text:
The S. S. Osborne/Opinion of the Court

This is an appeal from a decree in admiralty on the instance side of the court. There is nowhere in the record a statement of facts and conclusions of law such as is required by the act of Feb. 16, 1875, c. 77, 18 Stat., pt. 3, p. 315. The case was heard on its merits in the Circuit Court at the April Term, 1878, and decided September 24. On the 19th of September a bill of exceptions was signed and filed to put on record the objections of the present appellants to the rulings of the court on their motion to dismiss the appeal from the District to the Circuit Court. When the case was decided on its merits a reference was made to a commissioner to ascertain and report the amount of damages. A report was filed Jan. 3, 1879, to which exceptions were taken. These exceptions were heard and a final decree rendered March 15. An appeal was allowed in open court the same day, and the cause docketed here September 13. We cannot find from the record that the court was ever asked to state its findings specially, and it is conceded that in fact no such statement was ever made. The appellants now move for a writ of certiorari to the Circuit Court to certify up its findings.

We suppose the real object of this motion is to have the cause remanded to the Circuit Court, so that findings may be now stated and put into the record, as was done in The Abbotsford, 98 U.S. 440. That was an exceptional case depending on its own peculiar facts, and furnishes no precedent for what we are now asked to do. The hearing was had in this case, and the interlocutory decree which settled the merits rendered, more than three years after the act of 1875 took effect. The provisions of that act must have been in the minds of the counsel for the appellants, because a bill of exceptions was signed at their instance and filed just before the decree was entered, which could not have been done but for the change in the practice brought about by this legislation. The final decree was not rendered until six months afterwards, and special findings seem not to have been desired by either party. They are only important in case of an appeal, and may certainly be waived by the losing party. Under the circumstances of this case, the court might reasonably infer that the appellants intended to rest their appeal on their bill of exceptions, being satisfied that upon the findings, which would be stated if required, the decree must necessarily be sustained. To send the case back would be unjust to the court as well as the parties, for a special statement of the facts now would involve a rehearing. To justify us in returning a cause for such a purpose, it must clearly appear that the omission was attributable to the fault or neglect of the court and not to the parties.

Motion denied.

title: The S. S. Osborne/Opinion of the Court


text: Talk:The S. S. Osborne/Opinion of the Court

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


text:
The Annie Lindsley

APPEAL from the Circuit Court of the United States for the Southern District of New York.

On the night of May 7, 1869, a collision which occurred in Long Island Sound between the brig 'Annie Lindsley' and the schooner 'Sallie Smith' resulted in the sinking and total loss of the schooner and her cargo. The owners of the schooner brought suit against the brig to recover the damages sustained by them in consequence of the collision, and the District Court having rendered a decree in their favor, the claimant of the brig appealed to the Circuit Court, by which, on July 10, 1878, the decree was affirmed. The claimant then appealed to this court.

The Circuit Court made the following finding of facts:--

'1. About half-past eight o'clock on the evening of May 7, 1869, the brig 'Annie Lindsley' collided with and sunk the schooner 'Sallie Smith,' in Long Island Sound, between two and three miles north and east of Eaton's Neck. The sky was overcast and there was a little rain, but no mist or fog, though it was quite dark. The wind was fresh and east of south. Its precise direction is not satisfactorily shown. The water was not rough.

'2. The schooner, of 96 tons new measurement and 106 old, was bound from Connecticut River to New York, with a cargo of brown stone and scrap iron. When the brig was first discovered by those on board the schooner she (the schooner) was heading on her regular course through the Sound, which was W. by S., and had her port tacks aboard. Her regulation lights were set and burning brightly. Her mate was at the wheel, and a competent lookout at his post on deck forward of the windlass.

'3. The 'Annie Lindsley,' a brigantine of 220 tons British measurement, was bound east from New York to Hillsborough, New Brunswick, in ballast. She was steering by the wind and not by the compass, and was heading as near on her course through the Sound as the wind would permit. Her general direction was about E. N. E., which was a little to the northward of her regular course. Her master was on deck, the second mate at the wheel, and one man forward, properly stationed as a lookout. Her regulation lights were set, and she had her starboard tacks aboard.

'4. Both vessels were sailing under full canvas.

'5. When the brig was discovered from the schooner, the two vessels were approaching each other end on, or nearly end on, and on courses involving the risk of collision. The brig was close-hauled. The schooner had the wind a little free.

'6. A short time before the collision the lookout on the schooner discovered the brig about dead ahead. He saw no lights, but made out the vessel and her sails coming, as he judged, from an opposite direction. He at once reported to the man at the wheel, who put the wheel to port and bore off, until he opened the red light on the brig.

'7. The schooner was not discovered from the brig until after the brig was discovered from the schooner. The lookout was the first to see the schooner from the brig, and he called out 'Light right ahead.' Almost at the same moment a hail was heard from the schooner. The brig's wheel was then put to starboard, and she swung off one point. As soon as this movement could be discovered, another hail came from the schooner to luff, and the wheel was put to port, but before it could materially affect the course of the brig the two vessels came together, the brig striking the schooner on the port quarter, the jib-boom of the brig passing through the mainsail of the schooner. The schooner sank in a very few minutes with her cargo, and was a total loss.

'8. The starboarding of the brig was the direct cause of the collision.

'9 The value of the schooner at the time she was lost was five thousand dollars.' And, as conclusions of law from the findings of fact, the court declared that,--

1. The brig was in fault for putting her wheel to starboard, and this was the cause of the collision.

2. The libellants are entitled to a decree for the value of the schooner, cargo, and freight, as reported by the commissioner, with interest at six per cent from May 7, 1869, the date of the loss.

A decree was entered accordingly.

Upon the trial the claimant asked the court to make thirteen findings of fact, and to deduce therefrom certain conclusions of law.

The court declined to find the facts and conclusions of law as requested by claimant.

Mr. Robert D. Benedict for the appellant.

Mr. Wilhelmus Mynderse, contra.

MR. JUSTICE WOODS, after stating the case, delivered the opinion of the court.

title: The Annie Lindsley


text: Talk:The Annie Lindsley

title: Talk:The Annie Lindsley


text:
The Annie Lindsley/Opinion of the Court

The assignments of error, which are sixteen in number, may be fairly condensed as follows:--

1. The court erred in refusing to find the facts as requested by the claimant.

2. The court erred in refusing to find the conclusions of law as requested by the claimant.

3. The court erred in certain of its findings of fact.

4. The court erred in finding as matter of law that the brig was in fault for putting her wheel to starboard.

5. The court erred in finding as matter of law that the libellants were entitled to a decree.

The first and third assignments are disposed of by The Abbotsford (98 U.S. 440), and The Benefactor, 102 id. 214. In these cases it was held that, under the act of Feb. 16, 1875, c. 77, entitled 'An Act of facilitate the disposition of cases in the Supreme Court of the United States, and for other purposes' (18 Stat., pt. 3, p. 315), the finding of facts by the Circuit Court in admiralty is conclusive. Upon an appeal from a decree in admiralty rendered since May 1, 1875, when the act went into effect, we cannot look into the evidence, or the opinion of the court, to ascertain the facts. The evidence is not properly in the record, and, by an amendment to rule 8, promulgated May 2, 1881, it is excluded from the transcript. The Adriatic, 103 U.S. 730. Where the Circuit Court has passed on all the issues, we cannot listen to complaints that it has refused to find certain facts which it was asked to find, or has found certain other facts which the weight of the testimony did not warrant.

This disposes, also, of the second ground of error, as the conclusions of law which the court was asked to declare were based on the findings of fact proposed by the claimant, which the Circuit Court refused to adopt.

The question, and the only question which we can consider, is, whether the facts found support the conclusions of law and the decree, and it is raised by the fourth and fifth assignments.

The Circuit Court finds, in its conclusions of fact and of law, that putting the brig's helm to starboard was the cause of the collision. It also finds, as a conclusion of law, that the brig was in fault for putting her wheel to starboard.

We are required, therefore, to consider whether the brig, under the facts found, was so in fault.

From the findings it appears that the wind was east of south; that the schooner, just before the collision, was heading west by south, bound from the Connecticut River to New York, and had her port tacks on board. The brig was bound east from New York to New Brunswick. She was steering by the wind; her general direction was east-northeast. Both vessels were sailing under full canvas, and both had their regulation lights set.

Immediately before the collision the brig was sailing close-hauled to the wind, the schooner had the wind a little free. When the brig was discovered from the schooner, the two vessels were approaching each other end on, or nearly end on, so as to involve the risk of collision. A short time before the collision the lookout on the schooner discovered the brig dead ahead. Her wheel was at once put to port, and she bore off. The schooner was not discovered by the brig until the brig had been discovered by the schooner. The lookout was the first to see the schooner from the brig, and called out 'Light right ahead.' The brig's wheel was then put to starboard, and she swung off one point. On being hailed from the schooner and told to luff, the wheel was put to port; but before it could materially affect the course of the brig, the two vessels came together.

