papal Letters, i. 312). Walerand was an accomplice of Peter's trick of persuading the prelates to entrust them with blank charters, which they filled up at Rome, and so compelled the English church to pay nine thousand marks to certain firms of Sienese and Florentine bankers who had advanced money to Alexander on Henry's account (‘Ann. Osney’ in Annales Monastici, iv. 109, 110;, Chron. p. 203; , Hist. Angl. p. 135; , Chron. Majora, v. 511). At the parliament of Westminster on 13 Oct. 1255 Richard of Cornwall bitterly rebuked the bishop of Hereford and Walerand, because they had ‘so wickedly urged the king to subvert the kingdom’ (, Chron. Majora, v. 521).

Walerand now resumed his work as judge. In 1256 he was the chief of the justices itinerant at Winchester (‘Ann. Winchester’ in Ann. Monastici, ii. 96). He was one of a commission of three appointed to investigate the crimes of William de l'Isle, sheriff of Northampton, in the famous case of 1256 (, Chron. Majora, v. 577–80). On 12 June 1256 Walerand was associated with Richard, earl of Gloucester, in an embassy to the princes of Germany (Fœdera, i. 342). About this time he was entrusted with the custody of St. Briavel's Castle and manor (, Baronage, i. 670), and a little later (1256–1257) he was made steward of all forests south of the Trent and governor of Rockingham Castle (ib.) On 20 Feb. 1257 Simon de Montfort and Robert Walerand were empowered to negotiate a peace between France and England (Royal Letters, Henry III, ii. 121;, Chron. Majora, v. 649, 650, 659).

At the beginning of the troubles between king and barons in 1258 Walerand, though supporting the king, took up a moderate attitude. He witnessed on 2 May the king's consent to a project of reform (Select Charters, p. 381; Fœdera, 370, 371). He was so far trusted by the barons that he was appointed warden of Salisbury Castle under the provisions of Oxford (ib. p. 393). Other preferments followed, some of which at least must have been given with the consent of the fifteen. In 1259 he became warden of Bristol Castle (, i. 670), while a little later he was again created warden of St. Briavel's Castle, and on 9 July 1261 made sheriff of Kent, an office he held till 23 Sept. 1262,


text: Hall v. Jordan (82 U.S. 393)

title: Hall v. Jordan (82 U.S. 393)


text: Talk:Hall v. Jordan (82 U.S. 393)

title: Talk:Hall v. Jordan (82 U.S. 393)


text:
Hall v. Jordan (82 U.S. 393)/Opinion of the Court

ON motion to dismiss for want of jurisdiction; the case being this:

Jordan, on the 1st November, 1866, sold a tract of land to Hall and Conley; they paying him $6500 in gold and giving him their obligation to pay him on the 25th December, 1867, 'an amount in the legal currency of the United States sufficient to purchase $6890 of the present gold coin of the United States.' Jordan made them a deed accordingly, in which, however, the consideration was stated to be 'thirteen thousand dollars' to the grantor then in hand paid, and the receipt of which the deed acknowledged.

An act of Congress of June 30th, 1864, enacts that on deeds of land there shall be a stamp of $1 for each $1000 of consideration-money, and fifty cents for every fraction of the sum last named, and that no deed not properly stamped shall be received in evidence. It makes provision for the rectification of unintentional error on the subject.

The stamp on this deed was one of $13. The amount sufficient to purchase $6890 of the then gold coin of the United States not being paid to Jordan on the 25th of December, 1867 (gold coin being then about 32 per cent. above currency), he filed a bill in one of the State courts of Tennessee setting forth the fact of his sale, and appending a copy of the deed with the $13 stamp, alleging that about $8000 in currency value was still due and unpaid, praying that his lien as vendor against the land be enforced, an account be taken, and the land sold. The defendant set up, among other defences, that Jordan was seeking to recover more than the amount of $13,000 and interest thereon, the original purchase-money, and more than the amount covered by the revenue stamps attached to the deed; and that if he was allowed to do so, the deed executed would be absolutely null and void, and convey no title to them, by reason of its being insufficiently stamped. And they prayed that if he was allowed to collect more than $13,000 in all, he should be compelled to execute a deed, sufficiently stamped to be valid and binding.

The court ordered the lien to be enforced, and that the vendor recover $8741 (an amount reported due by a master), and that sale should be in default of payment. The Supreme Court of the State affirmed this decree, and Hall and Conley appealed to this court under the assumption that they had set up a right under an act of Congress, and that it had been decided against; a state of things when a power of review by this court is given by the third paragraph of the Judiciary Act, quoted supra, p. 3.

Mr. F. P. Stanton, in support of the motion:

The question of stamp does not enter into the case. The suit was on the note, and not to set up and enforce the deed. The consideration expressed on the deed was $13,000, and the stamp was a proper one for that consideration. It was right prim a facie and sufficient to make the deed evidence.

The rule of law required vendees to pay for the stamps. They cannot hold the bond and refuse to pay the purchase-money on the pretence that an insufficient stamp was affixed. They can still, themselves, affix a proper stamp.

Moreover, fraudulent intent must be proved to destroy the validity of an unstamped instrument. But the vendees, plaintiffs in error, do not admit that they have been guilty of this fraud, nor do they charge it on Jordan, the vendor.

Mr. J. H. Embry and Reverdy Johnson, contra.

The defendant claimed that a deed offered in evidence was void, because the stamps upon it amounted only to $13 when they should have been $13.50. The court admitted the deed, although the act of Congress provided that no deed not properly stamped should be received in evidence. The decision was against the right claimed by the defendant under the act of Congress, and necessarily involved its construction.

However frivolous the objection, it undoubtedly raised a question under the 25th section of the Judiciary Act, the decision of which may be revised in this court upon a writ of error.

MOTION TO DISMISS DENIED.


text: Talk:Hall v. Jordan (82 U.S. 393)/Opinion of the Court


text:
Weird Tales/1945

January
Volume 38, Issue 3

Cover art by Margaret Brundage

 * Priestess of the Labyrinth • Edmond Hamilton • novelette
 * Ship-in-a-Bottle • P. Schuyler Miller • short story
 * The Inverness Cape • August Derleth • short story (© Copyright renewed: April Derleth & Walden Derleth (C); 11Apr72; R526896.)
 * Revolt of the Trees • Allison V. Harding • short story
 * The Green God's Ring [*Jules de Grandin] • Seabury Quinn • novelette
 * Thorne on the Threshold [*John Thunstone] • Manly Wade Wellman • short story
 * The Poems • Ray Bradbury • short story (© Copyright renewed: Ray Bradbury (A); 5Jun72; R530471.)
 * Tatiana • Harold Lawlor • short story
 * The Castle • Glenn Ward Dresbach • verse
 * Grave Robbers • Marvin Miller • verse
 * Superstitions and Taboos • Irwin J. Weill • article

March
Volume 38, Issue 4

Cover art by A.R. Tilburne

 * Lords of the Ghostlands [*Jules de Grandin] • Seabury Quinn • short story
 * In the Beginning • H. Bedford-Jones • short story
 * A Birthday Present for Tommy • Charles King • short story
 * The Peripatetic Corpse • Harold Lawlor • short story
 * The Shonokins [*John Thunstone] • Manly Wade Wellman • short story
 * Please Go 'Way and Let Me Sleep • Helen W. Kasson • short story
 * Alannah • August Derleth [as Stephen Grendon] • short story (© Copyright renewed: April Derleth & Walden Derleth (C); 11Apr72; R526897.)
 * The Tombstone • Ray Bradbury • short story (© Copyright renewed: Ray Bradbury (A); 6Jan72; R521090.)
 * Second Childhood • Jack Snow • short story
 * A Sip with Satan • Roger S. Vreeland • short story
 * Bewitched • Willard N. Marsh • verse
 * Quest Unhallowed • Page Cooper • verse
 * Wind Walks Not Alone • Dan Kelly • verse

