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New Orleans v. Gaines

APPEAL from a decree of the Circuit Court for the District of Louisiana; the case being thus:

In the year 1856 Mrs. Myra Clark Gaines filed a bill in the court below against the city of New Orleans, in which she sought to recover valuable real estate in New Orleans owned by one Daniel Clark, including a certain block or square described, on which a draining-house and out-buildings, with a draining-machine for draining the city, was now and had been for many years situated.

The bill alleged that she was the only and legitimate child of Clark; that Clark had left a valid will, made in 1813, by which he devised all his estate to her; that this will having been lost or destroyed, and she a minor till 1827 and ignorant of her parentage and rights, a provisional will, dated in 1811, of which Richard Relf and Beverly Chew were executors, and Clark's mother, Mary Clark, was universal legatee, was admitted to probate and ordered to be executed; that the will of 1813, which revoked the will of 1811, was subsequently found, and, in 1856, established; that Relf and Chew, under pretended authority as executors of Clark and as attorneys in fact of his mother, had, in 1821, without right or authority, and in bad faith, sold this lot and others at public auction to one Evariste Blanc; that Blanc, equally without right or authority, and in bad faith, had sold it and others, by act of sale, on the 26th of September, 1834, to the city of New Orleans; that the city had notice of the fraudulent character of the proceedings of Relf and Chew, & c., and of the worthlessness of the title, &c., which they acquired. The bill prayed a delivery of the property and an account of the rents and profits.

After a long and expensive litigation, including an appeal to this court, Mrs. Gaines succeeded in her case, and in pursuance of a mandate from this court, the court below, in June, 1870, entered a decree in her favor; decreeding that she was Clark's only legitimate child, and as his universal legatee was entitled to the lots in question; that the sale by Relf and Chew and that also by Evariste Blanc was wholly unauthorized and illegal, and utterly null and void; and that the city of New Orleans at the time it purchased the property was bound to take notice of the circumstances which rendered the actings and doings of Chew and Relf in the premises utterly null and void, and 'ought to be deemed and held, and was thereby deemed and held, to have purchased the property in question with full notice that the sale at auction, under the pretended authority of the said Richard Relf and Beverly Chew, and the said act of sale to the said Evariste Blanc were unauthorized, illegal, null, and void, and in derogation and fraud of the persons entitled to the succession of Daniel Clark. The court further decreed that Mrs. Gaines, as Clark's only and legitimate child and universal legatee, was entitled to the property with all the yearly rents and profits accruing from it since it came into possession of the city, on the 26th of September, 1834, and decreeing an account accordingly, referred it to the master to take the same.

The master reported that the city had never rented the lot on which the draining-house and machinery was built, nor received from it any rents or profits except by an increase of the city revenue, brought about by the fact that the draining-machine had drained a large part of the city, and by making it of use had largely augmented the property in the city that was taxed. While, therefore, he 'found it difficult to fix the amount of rents and profits for which the city was liable on this lot,' he presented certain facts and figures from which the court could reach an equitable result. These were thus: The city, it was estimated, had received from increased taxation of other property, during the term embraced by the order (including interest), $208,825.

Now, this particular lot of land, it was testified, was originally worth $200. The buildings erected by the city, independent of the machinery, cost $18,000. The putting up of the machinery was finished July 1st, 1835 or 1836 (some witnesses testifying to the one year and some to the other), and it was testified that a fair rental of the land and building was $2400 a year. The expense of repairs was $500.

The master, accordingly-disallowing to the city the benefit of the 'prescription of three years,' which it set up against the claim for rents-charged the city on this basis:

On exceptions to his report, one of them was that as the draining-machine and buildings necessary therefor were made and erected by the city, with materials belonging to it, the only right of Mrs. Gaines as to them was, either to keep the same and reimburse to the city their value and the price of workmanship, or to require the city to take away or demolish them; that the obligation, under the law of Louisiana, rested upon Mrs. Gaines to elect which she would do; and that the city had demanded of her, through the master, that she should make such election, and that the master refused to direct or require her so to do, and thus denied the city its rights under the law.