The duty of the vessels in the emergency preceding the collision is plainly prescribed by the sixteenth rule for the prevention of collisions on water, which is as follows: 'If two sail vessels are meeting end on, or nearly end on, so as to involve risk of collision, the helms of both shall be put to port, so that each may pass on the port side of the other.' Rev. Stat., sect. 4233.

We have seen that the vessels were approaching each other end on, or nearly end on, so as to involve risk of collision. The rule under such circumstances required them to port their wheels, and pass each other on the port side. The brig, in violation of the rule, instead of porting her helm, put it to starboard. The court found as a matter of fact that this was the direct cause of the collision, and as a conclusion of law, that she was in fault for so doing. We think that from the finding the conclusion inevitably follows.

The counsel for the appellant, however, insists that the conclusion amounts to laying down this rule: that a vessel close-hauled on the starboard tack seeing a light right ahead is in fault if she starboards; and he argues that the rule thus stated is too broad, and that whether a vessel is in fault for starboarding on seeing a light right ahead depends upon what the light is, that is to say, whether it is green or red. He insists that if the light seen by the brig upon the schooner just before the collision was green, that this fact made it the duty of the brig to starboard and not to port her helm. In support of this view he cites Jenkins's Rule of the Road at Sea, pp. 44, 124, 125, 127, 129, 135, 208, and other authorities.

He then goes on to argue from the testimony that the light seen by the brig was green. As we have already shown, we have nothing to do with the testimony. We are limited strictly to the findings of fact, so that the point presented by his contention is whether, upon the facts found, the rule of navigation was too broadly stated by the court. The answer is, therefore, plain. The court did not find that the light seen by the brig was a green light, and did find that the vessels were approaching each other end on, or nearly end on, so as to involve the risk of a collision. The situation as found by the court was, therefore, precisely the one provided for in the sixteenth rule, which it was the duty of the brig to obey by putting her helm to port. The rule to be deduced from the conclusion of law drawn by the court from the facts found is not a whit broader than the sixteenth rule itself, and is really only a repetition of that rule.

The effort of the appellant seems to be to bring the case within the provision of the twenty-fourth sailing rule, which declares that, 'in construing and obeying these rules due regard must be had to all dangers of navigation, and to any special circumstances which may exist in any particular case, rendering a departure from them necessary in order to avoid immediate danger.' Rev. Stat., sect. 4233.

The findings, however, having brought the case clearly within the sixteenth rule, if there were any additional facts which took it out of that rule and brought it within the operation of the twenty-fourth rule, it was incumbent on the appellant to establish them and have them incorporated with the findings. The burden of proof was on him to show some special circumstances which made his case an exception to the sixteenth rule.

But there is no finding that the light seen on the schooner by the brig just before the collision was a green light.

On the contrary, the record shows that the court, although explicitly asked by the appellant to find that the light seen was a green light, refused to make such finding. Nor is there any finding from which it can be fairly inferred that both of the schooner's lights were not seen by the brig just before the collision. The appellant has, therefore, failed to show any fact which takes his case out of the operation of the sixteenth rule, and makes the twenty-fourth rule applicable.

The appellant next contends that the findings of the Circuit Court do not show that the schooner kept a good and proper lookout. The court found that she had a competent lookout at his post, on deck, forward of the windlass, but the appellant says that the fact that the lookout did not discover the lights of the brig until just before the collision shows that he was not vigilant in the performance of his duty.

It would seem that the finding of the court in reference to the lookout did not leave any ground for the appellant to stand on. If the lookout was competent, and at his proper post, the presumption of law that he did his duty, is not, we think, overcome by the fact that he did not see the lights of the brig until just before the collision. The brig also, according to the findings, had a man forward, properly stationed as a lookout, and he did not see the lights of the schooner until the collision was imminent. The fact that the lookout on each vessel failed to see the lights of the other shows that the state of the weather, or some other obstacle, prevented them from being seen at the usual distance. But the court distinctly found that the cause of the collision was the fault of the brig in putting her helm to starboard. That fully accounts for the disaster. Neglect of the lookout does not appear from the findings to have had any part in bringing it about. It would be against all reason to hold that the owners of a vessel whose lookout was shown to be negligent should be made liable for the consequences of a collison, when his neglect had nothing to do in causing it. The Farragut, 10 Wall. 334, The Fannie, 11 id. 238.

So far as the findings in regard to the lookout are concerned, there is nothing in them to show that the decree of the Circuit Court is not just.

The appellant has raised other points resting wholly or in part upon a denial of the truth of the facts found, or upon alleged facts not found, but which he claims the evidence establishes. It is, therefore, not necessary to consider them. Our duty is to decide whether the findings, actually made by the court, support its conclusions of law and the decree, and there our duty ends.

Decree affirmed.

title: The Annie Lindsley/Opinion of the Court


text: Talk:The Annie Lindsley/Opinion of the Court


text:
Mining Company v. Anglo-Californian Bank

ERROR to the Circuit Court of the United States for the District of California.

The facts are stated in the opinion of the court.

Mr. J. Hubley Ashton for the plaintiff in error.

Mr. Samuel Shellabarger and Mr. Theodore Sutro Intra.

MR. JUSTICE HARLAN delivered the opinion of the court.


text: Talk:Mining Company v. Anglo-Californian Bank


text:
Mining Company v. Anglo-Californian Bank/Opinion of the Court

The plaintiff in error, a mining corporation, was organized under the laws of California on the twenty-second day of December, 1873. From that date until the 21st of June, 1877, its treasurer was the defendant in error, a banking corporation created under the laws of Great Britain, and doing business in the city of San Francisco. During that period the moneys of the mining company were, from time to time, deposited with its treasurer, and paid out upon checks signed by the president and secretary of the company. In addition, the bank allowed the account of the company to be overdrawn upon like checks. Such overdraft, including proper allowance for interest, amounted, on the 21st of June, 1887, to $6,319.59.

On the day last named, at 11 o'clock A. M., in an action then pending in the District Court of the Ninettenth Judicial District of California, in and for the city and county of San Francisco, wherein certain stockholders of the mining company were plaintiffs, and Ignatz Steinhart, S. Heydenfeldt, P. N. Lilienthal, Otto Esche, F. N. Benjamin, and the mining company were defendants,-which action had been brought to remove those persons from office as directors of the mining company,-the court decided that the election under which they acted as directors was invalid and void, and that they should be ousted and removed. When that decision was announced, the findings of fact by the court, as well as its judgment in conformity with the decision, were reduced to writing and dated of that day. They were, however, not filed with the clerk of the court until June 22, 1877, upon which day he recorded the judgment.

In the afternoon of June 21, 1877, after the announcement of the decision, the individuals above named met as a board of directors of the mining company, when its president informed them that the account of the company with the bank, its treasurer, was overdrawn to the amount of $6,319.59, gold coin of the United States, and that the manager of the bank requested either the money or the note of the company. A resolution was thereupon adopted authorizing the president and secretary to execute, and they then did execute, in behalf of the company, a note for $7,500, payable in coin, and with interest thereon at the rate of one and a half per cent per month until paid. The note was intended to cover as well the amount overdrawn as anticipated advances. But no such advances were afterwards made.

When the foregoing resolution was passed, the persons participating in its adoption had notice of the decision announced by the court in manner and form as stated.

The present action is to recover from the company the amount of its overdraft. The complaint, framed in accordance with the Code of Procedure of California, contains two paragraphs or counts: one, for $6,351.72 gold coin, on an account, as of June 26, 1887, for money lent by the bank to the company, and for money paid, laid out, and expended by the former to and for the use of the latter; the other, for a like amount, with interest, being the balance alleged to be due upon the note referred to, after deducting all just offsets, which note, it is averred, was given in consideration of the amount due the bank upon an account stated bwtween the parties on the 21st of June, 1877.

The court gave judgment against the company for the amount of the overdraft, with interest at the rate specified in the note. And from that judgment the present writ of error is prosecuted.

We are all of opinion that the bank is entitled to recover the amount of the overdraft as shown by the checks signed by the president and secretary of the mining company.