May
Volume 38, Issue 5

Cover art by Pete Kuhlhoff

 * The Man Who Cried "Wolf!" • Robert Bloch • novelette (© Copyright renewed: Robert Bloch (A); 24Oct72; R538316.)
 * The Watchers • Ray Bradbury • short story (© Copyright renewed: Ray Bradbury (A); 7Mar72; R524404.)
 * The Shining Land [*Brian Cullen] • Edmond Hamilton • short story
 * The Legend of 228 • Harold Lawlor • short story
 * The Lost Day • August Derleth • short story (© Copyright renewed: April Derleth & Walden Derleth (C); 11Apr72; R526903.)
 * The Ultimate Paradox • Thorp McClusky • short story
 * The Music-Box from Hell • Emil Petaja • short story
 * Blood from a Stone [*John Thunstone] • Manly Wade Wellman • short story
 * Welcome Home! • Charles King • short story
 * The Witch • William DeLisle • verse

July
Volume 38, Issue 6

Cover art by Lee Brown Coye

 * The Watcher from the Sky [*Laban Shrewsbury] • August Derleth • novelette (© Copyright renewed: April Derleth & Walden Derleth (C); 24Oct72; R538316.)
 * Fog Country • Allison V. Harding • short story
 * The Dai Sword [*John Thunstone] • Manly Wade Wellman • short story
 * Devil Dog • Manly Banister • short story
 * One Way to Mars • Robert Bloch • short story (© Copyright renewed: Robert Bloch (A); 24Oct72; R538317)
 * The Inn Outside the World • Edmond Hamilton • short story
 * Carnaby's Fish • Carl Jacobi • short story
 * Quaking Providence • Reeder Gould • short story
 * The Dead Man • Ray Bradbury • short story (© Copyright renewed: Ray Bradbury (A); 12Jul72; R532743.)

September
Volume 39, Issue 1

Cover art by Pete Kuhlhoff

 * The Skull of the Marquis de Sade • Robert Bloch • short story (© Copyright renewed: Robert Bloch (A); 24Oct72; R538318.)
 * The God-Box • August Derleth • short story (© Copyright renewed: April Derleth & Walden Derleth (C); 18Apr73; R550747.)
 * Night of Impossible Shadows • Allison V. Harding • short story
 * Skeleton • Ray Bradbury • short story (© Copyright renewed: Ray Bradbury (A); 12Jul72; R532744.)
 * Take Back That Which Thou Gavest • Seabury Quinn • novelette
 * Votaress • Emil Petaja • short story
 * The Dark Brothers • Harold Lawlor • short story
 * Mr. Lupescu • Anthony Boucher • short story (© Copyright renewed: Phyllis White (W); 18Sep72; R536028.)
 * Outbound • Paul Ernst • short story
 * Remorse • Page Cooper • verse
 * The Sorcerer to His Love • Clark Ashton Smith • verse

November
Volume 39, Issue 2
 * Canadian reprint: Volume 38, Issue 3

Cover art by Lee Browne Coye

 * Lost Elysium [*Brian Cullen] • Edmond Hamilton • novelette
 * Mrs. Lannisfree • August Derleth • short story (© Copyright renewed: April Derleth & Walden Derleth (C); 18Apr73; R550749.)
 * The Cranberry Goblet • Harold Lawlor • short story
 * The Murderous Steam Shovel • Allison V. Harding • novelette
 * The Mad Dancers • Roger S. Vreeland • novelette
 * The Fangs of Tsan-Lo • Jim Kjelgaard • short story
 * Soul Proprietor • Robert Bloch • short story (© Copyright renewed: Robert Bloch (A); 24Oct72; R538320.)
 * The Mirror • Charles King • short story
 * Midnight Moon • Stanton A. Coblentz • verse
 * Superstitions and Taboos • Irwin J. Weill • article

title: Weird Tales/1945


text:
Montgomery v. United States (82 U.S. 395)

APPEAL from the Court of Claims; the case being thus:

R. H. Montgomery, a British subject domiciled in New Orleans before and during the war of the rebellion, after the capture of that city by the forces of the United States, in April, 1862, made a written agreement with J. W. Burbridge, a loyal person residing in that city, doing business as Burbridge & Co., and the factor and agent of one Leo Johnson, a planter, residing at that time in the parish of La Fourche, Louisiana, and within the enemy's lines; by which Burbridge & Co., as the agents of the said Johnson, declared that they had sold, and thereby did sell unto the said R. H. Montgomery, the following crop belonging to said Johnson, on his plantation, in the parish of La Fourche, near La Fourche Crossings, to wit: 605 hogsheads of sugar, 700 barrels of molasses, and 300 barrels of rum, at the following prices, to wit: For the sugar, at 4 1/2 cents per pound; for the molasses, at 20 cents per gallon; and for the rum, at 50 cents per gallon, the weight and quantity to be determined at the time and upon the delivery thereof in New Orleans."

Montgomery paid to Burbridge & Co. $5000, the receipt whereof was declared in the agreement to be thereby acknowledged, 'and accepted as so much on account of the first sugar, molasses, or rum delivered to him, said Montgomery, as aforestated; the balance to be paid by said Montgomery at each future delivery of said sugar, molasses, and rum.' The sum of $9000 was paid afterwards.

Burbridge, on the day of the contract, signed an order directing the overseer of Johnson's plantation 'to deliver to the order of the said R. H. Montgomery the entire crop of sugar, molasses, and rum contained in the sugar-house, purgeries, &c., on the said plantation, the same,' said the order, 'having been sold to him this day.'

All the sugars and produce mentioned by the agreement having, as already said, at the time when it was made, been within the rebel lines of occupation, no actual delivery or possession was taken of any part, nor any attempt made to deliver or take possession until the sugar was brought, some time afterwards, into the Federal lines by the forces of the United States.

On the 9th of September, 1862, General Butler then commanding at New Orleans, issued a proclamation whereby, among other things, all the property within the district known as the district of La Fourche, and including the plantation where the sugar in question then was, was sequestrated, and all sales and transfers of the same forbidden and declared to be invalid. A commission was appointed to take possession of the property and make an accurate inventory of the same, and to gather and collect all personal property covered by the proclamation and to dispose of it in the manner therein provided. Immediately after the issuing of this order the government forces took possession of Johnson's plantation and delivered to the commission about 500 hogsheads of sugar (being a portion of that embraced in the contract), which they sold; paying the net proceeds, amounting to $37,351, into the Treasury of the United States.

Burbridge & Co., for two years before May, 1862, had been the factors and agents of Johnson, and had made advances to him to enable him to secure his crops, and Johnson owed them for such advances, prior to December 9th, 1862, $131,000. Burbridge & Co., as a part of the original agreement made between them and Johnson, were to have a lien on, and were authorized to make sale of, the crop of sugars and produce on the plantation for the purpose of reimbursing themselves the amount of their advances. The sugars, &c., in question were of the crop of the year 1860 and 1861.

Montgomery now filed in the Court of Claims a claim for the proceeds of the sugar, under the Captured and Abandoned Property Act of March 12th, 1863, which enacts, among other things:

'That any person claiming to have been the owner of such abandoned and captured property, may at any time within two years bring his action. . . . And on proof, to the satisfaction of said court, of his ownership of said property, and of his right to the proceeds thereof, may recover,' &c.

