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Smith v. Stevens/Opinion of the Court

The eleventh article of the treaty of 1825 contains a stipulation, that the nation shall not sell the specified allotment of lands reserved for the benefit of each of the half-breeds named in it (Victoria Smith being one of them) without the permission of the government; and it would seem that the contracting parties intended this prohibition to apply to the individual members of tribe, for, if it were not so, the policy which dictated the restriction would be in danger of being defeated altogether.

It is, however, not necessary, for the purposes of this suit, to decide this point, as the deed in question was made after the passage of the act of Congress of the 26th day of May, 1860, which relieves the subject of all difficulty. This act vested the title of the United States to the lands which the treaty had set apart for the use of the half-breeds, in the reservees, if living, or, if dead, in their heirs, and declared void all prior contracts for their sale, and forbade any future disposition of them, except by the Secretary of the Interior on the request of the party interested. There is no ambiguity in the act, nor is it requisite to extend the words of it beyond their plain meaning in order to arrive at the intention of the legislature. It was considered by Congress to be necessary, in case the reservees should be desirous of relinquishing the occupation of their lands, that some method of disposing of them should be adopted which would be a safeguard against their own improvidence; and the power of Congress to impose a restriction on the right of alienation, in order to accomplish this object, cannot be questioned. Without this power, it is easy to see, there would be no way of preventing the Indians from being wronged in contracts for the sale of their lands, and the history of our country affords abundant proof that it is at all times difficult, by the most careful legislation, to protect their interests against the superior capacity and adroitness of their more civilized neighbors. It was, manifestly, the purpose of Congress, in conferring the authority to sell on the Secretary of the Interior, to save the lands of the reservees from the cupidity of the white race; and, if the provisions of the treaty were not enough for the purpose, the speedy action of Congress was demanded by the rapid settlement of the adjacent country. In 1825, when the treaty was made, it was not regarded as a probable event that these Indians, owing to the remoteness of the country to which they were removed, would suffer from the encroachments of our people, but in 1860 the same population that had demanded their removal from organized communities, followed them to Kansas. In this condition of things Congress acted, and the necessity for legislation on the subject, if, indeed, there were need for any, is shown by the defence which is interposed to this suit.

It needs no argument or authority to show that the statute, having provided the way in which these half-breed lands could be sold, by necessary implication, prohibited their sale in any other way. The sale in question not only contravened the policy and spirit of the statute, but violated its positive provisions.

It appearing, then, that by the treaty and law in force at the date of the deed, Victoria Smith had no capacity to alienate her land, and the authority to sell being vested in the Secretary of the Interior, and there being no evidence that this officer ever authorized the sale, or in any manner consented to it, it follows that the sale was void, and that the deed conveys no title to the purchaser.

It is hardly necessary to say that a joint resolution passed nearly two years after this transaction, removing the restriction on alienation, cannot relate back and give validity to a conveyance which, when executed, was void, nor have we any reason to suppose that Congress contemplated that any such effect would be claimed for its legislation on the subject.

JUDGMENT AFFIRMED.

title: Smith v. Stevens/Opinion of the Court


text: Talk:Smith v. Stevens/Opinion of the Court

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


text:
Jones v. Andrews

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

The Judiciary Act of 1789 gives the Circuit Courts jurisdiction where the suit is between a citizen of the State where the suit is brought and a citizen of another State; and enacts that no civil suit shall be brought in them against an inhabitant of the United States by original process in any other district than that whereof he is an inhabitant, or in which he may be found at the time of serving the writ.

By the act of February 28, 1839, it is, however, enacted

'That where in any suit in law or equity, commenced in any court of the United States, there shall be several defendants, any one or more of whom shall not be inhabitants of, or found within, the district where the suit is brought, or shall not voluntarily appear thereto, it shall be lawful for the court to entertain jurisdiction, and proceed to the trial and adjudication of such suit between the parties who may be properly before it; but the judgment or decree rendered therein, shall not conclude or prejudice other parties not regularly served with process, or not voluntarily appearing to answer,' &c.

These provisions as to jurisdiction being in force, one Joseph J. Andrews, owner of a hotel in Memphis, leased it for five years, from 1st of January, 1859, to P. Reed and H. W. Bryson; these last giving their notes for the amount of the rent. After Reed and Bryson had possession for some time, they sub-let it to a certain Stephen M. Jones, at the same rent which they had paid, and took his notes to themselves for the same sum that they were bound to pay Andrews by their own. The troubles of the rebellion coming on, matters got disarranged. Jones, according to his own account, having left Memphis, temporarily got shut out of the town by the Federal army, and during this enforced absence was dispossessed of the hotel and greatly injured by Andrews, who seized and sold very valuable personal property of his left on the premises. However these facts (which Andrews denied) might have been, it was admitted that the rent not being long paid in form, Andrews sued Reed and Bryson on their notes given to him, and got judgment by default. On this judgment so got, he sued out a writ of garnishment for the professed purpose of seizing in their hands the notes of Jones. Hereupon Jones filed a bill in the same court, the court below, alleging that Reed and Bryson had transferred his notes (Jones's), given to them for the sub-lease, to Andrews in payment of their own notes to him for the lease in chief; that Andrews had thus no claim against Reed and Bryson when he sued them; that the judgment recovered by him against them was by collusion, and was contrived for the purpose of garnisheeing his, Jones's, notes, pretended to be in their hands, and that all this was done to avoid on the part of Andrews a direct suit against him, the complainant, Jones, by reason of the fact that as against Andrews, he, the complainant, Jones, had a good defence to the notes and a set-off (on account of the seizure and sale of his furniture, and expulsion of him from the premises), that would largely exceed the amount of the notes. His bill accordingly prayed for an injunction against the garnishee proceedings, for the delivery up of his notes, and for the establishment of his set-off against Andrews.

The suit was entitled at the beginning,

'Stephen M. Jones, citizen and resident of Richmond County, Georgia,

vs.

Joseph Andrews, citizen and resident of City and County and State of New York; P. Reed and H. W. Bryson, both citizens and residents of Shelby County, Tennessee.'

And the prayer of the bill began thus:

'The premises considered, complainant prays that Joseph Andrews, a resident and citizen of the city, county, and State of New York, and the said Reed and Bryson, both of whom are residents of Shelby County, in the State of Tennessee, be made parties defendant, by due process and publication,' &c.

Andrews (the resident of New York) was not served with process; but, as the record stated,

'Comes and moves the court here to dismiss the bill of the plaintiff for want of jurisdiction, apparent on the face of it;' and for causes for such motion showed (among others),

(1.) The bill does not aver the citizenship of the plaintiff, nor does it show such facts in regard to the citizenship or residence of the defendant as gives the court jurisdiction.

(2.) The plaintiff shows by his bill that he has an adequate remedy at law.

The court below dismissed the bill for want of jurisdiction over the parties, as well as for want of equitable jurisdiction over the subject-matter of the bill; but without prejudice to the right of the complainant to institute proper proceedings to assert his rights. And from the decree of dismissal, this writ was taken.

Messrs. Albert Pike and R. W. Johnson, in support of the action of the court below, in dismissing the bill for want of jurisdiction over the parties, contended on this point:

1st. That the citizenship of the parties was not sufficiently alleged in the bill. That a mere incidental and sidewise mention of citizenship in a caption of the bill-the only presentation of citizenship of all the parties here-was no averment or allegation of citizenship; that it could not be regarded as traversable, or an allegation for the falseness of which the party thus incidentally mentioning it would be responsible.

2d. That, if sufficiently alleged, the court had no jurisdiction over Andrews, the principal defendant, who was a citizen of New York, and not a citizen of Tennessee, where the suit was brought. That under the Judiciary Act of 1789, it was certain that if there were more than one plaintiff, or more than one defendant, the Circuit Court could not take jurisdiction unless each of the parties was competent to sue or liable to be sued there; and that the act of February 28, 1839, wrought no change in the jurisdiction of the court, as respects the character of parties; that it only obviated the difficulties arising from inability to join or serve those, of several defendants, who might not reside or be found within the district, or should not choose voluntarily to appear.

Mr. P. Phillips, contra.

Mr. Justice BRADLEY delivered the opinion of the court.

title: Jones v. Andrews


text: Talk:Jones v. Andrews

title: Talk:Jones v. Andrews


text:
Jones v. Andrews/Opinion of the Court

On the question of jurisdiction over the parties, the appellees contend, 1st. That the citizenship of the parties was not sufficiently alleged in the bill. 2d. That, if sufficiently alleged, the court had no jurisdiction over Andrews, the principal defendant, who was a citizen of New York, and not a citizen of Tennessee, where the suit was brought.

Although the allegation of citizenship is not made in precise and technical form, we consider it sufficiently explicit to sustain the jurisdiction of the court, if the citizenship disclosed by the allegation does not displace that jurisdiction. It is more explicit than the allegation in the case of Express Company v. Kountze Brothers, which was sustained by the court. All that is necessary is, that it fairly appear by the bill of what States the respective parties are citizens. In this case the form of the allegations leaves no room for reasonable doubt.