Upon the board of directors of the mining company was imposed, by the laws of California (Civil Code, sect. 305), the duty of exerting its corporate powers, and of conducting and controlling its business and property. Among the powers which the company had (Civil Code, sect. 354) was the power 'to enter into any obligations or contracts, essential to the transaction of its ordinary affairs, or for the purposes for which it was created.' Necessarily, therefore, the board had authority not only to designate the banking institution in which the money of the company should be deposited, but to prescribe the mode in which, and the officers by whom, it should be withdrawn, from time to time, for the use of the company. It is equally clear that the board had, as incident to the general powers conferred by law upon the company, power to borrow money for the purposes of the corporation, and to invest certain officers with authority to negotiate loans, to execute notes, and to sign checks drawn against its bank account. And it is settled law that the existence of such authority in subordinate officers may, in the absence of express statutory prohibition, be shown otherwise than by the official record of the proceedings of the board. It may be established by proof of the course of business between the parties themselves; by the usages and practice which the company may have permitted to grow up in its business; and by the knowledge which the board, charged with the duty of controlling and conducting the transactions and property of the corporation, had, or must be presumed to have had, of the acts and doings of its subordinates in and about the affairs of the corporation. Since checks against the account of the mining company must, in the ordinary course of its banking business, have been signed by some officer or officers designated for that purpose, the bank had the right, in view of the long period during which the checks of that company were signed by its president and secretary,-without objection, so far as the record shows, upon the part of the company's board,-to assume that those officers had been invested, by the board, with authority to sign all checks drawn against the company's bank account. So long, therefore, as the mining company had money to its credit on the books of the bank, the latter, in the absence of notice that the president and secretary of the former had no authority to sign checks, was justified in honoring all checks signed by those officers. This much we do not understand counsel to dispute. Their contention, upon this branch of the case, relates mainly to the liability of the mining company for the amount of any overdraft checks signed by its president and secretary.

Touching that liability, we have to say that since the mining company had power, under its charter, to raise money in that mode, for use in its corporate business, and since an indebtedness thus created would, in the usual course of business, be evidenced by the checks of its president and secretary, the presumption should be indulged, not only that those officers, in making an overdraft, did not exceed their authority, but that the moneys thus obtained were paid over to or received by the company. But that is a mere presumption arising from the conduct of the parties, as well as from the general mode in which corporations organized for profit conduct their business. That presumption, if not, under the special circumstances of this case, conclusive, might have been overthrown by affirmative proof of want of authority, express or implied, in the president and secretary of the mining company to make overdraft checks, and by proof that the company did not receive the money paid thereon by the bank. There is, however, no such proof in this case. The finding is entirely silent as to whether the company did not receive and use the money. And the finding that 'no resolution or special authority of the defendant was shown authorizing its president and secretary, or either of the, to overdraw its account in bank,' fairly interpreted, means nothing more than that no proof was made, either way, on that point. It does not necessarily imply that a resolution to that effect was not, in fact, passed, nor that such special authority was not, in effect, given. The meagre evidence upon which, according to the special finding, the case was tried below, is, we think, insufficient to overturn the presumptions which should be indulged in favor as well of the bank as of the integrity and fidelity of the officers of the mining company.

This conclusion would render it unnecessary to consider any other question in the case, did not the judgment of the court give interest upon the amount due the bank at the rate stipulated in the note. By the laws of California, unless there be an express contract in writing, fixing a different rate, interest is payable on all moneys at the rate of seven per cent per annum, on any instrument of writing, except a judgment, and on moneys lent, or due on any settlement of account, from the day on which the balance is ascertained, and on moneys received to the use of another and detained from him. The majority of the court are of opinion that the judgment for the amount of the overdraft, with interest at the agreed rate, must stand; this, because the decree of ouster against the persons who passed the resolution of June 21, 1877, did not take effect until the succeeding day when it was actually filed with the clerk and entered on the record; and because, in the language of Mr. Justice Field, who tried the case, the 'parties ousted were officers de facto, holding under color of an election, having charge of the affairs of the company, and capable of binding it in all matters legitimately devolving upon directors of the company.' Anglo-Californian Bank v. Mahoney Mining Co., 5 Sawyer, 255, 258.

Judgment affirmed.


text: Talk:Mining Company v. Anglo-Californian Bank/Opinion of the Court


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Insurance Company v. Trefz

ERROR to the Circuit Court of the United States for the District of New Jersey.

The facts are stated in the opinion of the court.

Mr. A. Q. Keasbey for the plaintiff in error.

Mr. Joseph Coult, contra.

MR. JUSTICE MATTHEWS delivered the opinion of the court.

title: Insurance Company v. Trefz


text: Talk:Insurance Company v. Trefz

title: Talk:Insurance Company v. Trefz


text:
Insurance Company v. Trefz/Opinion of the Court

This action was brought by Christina Trefz against the Knickerbocker Life Insurance Company upon two policies of insurance issued to her upon the life of her husband, Christoph Trefz, both dated Sept. 6, 1873, one for $2,500, the other for $8,500. It resulted in a verdict and judgment in her favor. The company sued out this writ of error.

Each of the policies contained the declaration that it was 'issued and accepted by the assured upon the following express conditions and agreements,' and among others, these: that if the death of the person whose life was thereby insured should be caused by the habitual use of intoxicating drinks, 'or if any of the statements or declarations made in or accompanying the application for this policy, and upon the faith of which the same is issued, shall be found in any respects untrue, then, and in every such case, this policy shall be null and void.'

The company pleaded non assumpsit, and specially that the death of the said Christoph Trefz was caused by the habitual use of intoxicating drinks whereby the policy was made void, and issue was taken thereon. No evidence was offered to support the special plea.

It was proved on the trial that on May 25, 1867, a policy had been issued by the defendant in favor of the plaintiff on the life of her husband for $3,000, and another on March 18, 1868, for $10,000, both of which were surrendered on Aug. 30, 1873, on which day two agreements in writing were entered into between the parties, each referring to the number and amount of the corresponding policy, and of one of which the following is copy:--

'The undersigned, owner of policy No. 16,772 on the life of     Christopher Trefz, hereby requests the Knickerbokcer Life      Insurance Company of New York to issue a new policy for two      thousand five hundred dollars, with insurance payable      annually, and in consideration thereof I do hereby covenant      and agree that all the statements contained in the original      application and declaration for the said policy were true and      valid when made, and are hereby made the basis of the      contract between myself and the said company for the new      policy hereby solicited.'

The other agreement was in the same from, and asks for a policy of $8,500, and both are signed by Christina and Christoph Trefz.

The application for the original policy for $10,000 was in the English language, the fifth question in which was,--

'Whether now or formerly, when and how long, and to what degree, subject to or at all affected by any of the following diseases and infirmities.'

(Here follows a long list, in alphabetical order, of disorders, beginning with 'apoplexy' and ending with 'yellow fever,' and including 'diseases of the brain, disease of the heart.')

The answer was, 'Never sick.' The application for the original policy for $3,000 was in the German language. It contained a similar question, including diseases of the brain and heart, and to this the answer was 'No.'

Both of these applications contained this stipulation: 'That if any fraudulent or untrue allegation, misrepresentation, or concealment as to my health or habits be contained in this proposal, all moneys which shall or may be paid on account of such assurance or dividends due me shall be forfeited to the said company and the policy be void.'

One of them is signed Christina Trefz, by Christoph Trefz, and the one in German by Christina Trefz.

It is stated in the bill of exceptions that the defendant offered evidence tending to prove that the answers of Trefz to these interrogatories were, at the time of such applications, untrue; and the evidence itself bearing on that point is set out in full.

It appears therefrom that the intention with which the testimony was offered was to establish the fact that in the year 1866 Trefz had a sunstroke. One of the witnesses called by the defence to this point was named Schimper, who was in Trefz's employ from the summer of 1866 until 1875. He knew nothing personally about it, but testified that he had heard Trefz say that he had had a sunstroke, and that he had known him to wear a cabbage-leaf in his hat to prevent its recurrence; that in March, 1871, the witness having neglected to pay a premium falling due on one of the original policies, being charged as Trefz's book-keeper with the duty of payment, went with Trefz to the office of the company in New York to tender it, where he was required to submit to a medical examination, to enable the company to determine whether it would accept the premium and restore the lapsed policy. The witness further testified as follows: 'The doctor asked me whether Mr. Trefz had sunstroke; I said, No. Mr. Trefz said, Yes; he was sunstruck on the farm once; he had a farm, and was at the farm taking in hay, and was sunstruck.' In reply to the question, what suggested to the doctor the fact of sunstroke, the witness said: 'I asked the same question of the doctor, whether he could see it. He said, 'I could see it by his queer action with his elbow, and so I could see that the man had something.' That was the doctor's answer since to me; and he asked me whether he had sunstroke, and Mr. Trefz told he was working on the farm once and was overcome by the heat. He said that did not matter; that did not make any difference; he said, have you felt anything since; and he said, No. Was you sick any time, taken sick by the heat again afterwards? No. That is all right. He gave him a certificate.' And the premium was paid and the lapsed policy restored.

In another part of his examination the witness, repeating the statement, said that Trefz told the doctor 'he had a sunstroke once when he was working on the farm; he was then working, and he fell down and did not know anything about himself any more: that was his talk to the doctor.' The witness was then asked to state what Trefz said. He replied, 'That is as near as I can give it. Mr. Trefz spoke very bad English; that was the reason the doctor asked me first whether Trefz had sunstroke, because he did not understand him so well; so Trefz told he was overcome by the heat; he said that half English and half German.'

The plaintiff, Mrs. Trefz, testified that on the occasion referred to as that of the sunstroke Trefz came home, saying he was overcome by work and the heat. She offered him his dinner, to which he said he did not care for anything to eat. After a while he ate his dinner and went off to his work again the same day, and then for two days he said he did not feel right well; after that he went about his business as usual.