The Court of Claims held that the appellant was not entitled to recover. They said, among other things:

'A careful examination of the agreement between Burbridge & Co. and the claimant (admitting the authority of Burbridge & Co. to make it), satisfies us that no ownership of the property vested in Montgomery. The transaction did not constitute a sale, but only an executory contract for a future sale and delivery. . . . Where a sale is agreed upon of goods, and anything remains to be done to ascertain the quantity or price, the property in such case does not vest in the buyer until this is done.'

The court also assumed, apparently, that property situated outside of the Federal lines, and within the rebel lines, was not a lawful subject-matter of sale, between parties such as these were. The court accordingly dismissed the petition, and Montgomery now brought the case here on appeal.

Mr. T. J. D. Fuller, for the appellant:

Had the Court of Claims in its observation about executory contracts said that 'where a sale is agreed upon of goods, and anything remains to be done BY THE VENDOR to ascertain the quantity or price, the property in such case, does not vest in the buyer until this is done;' it would have stated the law truly, but it omitted the words which we put in capitals; and because of this omission-this oversight, or failure to make a proper distinction, found in the authorities, it committed error.

Now, reading this contract in the light of authorities, and the order of delivery, there was nothing remaining to be done by the vendors.

As to the second point. The idea meant to be here presented by the Court of Claims is, of course, that the contract made a trading with the enemy in time of war. But Burbridge & Co. had a lien on the property far above all its value. They were in truth owners, though, speaking technically, we say that they had a power coupled with an interest in and over the produce of the plantation; and as factors had authority to sell the sugars to reimburse themselves for the advances previously made. But, as already said, being far in advance above the value of the crop, they were in truth owners of it; acting for themselves. They could be acting for nobody else. Johnson had no real interest in the crop. Their interest was supreme, for from it only were they likely to get their advances at all. Now, they were not enemies; contrariwise, they were subjects and friends. Reading the contract in the light of then existing facts, the expressions 'agent of Johnson,' 'the property of Johnson,' are merely words descriptive of the property sold, to identify it. Johnson was no party to the sale; his assent or dissent would not in anywise affect the interest of the parties to it.

Mr. G. H. Williams, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, contra.

Mr. Justice STRONG, delivered the opinion of the court.


text: Talk:Montgomery v. United States (82 U.S. 395)


text:
Montgomery v. United States (82 U.S. 395)/Opinion of the Court

Whether the contract under which the appellant claims to have become the owner of the sugar, molasses, and rum was so far executed that, without more, it would have passed the property, had it been legal, it is unnecessary to consider; for we are of opinion that, whether executed or executory, it was illegal and void. It was a clear case of trading with a public enemy. The subject of the contract was personal property within the Confederate lines. It was a crop at the time on the plantation of Leo Johnson, in the parish of La Fourche, near La Fourche Crossings. It belonged also to Johnson, who was then domiciled in the enemy's territory, and who was himself an enemy. This is expressly stated in the contract itself. The appellant's right, therefore, is founded upon an attempted purchase, during the war, from an enemy, of enemy's property, in direct violation not only of the laws which always prevail in a state of war, but also in violation of the acts of Congress. It is vain to contend that any right can be acquired under such a contract.

It is true the sale was negotiated by agents of Johnson, living outside of the enemy's territory, but it was not the less his act because it was done by those acting under his authority. Nothing is clearer, says President Woolsey, than that all commercial transactions of whatever kind (except ransom contracts), with the subjects, or in the territory of the enemy, whether direct or indirect, as through an agent or partner who is neutral, are illegal and void. This is not inconsistent with the doctrine that a resident in the territory of one belligerent may have in times of war an agent residing in the territory of the other belligerent, to whom his debtor may pay the debt, or deliver property in discharge of it. Such payments or deliveries involve no intercourse between enemies. The present case exhibits a transaction not wholly within enemy's territory, but a sale from an enemy to a friend. If that can be made through an agent, then the rule which prohibits commercial intercourse is a mere regulation of the mode of trade. It may be evaded by simply maintaining an agency in the enemy's territory. In this way every pound of cotton or of sugar might have been purchased by Northern traders from those engaged in the rebellion. Perhaps the rule is stated too broadly in Woolsey's Commentaries, and in many elementary books, but it is certain that 'every kind of trading or commercial dealing or intercourse, whether by transmission of money or of goods, or orders for the delivery of either between two countries (at war), directly or indirectly, or through the intervention of third persons or partnerships, or by contracts in any form looking to or involving such transmission,' are prohibited. The contract in this case contemplated the delivery of the sugar, molasses, and rum at New Orleans, then within the Federal lines. There, on its being weighed and measured, payment was to be made to Johnson's agents. If this be allowed, the enemy is is benefited and his property is protected from seizure or confiscation.

It has been argued that because Burbridge & Co., the agents, had a lien upon the property for advances made by them, and had also a power to sell for the repayment of their advances, the sale which was made ought not to be regarded as a sale by Johnson. Yet the only authority they had to sell at all, resulted either from express power given to them by the owner, or from the relation to him in which they then stood. They might have sold their lien, or the debt secured by it; and had they done so, the sale would have involved no trading with the enemy. But they undertook to sell Johnson's property, describing it as such in the instrument of sale, and describing themselves as Johnson's agents. Very clearly, in effect, the parties to the transaction were the appellant and a public enemy. For this reason the judgment is

AFFIRMED.


text: Talk:Montgomery v. United States (82 U.S. 395)/Opinion of the Court


text:
Railroad Company v. Gladmon

ERROR to the Supreme Court of the District of Columbia; the case being this:

One of the drivers of the Washington and Georgetown Railway Company-a company chartered by Congress to run cars through streets of the cities of Washington and Georgetown,-was, on a morning of April, 1868, driving a car through a populous portion of the latter place. Some person was standing beside him on the front platform of the car. Instead of looking at his horses and before him, he turned his face round and began to talk to this person; thus turning himself so as to look at a right angle to the course in which he was driving. Just as he turned his head, Oliver Gladmon, a child seven years old, attempted to run across the track, in front of the horses. Before he got across he turned to come back again. In some way which was not more particularly explained, before he got back he was severely injured by the horses or car. Hereupon his father, as next friend of the child, sued the company. The record showed no testimony but that of one witness, who mentioned the chief facts above stated, and testified 'that if the driver had not been looking at his companion he could have checked the horses in time to have prevented the accident.' At the close of this testimony, tending to show the negligence of the driver, the counsel of the railroad company asked the court to give the following instructions:

1. If the jury find from the evidence that the plaintiff's injuries resulted from his attempting to cross a street in front of an approaching car, driven by an agent of defendant's, the burden of proof is on the plaintiff to show affirmatively not only the want of ordinary care and caution on the part of the driver, but the exercise of due care and caution on his own part; and if the jury find from the evidence that the negligence or want of due care or caution of the plaintiff caused the accident, or even contributed to it, or that it could have been avoided by the exercise of due care on his part, then the plaintiff is not entitled to recover whether the driver of the car was guilty of negligence or not, but the jury must find for defendant.

2. If the jury find that the plaintiff negligently or rashly attempted to cross the street in front of the car, but his injuries resulted from his having accidentally slipped and fallen on or near the track when endeavoring to turn back when it was too late to stop the car, it is to be regarded as an inevitable accident, for the consequences of which the defendant is not responsible.

3. If the plaintiff's injuries resulted from his attempting to cross the street so suddenly that the driver could not stop the car in time to avoid a collision with him, he is not entitled to recover.

4. That the driver of the car had a right to suppose that the plaintiff, when duly warned, would desist from the attempt to cross the street immediately in front of the car, and if such due warning was given, and it not being heeded, it was then too late to avert the accident, though the driver made every effort to do so, the plaintiff is not entitled to recover.