The other exception, that Andrews, the principal defendant, was not a citizen of the State where the suit was brought, is entitled to more weight. Though the Constitution declares that the judicial power of the Federal government shall extend to controversies between citizens of different States, which would embrace the case before us (the plaintiff being a citizen of Georgia, and Andrews a citizen of New York), yet Congress has not established any court, except the Circuit Court, to take cognizance of such cases; and, by the Judiciary Act of 1789, which establishes that court, Congress only invested it with jurisdiction of cases where the suit is between a citizen of the State where the suit is brought, and a citizen of another State, and moreover declared that no civil suit should be brought before said court against an inhabitant of the United States, by any original process, in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ. The case is certainly not within the purview of this statute. The suit is brought in West Tennessee, and neither Jones, the complainant, nor Andrews, the defendant, is a citizen of that State. Besides, the suit is brought against Andrews in a district of which he is not an inhabitant, and in which he was not found at the time of serving the writ. Under the act of 1789, and the ruling of the early cases, the court would, prim a facie, be without jurisdiction. According to those cases the plaintiff, or each of the plaintiffs, if more than one, must be able to sue each of the defendants, if more than one.

But the act of February 28, 1839, by implication, confers jurisdiction over non-residents of the district where the suit is brought, if they voluntarily appear therein. The suit can proceed against them if they voluntarily appear, or without them if they are not necessary parties. If, however, they are necessary parties, and do not voluntarily appear, the difficulty remains the same as before the act of 1839 was passed. In this case Andrews was a necessary party, and he was not a resident of the district, and was not served with process, but he did voluntarily appear. It is true that as soon as he appeared, he moved a dismissal of the bill on two grounds, (1.) That it did not show such facts in regard to the citizenship or residence of the defendants as to give the court jurisdiction. (2.) That it contained no equity. Whether, if he had made the motion on the first ground alone he would have waived his personal exemption, it is not necessary to decide. His moving to dismiss for want of equity was clearly a waiver: and he was properly required to answer the bill. After this the question of jurisdiction over the person was at an end, and the decree of the Circuit Court, dismissing the bill for want of jurisdiction, must be reversed.

But the case is stronger than this. The jurisdiction of the court did not depend on the residence or citizenship of the parties. The suit is, in its nature, not an original but a defensive or supplementary suit, like a cross-bill, or a bill filed to enjoin a judgment of the same court. The bill is filed for an injunction against the garnishee proceedings under the suit at law for the delivery up of the complainant's notes, and for the establishment of his set-off against Andrews. This is, in substance, its character, and if the facts charged furnish a sufficient ground of equity for the relief asked, as to which the court refrains from expressing any opinion, the complainant had a right to file it against the defendants, and the court had a right to take cognizance of it as a defensive or supplementary proceeding, growing out of, and having direct reference to, the proceedings of the defendants in the same court against him. The case, in this respect, as before said, is analogous to that of a cross-bill or bill of review, or a bill for injunction against a judgment at law in the same court, of which the court has jurisdiction irrespective of the residence of the parties. As to bills for injunction against judgments at law rendered in the same court, Justice Story, in Dunlap v. Stetson, says: 'I believe the general, if not universal, practice has been, to consider bills of injunction upon judgments in the Circuit Courts of the United States, not as original, but as auxiliary and dependent suits, and properly sustainable in that court which gave the original judgment, and has it completely under its control. The court itself possesses a power over its own judgments by staying execution thereon; and it would be very inconvenient if it did not possess the means of rendering such further redress, as equity and good conscience required.' Let the decree of the Circuit Court be REVERSED, and the cause remitted for further proceedings, each party to pay his own costs on this appeal.

DECREE ACCORDINGLY.

title: Jones v. Andrews/Opinion of the Court


text: Talk:Jones v. Andrews/Opinion of the Court


text:
The Farragut

APPEAL from the Circuit Court for the Southern District of Illinois.

Clark libelled the steamer Farragut for causing the destruction of the canal-boat Ajax and her cargo on the 8th of March, 1866. The Buckeye Mutual Insurance Company having paid Clark $1500 insurance on the canal-boat, came in by petition, and were made parties libellant, and subrogated to Clark's rights in the cause to the amount thus paid. The principal charges of the libel were, that the steamer Farragut, being engaged in running between Beardstown, Illinois, and St. Louis, Missouri, on the Illinois and Mississippi Rivers, on the 7th of March, 1866, took the canal-boat Ajax, loaded with wheat, corn, and oats, in tow at Beardstown; that the owner or master of the Farragut contracted to tow the Ajax safely to St. Louis and return for $130, and caused it to be lashed to the side of the steamer, and proceeded safely down the Illinois River until about four o'clock in the morning of the 8th of March, when, in attempting to pass through the railroad bridge at Meredosia, the steamer was so carelessly and negligently managed that she caused the Ajax to come in contact with the pier of the bridge, whereby boat and cargo sank and became a total loss.

The answer alleged that the canal-boat was unsound and rotten; that the only contract between the parties was a verbal contract to tow the Ajax to St. Louis for $65, made with reference to the general usage on the Illinois and Mississippi Rivers, by which contracts for towing, in the absence of special agreements, are contracts to tow safely, except the usual dangers and hazards of river navigation, and do not involve the liabilities of a common carrier. The answer denied that the steamer was carelessly and negligently managed, or that the loss of the Ajax was attributable to the unskilfulness, negligence, or fault of any person having charge of her, and alleged that it was due to the usual dangers of river navigation; that the bridge in which the loss occurred is located at a bend in the river, which there changes its course from southeast to southwest; that this bend rendered it difficult to pass the draw of the bridge at any time without striking the eastern pier; that this difficulty was greatly enhanced at high water by a cross-current which strikes it diagonally across the draw, and that at the time of the loss complained of this current was at its worst; that the captain of the steamer himself, one Ebaugh, who was a skilful pilot of the river, took the helm on this occasion, and was steering the vessel when the accident occurred; but that, by the strength of the diagonal current, she was forced towards the piles protecting the east pier, with which the canal-boat came into contact and was stove and sunk, without any want of care or skill on the part of the owner or those in charge of the steamer. It was further alleged that the said piles formerly yielded to pressure, so that a sound boat rubbing against them received no serious damage therefrom; but that, during the preceding winter, the piles had been stiffened up with braces, so that when the unsound and rotten timbers of the Ajax came in contact with them they were crushed.

Both courts below were of opinion that the defence was sustained by the evidence, and decreed against the libellant. That party now brought the case here.

Mr. Laurence Proudfoot, for the appellant:

Captain Ebaugh was in the wheel-house, and acted in the capacity of wheelsman and look-out. Now the law says that there must be a man specially detailed, to have a trustworthy and constant look-out stationed at the part of the vessel best adapted for that purpose, and whose whole business is to keep such look-out; that an omission in case of collision would be prim a facie evidence of fault; that the wheel-house is not a proper place for such look-out, nor the hurricane-deck, and that the captain of the watch is not such a look-out as is required by law.

These requirements of the law extend to all classes of steamers and vessels, including especially those of steamers engaged in towing.

It is asserted by the steamer that, in order to recover, it must be shown affirmatively by us (though the steamer violated the law in regard to a look-out) that the want of the look-out was the cause of the collision. We look in vain in any of the already quoted decisions for such a qualification of the law. No such qualification can be found. Certainly, we having made a prim a facie case against the steamer, it devolves on it to show by largely preponderating evidence, that the neglect to have a look-out did not in the slightest degree tend to the collision and loss.

The Ottawa, one of the latest cases on this subject, goes further in our favor. Clifford, J., there says, in giving the court's opinion, what had been said many times before, as follows:

title: The Farragut


text: Talk:The Farragut

title: Talk:The Farragut


text:
The Farragut/Opinion of the Court

Steamers are required to have constant and vigilant look-outs stationed in proper places on the vessel, and they must be actually employed in the performance of the duty to which they are assigned. Proper look-outs are competent persons other than the master and helmsman, properly stationed for that purpose on the forward part of the vessel.

After repeating the same idea several times, and citing cases for each presentation of it, he says, in reference to the particular case (where the question was, whether the master, who was then engaged in navigating the vessel, was a competent look-out):

It is clear that the propeller did not have any proper look-out.

We adhere to those decisions, without abatement or qualification.

If this is true, if the statement was correct that the court would adhere, 'without abatement or qualification,' to the decisions cited in that case, then the court decided that the rule about look-outs was one so very important that they would hold to it in all cases as a general rule, and not regard evidence to show that in the particular case the presence of a special look-out would not have altered the result.

Mr. Trumbull, contra.

Mr. Justice BRADLEY delivered the opinion of the court.

The District and Circuit Courts were both satisfied that the evidence in the case fully supported the defence, and this court concurs in that conclusion, unless the position strenuously insisted on here by the appellants' counsel can be maintained, to wit, that the absence of a special look-out is evidence of negligence, which renders the owners of the steamer prim a facie liable.

It is undoubtedly true that the absence of a special lookout, would, in many cases, perhaps in most cases, be regarded as evidence of great negligence. The last rule prescribed by Congress by the act of April 29, 1864, declares that 'nothing in these rules shall exonerate any ship, or the owner, or master, or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper look-out,' &c.; thus intimating that 'a proper look-out' is one of the ordinary precautions which a careful navigation involves. But it would be against all reason to contend that the master or owners of a vessel should be made liable for the consequences of an accident by reason of not having a special look-out where the collision or loss could not have been guarded against by a look-out, or where it is clear that the absence of a look-out had nothing to do in causing it. Suppose that a sunken rock, dropped from a cargo of quarried stone, and unknown to the navigators of the channel, were the cause of the accident, could the presence of a look-out have the least tendency to guard against it? A hundred such instances might be suggested where the presence or absence of a look-out would have no influence whatever on the happening of the catastrophe. We are not to shut our eyes and to accept blindly an artificial rule which is to determine, in all cases, whether the navigator is liable to the charge of negligence in causing any loss or damage that may happen. A look-out is only one of the many precautions which a prudent navigator ought to provide; but it is not indispensable where, from the circumstances of the case, a look-out could not possibly be of any service. The object of a look-out is to discover dangers that are unknown, the advance of an approaching vessel, the appearance of a light on the coast, the discovery of a dangerous object, and many other things, the existence and presence of which could not be so easily and quickly known to the pilot as to a person whose sole business it was to make and communicate such discoveries. The cases referred to, taken in connection with the particular circumstances of each, cannot receive a different interpretation.