There was some testimony about his going to Sharon Springs that summer, which is entirely consistent with the supporition that he went upon business as much as for his health; and some evidence, not only that he wore cabbage-leaves in his own hat as a protection against heat, but that he insisted that the drivers of his beer wagons (he was a brewer) should do the same for their own protection.

There was evidence also that Trefz frequently spoke of having had a sunstroke, and there was testimony from two or three physicians on the subject of the characteristics and consequences of sunstroke. One of them spoke of it as a brain disease, and said that whether it was a serious or dangerous thing depended upon the kind of sunstroke, and that there were degrees in its forms, the severer being frequently fatal, and diminishing down to a mere sense of fulness in the head; and that he considered it more an accident than a disease.

The charge of the court, which was at length, is given in the bill of exceptions in full. To specified parts of it exceptions were taken by the company, and they form the basis of the assignment of errors now to be considered.

It is first alleged that the court erred in charging the jury as follows: 'In considering whether the reply 'never sick' was an untruth of such a character as to avoid the policy, the jury had the right and ought to remember that the applicant was not a native-born citizen, and that he was not very familiar with the language in which the question was put, and did not speak it with any fluency, and it is fair to assume from the testimony that he did not understand it very fully when spoken to him.'

This exception may properly be considered in connection with the sixth assignment of error, as follows:--

'That the court, on request, erroneously refused to charge the jury as follows: 'That if the answer of Trefz to any question was untrue in the sense in which such question and answer are commonly understood, the policy is void, even although the answer may have been true in the sense in which he understood the question;' but on the contrary charged the jury as follows: 'It seems to me that in endeavoring to ascertain the truth or falsity of the answer we ought to look at it in the light of the knowledge and understanding which the individual had in regard to the terms he uses."

It is objected that the court erred in mistaking the answers referred to, as made by the husband, instead of the wife, who was in fact the applicant, whose answers they were, and that there was no proof that she was not a native citizen, and fully acquainted with the English language.

It is perhaps a palliation of this error, if it be one, that the counsel who makes the objection himself fell into it, in the very request which the court refused, and which speaks of the answer as that of the husband. And practically it was, and was so considered and treated by all parties to the insurance. The applicant, it is true, was the wife, and it is her agreement that the answers shall be true; but it is manifest that the party interrogated, and whose answers are relied on, are those of the person whose life is the subject of the insurance.

Indeed, the original applications themselves speak of the allegations, misrepresentations, or concealments, if any, contained in the proposal, the existence of which will avoid the policy, as pertaining to 'my health or habits,' as though the person whose life was the subject of the insurance was himself the applicant.

The whole trial proceeded upon the idea that the question at issue was the truthfulness of the husband's answers, and upon that ground the company gave evidence of his statements made at other times and places to contradict him.

It is insisted, however, in argument, that there is substantial error in the above charges and refusal to charge, reversing the rule of interpreting contracts according to the ordinary sense of the language employed, and subverting the principle, for which AEtna Life Insurance Co. v. France (91 U.S. 510) and Jeffries v. Life Insurance Company (22 Wall. 47) are authorities that in such a case as the present the right of the plaintiff to recover is defeated, upon proof that an answer to any of the questions in the application is untrue, without regard to the materiality of the question or the good faith of the answer. It is unquestionable law, that in such a case as the present the answer must be true, to justify a recovery, without regard to these considerations; and for a lack of substantial truth, it is no valid excuse that the party giving the answers did not understand, from ignorance or otherwise, the scope of the question. And so, in the present case, the court below distinctly charged the jury. The language used was, 'But if you believe from the testimony that the insured, whether wilfully or otherwise, made a statement in his application which amounted to an untruth, it will not do to refuse to enforce the contract which the husband and wife entered into, on the ground that it would be a hardship to the widow.' And in another part of the charge the court said, 'If they are in any respect untrue, they avoid the contract and prevent a recovery upon the policies.' The question, then, for the jury was this: Was the answer of Trefz to the question whether he had ever had any of the enumerated diseases-'never sick'-true or untrue? And undoubtedly it was material and even necessary to inquire what was the meaning of that answer. And to ascertain its meaning,-the meaning the law will affix to it,-it is perfectly proper to determine the sense in which the words were used by the speaker; the sense in which he intended they should be understood by the person spoken to, and in which they were actually understood by both. As was well said by Mr. Justice Swayne, in Insurance Company v. Gridley (100 U.S. 614), 'The object of all symbols is to convey the meaning of those who use them, and when that can be ascertained it is conclusive.'

The nature of this written instrument, as affected by its form, must be considered in every question of its interpretation. It is not a formal instrument, employing technical language with well-ascertained legal effect, like a deed or a bill of lading, or framed with precision and nicety as to the choice of phrases to express a certain and definite covenant which the parties, duly advised, have entered into with deliberation and in solemn form. It is, on the contrary, a conversation reduced to writing, and the writing done by one only of the parties. The language is colloquial, and in the form of a dialogue; of question and answer. It is in the shape of a deposition, where the party interrogated is giving his testimony, and where the meaning of his statements must be ascertained from his own peculiar use of language. If he is a foreigner, with an imperfect knowledge of the language, it is obviously just and reasonable that that circumstance should be considered in determining the meaning of the words he has used.

In the present instance, the apparent purpose of the charge asked by the counsel for the defendant below and refused by the court, was to charge as a matter of law that the answer of Trefz never sick-was to be taken as meaning-as it literally does, standing by itself-that he had never during his life had any sickness whatever, and thence to draw the necessary inference that it was untrue in that sense, as it no doubt was, and that, for that reason, the plaintiff's recovery was made legally impossible.

In that view it became the duty of the court to say to the jury, that in determining whether that statement was true or untrue, in view of the terms of the policy, they might properly consider that it was the expression of a man ignorant of the language, who did not on that account understand, and consequently did not intend, the literal scope of the expression. And whatever sense the jury, as reasonable men, in the light of that circumstance, would put upon it, might well be taken as the sense in which it was understood by the company, to whose agent it was personally spoken, for that would be the sense in which it would be understood commonly by reasonable men in similar circumstances.

Indeed, the court might well have gone further, for it is matter of law that the answer 'never sick,' in the connection in which it was used in the application, must be taken to mean, not that the party was never sick at all of any disorder, but only that he never had had any of the enumerated diseases so as to constitute an attack of sickness. The generality of the language of the answer must be restrained to the particulars to which alone it was meant to be applied, and the surplusage does not fall within the agreement which warrants the answer to be true.

It is next assigned for error that the court erred in charging the jury in reference to the testimony relating to the transaction with the company's physician, in March, 1871, as to the renewal of one of the policies, as follows: 'When this testimony was given, I presume that every gentleman upon the jury at once came to the conclusion that if it was true, and if the agent of the company regarded the attack when he was told of it as of too little consequence to hinder the renewal of the forfeited policies, it was now too late for them to come forward and say that it was of so serious a character and nature that he ought never to have been insured at all; in other words, that the company ought not to be allowed to regard the indisposition of such a trivial character as to overlook it and take the money of the insured for a renewal of the policies, and after his death to avoid the payment of the loss on the ground that the attack was serious enough to bring it within the range of the diseases respecting which the insured gave the reply 'never sick." This charge was given in connection with a statement of the testimony of Schimper as to the conversation that took place with Dr. Derby, the medical examiner of the company, in March, 1871, at the time of the examination of Trefz for the restoration of his lapsed policy.

It is not objected to this charge that it instructed the jury as a matter of law that the company was estopped by the restoration of that policy, after the information it had then acquired respecting Trefz having had a sunstroke, from making its defence on that ground to the present action. It is not claimed that that is the meaning of the charge, or that it was so understood by the jury.

It is criticised, however, for inaccuracy in referring to the renewal of the forfeited policies as if both had lapsed, instead of but one, as the fact was; but that inaccuracy could not have misled the jury, as there was no question about the fact; and, so far as the charge had any bearing upon the question at issue, its effect would not be different whether one or both policies had lapsed and had been restored.

The charge in question was merely a suggestion addressed to the jury, perfectly legitimate in itself, but which they might adopt or reject as they saw fit. The court expressly disclaimed any right to influence them as to any matter of fact, and instructed the jury accordingly.

It is argued that the charge assumes from the testimony that the sunstroke spoken of occurred before the date of the original policies, when in the conversation with Dr. Derby, no date being given, he might well have inferred that it was subsequent to that date. But it is entirely immaterial, for however it may weaken the force of the suggestion upon the question of fact, it does not show that it contained any error in law. The force of the suggestion was to be judged by the jury upon their own finding as to the facts.