The court (CARTER, C. J.) refused to give these instructions, and charged as follows:

title: Railroad Company v. Gladmon


text: Talk:Railroad Company v. Gladmon

title: Talk:Railroad Company v. Gladmon


text:
Railroad Company v. Gladmon/Opinion of the Court

[The care of the defendant is to be tested by the exercise of adult judgment in treating undeveloped judgment in childhood. The defendant, in his duty under the law, is to be held to the exercise of adult judgment and caution when brought to bear upon the security of childhood and undeveloped judgment, and as a convertible proposition the child is to be held to the measure of childhood judgment; and I will give you some of the reasons for this determination:]

This corporation, under the operation of its charter, the authority of the law of its existence, is permitted to occupy the common thoroughfares of this city. It is created to move in those thoroughfares with the machinery that it has adopted as a carrier.

[It is not contemplated by law, under the authority of their creation, that they occupy the thoroughfares of Washington and Georgetown, to the exclusion of an occupation, the right of the citizens of the cities to do so-an easement that belongs to all men, women, and children of all grades of intelligence and circumspection, from the lowest grade of description to the highest. The rule that I have laid down covers the whole compass of description-from childhood to manhood, from infant judgment to ripe judgment-and was determined by the court for the reason that the occupation of these streets is the common property of all in common and the regulation of the intercourse each with the other must have reference to and be qualified by that common right.]

I do not wish to be understood in advancing this rule, as saying that this corporation are compelled to work this road through the thoroughfares of the streets of the District, as admid a population of blind or deaf men. They are not obliged to furnish eyes that others may see, or ears that others may hear. The responsibility of the highway is not theirs alone. Every person who enters upon it, enters upon it under the obligation to exercise a certain judgment in the preservation of his or her own life.

[The degree of that accountability varies with the age and capacity of the individual, until you get to a point where the occupant of the highway is utterly disqualified from protecting him or herself for the want of discretion.]

At that point the liability to exercise discretion for him is to be found in another quarter than with the stranger. At that point the liability of the guardian attaches and not the liability of the defendant.

There is another asuggestion in explanation of this text of the law, as the court has given it, which it may not be improper to give at this time.

While the railroad, in working its cars through this city, is charged with caution, and strict caution, as far as their movement may affect adversely the rights of others, they are chargeable with no higher caution than can be exercised with the machinery which the law permits them to employ in performing the service of a common carrier in the District. This remark is made with reference to the character of a car, and the difficulty in bringing it to an instant pause. The car, to be of any service to the public, must be in motion, must move at intervals at least; and when in motion, its momentum requires time to bring it to a pause. There is nothing in the obligation of a circumspection resting upon this company that compels them to do what cannot be done. They have a right to the measure of time necessary to bring their car to a state of rest. There is no other rule by which these different interests of different citizens, and under different circumstances, can be regulated in the enjoyment of a common easement. They have the right to pass across, and the right to pass over the streets of the cities; and in estimating the proof for the plaintiff and the defendant in this case, it is your duty to look upon the relations of each to the other, and the rights of one citizen with another in a common enjoyment and a common right, and answer, yourselves, the question, Have these relative rights been offended in this case, as made manifest by the proof? If they have, trace the violation to the offender, and hold him accountable in the consequence of his violating the right.

[I am requested to say to you that if the defendant in this case was in the wrong, if the car of the defendant was moving with greater speed than good precaution and judgment would dictate, yet if you find from the testimony that the plaintiff, by his own act and in his own fault, superinduced the injury of which he now complains, that he may not recover.

That is the law, gentlemen. But in estimating that you will go back again to the foundation principle laid down in the government of the law of this case, and estimate the fault, the indiscretion, by the measure of the years of the plaintiff. You have got to adopt one of two rules here, and I have concluded it to be my duty to adopt the rule I have laid down; either to judge this child's conduct under the measure of his years, and the measure of his discretion, or pronounce that no action lies in behalf of a child, or demand of the child a measure of judgment that nature has not given to him, which would be a greater outrage upon good logic than to pronounce he had no remedy.

Now, if you find from the facts that this child interposed himself in the way of this car at a time when it could not be arrested, and under circumstances where he could not be seen under watchful, reasonably watchful, strictly watchful care on the part of the driver, where the car could not be brought to a pause early enough to save his body from injury, the defendant is not liable. If you find, on the contrary, that this child came upon the theatre of observation there at a time when the driver, attending to his duty, may have observed him, and observed him as an infant, with power to arrest his car to save him, you will hold this corporation responsible for the injury done to him; and it appears to me that the whole case lies pretty much there too.]

However, I do not wish to comment on the facts. That is your province. Take the case and dispose of it.

The defendant excepted to the parts of the charge above in [ ]. The jury found for the plaintiff $9000 and costs, and judgment being entered accordingly the case was brought here on excetion to the refusal to charge as requested, and to the charge as given.

Messrs. J. P. Bradley and J. P. Bradley, Jr., for the plaintiff in error; Messrs. R. T. Merrick and W. F. Mattingly, contra.

Mr. Justice HUNT delivered the opinion of the court.

Sufficient proof was given to establish the negligence of the driver of the car, and no point is raised on that branch of the case.

The alleged errors arise from refusals to give certain instructions upon the effect of the conduct of the child, and of the charge as actually made on that subject. The first prayer for instructions is stated in the record in the words following:

'If the jury find from the evidence that the plaintiff's injuries resulted from his attempting to cross a street in front of an approaching car, driven by an agent of defendants, the burden of proof is on the plaintiff to show affirmatively, not only the want of ordinary care and caution on the part of the driver, but the exercise of due care and caution on his own part; and if the jury find from the evidence that the negligence or want of due care or caution of the plaintiff caused the accident, or even contributed to it, or that it could have been avoided by the exercise of due care on his own part, then the plaintiff is not entitled to recover, whether the driver of the car was guilty of negligence or not, but the jury must find for defendant.'

As applied to adult parties, the first branch of this proposition is not correct. While it is true that the absence of reasonable care and caution, on the part of one seeking to recover for an injury so received, will prevent a recovery, it is not correct to say that it is incumbent upon him to prove such care and caution. The want of such care or contributory negligence, as it is termed, is a defence to be proved by the other side.

The plaintiff may establish the negligence of the defendant, his own injury in consequence thereof, and his case is made out. If there are circumstances which convict him of concurring negligence, the defendant must prove them, and thus defeat the action. Irrespective of statute law on the subject, the burden of proof on that point does not rest upon the plaintiff. In the case of Oldfield v. The New York and Harlem Railroad Company, Denio, J., says:

'I am of opinion that it is not a rule of law of universal application that the plaintiff must prove affirmatively that his own conduct, on the occasion of the injury, was cautious and prudent. The onus probandi, in this as in most other cases, depends upon the position of the affair as it stands upon the undisputed facts. Thus, if a carriage be driven furiously through a crowded throughfare, and a person is run over, he would not be obliged to prove that he was cautious and attentive, and he might recover, though there were no witnesses of his actual conduct. The natural instinct of self-preservation would stand in the place of positive evidence, and the dangerous tendency of the defendant's conduct would create so strong a probability that the injury happened through his fault that no other evidence would be required. . . . The culpability of the defendant must be affirmatively proved before the case can go to the jury, but the absence of any fault on the part of the plaintiff may be inferred from circumstances; and the disposition of men to take care of themselves and keep out of difficulty may properly be taken into consideration.'