The master to this reported that the city, by its counsel, had cited Article 500 of the Civil Code of Louisiana before him, and stated that it would call upon the complainant (then present) to elect whether she would keep said works and improvements placed upon the land by the city or pay the city for the same; and the master added that he had 'regarded this as a mere notice of what the defendant intended to do at some future time, but as the point was not presented in writing nor subsequently alluded to, he had assumed that it had been abandoned.'

In this state of things, and after the disallowance of some other exceptions, the report came before the Circuit Court (BRADLEY, J.). After examining those exceptions the learned justice came to the main matter, the allowance of the $125,266.79. On that subject he said:

'The case of the city is a peculiar one. The estimation of the rents and profits in that case is so uncertain and speculative that I do not feel entirely satisfied as to the decision that should be made. The master evidently felt the same embarrassment.'

And after referring to the different estimates made by the master, and specially to the one above given on p. 627, the learned justice said:

'As the master has not signified his adoption of either of these estimates, but has stated the facts to the court for its equitable determination, I have come to the conclusion that it would be equitable and just to set off the profits derived by the city from the drainage-machine for the past thirty-five years against the cost of constructions and repairs, and to charge the city with the rents of the building and land, less the ordinary repairs of the buildings, amounting, as shown by the report, to the sum of $125,266.79. Whilst the profits and advantages of the drainage-machine were indefinite and uncertain in amount, there is no doubt of their reality, nor, if we can place any reliance upon the estimates, is there any doubt of their being amply sufficient to reimburse the city for all its expenditures, including even the rent with which it is charged.'

The learned justice of the Circuit Court accordingly ordered a confirmation of the report. From that decree this appeal came.

Messrs. Miles Taylor and J. McConnell, for the appellant (suggesting that whereas the draining-machine was finished July 1st, in 1836, and that alone gave the land a value for rent, a charge for one year too much had in any view, been made), insisted upon certain exceptions, as follows:

1st. That the decree was erroneous in that it had the effect of giving to the complainant the buildings and machinery erected by the city, with the materials and at the expense of the city, without paying the value of the materials and the cost of the workmanship, or any other price whatever.

2d. That the sum of the rents and profits above stated was made up in part by the allowance of interest, at the rate of five per cent. per annum, on each year's rent, from the end of the year. This, it was argued, was in violation of the doctrines of the code of Louisiana of 1825, as shown in its articles 1939 and 1905.

3d. That the refusal to allow the plea of prescription in bar of all rents or profits for the use of the square, which were received by the city more than three years anterior to the institution of the suit on the 26th of December, 1856, was an error.

Messrs. J. Emott and J. Q. A. Fellowes, contra.

Mr. Justice HUNT delivered the opinion of the court.

The appeal before the court arises upon exceptions to the master's report only, and not to the original judgment.

1. It is only where the master or the judge, in acting upon his report, has departed from the order of the judgment or has omitted to enforce its provisions, that a just objection can arise. The judgment has decided that the plaintiff was the owner of this property in question in 1834, when the defendant entered into its possession; that then and at all times since the defendant has illegally kept the plaintiff out of its possession, and has itself been in its possession during the same period, and that it obtained and during all this time held such possession wrongfully and in bad faith.

This statement furnishes an answer to the suggestion that the rents and profits were allowed for one year, during which the city was not in possession. This is not an open question. It is settled by the judgment, and the allowance is in accordance with the decision.

It is also decided, 'that the city of New Orleans ought to be deemed and held, and is hereby deemed and held, to have purchased the property in question with full notice that the said sale at auction, under the pretended authority of the said Richard Relf and Beverly Chew, and the said act of sale to the said Evariste Blanc, were unauthorized, illegal, null, and void, and in derogation and fraud of the rights of the person or persons entitled to the succession of the said Daniel Clark.' This sale to Evariste Blanc was the source from which the city derived its title to the property in question. During the whole time of its holding, the city was a possessor in bad faith of the property of the plaintiff. The Civil Code of Louisiana declares as follows:

'ARTICLE 3414. The possessor in good faith is he who has just reason to believe himself the master of the thing which he possesses, although he may not be in fact, as happens to him who buys a thing which he supposes to belong to the person selling it to him, but which in fact belongs to another.