It is next assigned for error that the court gave to the jury the following charge: 'It is for you to determine the extent of the injury received by Mr. Trefz, and whether it was of such a character or nature as to make his reply to the interrogatories a falsehood or not. It is for the jury to say from the evidence, in regard to the extent, nature, and kind of sickness, whether the attack which the insured suffered from was of a character to make his answer 'never sick' a falsehood. The burden of proof is on the defendant. The company sets up the defence, and the jury must be satisfied from the evidence that the untruth of the statement has been established, otherwise their verdict should be for the plaintiff.'

This is to be considered in connection with the refusal of the court to give the following charge, which is also assigned for error: 'That if within one or two years the insured had such disease (sunstroke), his answer 'never sick' was untrue, although he had entirely recovered from it long before his death or even at the time of his application;' and also in connection with the refusal to charge the following, also assigned for error: 'That it is proved by witnesses unimpeached and uncontradicted, that the insured frequently stated that he had had sunstroke in the summer of 1866, and guarded carefully against its recurrence long after the insurance was effected; and that, unless you can find something in the case which renders these statements incredible, the jury are bound to treat the facts as established in the cause, and to find for the defendants on the principle asserted by the court.'

The propositions included in these requests, and maintained on behalf of the plaintiff in error, may be stated thus: If Trefz frequently said that he had had sunstroke, it is to be taken as the fact, although the jury might be satisfied from the evidence that what he supposed to be such was not so in reality; and that if he had ever had sunstroke, his answer to the interrogatory is untrue, although the list of diseases therein enumerated does not contain that of sunstroke, and although it does not appear that whatever affection in fact he had was one of the diseases enumerated. In other words, that it is matter of law that if Trefz said he had sunstroke, that he did have it; and that it is matter of law that sunstroke, of whatever character or degree in fact, is a disease of the brain, that being the disease in respect to which it is claimed the answer was untrue.

On the other hand, the proposition of the court, as submitted to the jury, was that they must determine from the whole evidence as matters of fact whether or not Trefz ever had had sunstroke properly so called; and whether the attack which he did have, whether it could properly be called sunstroke or not, was a disease of the brain.

It is not difficult to decide that in this respect the court below committed no error.

The interrogatory propounded in the application, to which the answer in question was made, did not include sunstroke in the list of enumerated diseases. It did include diseases of the brain. The answer, it is conceded, was not untrue, unless Trefz had had a disease of the brain. To establish this it was necessary to prove something more than that he had what he called sunstroke. It was essential to show that he had sunstroke in fact, and that it was such as to constitute disease of the brain.

The medical authority cited in argument by the counsel for the plaintiff in error, Dr. H. C. Wood, Jr. (Thermic Fever or Sunstroke, Boylston Prize Essay, p. 7), shows that what is popularly called sunstroke is not always the true disease known to the profession as such. He says:--

'There can be no doubt that under the name of sunstroke, or coup de soleil, sudden cases of severe illness of very different natures have been described by authors. Such of these cases as have really been dependent upon exposure to excessive heat can be classified under two, or perhaps three heads, to which the names of acute meningitis or phrenitis, heat exhaustion, and thermic fever or true sunstroke may be respectively applied, as more or less expressive of the pathological conditions existing.

'Acute meningitis or phrenitis, due to exposure to the sun and the direct action of its rays upon the head, must be a very rare affection. In fact, I have no positive evidence to offer of its existence in nature, having never seen or read an unequivocal record of such a case, and, therefore, will pass this theoretical class by without further allusion.

'Simple exhaustion due to excessive labor in a heated atmosphere is an affection so very distinct from true sunstroke that it is strange it should ever have been confounded with the latter. It does not differ in its pathology or symptoms from other forms of acute exhaustion, offering like them, as its chief features, a cool, moist skin, and a rapid, feeble pulse, ASSOCIATED WITh great muscular weakness and a tendency to syncope. . ..

'As there is nothing peculiar in these cases, I do not think that they should have any special name. The term 'heat-exhaustion' might be applied to them had it not been used to signify true sunstroke. The main point to be borne in mind is, however, that such cases should not be called sunstroke, as they have not the slightest affinity with that disorder.'

From this authority, then, it sufficiently appears that a man working in the heat of summer in a hay-field, exposed to the rays of the sun, may be overcome by the heat to the point of exhaustion, so as to be prostrated with weakness, and even fall into insensibility and unconsciousness, without having sunstroke in its technical sense. And thus that it might well be that Trefz, notwithstanding his attack of what he ignorantly called sunstroke, might truthfully answer that he had never been sick of any disease of the brain.

It was undoubtedly, therefore, the principal question for the jury, in order to find whether Trefz's answer that he had never been sick of brain disease was true or untrue, to ascertain and determine whether the affection which he declared he at one time had was or was not a case of true sunstroke, and whether, if so, it was a disease of the brain. That question was fairly submitted to them by the court upon the charges which we have reviewed, and for the reasons assigned we find no error in them.

Judgment affirmed.


text: Talk:Insurance Company v. Trefz/Opinion of the Court


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Williams v. Nottawa

ERROR to the Circuit Court of the United States for the Western District of Michigan.

The facts are stated in the opinion of the court.

Submitted on printed arguments by Messrs. Hughes, O'Brien, & Smiley for the plaintiff in error, and by Mr. Charles Upson for the defendant in error.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Williams v. Nottawa


text: Talk:Williams v. Nottawa

title: Talk:Williams v. Nottawa


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Williams v. Nottawa/Opinion of the Court

This suit was brought by Williams, a citizen of Indiana, against the township of Nottawa, a municipal corporation of Michigan, to recover the amount alleged to be due on certain of its bonds, negotiable by the law merchant, and payable to Samuel Kline, or bearer. A trial was had by a jury, which resulted in a verdict, by the direction of the court, in favor of Williams for six of the bonds, and in favor of the township for the remainder. This writ of error has been brought by Williams to reverse the judgment against him; and, as the court directed the verdict which was rendered, the whole of the evidence has been embodied in the bill of exceptions, and is properly before us for consideration.

From the testimony of Williams himself, it distinctly appears he was personally the owner of only three of the bonds sued on of $100 each. One Bracey Tobey was the owner of three others of the same amount. The judgment in favor of Williams was upon these six bonds, and for $994.57 only. All the other bonds, being those on which the judgment was rendered in favor of the township, were owned by Samuel Kline and William Connor, both of whom were residents of the township and citizens of Michigan when the bonds were issued. There is no evidence of any change of citizenship by Kline since the bonds were delivered, and Connor, who was a witness at the trial, testified that he continued to be a citizen of Michigan. The bonds were transferred by Kline and Connor to Williams simply for the purpose of collection with his own. The same is true of those belonging to Tobey, but there is nothing in the evidence to show of what State he was a citizen, though he testified that he bought his bonds in Michigan.

By sect. 11 of the Judiciary Act of Sept. 24, 1789, c. 20 (1 Stat. 78), it was expressly provided that the District and Circuit Courts of the United States should not 'have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange.' By sect. 1 of the act of March 3, 1875, c. 137 (18 Stat., pt. 3, p. 470), this provision was so far modified as to extend the exception to 'promissory notes negotiable by the law merchant and bills of exchange,' but in sect. 5 it was expressly enacted 'that if in any suit commenced in a Circuit Court. . . it shall appear to the satisfaction of said Circuit Court, at any time after such suit has been brought,. . . that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable. . . under this act; the said Circuit Court shall proceed no further therein, but shall dismiss the suit,. . . and shall make such order as to costs as shall be just.'

This case, so far as the bonds owned by Kline and Connor are concerned, comes clearly within this prohibition. As the actual owners of the bonds were citizens of Michigan, they could not sue in the courts of the United States, and Williams distinctly testifies that he received and held their bonds solely for the purpose of collection with his own, and for their account. It cannot for a moment be doubted that this was done 'for the purpose of creating a case' for Kline and Connor cognizable in the courts of the United States. That being so, it was the duty of the Circuit Court to dismiss the suit as to these bonds, and proceed no further; for as to them the controversy was clearly between citizens of the same State, Kline and Connor being the real plaintiffs. The transfer to Williams was colorable only, and never intended to change the ownership. This both Williams and Kline and Connor knew. Under the act of 1789, it was held in Smith v. Kernochan (7 How. 198) that this objection was one which could only be taken by plea in abatement; but in Barney v. Baltimore (6 Wall. 280) there was no such plea, and the bill was dismissed in this court without prejudice, because it appeared in evidence that certain conveyances, by means of which the citizenship of the parties was changed so as to give the courts of the United States jurisdiction, did not transfer the real interest of the grantors. But whatever may have been the practice in this particular under the act of 1789, there can be no doubt what it should be under that of 1875. In extending a long way the jurisdiction of the courts of the United States, Congress was specially careful to guard against the consequences of collusive transfers to make parties, and imposed the duty on the court, on its own motion, without waiting for the parties, to stop all further proceedings and dismiss the suit the moment anything of the kind appeared. This was for the protection of the court as well as parties against frauds upon its jurisdiction; for as was very properly said by Mr. Justice Miller, speaking for the court, in Barney v. Baltimore (supra), such transfers for such purposes are frauds upon the court, and nothing more.