In the case before us no look-out could have been of any possible advantage. No look-out would have ventured, or presumed, to interfere with the captain, who had the helm at the time. It would probably have been rather an interference and a hindrance to the safe management of the boat for any third person in such an exigency to have diverted his attention. The obstacle was there in plain sight. Its position was better known to the captain than to any other person. No look-out could have aided him in the emergency. But, if a look-out were needed, we have the evidence of the mate that he was on the hurricane-deck watching the course of the steamer at the time; and, had it been possible for any look-out to have been of any service, he would have rendered it. Clark, the captain of the canalboat, was also on the watch as well as Nolte, the ship's carpenter, and one of the owners of the steamer. It is perfectly evident that the absence of a special look-out had nothing at all to do with the happening of the accident, and therefore it can have nothing to do with fixing the liability of the parties.

It is also evident that the loss was occasioned by the violence of the cross-current, which was due to the great height of water prevailing at the time, and was therefore the result of one of the ordinary dangers of river navigation.

DECREE OF THE CIRCUIT COURT AFFIRMED WITH COSTS.

title: The Farragut/Opinion of the Court


text: Talk:The Farragut/Opinion of the Court

title: Talk:The Farragut/Opinion of the Court


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Marble Company v. Ripley

[Syllabus from pages 339-341 intentionally omitted]

THESE were appeals from the Circuit Court for the District of Vermont, in two decrees, one of them on a bill filed by the Rutland Marble Company against a certain Ripley and one Barnes, and the other one a cross-bill filed by the same Ripley against the company just named. The case was this:

On the 22d of January, 1850, the said Ripley and the said Barnes together owned a tract of land in Rutland township, Vermont, containing about twenty-one acres, in which was a valuable marble quarry. On that day Ripley, by his deed, released and quit-claimed unto his co-tenant, Barnes, in fee simple, the tract of land. The deed contained a reservation to the releasor, his heirs, executors, administrators, and assigns, of 'the right to enter upon and take possession of the said twenty-one acres, for the purpose of digging, quarlying, and carrying away all the marble he or they might want, according to the stipulations and conditions of a contract that day made and concluded between the said Ripley and Barnes, in case the said Barnes, his heirs, executors, administrators, and assigns, should refuse, or fail on their part to fulfil the conditions and stipulations of the said contract.' By the contract referred to, which was made on the same day, Barnes agreed, 'for himself, his heirs, executors, administrators, and assigns, to quarry marble from the marble quarry, and draw and deliver at the mill of the said Ripley, in Rutland, from the layers of marble usually denominated the white layers in said quarry, all the marble that the said Ripley might want to saw, manufacture, and sell, in good sound blocks, of suitable size, shape, and proportion, and to quarry to order as might be wanted to keep the mill fully supplied at all times, the amount to be not less than 75,000 feet per annum, and for so long a time as the said Ripley, his heirs, executors, administrators, and assigns might want.' It was also agreed that should Ripley, his heirs, &c., at any future time desire to increase the business, Barnes, his heirs, executors, administrators, and assigns, should furnish the blocks, as aforesaid, to the extent of 150,000 feet per annum of two-inch marble slabs, on receiving one year's notice to that effect. It was also agreed that Ripley, his heirs, &c., or his or their agents, might have the privilege of dividing each lot of blocks, as taken and drawn from the quarry, taking an average share as to quality, size, and shape, before any blocks should be taken from the lots by any other person, the first choice always being taken by Ripley, or for his mill. It was also stipulated that Ripley might abandon the contract at any time on giving one year's notice. The contract further stipulated that if Barnes, his heirs, executors, administrators, or assigns should fail or refuse to fulfil its conditions, Ripley, his heirs, executors, administrators, or assigns, or his or their agents, might enter upon the quarry and the premises attached to, and connected with it, and might quarry and dig, take and carry away, as much marble as they might want; and might have the use of, and enjoy all the rights, privileges, and appurtenances belonging to, or connected with, the said quarry, without hindrance or obstruction, or in any way paying for the same, and might keep possession until Barnes, his heirs, executors, administrators, or assigns, should be ready and willing to fulfil the conditions of the contract on their part; it being also provided that if, after making an entry as aforesaid, Ripley, or his heirs, &c., should make an opening, or put the quarry in a better condition for getting out marble, Barnes, his heirs, executors, administrators, or assigns should not re-enter, or resume possession, until Ripley, his heirs, &c., should have had the benefit of the work done and money expended by them, unless Barnes should make payment for the same. It was further provided that Ripley, his heirs, executors, administrators, and assigns should receive the marble blocks so delivered at the mill; should saw, trim, and prepare them for market; should sell them, advancing from time to time to Barnes, as the blocks should be delivered, twelve cents per foot of two-inch marble, as payment for drawing and quarrying, and retaining from the proceeds of sales of the marble an equal sum per foot, as payment for sawing and trimming, retaining also from the proceeds of sales the expenses of transportation to market, and all the necessary expenses of doing the business and collecting payment for the marble (not including payment for his own time and labor), and should divide the remainder of the proceeds of sale equally between Barnes and himself, as collected. Ripley further agreed to pay Barnes one cent per foot of two-inch marble for drawing and transporting the marble from the quarry to the mill, the payment to be made from his own funds. At the date of this contract the quarry had been opened at the north end only, though Barnes contemplated making an opening on the south end, for two persons named Allen and Adams. The contract contained accordingly still another provision, evidently an alternative; to wit, that if the marble contained in that part of the ledge which Barnes was about to open for Allen and Adams should prove to be of better quality than the marble from the quarry then opened and worked upon the land, Barnes should open on the south end of the lot conveyed to him, and furnish Ripley with marble from that place on receiving reasonable notice.

Barnes having thus become the owner in severalty of the land containing the quarry, conveyed it, on the 1st of June, 1854, to sundry persons, expressly excepting the right reserved by Ripley in his deed aforesaid, and reserving to himself a right of entry in case his grantees should fail to perform his contract with Ripley. By several mesne conveyances the property became vested in the Rutland Marble Company on the 31st of October, 1863. In all the deeds, including that to the company, the right of entry reserved by Ripley in his conveyance to Barnes, and his rights under the contract, were expressly excepted, and the grantors reserved also a right of entry on the failure of their grantees to comply with the engagements of the contract of January 22d, 1850.

Soon after the contract was made, Ripley gave notice that he required his supply of marble under it to be increased from 75,000 to 150,000 feet, and on the 24th of July, 1854, he gave notice that he wanted the whole of his marble quarried from the south end of the ledge, next to the opening of Allen and Adams, according to the contract. On the 22d of August, 1855, he again gave notice that he claimed, under his contract of January 22d, 1850, to be forever thereafter supplied with marble from a proper opening of the ledge for the purpose, on the south end of the lot conveyed by his deed to Barnes. Accordingly an opening was made at the south end, necessarily at considerable expense, and he was supplied therefrom for years, until the spring of 1864, and until differences arose which resulted in these suits. Until that opening was made in 1854, or 1855, there was none on the land except the one which had been made at the north end before the contract between Barnes and Ripley was signed.

In the year 1854, while Barnes was still the owner of the land, a modification of the contract was agreed upon between him and Ripley, the particulars of which it is not necessary here to notice. The modification expired by its own limitation on the 1st of February, 1864, leaving the original agreement in full force. As already said, the marble company had, prior to that time, become the owners of the property; and they had fulfilled, so far as it appeared, the requirements of the modified contract. But very soon after its expiration, if not before, differences arose between them and Ripley respecting their rights under the agreement. On the 15th of February, 1864, he gave them notice that he claimed a right to divide every lot of blocks at all times thereafter, when taken from the quarry, insisting on a right to a first choice; and when this demand was resisted by the marble company it was renewed by Ripley. Differences also arose between the parties respecting Ripley's obligation under the terms of the contract, calling for 'layers of marble usually denominated the white layers,' to receive certain kinds of marble called brocadilla, having in a basis essentially white considerable deposits of blue or green; differences also respecting his right to demand payment for unloading at his mill, and respecting his obligation to pay for quarrying and hauling.