'ARTICLE 3415. The possessor in bad faith is he who possesses as master, but who assumes this quality, when he well knows that he has no title to the thing, or that this title is vicious and defective.'

By the same code a possessor in good faith may enjoy the fruits of the property until it is claimed by the owner, and is bound to account only from the time of a demand for restitution. He is also entitled, when evicted, to be reimbursed for the expenses he may have incurred on it. (Article 3416.)

To the same purport are Articles 500 and 501.

'When plantations, constructions, and works have been made by a third person, and with such person's own materials, the owner of the soil has a right to keep them, or compel this third person to take away or demolish the same. If the owner requires the demolition of such works they shall be demolished at the expense of the person who erected them without any compensation; such person may even be sentenced to pay damages, if the case require it, for the prejudice which the owner of the soil may have sustained. If the owner keeps the works, he owes to the owner of the materials nothing but the reimbursement of their value and of the price of workmanship, without any regard to the greater or less value which the soil may have acquired thereby.

'Nevertheless, if the plantations, edifices, or works have been done by a third person evicted, but not sentenced to make restitution of the fruits because such person possessed bon a fide, the owner shall not have a right to demand the demolition of the works, plantation, or edifices, but he shall have his choice either to reimburse the value of the materials and the price of the workmanship, or to reimburse a sum equal to the enhanced value of the soil.'

The case of the present defendant is an instance where the works were done, not by one not sentenced to make restitution because such person possessed bon a fide, but by one who was sentenced to make restitution, and who was expressly adjudged to possess mal a fide.

Mrs. Gaines, therefore, had the right to keep the improvements upon reimbursing their value and the price of the workmanship, or to compel the city to demolish and remove them. She has not been called upon legally to elect which course she would adopt. On the hearing an oral notice was given that she would be called upon to elect, which the master understood to be in the future, and not a present notice. The matter was never again presented, and the master considered the subject as abandoned. She may now properly rest upon her right to have the works demolished and removed. This would give the city the value of the materials only as taken down at its own expense and when separated from their position upon the land. This allowance has, however, already been made to the city. In the opinion of the judge at the circuit he uses this language: 'I have come to the conclusion that it would be equitable and just to set off the profits derived by the city from the drainage-machine for the past thirty-five years against the cost of construction and repairs. . . . Whilst the profits and advantages (he says) of the drainage-machine are uncertain and indefinite in amount, there is no doubt of their reality, nor, if we can place any reliance upon the estimates, is there any doubt of their being amply sufficient to reimburse the city for all its expenditures, including even the rent with which it is charged.'

It is evident from this statement that there has been already allowed to the city a sum not only equal to the value of the materials of the improvements, if they were demolished, but of their actual cost. The city has, therefore, no cause of complaint on this score, and the point under consideration must be held against it.

2. The question of the allowance of interest on the items of rent was not made before the master or before the judge at the circuit, and is not properly before us. Interest was allowed at the rate of five per cent., the rate fixed by the Code of Louisiana. In Vandevoort v. Gould, it was adjudged that mesne profits consist of what the premises are reasonably worth annually, with the interest to the time of the trial. 'Less than this,' it is said, 'would not give the plaintiff full and complete indemnity for the injury to his rights.' Such is also the express declaration of Article 1939 of the Civil Code of Louisiana.

The Articles of the Code, 1939 and 1905, are not, as it is urged, in hostility to this principle. The latter by its terms relates to contracts. By the former, liens which are due for the restitution of profits bear interest from the day the debtor was in default. By the judgment it is found that the city held this property wrongfully from the outset, and thus (which is the only sense in which the word can here be used) was in default continually.

The remaining question to be considered is upon the allowance of the plea of prescription. It is alleged as error that the plea of prescription was not allowed in bar of the claim for all the rents and profits which had accrued more than three years priot to the commencement of the action. The Civil Code enumerates as causes of action which are the subject of the prescription of three years-'the action for arrearages of rent charge, annuities, and alimony, or of the hire of movables or immovables.' (Article 3503.) 'In general all personal actions except those above enumerated are prescribed by ten years, if the creditor be present, and by twenty years if he be absent.' (Article 3508.)