It is clearly shown, also, that Williams and Tobey were collusively joined as plaintiffs, to create a case cognizable in the Circuit Court; for when the suit was begun the amount due them respectively was less than $500. Neither one of them could then have sued alone in the courts of the United States, because the value of the matter in dispute was not sufficient.

Since the judgment below was rendered, the amount due Williams and Tobey respectively has, by reason of the accumulation of interest, exceeded $500. The citizenship of Tobey is not disclosed by the record. Whether he can sue in the courts of the United States we do not know. Williams can sue at this time if he still continues to be a citizen of some State other than Michigan, but without a false averment in his pleadings he could not have done so when this suit was begun. If he had in his pleadings falsely overstated the amount of his claim, he could not, when his judgment was obtained, have recovered costs, and at the discretion of the court might have been adjudged to pay costs. Gordon v. Longest, 16 Pet. 97. He was as much guilty of collusion as the other parties, and is no more entitled to consideration here than they are.

Inasmuch, therefore, as it was the duty of the Circuit Court, on its own motion, as soon as the evidence was in and the collusive character of the case shown, to stop all further proceedings and dismiss the suit, the judgment is reversed, and the cause remanded with instructions to dismiss the suit at the costs of the plaintiff in error, because it did not really and substantially involve a dispute or controversy within the jurisdiction of that court, leaving the parties in interest to such remedies as they may each be entitled to for the recovery of any amount that may be due them respectively on the bonds they severally own. In this connection we deem it proper to say that this provision of the act of 1875 is a salutary one, and that it is the duty of the Circuit Courts to exercise their power under it in proper cases. If they improperly dismiss a cause, their action in that behalf is expressly made reviewable here. Whether, if a defendant allows a case to go on until judgment has been rendered against him, he can take advantage of the objection on appeal, or writ of error, we need not now decide. That would be a different case from this. Here the party guilty of the collusion asks relief from a judgment against himself. In such a case we deem it our duty to stop the suit just where it should have been stopped in the court below, and remit the parties to their original rights.

Judgment reversed.


text: Talk:Williams v. Nottawa/Opinion of the Court


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Morrison v. Stalnaker

ERROR to the Supreme Court of the State of Nebraska.

This was an action brought in the District Court of Cass County, Nebraska, by Morrison, to recover the possession of a tract of eighty acres, being part of an even-numbered section of land situate in that county.

Morrison claimed under a patent from the United States dated May 10, 1873, conveying to him the demanded premises.

Stalnaker, the defendant, settled upon them, they being public land, Jan. 18, 1871. On the sixteenth day of the following month his declaratory statement required by the preemption law was filed in the proper office, and he continuously thereafter resided upon them. They had, prior to those dates, been offered at public sale, and are within the limits of the lands which, under the act of July 1, 1862, c. 120 (12 Stat. 489), and the acts amendatory thereof, the Land Department withdrew from market to cover the grant made to the Burlington and Missouri River Railroad Company.

The act of March 6, 1868, c. 20 (15 Stat. 39), provides that nothing in those acts shall be held to authorize the withdrawal or exclusion from settlement and entry, under the provisions of the pre-emption or homestead laws, the even-numbered sections along the routes of the several roads therein mentioned which have been or may be hereafter located, provided that such sections shall be subject only to entry under those laws. The Secretary of the Interior was thereby authorized and directed to restore to homestead settlement, pre-emption, or entry, according to existing laws, all the even-numbered sections of land belonging to the government and then withdrawn from market on both sides of the Pacific Railroad and baranches, wherever they had been definitely located.

Stalnaker, about June 1, 1872, appeared with his witnesses at the local land-office, and offered to prove all the facts necessary to entitle him to enter the premises. He at the same time tendered the requisite sum of money. His offer and tender were refused, upon the ground that, by reason of his failure to make the proofs within one year from the date of settlement, he had forfeited his right of pre-emption.

Stalnaker's answer to Morrison's petition is in the nature of a bill in chancery, and sets up that, in fraud of his pre-emption rights, and by mistake of the Land Department in regard to them, a patent of the United States for the land was issued to the plaintiff. Judgment was rendered in the court of original jurisdiction in favor of Morrison. It was reversed on appeal to the Supreme Court, and he sued out this writ of error.

Mr. Willis Drummond and Mr. Robert H. Bradford for the plaintiff in error.

No counsel appeared for the defendant in error.

MR. JUSTICE MILLER, after stating the facts, delivered the opinion of the court.

title: Morrison v. Stalnaker


text: Talk:Morrison v. Stalnaker

title: Talk:Morrison v. Stalnaker


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Morrison v. Stalnaker/Opinion of the Court

The errors assigned here may be divided into two, substantially.

The first is that the court erred in refusing to hold that Stalnaker, after having in due time filed his declaratory statement, did not, in making his application to the register and receiver of the land-office to enter the land, offer to prove his citizenship, and the other facts necessary to establish his right of pre-emption. To this the only answer necessary is that the officers declined to receive from him any proofs or money, because they decided that he came too late, and was not, for that reason, entitled to enter the land, although his proofs in other respects might be perfect.

The second assignment is that the court erred in deciding that he had the right to perfect his claim by proofs twelve months after the date of his settlement.

The land was not subject to private entry when Stalnaker settled upon it and filed his declaratory statement.

The argument of counsel for plaintiff in error is that the case does not come within sect. 2267 of the Revised Statutes, because the land was surveyed and had once been proclaimed for sale. Sects. 2265 and 2266 prescribe rules of pre-emption for lands surveyed but not proclaimed, and for unsurveyed lands; and sect. 2267 declares that all claimants of pre-emption rights under these two sections shall, when no shorter period is prescribed, make their proofs within thirty months after the date prescribed for filing the declaratory statement. As this land had been surveyed and at one time proclaimed, the argument is that the time for making proof is not governed by sect. 2267, but by sect. 2264, which requires the person asserting a pre-emption right to land subject at the time to private entry, to make the proof within one year after the date of his settlement. But this land, at the date of Stalnaker's settlement, was not subject to private entry.

We find, however, that at that time sect. 2 of the act of July 14, 1870, c. 272 (16 Stat. 279), was in force. The first section of that act extends certain laws for the sale and survey of public lands to the Territory of Colorado. The second section, however, is more general, and, among other things relating to settlers on lands reserved for railroad purposes, enacts that 'all claimants of pre-emption rights shall hereafter, when no shorter period of time is now prescribed by law, make the proper proof and payment for the lands claimed within eighteen months after the date prescribed for filing their declaratory notices shall have expired.'

All Stalnaker's proceedings took place while this law was in force. It gave him eighteen months from the time limited for his declaratory statement, namely, from the eighteenth day of April, 1871, to make payment and proof.

He offered his money and his proof several months within the time which this statute allowed.

The Supreme Court of Nebraska, therefore, did not err in refusing to hold that his right expired within one year from the date of his settlement.

Judgment affirmed.


text: Talk:Morrison v. Stalnaker/Opinion of the Court


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United States v. Taylor (104 U.S. 216)

APPEAL from the Court of Claims.

The facts are stated in the opinion of the court.

The Solicitor-General and Mr. John S. Blair for the appellant.

Mr. Albert Pike and Mr. Luther H. Pike, contra.

MR. JUSTICE WOODS delivered the opinion of the court.

title: United States v. Taylor (104 U.S. 216)


text: Talk:United States v. Taylor (104 U.S. 216)


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United States v. Taylor (104 U.S. 216)/Opinion of the Court

This was an action brought against the United States for the recovery of the proceeds of a tax sale of certain land in the State of Arkansas, of which it is alleged that Irene M. Taylor, deceased, the intestate of the appellee, was in her lifetime the owner.

The Court of Claims found as matter of fact that block 37, in Little Rock, Arkansas, was, on May 4, 1865, subject under the provisions of law to a direct tax of $37, which was assessed thereon to Matilda Johnson; that this tax was so assessed to Matilda Johnson, notwithstanding the fact that on May 4, 1865, Irene M. Jordan was, and ever since March 4, 1863, had been, the owner of said block by purchase from said Matilda Johnson; that the assessment was made against Mrs. Johnson because she appeared by the records to be the owner of the block, her deed to Mrs. Jordan not having been recorded until Aug. 25, 1866; that the board of direct tax commissioners for the district in which the block was situate sold it, May 4, 1865, to one Meservey, because of the non-payment of said tax, for the consideration of $3,000, of which sum the United States was entitled to $70.50, on account of the tax and the costs and charges and commissions of sale; that in 1865 Mrs. Jordan became the owner of the tax-sale title by purchase for a valuable consideration from Meservey's assignee; that on Dec. 10, 1873, Mrs. Johnson, the former owner, by her formal instrument of writing of that date, recognized Mrs. Jordan, who before that date had intermarried with Charles M. Taylor, as the rightful owner of said block, and of the money in the treasury realized from the tax sale thereof; and that on Jan. 15, 1874, Taylor and wife made application to the Secretary of the Treasury for the residue of the $3,000, the proceeds of said tax sale, after deducting therefrom the tax, penalty, costs, &c. This application was rejected on the 17th of that month.