In this state of things, on the 5th of April, or within a day or two after it, a strike took place among the workmen at the quarries. On its occurring Ripley advised the company to hold out, saying 'that he would aid in whatever way he could; that the workmen had had their way long enough; that the company ought to resist the thing now, and ought to have done it years before.' When replied to by the agent of the company that the difficulty to resistance was in the contract with him about the mill, he said 'that the strikes affected his men and all the men at the mills, and that he would rather wait six months, or even twelve, and have the company get possession of the quarry and manage it as it ought to be managed.' Evidence, however, showed that it was observed about the 13th or 16th of April, that Ripley himself was having drills made of the sort used in quarrying, and that he kept persons in ignorance of the purpose for which he meant to use them, and that when told by an agent of the company whom he had advised to hold out against the strike, 'that the men understood that he was going to set them to work, and that he was thus helping the strike along as much as any one;' his reply was 'that they did not know but that he was going to quarry somewhere else; that they did not know where he was making drills to be used.' Whether the company had furnished to Ripley all the marble that he had a right to demand, under the contract of January 22d, 1850, was one of the matters in controversy. His mills had been enlarged after the date of that contract, so that they could saw 300,000 feet; and so enlarged, were perhaps not fully supplied at all times. It appeared, however, by the testimony of Ripley himself, and by his cross-bill, that between the 1st of February, 1864, when the already-mentioned modification of the contract expired, and the 3d of April (about which time the strike began), the marble company had delivered at Ripley's mill about 26,687 feet of marble. Ripley, it appeared, was in arrears at this time with his payments; and quarrying in the winter, it was proved, is a sort of work which in a latitude so high as that of Vermont, where frost necessarily pervades a quarry, is performed with injury to the quarry worked on.

On the 26th of April, soon after the strike was complete, Ripley, without giving any notice of his intended action, caused an entry to be made upon the entire property, as well the southern opening as the northern. The entry was made about three o'clock in the morning, by Barnes, acting for Ripley, and a large number of men were set at work, to the exclusion of the marble company.

The company hereupon filed a bill in the court below, setting forth various alleged pretensions of Ripley, which it said were unfounded; the strike and his complicity with the workmen; that his mill was always sufficiently supplied, & c.; and praying

That Barnes and Ripley might be enjoined against further unlawful interference with, or occupation of the then, the complainants' said property:

That the contract might be decreed rescinded and terminated, or, if not, that various questions respecting its construction might be settled by the decree of the court, and that the defendant, Ripley, might be required to account for the money of the complainants in his hands.

To this bill answers were put in by the defendants, and a cross-bill was filed by Ripley. The answer of Ripley, more material than Barnes's, after a general history of things, denied most of the important allegations of the bill. It admitted, however, the strike, as stated in it, and after saying that the had expressed the opinion that the company should at once have refused all further employment of the laborers when the men struck, and have employed a new set of men, which he believed might have been done long before April 26th (the date of his entry), he proceeded to answer that the company totally disregarded his said opinions, and wholly neglected, so far as he could learn, to make any arrangement to substitute new laborers or to renew the business of quarrying, and being reliably informed and believing that no arrangement would ever be made with the laborers for their return to work, and the use and possession of the quarries having been to all appearance entirely vacated from the time of the strike (which was April 5th or 6th), he entered.

The cross-bill, after setting forth the same sort of a general history, and an account of the disputes that had arisen, &c., went on to represent that the marble company were working the quarries to an enormous excess over and above the quantity authorized or required by the contract of 1850, or any reasonable or proper expectation of the parties under the same, and were supplying other parties, and the trade in general, with great quantities of marble taken from the quarries, in violation of the rights of Ripley; that the whole mass and quantity of marble of the kind and description mentioned in the contract contained on the land, was limited and not inexhaustible, and that a continuance by the company in their then present rate of exhaustion and supply of the general market therefrom, would in a short time so exhaust the quarry as to render the performance of the contract of 1850 impossible, whereby he, the defendant, Ripley, would be entirely deprived of his beneficial interest in the quarry arising under the contract, and the whole profit and advantages thereof would be absorbed and exhausted by the company. The cross-bill prayed accordingly that the company might be decreed to perform specifically the contract by furnishing the marble as therein required, or deliver up the possession of the quarry and property to the said cross-complainant, free and discharged from all claim, right, or title which the said company ever had, or then had, in and to the same; and that in the meantime they be restrained from operating or working the quarry, or selling any marble taken therefrom; that they be decreed to pay such damages as the complainant might have sustained in consequence of their not having supplied his mill with marble as required by the contracts of 1850 and 1854, and pay the same by a specified day, and that the quarry be held as security therefor, and in default of such payment the company should be foreclosed of all equity of redemption or claim in and to said quarry and property.

The answer to the cross-bill, denying many other allegations, denied upon belief, that the quarry was likely to be exhausted, at least within a century, by any amount of work within the power of the company to give, or justified by their interests, and it insisted that the contract did not secure to Ripley the exclusive product of the quarry, but that the company had a right to work it for their own benefit independently of the arrangement; and admitting that they were taking from the quarry, and were disposing of more marble than was required to supply Ripley under the contract.

The grounds upon which the marble company rested their prayer that the contract might be rescinded and cancelled were, that Ripley had not performed the duties which it imposed upon him; that though it was, when made, intended to operate for the equal benefit of both parties, it had become, in the lapse of time, with the increased demand for marble, the greatly enhanced cost of production, and the entire change in the character and results of the marble business, grossly unfair and unequal; so much so, indeed, that the defendant's net receipts under it had become more than twelve times as much as those of the complainants; to him, yielding a yearly revenue of $40,000; to them, resulting in a very great loss on the marble supplied, and a return barely sufficient to defray the expenses of executing the contract; an inequality which they alleged was not denied, and was plainly unconscionable; that in addition to this, the contract made the company partners with Ripley, or his successors, in title to the mill, whether they would or not; and that, if corporations could not enter into partnership, they could not purchase the lands subject to the obligation of becoming partners, and therefore that the contract restrained the alienability of the property.

One of the grounds on which Ripley rested his claim to a decree for specific performance of the contract was a notice from the marble company, given to him on the 18th of June, 1864, that they would maintain that the facts set forth in their bill amounted to a permanent breach and violation on his part of the contract, authorizing them to treat it as rescinded, and that they therefore rescinded it, asserting that they had always performed it on their part until it was thus violated and broken by him.

The Circuit Court, after a hearing, granted an injunction in accordance with the prayer of the Rutland Marble Company, restraining the defendants, Ripley and Barnes, from the further occupation or possession of the premises and property described in the bill, and from any interference therewith, and enjoining them against hindering or disturbing the complainants from takine possession of, occupying, and using the same until the further order of the court. But the court refused to decree a rescission and cancellation of the contract itself.

The court also, in effect, decreed a specific performance of the contract, as prayed in the cross-bill, and made several decretal orders respecting the manner in which the contract should be performed, but the injunction asked for in the cross-bill was denied.

Among the decretal orders was one, that Ripley should pay over monthly to the company its share of the money received by him from the marble business; and there was none, as he by this cross-bill had prayed for, that the court would enjoin the company from selling and disposing of marble taken from the quarry. From the decrees above mentioned, and the decretal orders, appeals were taken to this court; Ripley, in his appeal, specifying as a second ground for it, the manner in which, as above stated, he was required to account with the company; and as a sixth ground,'The omission and refusal of the court to enjoin the company from selling or disposing of marble taken from the quarry.'

The matters considered by the court, accordingly, were:

I. Upon the bill by the marble company.

1. Whether the case was one for the injunction prayed for by the company against Ripley and Barnes.

2. Whether the case was one for the cancellation of the contract of January 22d, 1850.

II. Upon the cross-bill by Ripley.

1. Whether, it being decided that the contract was not to be cancelled, Ripley was entitled to a decree for specific performance of it by the company.

2. Whether the decretal orders above quoted and objected to by Ripley were erroneous.

The case, of which the transcript filled 904 printed pages, was elaborately argued by Messrs. B. R. Curtis and E. J. Phelps, for the Rutland Marble Company; and by Messrs. George F. Edmunds and W. M. Evarts, contra.

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

title: Marble Company v. Ripley


text: Talk:Marble Company v. Ripley

title: Talk:Marble Company v. Ripley


text:
Marble Company v. Ripley/Opinion of the Court

The first question presented for our consideration is whether the pleadings and proofs exhibited a proper case for an injunction upon the defendants, Ripley and Barnes, against disturbing the complainants in their right to take possession, occupy, and use the property entered upon by the said defendants, and against continuing the occupation which they had commenced of the quarries and other property, real and personal, of the company. The solution of this depends upon another question, which is, whether the entry made by Ripley, through his agent, Barnes, on the 26th day of April, 1864, was lawful under the circumstances in which it was made.

It is to be observed that the contract of January 22, 1850, between Ripley and Barnes, was in a very practical sense a contract of partnership, and that to Barnes's position under it the complainants have succeeded. By its terms each of the parties was bound to contribute to a common enterprise. Each had his own duties to perform. Barnes was to furnish the marble needed for the mill, and Ripley was to bestow his own labor and care in manufacturing it for the market and selling it. When this had been accomplished the net proceeds of sale were to be equally divided. Neither of the parties had a right to interfere with the specified duties of the other so long as that other discharged his obligations under the contract. But they had a common interest in the business carried on, quite as truly as if theirs had been an ordinary partnership. Any unauthorized attempt by one to oust the other from the position and rights assigned to him by the contract was, therefore, not only a breach of their agreement, but a fraud upon the relation they had assumed to each other. Such a wrong it is the province of a court of equity to prevent. A chancellor will interfere by injunction to restrain one partner from violating the rights of his copartner, even when a dissolution of the partnership is not necessarily contemplated.