These articles do not govern the present case. They prescribe actions which the party had the legal right to bring. They do not apply to rights like the present, which result from the determination of another action. Until the decree in the main suit there was here no existing cause of action to recover the mesne profits. No special action could be maintained for them until the title to the property should be judicially determined. It is controlled rather by the title 'Of the Right of Accession to what is produced by the thing.'

'Fruits of the earth, whether spontaneous or cultivated, belong to the proprietor by right of accession.'

'The fruits of the thing belong to its owner, although they may have been produced by the work and labor of a third person or from seeds sown by him, on the owner's reimbursing such person for his expenses.'

'The produce of the thing does not belong to the simple possessor, and must be returned with the thing to the owner who claims the same, unless the possessor held it bon a fide.'

Speaking strictly, there was not only no cause of action, but no right to the mesne profits until the judgment in the original suit.

There is no article of the Code to which our attention is called which limits this claim to the profits for three years. On the contrary, the rules of the civil law and the general principles of equity jurisprudence hold that there is no such limit. It will be observed that this question does not involve the allowance for improvements or to its extent. That point has been already disposed of, and the defendant has been allowed for the improvements and beneficial structures made by it during the term. We are now endeavoring to ascertain whether the recovery for the rents and profits which have been adjudged to be paid shall be limited as required by the defendant.

The rule is thus laid down in Justinian:

'If any man shall have purchased or by any other means honestly acquired lands from another whom he believed to be the true owner, when in fact he was not, it is agreeable to natural reason that the fruits which he shall have gathered shall become his own on account of his care in the culture; and therefore if the true owner afterwards appear and claim his lands he can have no action against the bon a fide possessor for produce consumed. But this exemption is not granted to him who knowingly keeps possession of another's estate, and therefore he is compellable to account for all the mesne profits, together with the land.'

The chancery rule is thus laid down in Peere Williams:

'Where one is in possession of lands belonging to an infant, if the infant when of age makes out his title, he shall recover the profits in equity from the first accruing of his title, and not from the filing of the bill only. So the defendant shall account for the profits from the time the plaintiff's title accrued, and not from the filing of the bill only, if the defendant has concealed the deeds and writings making out the plaintiff's title.'

In Dormer v. Fortescue, Lord Hardwicke says:

'There are several cases where the court does decree an account of rents and profits, and that from the time the title accrued, as where there is a trust and an equitable title merely, or where a widow claims dower merely, but needs the aid of chancery to find out the lands, the court will give her the profits from the time of the demand not only, but from the time of her title accrued.' In the case before him he decreed an account upon these principles, for a period of fifteen years.

The present action was commenced by Mrs. Gaines nearly seventeen years ago. It was a bill in equity praying for a discovery, for an accounting for rents and profits, and for general relief. After much tribulation she has reached the point of an account, which the defendant has brought before us on appeal. We think there is no prescription of the rents and profits, but that the allowance in this respect was properly made.

Upon the whole case we are of the opinion that the decree or order upon the master's report must be affirmed, and the

EXCEPTIONS THERETO DISALLOWED.

title: New Orleans v. Gaines


text: Talk:New Orleans v. Gaines

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

title: Talk:New Orleans v. Gaines


text: New Orleans v. Gaines/Opinion of the Court


text: Talk:New Orleans v. Gaines/Opinion of the Court


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Mead v. Thompson

THIS was a motion of Mr. A. J. Parker, for John Thompson, a bankrupt, to dismiss two appeals by his creditors from a decree of the Circuit Court for the Southern District of New York, affirming a decree of discharge granted to him by the District Court.

The case was thus:

The 'Act to establish a uniform system of Bankruptcy throughout the United States,' approved March 2d, 1867, which gives to the District Courts exclusive original jurisdiction in matters of bankruptcy, enacts by its—

'SECTION 2. That the several Circuit Courts. . . within and for the districts where the proceedings in bankruptcy shall be pending, shall have a general superintendence and jurisdiction in all cases and questions, arising under the act; and may. . . upon bill, petition, or other process of any party aggrieved hear and determine the case as a court of equity.'