The later cases in the New York Court of Appeals I think will show that the trials have almost uniformly proceeded upon the theory that the plaintiff is not bound to prove affirmatively that he was himself free from negligence, and this theory has been accepted as the true one. Generally, as here, the proof which shows the defendant's negligence, shows also the negligence or the caution of the plaintiff. The question of the burden of proof is, therefore, not usually presented with prominence. In some of the States it has been held that the plaintiff was bound to make affirmative proof of his freedom from negligence. In many cases it is so held by virtue of local statutes.

There is, however, another and very satisfactory reason for the refusal to comply with the prayer. The rule of law in regard to the negligence of an adult, and the rule in regard to that of an infant of tender years is quite different. By the adult there must be given that care and attention for his own protection that is ordinarily exercised by persons of intelligence and discretion. If he fails to give it, his injury is the result of his own folly, and cannot be visited upon another. Of an infant of tender years less discretion is required, and the degree depends upon his age and knowledge. Of a child of three years of age less caution would be required than of one of seven, and of a child of seven less than of one of twelve or fifteen. The caution required is according to the maturity and capacity of the child, and this is to be determined in each case by the circumstances of that case.

The rule laid down in the request under consideration entirely ignores this difference. Assuming that it would have been a sound rule if the plaintiff had been an adult, it is evident that the jury would not have been justified in applying it in this case. That 'due care and caution' required of plaintiffs generally, was not required of the plaintiff here. If it had been given as requested, the instruction would have been quite certain to mislead the jury to the prejudice of the plaintiff. It was properly refused.

The instruction asked for in the second prayer, and which the judge refused to give, was as follows: '2. If the jury find that the plaintiff negligently or rashly attempted to cross the street in front of the car, but his injuries resulted from his having accidentally slipped and fallen on or near and track when endeavoring to turn back when it was too late to stop the car, it is to be regarded as an inevitable accident, for the consequences of which the defendant is not responsible.'

The suggestions already made are applicable to this request. The circumstance that the plaintiff was an infant of tender years, and that a different rule was required in that case from the rule in the case of an adult, was excluded from the proposition. A charge in accordance with the prayer could not, therefore, have been properly made. The prayer also assumed as existing, facts of which no proof is found in the record. I do not find any evidence of the fact here assumed, that when the plaintiff slipped or fell, it was too late to stop the car. The evidence on that subject comes from the witness who testified in substance that if the driver had been attending to his duty he could have checked his horses in time. This witness gave the only evidence on the point. It is not allowable to assume as existing, facts not proved, and to ask a direction to the jury upon such assumption. This practice would tend to embarrass and mislead the jury.

The third and fourth prayers are of the same general character and do not require more particular consideration.

Exception is also taken to certain portions of the charge. The general scope and tendency of the charge is correct. The rule in regard to the liability of the defendant under the circumstances submitted to the jury is correctly given. The language is less simple, perhaps, than might have been desired, and detached sentences might be open to criticism, but upon the whole it is right, and the jury could not have failed to understand it correctly.

Some discussion was had upon the argument on the point of the degree of care and attention to be required of those having the charge and custody of an infant of tender years. This presents an interesting question, which, when it is properly before us, will receive the careful attention of the court. In the present case it does not appear to have been presented to the court below, and there is nothing in the evidence to justify this court in now considering it. Upon the case, as it comes before us, the judgment must be

AFFIRMED.


text: Talk:Railroad Company v. Gladmon/Opinion of the Court


text: Tiffany v. Lucas

title: Tiffany v. Lucas


text: Talk:Tiffany v. Lucas

title: Talk:Tiffany v. Lucas


text:
Tiffany v. Lucas/Opinion of the Court

APPEAL from the Circuit Court for the District of Missouri; the case being thus:

Lucas purchased in April, 1869, from Darby (then in debt) a piece of real estate in St. Louis: the deed being made on the 24th of that month. At a meeting of Darby's creditors, held on the 17th of June following, he was told by them that he must file his petition to be adjudged a bankrupt, or that he would be forced into bankruptcy. On that day he discontinued business, and on the 1st of July presented his petition praying to be adjudged a bankrupt, and on the 12th following was adjudged a bankrupt accordingly; one Tiffany being appointed his assignee. Tiffany soon afterwards filed a bill in the District Court for the District of Missouri, to avoid the sale to Lucas as made in contravention of the 35th section of the Bankrupt Act. That section is thus:

'If any person, being insolvent or in contemplation of insolvency or bankruptcy, within six months before the filing of the petition by or against him, makes any payment, sale, assignment, transfer, conveyance, or other disposition of his property to any person who then has reasonable cause to believe him to be insolvent, or to be acting in contemplation of insolvency, and that such payment, sale, assignment, transfer, or other conveyance is made with a view to prevent his property coming to his assignee in bankruptcy, or to prevent the same from being distributed under this act, or to defeat the object of, or in any way impair, hinder, or delay the operation and effect of, or evade any provision of this act, the sale, assignment, transfer, or conveyance shall be void. . . . And if such sale, assignment, transfer, or conveyance is not made in the usual and ordinary course of business of the debtor, the fact shall be prim a facie evidence of fraud.'

The question, of course, was whether the sale had been made under any of the circumstances mentioned in this section. The facts seemed to be these:

The property was confessedly valuable. It was a large lot, at the southwest corner of Olive and Fifth Streets, St. Louis, 75 feet front on Fifth Street by 127 deep, with three marble stores, five stories high, upon it; that it had cost near or quite $100,000 to build; the position being by some thought, from their judgment as to the course trade in St. Louis was likely to take, and of prospective values, to be the best in that growing city; and by a few regarded even as such for its present advantages, though the general judgment was that a neighboring corner-the corner of Olive and Fourth-was at that time a better situation than this. Whatever was its relative advantage, its positive value was attested to in many ways. Among them, by the fact that in the summer of 1868, Darby wanting to borrow $150,000 on mortgage of an insurance company in Philadelphia on this property, Lucas, who had long lived in St. Louis, was possessed of great wealth and was particularly conversant with the values of real estate, along with a certain Britton, president of the National Bank of the State of Missouri, also very conversant with values, gave him a certificate thus:

'Having been called upon by Mr. Darby to estimate and state the value of his property in the city of St. Louis, on the southwest corner of Olive and Fifth Streets [description], we state that we are well acquainted with it, and that we consider it well worth the sum of $300,000. We value the same accordingly at that sum.

'J. H. LUCAS.

'J. H. BRITTON.

'ST. LOUIS, September, 1868.'

Lucas in buying the property paid $50,000 in cash, and assumed to pay the mortgage of $150,000, which had five years from November, 1868, to run, and bore interest at 8 per cent. a year. The mortgage required the owner of the property so long as it remained unpaid to keep the stores insured to the extent of $100,000. After the sale to Lucas was completed, there were different persons who said to Darby that they could have found a man who would have given more; 'fellows,' said Darby, 'who came around and talked.' One of them made mention particularly of a certain Robert Campbell, a man of property, who he said would have given more. But Campbell had never offered more. Darby had in fact, in a private way, been trying unsuccessfully for some time to sell the property. Certain persons testified, on the other hand, that in their opinion Lucas had given as much as the property was worth, in the then state of prices for real estate at St. Louis, where anticipations prevailed, among several persons, of a prompt return to specie payments, an event which, if it should occur, the dealers in real estate supposed would cause a great fall in the values there of that kind of property. Assuming, as the fact seemed to be, that productive real estate in the best parts of St. Louis commonly yielded 6 p. c. on its cost, and that money was worth 8 p. c. (the rate paid on the mortgage of $150,000), the rental of this particular property during a year that Lucas held it, indicated that the price, so far as present income, and estimates divested of anticipations of future value were concerned, was not unfair. Thus—

The gross rental was, .................. $17,

Deduct interest on $200,000 at 8 p.c.,. $16,

Insurance, $100,000 at say 3/4 of 1 p.c.,.