Prim a facie, the entry of Ripley upon the quarry property and the consequent deforcement of the complainants was an invasion of their rights as owners of the land, and as jointly interested with him in the marble business. The burden is upon him, therefore, to show that his entry was justifiable. Has he shown it? Under the reservation in Ripley's deed, and under the contemporaneous agreement, his right to enter existed only in case Barnes, or his successors in the title, should fail or refuse to fulfil the conditions and stipulations of the contract; that is, should fail or refuse to deliver the marble as required by it. A right to enter for any other cause is not claimed. After a careful examination of the evidence we do not find that there had been any such failure on the part of the complainants to deliver marble prior to April 26, 1864, as justified Ripley in entering upon their possession. They were not bound to keep in full supply the mill which he then had. The contract had reference to a supply of the mill as it was in 1850, when its capacity was less than 150,000 feet per annum. And when, afterwards, he enlarged his mill so that he could saw 300,000 feet, nothing in the contract required Barnes, or his alienees, to keep the enlarged mill supplied. The obligation was only to furnish 150,000 feet per annum, as it might be wanted to supply the old mill. Nor did the contract require that any defined portion of the whole quantity should be delivered at any specified season of the year. Undoubtedly its spirit demanded that the deliveries should be reasonable. But it is in evidence that quarrying marble must be principally in moderate or warm weather, when there is no frost. It is, therefore, a reasonable construction that the parties intended the deliveries should be greatest in the summer and fall. Yet the evidence is, that the complainants delivered at his mill, during the months of February, March, and April of 1864, more than 26,000 feet, besides other blocks which he refused to receive. In fact a considerably greater quantity was delivered. All this was between February 1st (when the modification of the contract before mentioned expired) and the 3d of April. This was in excess of a ratable proportion of what the company was bound to quarry and deliver. After the 2d of April there was an interruption of deliveries, caused by a general turn-out of the workmen at the quarries, of which we shall have more to say hereafter. But what is most significant and convincing that there was no failure on the part of the company is Ripley's own sworn answer to their bill. It appears from what he himself states in this answer, that the reason for his entry was, not that there had been any failure or refusal to supply his mill with marble, so far as he had a right to claim it, but that the marble company disregarded his opinions, and he was apprehensive they would not be able to induce the laborers to return to work. It is plain that for such reasons neither the reservation in his deed nor the provisions of the contract gave him any right of entry. His intrusion upon the complainant's possession was, therefore, entirely unjustifiable, and a wrong the continuance of which a court of equity may well restrain.

We are also of opinion that his entry was not made in good faith, merely to supply himself with marble. Very soon after the modified contract came to an end he set up claims, some of which, at least, had no foundation in the contract. On the 15th of February he gave notice that he claimed a right to divide every lot of blocks, at all times thereafter, when taken from the quarry referred to in his deed and in the contract, insisting upon a right to the first choice; and this, though he had elected forever to take all his marble from the south opening, which he had required to be made under the alternative provision of the contract. This was either claiming inconsistently with his demand for all his marble from that opening, or it was, in effect, requiring the company to take therefrom twice as much as was necessary to supply the 150,000 feet for his mill. When the demand was resisted it was renewed, though without right. Differences of opinion also arose between the parties respecting Ripley's obligation to receive particular kinds of marble, respecting his right to demand payment for unloading it at his mill, and respecting his obligations to pay for quarrying and hauling. We do not enter now upon any consideration of the inquiry which of the parties was right. It is sufficient to notice that there were differences. It was while they existed, early in April, the strike of the laborers occurred. The evidence establishes beyond any reasonable doubt that Ripley advised the agents of the company to hold out against the strike, and that when told the mill contracts made a difficulty, he said he would rather go without marble six months, or a year, than that the company should submit to the strikers. Yet at this time when giving this advice and making these professions, he was preparing secretly to make an entry on the property. He was having drills made at least a week or ten days before he made his entry at night, concealing the purpose for which they were made, and his design to enter. When told that he was aiding the strike, as the men understood he was intending to set them at work, he replied the men did not know but that he was going to quarry somewhere else. Meanwhile he was himself refusing, or at least neglecting to pay what he was bound to pay, at the time when it was due. It is impossible to read the evidence without being convinced that he intended to secure the possession of the property by surprising the complainants, and thereby force them to assent to his demands and his interpretation of the contract. Such being the conclusions to be drawn from the evidence, we cannot doubt that the injunction decreed by the Circuit Court was correctly awarded.

It was, however, too broad. It restrained the defendants, Ripley and Barnes, not only from the further occupation or possession of the premises and property described in the bill, and from any interference therewith, but it enjoined them against hindering or disturbing the complainants from taking possession of, occupying and using the same, until the further order of the court. The effect of this is to deny to Ripley the right of entry reserved in his deed, and forbid his exercising it, though the complainants should hereafter wholly refuse to deliver any marble, unless the court by a future order shall allow an entry. This is probably more than was intended. The decree should be modified so as only to enjoin against an entry for any cause heretofore existing, leaving Ripley to enjoy his reserved right hereafter entirely untrammelled.

We proceed next to inquire whether there is any sufficient reason for decreeing a cancellation of the contract of January 22, 1850, as prayed for by the marble company. This is a call for an exercise of the highest chancery power, a power most frequently exerted in cases of fraud, accident, or mistake. The grounds upon which the company rest their claim that the contract may be decreed to be rescinded and cancelled are, that Ripley has not performed the duties which it imposed upon him; that though it was, when made, intended to operate for the equal benefit of both parties, it has become, in the progress of time, oppressive and burdensome to the complainants, or, as they denominate it, unconscionable; that it makes them partners with Ripley, or his successors in title to the mill, whether they will or not; and that, if corporations cannot enter into partnership, they cannot purchase the lands subject to the obligation of becoming partners, and therefore the contract restrains the alienability of the property.

Before proceeding to a consideration of these it is proper to remark that the agreement is inseparable from the deed for the land made by Ripley to Barnes. They were made at the same time, and they are parts of one arrangement. What is asked, therefore, is, not to rescind an entire contract, but to strike out of it a part which has become onerous to one of the parties. It is clear that the rights secured to Ripley by the agreement were a part of the consideration for his grant of the land, and so it was understood at the time his deed was made. If there were nothing else to show this, it is made apparent by the reservation in the deed of a right of entry to secure the fulfilment of the stipulations of the agreement. But the deed was an executed contract. It conveyed the title to the grantee. If, therefore, the agreement is rescinded by a decree of the court, the consideration of the grant is taken from the vendor after his conveyance has taken effect, and yet his grant is enforced. It is believed that such action by a court of equity is quite unprecedented. It has been ruled that when a party seeking to set aside a conveyance made by him has received part of the consideration, he must return it before a court of equity will cancel the conveyance. That one party to an executory contract, partly executed, has violated his engagements, is generally no sufficient reason for a decree by a court of equity, at the suit of the other party, that the contract shall be annulled. Certainly it is not in the present case. If the contract has been broken by Ripley, the marble company has an adequate remedy at law. Nor is it any reason for rescinding the contract that it has become more burdensome in its operation upon the complainants than was anticipated. If it be, indeed, unequal now, if it has become unconscionable, that might possibly be a reason why a court should refuse to decree its specific performance; but it has nothing to do with the question whether it should be ordered to be cancelled. It is not the province of a court of equity to undo a bargain because it is hard. Nor have the other reasons assigned in support of the complainants' prayer for cancellation any more weight in view of the circumstances of the case. The marble company have, by their own voluntary act, placed themselves in the position they occupy. With a full knowledge of the reservation in Ripley's deed to Barnes, and of the contract, the performance of which the reservation was intended to secure, they purchased the quarries. They purchased expressly subject to the rights guaranteed to Ripley, and they undertook with their grantors to perform the promises Barnes had made, so long as they held the land. At the time when they purchased, the contract had been in operation for years, and they knew its effect. It is fair to presume that the burden of the contract was considered in fixing the price they paid. They are, therefore, not in a condition to ask for its rescission, and the Circuit Court rightly refused to decree a cancellation.

The next question is, whether Ripley, the defendant, was entitled, upon his cross-bill, to a decree against the marble company for a specific performance of the contract. The court below substantially directed such performance, and from that decree the marble company have appealed, and they now urge that the contract, though supposed to be fair and equal when made, has, in the lapse of time, and by the operation of unforeseen causes, arising from changed circumstances, become exceedingly unfair, unreasonable, and unconscionable, so that a decree for its specific performance would tend to their oppression and ruin. It may be doubted, however, whether the hardship of the contract is any greater than must have been contemplated when it was made. It is not unconscionable because Ripley obtains a larger profit from it than was at first expected, or because the other party obtains less. Those were contingencies, the possibility of which might have been foreseen. It could not have escaped the thought of the contracting parties that the expense of quarrying might possibly increase, and that the expense of sawing and preparing for market might either increase or diminish in the progress of time. Of that they took their chances. Besides, it is by no means clear that a court of equity will refuse to decree the specific performance of a contract, fair when it was made, but which has become a hard one by the force of subsequent circumstances or changing events. Mr. Fry, in his work on Specific Performance, asserts that 'the question of the hardship of a contract is generally to be judged of at the time at which it is entered into; that if it be then fair and just, it will be immaterial that it may, by the force of subsequent circumstances or change of events, have become less beneficial to one party, except when these subsequent events have been in some way due to the party who seeks the performance of the contract.' Judge Story, indeed, states the rule somewhat differently, and there are some cases that support his statement; but the rule as stated by Mr. Fry must be applicable to contracts that do not look to completed performance within a defined or reasonable time, but contemplate a continuous performance, extending through an indefinite number of years, or perpetually.