By the 8th section it is enacted:

'That appeals may be taken from the District Courts to the Circuit Courts in all cases in equity, and writs of error may be allowed to said Circuit Courts in cases at law, under the jurisdiction created by this act, when the debt or damages claimed amount to more than $500; and any supposed creditor may appeal whose claim is wholly or in part rejected, or an assignee who is dissatisfied with the allowance of a claim.'

And by the 9th section:

'That in cases arising under this act no appeal or writ of error shall be allowed in any case from the Circuit Courts to the Supreme Court of the United States, unless the matter in dispute exceeds $2000.'

This act being in force, John Thompson applied to the District Court for the Southern District of New York to be discharged from his debts as a bankrupt. One E. F. Mead, and also the Merchants' Exchange National Bank, opposed his discharge. The District Court, however, granted it. This was on the 14th June, 1869. On the 24th, following, Mead gave notice to the bankrupt that he thereby appealed to the Circuit Court from the decree of the District Court granting the discharge. And on the 3d of July he entered into the usual bond (which on the same day was filed and served by a copy), reciting that whereas he had 'appealed to the Circuit Court, &c., to reverse the decision rendered. . . by the judge of the District Court, &c., and the order entered thereupon in said court granting a discharge,' and binding himself to 'prosecute said appeal' to effect, &c. On the 24th he filed his petition to the Circuit Court, setting forth Thompson's application for a discharge, his (Mead's) opposition, setting forth also the 'specification of his objections to said discharge'-a paper that had been put before the register in bankruptcy, and alleging fraudulent conveyances by Thompson of various items of property to his sons, &c.,-representing that his (Mead's) debt, proved before the register, was more than $500, and praying the Circuit judge 'to review the said decision and reverse the same. . . and decree that the said bankrupt is not entitled to his discharge. . . and for such further order and relief in the premises as to the court may seem just.'

Similar proceedings, it was assumed, took place on the part of the Merchants' Exchange National Bank; though no petition appeared in the transcript of the record.

The petitions were heard together in the Circuit Court when, April 13th, 1871, this order was there made:

'The petitions of E. F. Mead, by E. N. Taft, Esquire, his solicitor, and the Merchants' Exchange National Bank, by G. A. Seixas, Esquire, their solicitor, creditors of the said John Thompson, bankrupt, for a review of the order granted by the United States District Court for the Southern District of New York, on the 14th day of June, 1869, declaring said bankrupt forever discharged from all his debts, provable under the act of Congress entitled 'An act to establish a uniform system of Bankruptcy throughout the United States,' approved March 2d, 1867, having been brought to a hearing before this court, after hearing E. N. Taft and G. A. Seixas, in behalf of said creditors, respectively, and E. More, of counsel for said bankrupt, it is ordered and adjudged that the said order, entered in the said District Court, declaring the said John Thompson, bankrupt, discharged from all his debts as aforesaid, be, and the same hereby is, in all things affirmed.

'L. B. WOODRUFF,

'Circuit Judge.'

From this affirmation of the decree of discharge, Mead and the bank appealed to this court, and their appeals it was that Mr. Parker moved to dismiss.

Messrs. E. More and A. J. Parker, in support of the motion; Mr. R. D. Benedict, contra.

Mr. Justice STRONG delivered the opinion of the court.

title: Mead v. Thompson


text: Talk:Mead v. Thompson

title: Talk:Mead v. Thompson


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Mead v. Thompson/Opinion of the Court

In Morgan v. Thornhill, and in Hall, v. Allen, it was held that no appeal lies to this court from a decree of a Circuit Court, made in the exercise of the supervisory jurisdiction conferred upon it by the second section of the Bankrupt Act of March 2d, 1867. If, then, the decree from which these appeals have been taken was made in the exercise of that jurisdiction, they are unauthorized, and they must be dismissed. And that they were thus made is very plainly exhibited in the record. The order of the District Court discharging the bankrupt, was made on the 14th day of June, 1869, and on the 24th of that month, Mead, one of the present appellants, filed in the office of the clerk of that court, a notice that he did thereby appeal from the order of the Circuit Court. This was followed by a bond for costs, which was filed and served by copy on the 3d of July, and on the same day a petition for review of the order of the District judge was verified and served. The prayer of the petition was that the Circuit judge would review the decision of the District judge and reverse the same, and grant such further order or relief as might seem just.