Repairs, agency, care of the buildings, &c. (say),

--- 20,

Loss of annual income, compared with income ---

from $200,000 personally, at interest at 8 p.c.,   $2,

In fact the buildings, though very costly, had been injudiciously arranged. Adverting to the small income from the rents, witnesses who estimated the property at $300,000, and even $330,000, conceived that a 6 p. c. rental on that sum could soon be had, if about $10,000 were laid out in 'gutting' part of the buildings and changing the plan.

When Lucas purchased the property of Darby there was just coming due to the insurance company six months' interest ($6000) on the mortgage given by Darby. This, and also the State and county taxes for the current year, Darby promissed to pay. The former, he did pay; the latter, inasmuch as the collector did not come round until after he was bankrupt, when he was unable to pay, Lucas had to discharge.

The first movement in regard to the sale came from Darby, through one Hogeman. This Hogeman was cashier of the Boatman's Saving Bank, of which Lucas was a director-an 'ornamental director,' as he styled himself,-who 'did not by any means consider himself responsible for what was done, and who went there more for the sake of getting the news than anything else.' This same bank had been for a long time in the habit of discounting (when it was well indorsed) Darby's paper, and its cashier thus knew that Darby was always pressed for ready money. In this way, Hogeman stood in a sort of friendly relation to both the parties, and to both had apparently good feelings. Darby talked with Hogeman confidentially. 'I told him,' said he, 'that I wanted to sell my property and settle my debts and quit-off everything; and I asked him to sell it for me if he could, and do all that he could to sell it for me; and he promised to do it.' Hogeman then offered the property to Lucas, and urged him to make a proposition. Lucas after a certain time offered $50,000. Darby wanted him to assume the payment of the taxes, $2900, for the current year. This he refused to do. He would give $50,000 and assume nothing but payment of the mortgage of $150,000. Things remained a few days, when Hogeman advised Darby to accept the offer. He said he thought that more could not be got; that the sum offered would enable Darby 'to get out of debt, pay all up, square out, and relieve himself, and go on and sell out the residue of his real estate.' Darby accordingly accepted the offer. A few days after that the parties met. Darby prepared and executed a deed for the property; Lucas filled up and signed a check for $50,000; not retaining any part of this purchase-money to pay either the $6000 interest now payable on the mortgage or the $2900 taxes for the current year then partially due. Hogeman received $500 from Darby for his services.

Thus, in the transaction itself, there seemed nothing that condemned it. The matters which involved it in question were certain facts indicative of Darby's condition and intent, which it was supposed by his assignee and general creditors must have been known to Lucas, and, if known, showed that he purchased knowing that Darby contemplated bankruptcy.

On the one hand, Darby, who had settled himself in St. Louis many years ago as an exchange broker, doing banking business also, was testified to be 'a man of wonderful energy and capacity for business.' He had failed in the fiscal crisis of 1841-2, but 'worked through that dismal season, lost some of his property, but saved part and got soon on his feet again.' In the next fiscal crisis, which was A.D. 1857, 'he encountered enormous losses, went under for a while, put in the end came up and paid his debts with 10 p. c. interest;' so that in 1864 he was again afloat, and in 1867-8-9, a hopeful, active, and popular man of business-a broker and banker-on the full tide of money-making experiments, in various sorts of ways. He had some of the most valuable real estate in that large and growing city, including the property now in controversy and other valuable property in Main Street. He owned a lead mine also, in Missouri, from which in one year the yield was $33,000, and which would have been a source of income to him had it not been managed by fraudulent agents. His rents from his city property in inflated times, as ex. gr., prior to 1857, and in that year, amounted to between $40,000 and $50,000. His probity and honor were conceded. He had warm friends; among them Dr. Brotherton and Mr. Knox, the latter of whom had once been his partner, and knew him well; men of character and property both, and who had apparently such confidence in his capacity and resources that they indorsed his paper continually and for large sums, believing, as would seem, that though embarrassed he would bear himself up and in the end come out sound, so far at least as entire solvency was concerned. At the very time of his suspension he had depositors on his books to the extent of $170,000; among them Mr. Polk, a leading member of the bar at St. Louis, for $40,000, and Mr. Inge for $10,000. When Mr. Knox, who was a lawyer and gentleman of standing, was asked by the president of the Boatman's Savings Bank, which, as already and hereafter mentioned, was constantly discounting Darby's paper at rates of from 10 to 18 p. c., whether Darby was good, Mr. Knox replied that he was perfectly good, 'as good as anybody.' None of his paper ever got to protest, and he paid all his obligations as they came due. He appeared to have kept his efforts to raise money and all facts which might destroy his credit in a remarkable degree from the public generally; so that even persons in the walks of business seemed not much informed of the shifts to which he was driven. Mr. Britton, already named, president of a bank and an intimate acquaintance for years of Darby's, 'could not say' that he regarded him for two or three years before his failure in imminent danger of failing, and 'was a good deal surprised when he heard that he had failed.' He had, however, not gone now voluntarily into bankruptcy. On the contrary, though he had stopped payment and called his creditors together, he sought an extension; stating that with time he could pay all. It was one of his creditors, Mr. Polk, his largest depositor, who considered that he could not go on, and that the only safety of the creditors was an immediate winding up under the eye of a court of bankruptcy.

On the other hand, he seemed to be one of that class of persons-more or less known in all of the large cities of our country-who beginning with little or no capital, are yet doing from the outset a large business; always borrowing, or trying to borrow money; periodically failing, but never, as they consider, broken; or if broken in the end, broken only by other people, and by some vis major of commercial vicissitudes, for which, in their judgment, even the most prudent man is not responsible in the eye of discretion.

Thus the whole cash capital of Darby when after his failure in 1857 he set up the business of a banker in 1864, was $5000. For the rest he 'did business on deposits.' Though thus banking, and banking therefore in a way where credit was of supreme importance to him, his notes, continually prior to 1869, were in the hands of different street brokers-three or four at least-and often sold at from 1 to 1 1/2 per cent. a month. All his real estate was incumbered to the fullest extent to which he could incumber it; the mortgages on it generally overdue. He had been paying as high as 10 per cent. interest on deposits. All the money he had on deposits, both in St. Louis and New York, was $800. He had no stocks or bills receivable. For six months before his suspension he had been discounting his rents. For three or four years before he suspended he had lost about $25,000 a year in his business; for two or three years prior to 1869 he had paid about $40,000 a year in usury. At the time of his suspension he had $50,000 of accommodation paper out.

His cashier and bookkeeper from 1866 up to the time of his suspension was examined as a witness. His testimony gave a view of the interior conduct of the bank. The witness said in substance:

'I thought Mr. Darby was much embarrassed for two years before him failure. I judged so from the appearance of his cash and the trouble he had in getting money. From the time I went into his employment, he was in the constant habit of raising money through street brokers. Some of the checks drawn by his depositors were honored only after hesitancy; he sometimes had to get the money to pay them. Mr. Darby had a very small amount of cash on hand at any one time. I do not suppose that he ever had over $5000 on an average. Some five or six months before he failed I had to go to pay a check after banking hours at the Second National Bank. The check was for $150 or $175. During the last year he was in business, ten or twelve checks were presented when we had not money to meet them. I know it plagued me very often a great deal. It vexed me to think we had to put them off. I was often asked for a year or two before his failure if he was not much embarrassed. Of course, I always denied it, on order to save his credit. I do not know that anybody outside of his office knew of the shifts to which he was forced to resort for ready money. Five or six months before his failure he was uneasy about one of his depositors, Mr. Polk (who had a deposit of $40,000), calling for his money. It was payable on demand. He said that it would break him if Polk called on him as he expected that he would; that he would have to hurry round to see if he could make a raise of the money, and he did not know how he would raise it. He always remarked that he was trying to sell his lead mines; that if he could only sell them for $100,000 he could meet these things. His money on hand would not average over $5000; possibly he might have $5000 to-night, and $100 the next night; the next day he might have $10,000, and it would be drawn out before twelve o'clock next day. He had no great deal of money at the East-very little-for a year before his failure. He sold exchange on the East when he had no funds there, and then raised money to meet it. This he did a year before his failure; it became more common as early as the February before his failure. There was no entry on the books of the notes sold by street brokers. Very few active business men had deposits there. His capital was $5000. Besides Mr. Polk's deposit of $40,000, Mr. Ings had a certificate for $10,000 also payable on demand. Polk called for $10,000; Mr. Ings never called for his.'