There are other objections, however, to a decree for a specific performance in this case which are more serious. Such a decree is not a matter of right. It rests in the sound discretion of the court, and generally it will not be made in favor of a party who has himself been in default. In Story's Equitable Jurisprudence, it is said that 'in cases of covenants and other contracts, where a specific performance is sought, it is often material to consider how far the reciprocal obligations of the party seeking the relief have been fairly and fully performed. For, if the latter have been disregarded, or they are incapable of being substantially performed on the part of the party so seeking relief, or from their nature they have ceased to have any just application by subsequent events, or it is against public policy to enforce them, courts of equity will not interfere.' To the same effect are Smith's Principles of Equity; Thompson v. Tod, Lewis v. Wood, and many other cases. Applying these principles to the case in hand, it would appear that the conduct of the cross-complainant has not been such as to justify the court in decreeing a specific performance, at his suit, against the marble company. Without relying upon his alleged unfounded claims set up from time to time, or his alleged refusals or failures to make the payments due from him at the times required by the contract, or his alleged comfort given to the turn-out of the workmen, and his advice that the company should resist it, his unlawful and unwarranted entry and ouster of the marble company was such an invasion of the contract as leaves him no standing as a complainant asking for its performance in a court of equity.

Another serious objection to a decree for a specific performance is found in the peculiar character of the contract itself, and in the duties which it requires of the owners of the quarries. These duties are continuous. They involve skill, personal labor, and cultivated judgment. It is, in effect, a personal contract to deliver marble of certain kinds, and in blocks of a kind, that the court is incapable of determining whether they accord with the contract or not. The agreement being for a perpetual supply of marble, no decree the court can make will end the controversy. If performance be decreed, the case must remain in court forever, and the court to the end of time may be called upon to determine, not only whether the prescribed quantity of marble has been delivered, but whether every block was from the right place, whether it was sound, whether it was of suitable size, or shape, or proportion. Meanwhile the parties may be constantly changing. The marble company are liable so long as they hold the land, and Ripley's rights exist only while he holds the mill. It is manifest that the court cannot superintend the execution of such a decree. It is quite impracticable. And it is certain that equity will not interfere to enforce part of a contract, unless that part is clearly severable from the remainder. Many of the difficulties in the way of decreeing specific performance of a contract, requiring, as this does, continuous personal action, and running through an indefinite period of time, are well stated in The Port Clinton Railroad Company v. The Cleveland and Toledo Railroad Company.

Another reason why specific performance should not be decreed in this case is found in the want of mutuality. Such performance by Ripley could not be decreed or enforced at the suit of the marble company, for the contract expressly stipulates that he may relinquish the business and abandon the contract at any time on giving one year's notice. And it is a general principle that when, from personal incapacity, the nature of the contract, or any other cause, a contract is incapable of being enforced against one party, that party is equally incapable of enforcing it specifically against the other, though its execution in the latter way might in itself be free from the difficulty attending its execution in the former.

But what is a still more satisfactory reason for withholding a decree for specific performance is, that the party who asks for it has an entirely adequate remedy provided by the reservation in his deed, and by the contract itself. In addition to his remedy by suit at law, he has a right of entry and the privilege of supplying himself with marble, as much as he may want, if the owners of the land do not fulfil the conditions and stipulations of the contract. He may take marble without making payment for it, and in case of such entry he may hold possession until the tenants of the fee are ready and willing to carry out the agreement, and until he has been compensated for all his expenditure. This is a remedy more adequate and full than any decree for specific performance could give him, and it renders such interference of a court of equity entirely unnecessary.

For these reasons we are of opinion that the Circuit Court should not have decreed performance in specie of the contract, but should have left the cross-complainant to his action at law, or to the remedy reserved in his deed.

It is true that the marble company, on the 18th of June, 1864, gave notice to Ripley that they would claim that the facts set forth in their bill amounted to a permanent breach and violation on his part of the contract, authorizing them to treat it as rescinded, and that they therefore rescinded it, asserting that they had always performed it on their part until it was thus violated and broken by him. But this was after his wrongful entry, which certainly relieved them for a time from delivering marble, and the notice in no way interferes with any remedy he may have at law, or with any right he has to enter under the reservation in his deed.

The decree, so far as it orders specific performance, will therefore be reversed, as also all the decretal orders that direct the mode of performance.

We have thus disposed of all the questions raised by the appeal of the complainants, The Rutland Marble Company, and of most of those raised by the appeal of the defendant, Ripley. Two or three questions remain to be considered. It is sufficient to say, in answer to the second specification of his appeal, that we do not perceive that he was required to pay the company's share of the money received by him from the marble business any more rapidly than the contract, giving to it a reasonable construction, demanded.

In the sixth specification it is averred that the decree is erroneous, in that it omits to order and direct that The Rutland Marble Company, their agents, servants, and assigns, be enjoined from selling or disposing of marble taken from said quarry of said company. Though the appeal is in these broad terms, it is presumed the appellant does not mean to be understood as claiming that the marble company should be enjoined against selling as much marble as the quantity furnished by them for the mill. If this is not so, then the construction he would have given to the contract is that the tenants of the fee must quarry every year 300,000 feet, and deliver one-half thereof at the mill, leaving the remainder unsold and undisposed of. This is a construction so unreasonable and so at variance with the words of the contract, that it needs only mention to show its inadmissibility. Assuming, then, it to be meant that the court should have enjoined against a sale of marble from the land greater in quantity than that which was required by the contract to be delivered at the mill, we are of opinion the claim cannot be maintained. It has been argued in support of it that the evidence shows the quarry to be exhaustible within a definite number of years; that the contract contemplated a perpetual supply for the mill, or a supply so long as the marble shall last, while the quarry shall be worked in the manner contemplated and prescribed by it; and hence that taking out marble and disposing of it in greater quantities than the mill requires, with a right of choice of blocks in Ripley, is an invasion of his right.

The argument is faulty in several particulars. It assumes that the contract prescribed a mode of use of the quarries exclusive of any other. Such is not the agreement. It bears upon its face the evidence that supplies of marble to other consumers than Ripley's mill was contemplated. There certainly is no express restriction of the quantity which the owners of the land may take out, and restriction upon the absolute rights of ownership in fee is not to be raised by mere implication. When Ripley required, under the last provision of the agreement, all his marble to be furnished from the south opening on the lot, and when, in obedience to his demand, the opening was made by Barnes, it should require unambiguous language to satisfy a court that Barnes and his successors in the title were excluded from taking marble from any other opening for the purpose of sale.

The argument also misapprehends the nature of such a right as Ripley's, even though it be conceded that it was intended to provide for a perpetual enjoyment of a marble supply. Neither the contract nor the reservation in his deed gave him a corporeal interest in the marble in situ. It was not a grant to him of the marble, or a grant of a right to quarry and take it all. If his interest was real in any sense, which may be doubted, it was incorporeal. Of course it was not exclusive of the right of the owners of the land to take marble on their own account ad libitum. In Lord Mountjoy's case, reported by Godbolt, by Leonard, in Coke Littleton, by Moore, and more fully by Anderson, a leading case, the words of the reservation were:

'Provided always, and it is covenanted, granted, concluded and agreed between the said parties to this indenture, and the said John Brown and Charles (the grantees), and their heirs covenant and grant to and with the said Lord Mountjoy, his heirs and assigns, by these presents, in form following, that is to say, that it shall be lawful for the said Lord Mountjoy, his heirs and assigns, at all times hereafter, to have, take, and dig in and upon the heath ground of the premises, from time to time, sufficient ores, heath, turves, and other necessaries for the making of alum and copperas.'

Here was a reservation from grantees and their heirs to a grantor, his heirs and assigns, quite as large as in the present case. Yet it was held an incorporeal hereditament, and not a grant of an exclusive right. It was likened to a grant of common sans nombre, leaving the grantors a right to dig and take ore, though their so doing might exhaust it. Chetham v. Williamson, is another case equally decisive to the same effect. Other decisions asserting the same doctrine are at hand: Caldwell v. Fulton, Johnston Iron Company v. The Cambria Iron Company, Gloninger v. The Franklin Coal Company. In all of them the covenants ran with the land. The grants were of undoubted real interests. They contemplated a perpetual supply to the grantees as plainly as it was contemplated in this case. The rights of the grantees were not limited, as here, to any defined quantity, and yet it was held they did not interfere with the right of the grantors to take ore, coal, &c., from the property out of which the incorporeal interests issued, and to take it without suit. The appeal of the cross-complainant cannot therefore be sustained.

Nor, under the circumstances of the case, can the marble company be decreed to account for failures to supply the marble required by the contract to be delivered at the mill, if there have been such failures. Holding as we do that there can be no decree for a specific performance, and that Ripley is not entitled to an injunction against selling marble from the quarry, the substantial basis of the defendant's cross-bill fails, and having disturbed the plaintiffs' possession wrongfully, and thereby interfered with their power to perform the contract, he is not in a situation to invoke equitable aid. If he has any claim to damages for a breach of the contract, it must be asserted at law, and there his remedy is complete.

It remains only to add, what must now be apparent, that that part of the decree which directed Ripley to pay the taxable costs, except such as accrued from the portion of the complainants' bill which sought to annul the contract, was correct.