On Dec. 8, 1875, this suit was brought in the Court of Claims, and on May 19, 1879, judgment recovered for $2,929.50, the amount of said surplus.

The United States has brought the case by appeal to this court for its consideration.

Two questions are raised, the first of which is, whether, under the legislation of Congress, the surplus of the proceeds of lands sold should be returned to the owner.

The act of Aug. 5, 1861, c. 45 (12 Stat. 292), declared that a direct tax of $20,000,000 should be annually laid upon the United States, and the same was apportioned among the several States respectively.

The thirty-sixth section of the act provided for the sale of real estate when personal property could not be found sufficient to satisfy the tax and costs. It concludes as follows: 'But in all cases where the property liable to a direct tax under this act may not be divisible, so as to enable the collector by a sale of part thereof to raise the whole amount of the tax, with all costs, charges, and commissions, the whole of such property shall be sold, and the surplus of the proceeds of the sale, after satisfying the tax, costs, charges, and commissions, shall be paid to the owner of the property, or his legal representatives, or, if he or they cannot be found, or refuse to receive the same, then such surplus shall be deposited in the Treasury of the United States, to be there held for the use of the owner, or his legal representatives, until he or they shall make application therefor to the Secretary of the Treasury, who, upon such application, shall, by warrant on the treasury, cause the same to be paid to the applicant.'

It was further provided, that, if no one should bid the amount of the tax and twenty per cent additional thereon, the collector should be required to purchase the land in behalf of the United States, and in that case the owner was allowed to redeem on certain terms within two years.

It is not disputed that under these provisions, if they still remain in force, the appellee would be entitled to the surplus money sought to be recovered in this suit. So that the question presented under this branch of the case is, whether they have been repealed or annulled.

The appellant contends that this has been done by the act of June 7, 1862, c. 98 (12 Stat. 422), 'for the collection of direct taxes in insurrectionary districts within the United States, and for other purposes,' and later acts.

Neither that nor any subsequent act directly repeals these provisions. If repealed at all, they must, therefore, be by implication. In other words, the subsequent legislation must be so inconsistent with them, that both cannot stand. McCool v. Smith, 1 Black, 459.

We have been unable to find any such incongruity. The act of 1862 and its amendments make no mention of the right of the owner of the lands to receive the surplus proceeds of their sale. But the absence of such a provision is not sufficient to repeal the positive enactment of 1861. On the contrary, it strengthens the presumption that it was the purpose of Congress to allow that provision to stand.

The act of 1862 provided that, in States where insurrection existed, the entire tax for a State should be apportioned and levied upon its lands, which should become charged with their respective shares of the tax, which, with a penalty of fifty per cent, should be a lien thereon.

The owner could relieve his lands of the tax by paying it within sixty days after the commissioners had fixed its amount. If he did not pay within that time, the title to the lands became forfeited to the United States; and upon a sale of them, as provided for in the act, it vested in the United States, or the purchaser, in fee-simple, free and discharged of all prior liens, incumbrances, right, title, and claim whatsoever.

The commissioners, in case of the non-payment of the tax, penalty, and charges, were required to sell the lands at public sale to the highest bidder, for a sum not less than the amount of the tax, penalty, &c., and, if no person bid more, then to strike off and sell them to the United States for that sum.

In case the United States became the buyer, there was, of course, no surplus. But if any one purchased for a sum greater than the tax, penalty, &c., the commissioners were to give him a certificate of purchase, which should be evidence of title; and the owner, or any person loyal to the United States having a lien thereon, upon taking an oath to support the Constitution of the United States, was allowed to redeem the lands sold. This court held, in Bennett v. Hunter (9 Wall. 326), that the primary object of the acts of Aug. 5, 1861, and of June 7, 1862, being the raising of revenue, they must be construed together. In other words, they are to be construed as if passed at the same time, and effect must be given to all the provisions of the first act not in conflict with the later one.

In the same case it was held that the forfeiture declared by the fourth section of the act of 1862 does not operate of its own force to vest the title to the land forfeited in the United States upon the non-payment of the tax, but that a sale as prescribed by the act was necessary to transfer the title.

We find nothing in the provisions of the act of 1862, above recited, which takes from the owner the right accorded him by the act of 1861, of applying for and receiving from the treasury the surplus proceeds of the sale of his lands, nor anything inconsistent with that right.

But it is insisted by the appellant that sect. 12 of the act of 1862 makes a disposition of the surplus proceeds of lands sold for taxes inconsistent with the right thereto claimed by the appellee.

That section declares that 'the proceeds of said leases and sales shall be paid into the treasury of the United States, one-fourth of which shall be paid over to the governor of said State wherein said lands are situated,. . . when such insurrection shall be put down,. . . for the purpose of reimbursing the loyal citizens of said State, or such other purposes as the State may direct, and one-fourth shall be paid over to said State as a fund to aid in the colonization or emigration from said State of any free person of African descent who may desire to remove therefrom.'

On recurring to the preceding sections to ascertain what is meant by the words 'said leases and sales,' the proceeds of which are to be so disposed of, we find that the first eight sections provide for the assessment of the direct tax upon the lands of the States in insurrection; for their forfeiture for non-payment of the tax; for their sale at auction; for their purchase by the United States, if no bid greater than the amount of the taxes, charges, &c., is received; and for their redemption by the owner.

The act, beginning with sect. 9, then takes up a new subject, which is continued through sects. 10 and 11. They relate exclusively to the disposition to be made of the lands bought by the United States at the tax sales. They authorize the commissioners, under certain circumstances, to lease them, or, under the direction of the President, instead of leasing, to cause them to be subdivided into parcels not to exceed three hundred and twenty acres, and sold. Sect. 12, which provides that the proceeds of 'said leases and sales' shall be paid into the treasury, &c., must, we think, be limited to the proceeds of the leases and sales authorized in the three next preceding sections. Such is not only the natural and obvious, but also the grammatical, construction of the act.

That act provided for the collection of direct taxes in insurrectionary districts. It was not a confiscation act. It allowed the owner to redeem his lands within sixty days after the sale of them for taxes, and, while more stringent in its provisions, was not antagonistic to the previous legislation on the same subject.

Our opinion is, therefore, that the clause of the act of 1861, which allowed the owner of lands sold for taxes to apply for and receive the surplus proceeds remaining after payment of the taxes and charges, is not repealed by the act of 1862.

The second question raised by the appeal is whether the Court of Claims had jurisdiction of a suit for such proceeds, when the application of the Secretary of the Treasury, and the bringing of the suit therefor, were both more than six years after the sale.

Sect. 1069 of the Revised Statutes provides that every claim against the United States cognizable by the Court of Claims shall be for ever barred, unless the petition setting forth a statement thereof is filed in the court within six years after the claim first accrues.

The thirty-sixth section of the act of 1861 required, as we have seen, the surplus proceeds of the sale of land for taxes to be deposited in the treasury, to be there held for the use of the owner or his legal representatives until he or they should make application therefor to the Secretary of the Treasury, who, upon such application, should, by warrant on the treasury, cause the same to be paid to the applicant.

This section limits no time within which application must be made for the proceeds of the sale. The Secretary of the Treasury was not authorized to fix such a limit. It was his duty, whenever the owner of the land or his legal representatives should apply for the money, to draw a warrant therefor without regard to the period which had elapsed since the sale. The fact that six or any other number of years had passed did not authorize him to refuse payment. The person entitled to the money could allow it to remain in the treasury for an indefinite period without losing his right to demand and receive it. It follows that if he was not required to demand it within six years, he was not required to sue for it within that time.

A construction consistent with good faith on the part of the United States should be given to these statutes. It would certainly not be fair dealing for the government to say to the owner that the surplus proceeds should be held in the treasury for an indefinite period for his use or that of his legal representatives, and then, upon suit brought to recover them, to plead in bar that the demand therefor had not been made within six years.

The general rule is that when a trustee unequivocally repudiates the trust, and claims to hold the estate as his own, and such repudiation and claim are brought to the knowledge of the cestui que trust in such manner that he is called upon to assert his rights, the Statute of Limitations will begin to run against him from the time such knowledge is brought home to him, and not before. Merriam v. Hassam, 14 Allen (Mass.), 516; Baker v. Whiting, 3 Sumn. 486; Kane v. Bloodgood, 7 Johns. (N. Y.) Ch. 90; Attorney-General v. Proprietors of the Meeting-House in Federal Street in Boston, 3 Gray (Mass.), 1; Bright v. Segerton, 2 De G., F. & J. 606; Wedderburn v. Wedderburn, 2 Keen, 722.