On the other hand again, it was stated by this same witness, that when Darby without money there was thus drawing time-drafts on New York-'kiting'-to raise money for present urgent damands at St. Louis, he sold those drafts-in one instance two, amounting to $7500-'at the usual rates,. . . the regular rate of exchange at the time;' and this to banks; the Third National and the Traders'. Whether they were indorsed, and if so by whom, did not appear in the testimony.

Both Darby and Lucas were examined as witnesses, the former by the assignee; the latter for himself.

In regard to Darby the following questions and answers were made:

'Q. Were you in contemplation of bankruptcy at any time exceeding two months before you actually were compelled to take the benefit of the bankrupt law?

'A. I never thought of going into bankruptcy at all.

'Q. You always expected to settle up your debts and pay your creditors?

'A. That was my object, and I called my creditors together here, and asked them to let me settle up my debts; that I could do it, and that I had no expectation of going into bankruptcy.

'Q. Then you had no contemplation of going into bankruptcy when you stopped?

'A. Not when I stopped; but when I called my creditors together, I asked them to let me do this. Mr. Polk made a speech and said it could not be done, and they passed a resolution that I should go into bankruptcy, and that is the reason I went.

'Q. At the time you made this conveyance to Mr. Lucas, you had no expectation of going into bankruptcy?

'A. No, sir.'

So Lucas. The bill filed by the assignee to set aside the sale, had charged that Lucas retained $6000 (the amount due for interest on the mortgage at the time of the sale) out of the $50,000, the consideration of the sale, lest Darby should not pay it. The following questions and answers were now made.

'Q. Is this true?

'A. No, it is not; I never had the least idea of Mr. Darby's not paying it. The proof is that I paid him a $15,000 check without reservation of any kind. I have always thought Mr. Darby an honorable man-a man in business that could be relied upon. That was my opinion all the time, and I acted with him as I would with any other gentleman that I thought would be a punctilious business man.

'Q. State if you had confidence in his solvency also?

'A. I had, I assure you; it never occurred to me to think otherwise; I knew he had been embarrassed and borrowing money, but some of the best men in town indorsed for him, who were said to be perfectly good; stood by him, and I suppose knew more of his business, and would not have done it if they had not known that they were justified in so doing.

'Q. Had you any intimation that Mr. Darby was in bankrupt circumstances?

'A. No, sir; none whatever. I had no intimation from any quarter, except if it should be that a man's paper is selling on the street, and some person might think that is an evidence; but I know from my own experience that a man may sell his paper on the street at a great sacrifice and still not be broke, by any means.

'Q. When did you first receive any intimation or knowledge that Mr. Darby was a bankrupt?

'A. I do not recollect how long it was; but some time after the transaction I had with him.'

The answer to the bill which had charged the insolvency of Darby at the time of the sale, and Lucas's knowledge of it then, ran thus:

'The respondent further answering says that disclosures and information subsequent to the date of the deed, have led the respondent to the conclusion that the said Darby was, at the time of making said deed, in insolvent circumstances, but at the time when the said deed was made and delivered, and the said consideration paid, he, the said Lucas, had no suspicion or belief that the said Darby was in failing or insolvent circumstances, or in contemplation of bankruptcy or insolvency; nor had the said Lucas any reason to believe the said Darby to be insolvent, or to be acting in contemplation of insolvency at the time when the said sale and conveyance were effected, nor until a long time thereafter. On the contrary thereof, the said Lucas had been for many years acquainted with the said Darby as a banker, and the owner of valuable real estate in and about the city of St. Louis, and considered him a wealthy man. He knew that the said Darby had incumbered some of his real estate in furtherance of his business as a banker, but regarded such action on the part of the said Darby as indicating merely his, the said Darby's belief that the profits he could make as banker out of the money borrowed, would exceed the interest he would pay therefor.'

Speaking of the value of the property, Lucas said 'that at one time Fifth Street looked as if business was going to run off of Fourth; but that this had been changed. Still that Fifth Street would come out in the long run, and that this would be one of the best pieces of property on it; that it was so now; but that the house was not well-planned, not planned as such a house ought to be; that it should be planned in a way greatly different, when it would be worth much more; but that he did notice that till after he had bought it.' Lucas had heard 'that somebody had offered $300,000 for the property, but he never knew who that was.' Darby, however, testified that he had never been offered $300,000 for the property, and and that what Lucas heard was a mistake.

Britton, who with Lucas had given the certificate (supra, p. 412), when Lucas wanted to borrow money on the property, that it was well worth $300,000, was also examined. He said:

'I have this to say in regard to this certificate: I have been frequently called on to value property that way where parties made a loan, and where it was understood distinctly that they gave 50 per cent. only of the value of the property, and therefore I have been liberal in these valuations, and so stated to the parties where they have been made.'

The District Court, where the bill was filed, dismissed it, and the Circuit Court affirmed the decree. The question here on appeal, where the matter was fully argued, was whether such action was right.

Mr. S. Knox, for the appellant; Mr. T. Gantt, contra.

Jr. Justice DAVIS delivered the opinion of the court.

There would seem to be no difficulty in asscertaining the meaning of Congress on the subject embraced in the 35th section of the Bankrupt Act (in contravention of which this sale is alleged to have been made), in its application to this case. Clearly all sales are not forbidden. It would be absurd to suppose that Congress intended to set the seal of condemnation on every transaction of the bankrupt which occurred within six months of bankruptcy, without regard to its character. A policy leading to such a result would be an excellent contrivance for paralyzing business, and cannot be imputed to Congress without an express declaration to that effect. That interdiction applies to sales for a fraudulent object, not to those with an honest purpose. The law does not recognize that every sale of property by an ambarrassed person is necessarily in fraud of the Bankrupt Act. If it were so, no one would know with whom he could safely deal, and besides, a person in this condition would have no encouragement to make proper efforts to extricate himself from difficulty.

It is for the interest of the community that every one should continue his business, and avoid, if possible, going into bankruptcy, and yet how could this result be obtained if the privilege were denied a person who was unable to command ready money to meet his debts as they fell due, of making a fair disposition of his property in order to accomplish this object.

It is true he may fail, notwithstanding all his efforts, in keeping out of bankruptcy, and in that case any sale he has made within six months of that event is subject to examination. If it shall turn out on that examination that it was made in good faith, for the honest purpose of discharging his indebtedness, and in the confident expectation that by so doing he could continue his business, it will be upheld. On the contrary, if he made it to evade the provisions of the Bankrupt Act, and to withdraw his property from its control, and his vendee either knew, or had reasonable cause to believe, that his intention was of this character, it will be avoided. Two things must concur to bring the sale within the prohibition of the law: the fraudulent design of the bankrupt and the knowledge of it on the part of the vendee, or reasonable cause to believe that it existed.