DECREE REVERSED, and the cause remitted with directions to enter a decree in accordance with the opinion above given. The costs of the appeals to be divided, and one-half be paid by each of the parties.


text: Talk:Marble Company v. Ripley/Opinion of the Court


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Hanrick v. Neely

In error to the Circuit Court for the Western District of Texas.

This was an action of trespass, according to the local practice of Texas, to try the title to several leagues of land, in Falls County, in that State.

On the trial of the case before a jury the plaintiff proved title in one Pedro Zarsa to the lands in controversy, and gave in evidence a letter of attorney, executed in 1831, from Zarsa to McKinney, authorizing him to sell the lands or to substitute another person in his stead for that purpose. McKinney did not execute the power conferred on him, but, in 1833, delegated it to one Williamson by a letter of substitution, which was also received by the court in evidence. In further derivation of title the plaintiff offered in evidence a deed of the property made in the name of Zarsa, in 1851, by Williamson, under the substituted power, to Hanrick, the plaintiff.

It appeared, from the evidence, that Williamson, on behalf of Zarsa, had contracted to sell the several tracts of land to Hanrick, and that the sale was not completed, owing to differences concerning it, which had arisen between the parties. These differences produced litigation, in the District Court of the United States for the Eastern District of Texas, which resulted in the court decreeing that Williamson, on behalf of his principal, should convey to Hanrick.

This deed, offered as above stated, by the plaintiff, was rejected by the court below on the ground that as it was made and delivered in pursuance of a decree of the District Court, the decree was necessary to support the deed, and without proof of it (which was not furnished) the deed could not be read in evidence to the jury. The court also apparently based its rejection of the deed on the ground that it was delivered by the clerk to Hanrick in obedience to the decree of the court, and that therefore proof of the decree was necessary to support the delivery. There was other evidence offered, rejected, and exceptions taken, but the only point in the case which the court deemed it necessary to notice related to the ruling of the court, excepted to at the time, excluding this deed from the consideration of the jury. The main question was whether the deed was good without the decree?

''Mr. W. G. Hale, for the plaintiff in error. No opposing counsel''.

Mr. Justice DAVIS delivered the opinion of the court.

title: Hanrick v. Neely


text: Talk:Hanrick v. Neely

title: Talk:Hanrick v. Neely


text:
Hanrick v. Neely/Opinion of the Court

It may be true that the deed which the court below rejected was executed because of the decree made by the District Court for the Eastern District of Texas, and that it would not have been made if the decree had not been rendered, but it does not follow that the decree was necessary to its validity. The fee of the lands was in Zarsa, and the power of Williamson, his attorney in fact, to sell and convey them to Hanrick, was plenary, and did not require, to be employed, that a court of justice should act on it. If Williamson was stimulated by the decree to exercise the power thus vested in him by Zarsa, what right have the defendants to question his action or complain of it? They are not concerned with the reasons that induced him to act, nor with the nature or result of the litigation with Hanrick. All that they are interested to know is, that Zarsa had title to the lands, that he authorized Williamson to sell, and that the conveyance to Hanrick was in due form of law. The decision by this court in Games v. Stiles is a direct authority against the position taken by the court below. In that case, Buchanan, the purchaser from the United States of lands in Ohio, sold them to Sterling, but recited in his deed, that the conveyance was made in pursuance of a decree of the Circuit Court of the United States for the District of Virginia. The court held that it was not necessary to prove the decree to sustain the deed; that as Buchanan was the patentee of the land, although he made the deed under the authority of the decree, yet the deed was good without the decree, which could add nothing to its validity. If anything, the case at bar is stronger than the case just cited, because Zarsa does not recite in the body of the deed that the conveyance is made in consequence of the decree, and we only learn the fact that it was so, by an indorsement on the back of the deed.

One other point remains to be noticed. It seems that the court based its rejection of the deed also on the ground that it was delivered by the clerk to Hanrick in obedience to the decree of the court, and that therefore proof of the decree was necessary to support the delivery. But the deed was not complete without delivery, and the decree of the court was no more essential to give validity to the delivery than it was to any other formality necessary to the full execution of the instrument. Williamson authorized the delivery, and has acquiesced in it, and no one else can object to the mode by which the act was accomplished. All that the defendants are interested in, is the fact of delivery, and about this there is no dispute. They are no more concerned with the considerations that induced Williamson to deliver the deed to Hanrick, through the clerk of the court, than they are with the motives that prompted him to affix his signature and seal to the instrument.

Apart from this, Hanrick, the grantee, being in possession of the deed, which upon the face of it is regularly executed, and, having had it recorded, the presumption is that it was duly delivered. #fn-s-s * *

It is, therefore, clear that the Circuit Court erred in rejecting the deed, and on that account its judgment is

REVERSED AND A VENIRE DE NOVO AWARDED.

title: Hanrick v. Neely/Opinion of the Court


text: Talk:Hanrick v. Neely/Opinion of the Court


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Railroad Company v. Trimble

ERROR to the Circuit Court for Maryland, the case being thus:The Patent Act of 1836 thus enacts:

'Section 11. That every patent shall be assignable in law, either as to the whole interest or any undivided part thereof, by any instrument in writing; which assignment, and also every grant and conveyance of the exclusive right under any patent to make and use, and to grant to others to make and use the thing patented within and throughout any specified part or portion of the United States, shall be recorded, &c.

'Section 14. Damages may be recovered by action on the case, in any court of competent jurisdiction, to be brought in the name of the person or persons interested, whether as patentees, assignees, or grantees of the exclusive right within and throughout a specified part of the United States.'

Section 18 of the act authorizes, under certain circumstances, an extension of the patent beyond the term of its limitation, and thus continues:

'And thereupon the said patent shall have the same effect in law as though it had been originally granted for a term of twenty-one years. And the benefit of such renewal shall extend to assignees and grantees of the right to use the thing patented to the extent of their respective interest therein.'

These statutory provisions being in force, a certain Howe obtained, on the 3d of August, 1840, a patent for an improvement in the manner of constructing the truss frame of bridges. He had previously, on the 10th of July, of the same year, obtained a patent on the same account, which was merged practically in that of August 3d. On the 9th of July, 1844, he assigned to one Isaac R. Trimble all his right in these two patents for certain States, including Maryland. This assignment (duly recorded) conveyed Howe's rights in these words:

'All the right, title, and interest which I have in said invention, as secured to me by said letters patent; and also all right, title, and interest which may be secured to me for alterations and improvements in the same from time to time;. . . the same to be held and enjoyed by the said I. R. Trimble, &c., to the full end of the term for which said letters patent are or may be granted, as fully and entirely as the same would have been held and enjoyed by me had this assignment and sale not have been made.'

Afterwards, on the 28th August, 1846, another patent was granted to Howe, for an improvement in the manner of constructing these truss frames; and on the 18th of September, 1854, Howe having died meanwhile, his adminis trator, one Joseph Stone, in order to 'secure to I. R. Trimble more perfectly his legal rights, and tend to a more speedy adjustment of any disputed claim,' assigned to Trimble the same interest in the patent of 1846 which he held in the others. The assignment recited that the alterations and improvements secured by the patent of 1846 already belong to Trimble, 'who has used and paid for the same since the year 1846, as understood at the time.'

On the application of the same administrator, Stone, the patent of 1846 was extended for seven years from the 28th of August, 1860.

On the 30th of May, 1861, Trimble executed a deed, duly recorded, of 'all his property and estate, whatsoever and wheresoever, of every kind and description,' to Anne Trimble (his wife) and Georgiana Presstman, in trust, &c.

The Philadelphia, Wilmington, and Baltimore Railroad Company during the years 1864, 1865, and 1866, that is to say, during the term of the extension, having built certain bridges in Maryland, adopting Howe's improvement, Trimble, his wife, and Presstman brought suit for damages. Plea not guilty, &c. There was no question as to the validity of the patent, the only point being whether the assignment of July 9th, 1844, from Howe to Trimble passed Howe's interest in the extension of 1846.

The plaintiffs having put the case, as already stated, before the jury, the defendant gave in evidence an assignment dated April 1st, 1861, from Howe's administrator, Joseph Stone, to a certain Daniel Stone, of Philadelphia, of all the administrator's interest in the patent of 1846, and its extension, for the State above mentioned. This was followed by proof of an agreement between Trimble and Daniel Stone, dated 30th September, 1846. This agreement, which was not recorded until July 27th, 1864, and after Stone's death, which event took place in December, 1863, recited the agreement between Trimble and Howe and the payments thereby stipulated to be made by Trimble. Stone covenanted to pay one-half of the instalments still unpaid as they should mature.

This clause follows:

'And the said Isaac R. Trimble, in consideration of the said payments, promises, and agreements on the part of the said Daniel Stone as aforesaid, for and on the part of himself, the said Isaac R. Trimble, and his heirs, executors, and administrators, covenants and agrees, and by these presents doth covenant and agree, to sell and transfer, and doth hereby sell and transfer unto the said Daniel Stone, his heirs, executors, and administrators, the one equal moiety or half-part of all the right, title, claim, and interest of him, the said Isaac R. Trimble, of, in, and to the patent-right aforesaid, which he purchased as aforesaid of the said William Howe.'

A copartnership between the parties in the business of building bridges under Howe's patents was then made by the agreement, and it was stipulated that if either party should at any time desire a dissolution, Trimble should name a sum which he would be willing to give or take for a moiety of the rights which he acquired from Howe, including the payments to Howe, and that Stone should thereupon decide whether he would buy or sell; and, further, that the contract might be dissolved at the expiration of six months after notice from either party.