In analogy to this rule the right of the owner of the land to recover the money which the government held for him as his trustee did not become a claim on which suit could be brought, and such as was cognizable by the Court of Claims, until demand therefor had been made at the treasury. Upon such demand the claim first accrued. As the suit was brought within six years from the date of demand, it falls within the terms of the section giving jurisdiction to the Court of Claims, and is not cut off by the lapse of time.

Our opinion is that the appellee was entitled, under the acts of Congress, to the fund in controversy, and that the petition therefor was filed in the court below within six years after the claim first accrued.

Judgment affirmed.


text: Dictionary of National Biography, 1885-1900/Green, Henry (d.1369)


text: Talk:United States v. Taylor (104 U.S. 216)/Opinion of the Court


text:
Loring v. Frue

ERROR to the Circuit Court of the United States for the Eastern District of Michigan.

The facts are stated in the opinion of the court.

Mr. C. I. Walker and Mr. George F. Edmunds for the plaintiff in error.

Mr. Samuel T. Douglass and Mr. John H. Bissell for the defendant in error.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Loring v. Frue


text: Talk:Loring v. Frue

title: Talk:Loring v. Frue


text: Dictionary of National Biography, 1885-1900/Green, Hugh


text:
Loring v. Frue/Opinion of the Court

The declaration in this case contains only the common counts. The plea was the general issue, which a jury was sworn to try. After evidence had been offered by Frue, the plaintiff below, he elected to take a nonsuit, whereupon the following order was made, June 11, 1874: 'It is therefore ordered judgment of nonsuit, and that the defendant recover of the said plaintiff his costs of this suit to be taxed, and leave is granted to said plaintiff to move to set aside this judgment.'

Oct. 31, 1876, the court made an order in the following terms: 'The motion to set aside the nonsuit heretofore entered in this cause again coming on to be heard, the same having been heard in part on the thirtieth day of October, instant, the arguments of counsel for the respective parties are concluded and the matter submitted, and the same having been duly considered by the court, it is now ordered that said nonsuit be, and the same is hereby, set aside, with leave to put the case on the docket for trial at the next ensuing November term of this court.'

On the 26th of December thereafter there appears an entry of an order overruling, after argument of counsel on both sides, a motion to set aside the order last cited. The case then went to trial, and the defendant again sought, by way of a prayer for instructions, to raise the question of the validity of the order setting aside the nonsuit.

The same point is much urged here by Loring, the defendant below, against whom judgment was given, and he assigns for error the action of the court in that respect.

It is quite obvious that no such question could be submitted to the jury, and that a prayer for instructions thereon was properly overruled.

Whether the court had the power to set aside this nonsuit more than two years after the judgment had been rendered is a very interesting question, the determination of which would depend somewhat on facts that are not in this record. Although counsel was present during the entire proceedings, no bill of exceptions was taken, so as to bring before us the grounds of either motion or the facts on which it was supported.

When a case is heard in an appellate court on a writ of error, it is a principle equally well settled in law and necessary in the administration of justice, that only such errors as are plainly made to appear can be grounds of reversal, and that every presumption consistent with the record is to be made in favor of the action of the inferior court.

It is not inconsistent with anything in this record that at the term when the nonsuit was granted the motion to set it aside was made, and then continued by regular orders from term to term until it was decided. In such case there can be no question of the power of the court to make the order. So it may have been stipulated that, until the chancery suit between the same parties which is found in the record should be decided, the action was to remain in court, and then come up on the motion to set aside the nonsuit. This also would have given the court the right to set it aside.

As the plaintiff in error, although present by counsel when the objectionable order was made, and the subsequent motion to set it aside was heard, took no bill of exceptions to negative the presumptions we have mentioned, as well as others which might be suggested, we must presume that the action of the court was in accordance with law. The assignments of error based on the order setting aside the nonsuit are not well taken.

The record contains a very full bill of exceptions professing to embody all the evidence submitted on the trial. The errors assigned relate to the instructions of the court, and to its refusal to grant the prayer of the plaintiff in error for instructions.

The evidence consisted wholly of that of the plaintiff and his agent, Palmer, and some letters and correspondence which they introduced.

It appears that the transactions on which the claim is founded originated in the purchase of mineral lands in Michigan, the organization of two joint-stock companies as owners of them, and in speculations in the sale of the shares of these corporations. Frue resided in that State, and, having been engaged in mining there, was supposed to be skilled in the discovery of its mineral products. Palmer and Loring lived in Boston. He, they, and one or two other persons determined, after some preliminary negotiations, to purchase lands which they supposed contained mineral, and to organize two or more corporations. They accordingly made the purchase and organized two corporations,-one called the Ossipee and the other the Kearsarge. The usual process of a large capital stock divided into a great many shares was resorted to, and then the sale of them was in order.

The testimony tends to prove that, in some connection with the business of these companies, Loring, who was the president, treasurer, and active managing agent of them in Boston, received from Frue about $114,000, and the controversy turns upon the question whether he, in his official capacity, received it as Frue's share of the money necessary to pay for the lands, or whether it was money sent to purchase stock for a failure to deliver which he would be liable for money had and received to Frue's use.

The first item to which attention is called is one of $73,000. Frue, in his testimony, states that it was determined by the original promoters of the venture to sell a large amount of stock, and that he accordingly sold two thousand shares of the Ossipee at $11.50 per share, amounting to $23,000, and five thousand shares of the Kearsarge at $10 per share, making $50,000, which sums he forwarded to Loring. Before the jury he claimed to recover $9,276, on the ground that of the stock sold by him that amount belonged to him personally.

It is not easy to see by what process of reasoning this result is arrived at. But it is clear that in forwarding the stock to Frue, which he sold for $73,000, Loring was acting as president and treasurer of the associations, whether it was before or after their organization. His own evidence on that subject is, that he received the stock from Loring, and accounted therefor with him as president. When asked why he sent forward all the money instead of retaining what he now claims was his individual property, Frue said that he wanted to keep Loring in ample funds. Palmer also testified that Loring was president, director, and financial manager of the companies, and as such paid for the lands out of the funds placed in his hands, and that the lands were conveyed to the corporations.

We are of opinion that the plaintiff himself makes out beyond dispute that he received these shares of stock from Loring as president of the associations, to be sold on their account; that he so sold them, and remitted the money to Loring as treasurer. It is clear that Loring is not personally liable therefor, and that if Frue has the right to recover part of this $73,000, it is by action against the corporations. The refusal of the court to so instruct the jury was error.

The next item which Frue claims is $15,889.32, which he says in his testimony was sent to Loring to pay for stock at prices per share which had been previously fixed by the members of the companies; and he insists that this being a transaction between him and Loring, the latter, having failed to deliver the stock, is personally liable for the money.

But it is quite clear from the evidence that this sum was part of the capital stock of the companies for which Frue was liable, either by the original terms of their organization, or by reason of assessments made on him as a stockholder. He was certainly entitled to his certificates of shares, if he never received them. And if the corporations or their officers had otherwise disposed of them, so that they could not be issued to him, the corporations, and perhaps the officers, would in a proper action be liable for conversion. But the money sent to Loring in these cases was sent to the corporations. It came to him properly as their treasurer, and they, not he, incurred the obligation to issue and deliver the certificates. It is true the court told the jury that if they believed this, they must find for the defendant. But this was misleading, for while Frue thought that by sending the money he had a personal claim on Loring for the shares, and swore to this belief, the facts to which he testified showed that he had no such claim. The jury should have been told so, instead of being left to act on his sworn opinion of the legal result of the transaction.

The remaining item of $25,401.08 is made up of drafts sent by Frue, Dec. 31, 1866, to Palmer, his agent at Boston, payable to his order, with instructions to apply it on the purchase of Sections 24 and Penn. Palmer testifies that he indorsed and delivered the drafts to Loring, and that the money was used for other purposes by Palmer and Loring, though afterwards the same amount was invested for Frue in Torch Lake, which was the same as Penn and Section 24.

We are not prepared to say that the court was in error in refusing the instructions prayed by Loring's counsel on this point, or that there was any manifest error of law in the charge of the court on that matter.

But we are of opinion that the whole charge was vague and misleading in this matter as in others, as it made on the jury the impression that the opinions of Frue and Palmer, in their mode of looking at these transactions, were competent evidence, and it failed to give due effect to the simple and undoubted facts of the case. For these reasons there was no fair trial. The judgment of the Circuit Court must be reversed, with directions to set aside the verdict of the jury and grant a new trial; and it is

So ordered.

title: Loring v. Frue/Opinion of the Court


text: Talk:Loring v. Frue/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Green, Henry (1801-1873)


text:
Conner v. Long

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

The facts are stated in the opinion of the court.

Mr. Robert S. Green for the plaintiff in error.

Mr. William B. Hornblower and Mr. Daniel H. Chamberlain, contra.

MR. JUSTICE MATTHEWS delivered the opinion of the court.

title: Conner v. Long


text: Talk:Conner v. Long

title: Talk:Conner v. Long