Whatever may have been intended, on the 24th day of June, when the notice of an appeal was given, it is plain that the appellant sought relief afterwards only by his petition of review under the first clause of the second section of the act.

And the same remark may be made respecting the Merchants' Exchange National Bank, of New York, the other appellants to this court. Indeed, the record exhibits no notice given by them of an intention to appeal from the order of the District Court, nor even any petition for a review. It is intimated, however, in the proceedings of the Circuit Court, that such a petition was presented, and it may be assumed to have been a fact.

The present appellants then came before the Circuit Court, not as appellants from the order of discharge made by the District judge, but as applicants for the general superintending power of the Circuit Court over all questions arising under the Bankrupt Act; merely as petitioners for that revision which we have held to be final. And only that revisory jurisdiction was exercised. This is evident from the decision of the Circuit Court, made April 13th, 1871, from which these appeals have been taken.

Whether, if appeals had been taken from the District Court and prosecuted in the Circuit Court, and if the Circuit Court had heard and decided them, an appeal would lie to this court, need not now be determined, for we have no such case before us. The present, being appeals from a decision made by the Circuit Court in the exercise of its supervisory jurisdiction, cannot be entertained.

APPEALS DISMISSED.

title: Mead v. Thompson/Opinion of the Court


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


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Commercial Bank v. Rochester

ERROR to the Supreme Court of the State of New York.

The Commercial Bank of Rochester brought suit in one of the State courts of New York against the city of Rochester, to recover a tax which the said city had levied and collected on $100,000 of the capital of the bank, which was invested in the bonds of the United States. The petition set out the bank's ownership of these bonds; the incorporation of the city of Rochester by the State of New York, with power to assess and levy taxes on property not exempt from assessment and levy; the appointment of assessors by the city; the assessment and levy by them of the tax; the bank's representation to the assessors that the bonds, being parts of several loans to the Federal government, were exempt from taxation and ought not to be assessed as part of the bank's capital, and that the bank insisted upon this position; that moreover it had showed to the assessors what the property of the bank which could be lawfully assessed was; but that the assessors disregarding the right of the bank refused to remit any part of the assessment; and that the money assessed and levied on the said bonds was finally paid only under order of the city to the assessors to demand it, and under compulsion and protest.

The petition prayed for a judgment for the amount thus paid.

To this petition a demurrer was interposed; the only ground of it being this general one, 'that the complaint did not state facts sufficient to constitute a cause of action.'

On these pleadings, the Court of Appeals of New York adjudged that the demurrer was well taken.

From that judgment the case was brought here by the bank, on an assumption by it that the court below had necessarily decided that the tax assessed and levied by the city was lawfully levied, though assessed and levied on bonds of the United States; and therefore (the city and its assessors deriving their powers from the State), that the case fell within the 25th section of the Judiciary Act, one section of which gives a writ of error from this court to the highest court of a State, 'where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of such their validity.'

There was no assignment of errors in the record of the proceedings in any of the courts below.

A question of jurisdiction being suggested, and whether any such issue had been involved in the pleadings and judgment as necessarily brought the case within the 25th section, it was said in support of the jurisdiction, that the action of the assessors under a State law, the ownership by the bank of the Federal stocks, the assessment and levy, as well as the unlawfulness of both, being all set forth, together with the fact of payment on compulsion and protest, and the decision by the highest court of the State that the levy and assessment were lawful-these being all shown in the pleadings,-the case came plainly within the 25th section. and jurisdiction existed.