The defendants then gave in evidence a transcript of the record in an equity proceeding in the Supreme Court of Pennsylvania, instituted March 10th, 1864, by this same Joseph Stone, administrator of Daniel Stone, against Trimble, as 'formerly of said city of Philadelphia.' It alleged a partnership between Daniel Stone and Trimble, and that the same was carried on in Philadelphia, and it produced what it charged was a copy of the articles of partnership of September 30th, 1846. It then charged that Trimble, 'on or about the 29th day of April, 1861, absconded to parts unknown, abandoning the said copartnership business, and took up arms against the government of the United States, became a major-general in the so-called Confederate States army, was afterwards captured, and is now held at Johnston's Island, on Lake Erie, as a prisoner of war by the United States.' It further charged that since April 29th, 1861, Trimble had taken no part in the management of the partnership business; that Daniel Stone died on November 26th, 1863, and that the complainant had administered on his estate; that no settlement of the business had ever been had; that a large amount was due from Trimble to Daniel Stone's estate; that the assets of the firm consisted in part of an interest in Howe's patents, which had been extended for seven years from August 28th, 1860; that great loss would result from lapse of time and non user, &c., unless the rights of the copartnership should be disposed of, &c. The bill then required the defendant to answer as to whether 'the property of the partnership does not principally consist of a partial right under letters patent originally granted to Howe, on the 28th of August, 1846, and afterwards extended for seven years from the 28th of August, 1860;' and it prayed an account, injunction, receiver, &c., and a subpoena against Trimble. It was sworn to by Joseph Stone. No subpoena was ever issued, but on the production of two affidavits, sustaining the allegations of the bill as to Trimble's having gone into the Confederate army, and being then in prison at Johnson's Island, the court, March 26th, 1864, sixteen days after the filing of the bill, appointed one John E. Shaw, receiver, and ordered him to sell the partnership property. He filed an inventory, in which the Howe patent, as extended, was set down as the only assets of the partnership, and a sale of it for $300, to one Burton, was reported. He then filed a petition for the confirmation of the sale of the patent and extension to Burton, and on June 11th, 1864, the sale was absolutely confirmed, and the receiver directed to execute the assignment to Burton of the Howe patent 'to the full end of the time for which said letters patent have been extended.'

[The articles of copartnership between Trimble and Stone, filed by the complainant, in the equity suit in Pennsylvania, as an exhibit with his bill, though in all other respects identical with the instrument filed in the Patent Office, and produced by the defendants on the trial, did not contain the words of actual sale, which were contained in the latter instrument, to wit: the words, 'and doth hereby sell and transfer,' but confined themselves to an agreement to sell.]

Next followed an assignment dated June 11th, 1864, from this Shaw, receiver, to Burton, of all the interest of Daniel Stone and Trimble, as partners in the Howe patents.

Next was produced an assignment from Joseph Stone, administrator of Daniel Stone, to the same Burton, dated March 6th, 1865, in which he transfers to the assignee all the interest of the deceased in the Howe patents and extension.

The plaintiffs, by way of rebutting evidence, then proved by Trimble that Daniel Stone never made any of the payments stipulated to be paid by him in the agreement offered in evidence by the defendant; that by common consent, the agreement never went into operation in any way, because Stone was unable to comply with any of his engagements made in said agreement, and left their witness to pay, and the witness was compelled to pay, the instalments still due on the original purchase, which the witness himself did; that Stone never claimed any right or interest whatever during his life under that agreement, nor did he ever pretend to act under it; but, on the contrary, always recognized the witness's exclusive right to the interest referred to in said agreement, and acted as the witness's agent under a power of attorney, in constructing bridges thereunder, paying the witness a part of the profits as a compensation for the privileges. The witness further proved that he never was a resident or citizen, nor were any of the plaintiffs, at any time, residents or citizens of Pennsylvania.

The evidence being closed, the plaintiff's presented their prayer for instructions, as follows:

'That if the jury believe, that the agreement offered in evidence by the defendant, executed by and between Trimble and Daniel Stone, and bearing date the 30th September, 1846, never went into effect and operation between the parties thereto, because of the inability and failure of the said Stone to comply with the terms thereof on his part, and that the partnership therein contemplated was, for the same reason, abandoned by the common consent of the said parties; and the said agreement was held and treated by and between them, in all particulars, as inoperative and of no effect; and further believe that the said Trimble, by reason of the failure of said Stone to pay the moneys due on the purchase of the original patent, as in said agreement stipulated, was compelled to pay, and did pay, the same altogether himself; and that said Stone always, after the execution of the said agreement, and notwithstanding the same, recognized the said Trimble as the sole owner of the patent right therein referred to, and acted only as his agent and attorney in regard thereto, and in recognition of his sole right therein, and not otherwise, and never caused or procured or intended the said agreement to be recorded, but died in 1862 or 1863, before the recording of the same, and without setting up the same or pretending to have acquired any rights thereunder, then the said agreement is not to be regarded by the jury as passing any right or title to the said Stone, which the defendant is entitled to set up in connection with any other evidence in the cause, as a bar to the right of the plaintiffs to recover; provided the jury find the execution and delivery to the plaintiffs, Ann Trimble and Georgiana Presstman, of the deed of the 13th of May, 1861, produced by the plaintiffs, and that the same was recorded, &c.'

This instruction the court gave.

The defendant presented eight prayers, of which the court granted the first and seventh, and refused the rest.

The second was to the effect, that Trimble did not acquire by Howe's assignment, or that of his administrator, a legal title to the extension of the patent, and that the deed of trust executed by Trimble passed no legal title to the grantees.

The third maintained that the articles of copartnership between Trimble and Stone passed Trimble's title to a moiety of his interest in the patents, and that in the absence of any proof of a reconveyance in writing Trimble had no exclusive legal right in the extended term of the patent.

The fourth affirmed the validity of the receiver's deed to Durton, and that the proceedings in Pennsylvania, and that deed divested Trimble's entire interest.

The fifth was a corollary to the fourth, and assumed that as the deed of trust was not recorded in the Patent Office when the proceedings in Pennsylvania took place, it cannot operate to Burton's prejudice if neither he, the complainant, nor the receiver had any knowledge of it.

The sixth asserted that the assignment by Howe's administrator to Daniel Stone, passed the legal right under the extension to said Stone.

The seventh, touching limitations, was granted.

The eighth asked an instruction that there was no evidence in the case from which the jury could find that the plaintiffs had an exclusive legal title to the use of the Howe improvement at the time of the infringement.

Under these instructions, excepted to by the defendant, the jury found a verdict of $12,500 for the plaintiff, and after judgment the case was brought here on error.

Messrs. W. Schley and T. Donaldson, for the plaintiff in error:

1. The alleged infringements occurred during the extended term of the patent, but the plaintiffs below did not adduce any evidence of title in that term. There is nothing in the agreement, nor in the assignment, relied on by them, which would justify the conclusion, that the parties had in contemplation the possible extension of the patents, or any of them. Wilson v. Rousseau, seems in point. There a covenant by the patentee, prior to the Patent Act of 1836, whose 18th section authorized extensions, that the covenantee should have the benefit of any improvement in the machinery or alteration or renewal of the patent, did not include an extension by an administrator under that act; and other cases favor that view. The defendant's second and eighth prayers ought to have been granted.

2. Even if there had been, in the agreement or assignment, or in both, a covenant, providing for an interest in any extension, it would, as respects third parties, have vested but an equitable right. By estoppel, the subsequently accruing right feeding the estoppel-it might, in a suit inter partes, even at law, have clothed the covenantee with a legal right. But, however this might be in such case, it could not create a legal right, to be enforced by the covenantee, or his assigns, in an action at law, against a stranger to the covenant.

3. But even if Trimble had an inchoate right, in the possible extension of the patent of 1846, his agreement with Daniel Stone passed to Daniel Stone one-half of such right; and, of course, the plaintiffs (assuming the agreement to be operative), would not have such exclusive title, as would enable them to maintain this suit.

4. The evidence of Trimble, as a witness, is not competent legal evidence to destroy the agreement; or to revest in him the moiety, which he had transferred to Stone. An assignment of a legal interest in a patent, or of an interest therein, can, under the 11th section of the Patent Act of 1836, only be made by writing. Even if the facts, stated by the witness, would avail in equity, as a ground for a decree setting aside the deed, still, in a suit at law, they cannot annul the agreement.

5. Without entering into any discussion of the merits of the suit in the Supreme Court of Pennsylvania, it was shown that it was still pending; and that the court, by a receiver, had taken possession of the interest of Trimble in the patent right, long before the commencement of this suit. Coming into question, collaterally, in this suit, comity requires that the action of that court should not be declared a nullity in law. It was a proceeding in a court of equity; and partnership matters are properly cognizable in equity. It was a case in a matter within its jurisdiction. The appointment of a receiver is an ordinary exercise of power, for the purpose of preserving property, pending litigation; and it is the province of every court, having possession of a cause, to decide for itself, whether, upon the state of case before it, it is expected to exercise the power. The averments of the bill presented a strong case for prompt interference.

Messrs. B. C. Presttman and S. T. Wallis, contra.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Railroad Company v. Trimble


text: Talk:Railroad Company v. Trimble

title: Talk:Railroad Company v. Trimble