The evidence in this case, fairly weighed, negatives both these conditions. If Darby's conduct was unwise, it was prompted by correct motives. There could have been no intention, on his part, of violating any of the provisions of the bankrupt law, for the did not contemplate the necessity of going into bankruptcy. His action was not based on the idea, even, that he was in a bankrupt condition. On the contrary he believed his property, if converted into money, would pay his debts, and this belief induced him to set to work to accomplish that object. There was no thought of preferring one creditor over another, because he was convinced of his ability to pay all. In the execution of his purpose to sell his property and pay his debts, the sale was made to Lucas, and it cannot be impeached because it turns out that Darby was mistaken in his calculations. There is no arbitrary rule by which the good faith of a transaction can be tested. It may be that ordinary men in similar circumstances would have acted differently, but this is no reason to condemn the conduct of men like Darby. Possessed of uncommon energy and great business capacity; having in previous crises of his fortune surmounted difficulties of equal, if not greater, magnitude, he was not appelled by a state of affairs which, to a man not above the common level would have been a hopeless undertaking. That he failed proves nothing, for other men, whose integrity was above suspicion, have also failed. It would have undoubtedly been better for some of his creditors if he had taken a less hopeful view of his situation, but they cannot on this account attack the sale in controversy. It was made in good faith for an honest purpose, and is not within the condemnation of the law.

If Darby did not intend to defraud his creditors by withdrawing his property from the operation of the Bankrupt Act, it is not easy to see how Lucas can be charged with aiding him to do it, even if at the time he suspected his insolvency. But it is unnecessary to consider this point, for, in our opinion, the evidence fails to establish that, at the time Lucas purchased the property, he had reasonable cause to believe Darby to be insolvent, or to be acting in contemplation of insolvency. If he believed him insolvent, why trust him to pay six thousand dollars due for interest in a few days after the sale, instead of retaining in his own hands enough money to pay it. His conduct on that occasion cannot be explained on the theory of his belief in Darby's insolvency; but we are not concerned with his actual belief on the subject. The real inquiry is, had be good grounds for believing that insolvency existed. It appears that Darby's banking paper had been met up to the date of the sale, and it is a fair inference that the real estate paper secured by deed of trust, which was overdue, remained in that condition by consent of parties. Britton, the president of the National Bank of the State of Missouri, located in St. Louis, considered Darby to be wealthy, and was a good deal surprised when he heard of his failure. This reputation for wealth was not confined to Britton, but was shared by others on account of a supposed ownership of a large amount of real estate. The Third National Bank and the Traders' Bank, a short time preceding the sale, took his exchange on New York at the usual rates, and others dealt with him as if he were entirely solvent. Polk, a leading lawyer of the city, held his certificate of deposit for forty thousand dollars, and Knox and Brotherton, prominent citizens, were in the habit of indorsing his paper. These parties, from their course of dealing, of necessity regarded him as a solvent man. If so, why should Lucas suspect his condition to be otherwise?

All of them had equal opportunities with Lucas of knowing his real condition, and some far better, for Knox and Brotherton were on terms of intimacy with him, while Lucas was not. If they were ignorant of the exact state of his affairs, how can Lucas, with less familiarity with them, be supposed to be in a different condition. It is claimed, however, that Lucas is chargeable with notice that Darby's paper was in the hands of street brokers, because the Boatman's Institution, of which he was a director, purchased it from them, and that paper put on the street in this manner is evidence that the maker is insolvent. This conclusion by no means follows, for a man may sell his paper on the street at a great sacrifice to effect a purpose deemed beneficial by him, and still not be insolvent. This proceeding undoubtedly tended to show that Darby was embarrassed, but, if his paper bore the indorsement of good men of reputable standing and recognized wealth, it is reasonable to suppose they were satisfied with his pecuniary status. This supposition is verified in the case of Knox, one of the indorsers, who, when asked by the president of the institution 'how good is Darby?' replied, 'as good as anybody.' It is fair to infer that this information quieted any misgivings which this officer had about purchasing the paper, and that Lucas, with the other directors, was told what Knox said. If so, it is idle to say that the confidence of Lucas in Darby's solvency had nothing to rest on. If it be conceded that the mode of raising money adopted by Darby had a tendency to create distrust in the mind of Lucas, it is nevertheless apparent that the fact of two men of substance indorsing his paper, coupled with the broad declaration of one of them on the subject of his pecuniary condition, was well calculated to remove this distrust and establish his credit.

It is contended, however, by way of impeachment of the good faith of the transaction in controversy, that the property was sold for less than its value, but we are by no means satisfied that this is so. The evidence on this subject consists chiefly of the opinions of witnesses upon the relative and prospective values of corner lots upon rival streets. This mode of ascertaining the worth of property is necessarily uncertain and speculative. It is undoubtedly true that every person who buys property in a growing city like St. Louis expects it to rise in value, and that this consideration is more or less an element in every purchase. This expectation, however, is more particularly applicable to unproductive and unimproved property. It rarely occurs that valuable ground in the heart of a city, on which costly buildings are erected, is purchased on any other theory than that it will pay, from the time of its purchase, a fair return on the investment. Of course the purchaser looks forward to a gradual rise in the value of the ground which will compensate for the deterioration of the buildings, but the basis of the purchase, as a general thing, is the present rental value. He takes the risk of a change of business from the particular locality, which, as is well known, oftentimes works a serious injury. There is nothing to show that the property in question was not rented to as good an advantage as it could be, and, clearly, the net income received from it demonstrates that it was not sacrificed. Besides, Darby had been trying to sell it, but was unable to get more for it. There are plenty of witnesses who say it was sacrificed, but no one is produced, having the ability to buy, who testifies he would have given more for it than Lucas did. If, as is contended, Robert Campbell, a gentleman of large means, who had the purchase of the property under consideration when the negotiations with Lucas were concluded, would have paid a higher price for it, why is he not called to testify to that fact? In the nature of things, in a city like St. Louis, if this property could have been sold for more money than Lucas gave for it, direct proof was obtainable to show it. In the absence of this proof it is a reasonable presumption that the sale cannot be impeached because of inadequate consideration.

It is insisted, however, that Lucas was precluded from purchasing at a sum less than $300,000, because he certified with Britton, in 1868, on the occasion of the negotiation of the loan of $150,000 by Darby, that the property was worth that sum. It is undeniable that this certificate was carelessly and loosely signed, because the parties making it had no good reason for saying the property was worth twice the money proposed to be lent on it. Britton says he makes a practice of regarding values with extreme liberality, when he knows the inquiry is made for the purpose of a loan and the property offered is abundant security for it. This is all wrong, and cannot be justified by any of the supposed exigencies of business. Lucas, in vindication of his action, tells us he was unaware at the time of the faulty construction of the building and the small amount of rents received, and, besides, that he had heard that some one had offered the sum named in the certificate for the property, though it turns out no such offer was made.

These things relieve him from the charge of making a certificate with intent to procure for Darby a credit to which he knew him not to be entitled, but they do not furnish a case of justification, as, manifestly, certificates to character or value should not be given unless they are known to be true. It cannot be doubted, from the evidence, that neither Lucas nor Britton meant to do anything wrong, and, if so, we know of no principle of law which would estop Lucas from disputing the correctness of the valuation named in the certificate in order to show his good faith and fair dealing in his transaction with Darby.

It is hardly necessary to say, in concluding this case, that the sale of real estate by Darby was not out of the usual course of business within the meaning of the Bankrupt Act.

DECREE AFFIRMED.

title: Tiffany v. Lucas/Opinion of the Court


text: Talk:Tiffany v. Lucas/Opinion of the Court