To this it was answered that it nowhere at all appeared in the pleadings that the State courts had 'decided that the assessment and levy were lawful;' that, contrariwise, it might perfectly well be that on those pleadings the court recognized the unlawfulness of the assessment and levy; and well be that all that the Court of Appeals had decided was that the plaintiff had mistaken its remedy; that in point of fact, this, and this only, was what that court had decided, as would be proved by a reference to the report of the case; and that as appeared by numerous decisions in New York, an action to recover back money paid was not the proper remedy, but that the action of the assessors-they having jurisdiction of the person and subject-matter-being of a judicial character, was conclusive until reversed by mandamus, certiorari, or other proper proceedings.

Mr. Theodore Bacon, for the plaintiff in error; Mr. G. W. Miller, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Commercial Bank v. Rochester


text: Talk:Commercial Bank v. Rochester

title: Talk:Commercial Bank v. Rochester


text:
Commercial Bank v. Rochester/Opinion of the Court

As the demurrer does not point out any special defect in the petition, and as there is no assignment of errors in the record of the proceedings in any of the State courts, we find great difficulty in ascertaining the ground on which the Court of Appeals decided the case.

It has been so often held by this court, that the question on which the plaintiff in error relies to give it jurisdiction, must appear to have been decided by the State court, that it has become one of the settled principles on that subject.

It is said in this case that the court must have decided in favor of the validity of the tax, which it is conceded would have given this court jurisdiction. But this does not appear either affirmatively or by necessary intendment. For the case may have been decided on the form of the remedy which the practice in the State courts required the plaintiff to adopt, or on the technical insufficiency of the pleading.

In this uncertainty of the record as an indication, we might, without going further, dismiss the case on that ground. But we are referred to decisions in the State court which hold that the remedy for illegal or excessive assessment is by certiorari, issued in that proceeding, and that as the modes of reviewing these assessments are in their nature judicial, the judgment is, until reversed or set aside, conclusive.

Undoubtedly the Court of Appeals of New York is the proper tribunal to decide this question, and as one of policy in the embarrassing matter of contesting tax levies, it is within the province of State law; and we are not authorized in this case to say that that court did not decide it correctly, or that it made any decision adverse to the exemption of the securities of the United States from State taxation.

In this respect the case is precisely in principle like that of The Insurance Co. v. The Treasurer. It is accordingly

DISMISSED FOR WANT OF JURISDICTION.


text: Talk:Commercial Bank v. Rochester/Opinion of the Court


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Cammack v. Lewis

APPEAL from the Supreme Court for the District of Columbia; the case being thus:

One John E. Lewis, of Washington, D. C., being in bad health and owing by note $70, which he was not then able to pay, to a certain C. Cammack, Jr., tailor, for clothing, procured June 19th, 1868, at Cammack's suggestion, an insurance on his life, in the New Jersey Mutual Life Insurance Company, which had an agency in Washington, for $3000. The policy, No. 2885, was for seven years. Cammack paid the premium for the first year; and immediately after the policy was made out, Lewis gave to Cammack a note for $3000; there having been no consideration for the same; and assigned the policy to him. On the 9th of January following that is to say, seven months after the issuing of the policy-Lewis died, leaving a widow and two children; and Cammack having paid, of course, but the first year's premium, a sum of $25. After Lewis's death there was found among his papers a document, in Cammack's handwriting, thus

'WASHINGTON, D. C., September 15, 1868.

'This agreement witnesseth that I, the undersigned, for value received, do bind myself, and heirs, or legal representatives, to pay unto Maggie Lewis, wife of John E. Lewis, his heirs and assigns, the sum of one thousand dollars, in event of the said John E. Lewis's death; the said amount being first realized by me from an insurance on his (the said Lewis's) life, duly assigned to me, and held by me, otherwise this agreement to be held null and void. Number of the policy 2885, in the New Jersey Mutual Life Insurance Company.

'C. CAMMACK, JR.'

Among Lewis's particular friends was a Mr. W. E. Chandlee, of Washington, whom he was in the habit of consulting on business matters. About a week before his death, Lewis showed to him the draft of a will of which he desired Chandlee to be executor. And with a view of enabling Chandlee to properly administer things, he dictated to him a list of all the debts which he, as he said, expected would be brought in against his estate, and which he desired Chandlee as his executor to pay. Among them was the $70, due by the note to Cammack for clothing, and '$25 on account of life insurance.' Chandlee knew what this last item was for, without explanation; for Lewis had consulted him previously to his life's being insured, and told him that it was insured very soon after the policy issued. 'His statement to me,' said Chandlee, in giving an account of the matter, 'was that his life was insured by Mr. Cammack, in the New Jersey Mutual Life Insurance Company, for the sum of $3000, and that at any time that he was able to pay to the said Cammack the amount of premiums that the said Cammack should have paid on account of the policy, with interest on the same, and the amount he owed Cammack for clothing, that Cammack would restore the policy to him.'

Cammack was not present at any part of this account, and when it was told to him he denied the correctness of Lewis's understanding of the matter.

Lewis did not live to sign his will, and so Chandlee did not become his executor in form. Still, 'feeling,' as he said, 'disposed to render the same assistance to his widow as if the will had been signed, and Lewis having put into his possession for safe-keeping his private papers, among which was the memorandum set out above and signed by Cammack,' he went and saw Cammack, who had already made application to the insurance company for the amount of the insurance. Chandlee's account of the whole transaction was thus:

'Cammack told me that it might save time and trouble to have a written requisition from Mrs. Lewis, upon the company, to pay the money over to him (Cammack), as they might consider it their duty, otherwise, to pay it over to her, in which case it would occasion delay; but he didn't know that it would be necessary. I remarked to him that I didn't think it would make any difference as far as his claim was concerned, whether the money was paid to him directly, or to Mrs. Lewis; that I felt sure she would settle the matter, as called for in the agreement, and I would take the responsibility that she would do so. I then saw Mrs. Lewis and asked her if she intended to settle the matter of insurance in which Cammack was interested, according to the agreement in my possession. She expressed her willingness that it should be settled on that basis, just as Mr. Lewis had provided that it should be. Mr. Cammack then wrote a requisition for Mrs. Lewis to sign, gave it to me, saying, 'Take this to Mrs. Lewis, and see if she will sign it. If she objects, and the company will not pay the money to me, I will let them pay it to her, and trust to her for a settlement.' I took the requisition to Mrs. Lewis, told her what it was for, and she signed it. It was thus:

'WASHINGTON CITY, D. C., January 20th, 1869.

'TO THE NEW JERSEY MUTUAL LIFE INSURANCE CO.

'GENTLEMEN: The claim of C. Cammack, Jr., of said city, secured by assignment of policy No. 2885, in your company, on the life of my late husband, John E. Lewis, is a just and legal claim, and it is my desire and direction that your company pay to said Cammack the proceeds thereof.

'Witness may hand and seal on the aforementioned date.

'MRS. J. E. LEWIS.' [SEAL.]

'Witness:

'W. E. CHANDLEE,

'JAMES GRIFFITH.'

'On this request Cammack made an affidavit thus:

'DISTRICT OF COLUMBIA,

WASHINGTON CITY, ss:

'C. Cammack, Jr., of city aforesaid, being duly sworn, saith that he was acquainted with John Edward Lewis, deceased, during his lifetime; that he was the person insured under policy No. 2885, is the New Jersey Life Insurance Company, which said policy was assigned to the deponent; that the full and true sum of three thousand dollars was and is now due to me from said John Edward Lewis or his estate; and that no part of the said sum has been paid this deponent by said Lewis or any one on his behalf.

'C. CAMMACK, JR.

'Sworn to and subscribed before me this 23d January, 1869.

[SEAL.]

'J. H. MCCUTCHEN,

'Notary Public.'

On this request and affidavit Cammack got the $3000 from the insurance company, and sent to Mrs. Lewis his check for $950, with a memorandum is one corner. The whole was thus:

No. 459.

WASHINGTON, D. C., February 5, 1869.

NATIONAL METROPOLITAN BANK,

Pay to ..... Mrs. John E. Lewis, ..... or Order, nine hundred and fifty dollars.

C. CAMMACK, JR.

$950.00.

In full for her proportion of policy No. 2885, in the New Jersey Mutual Life Insurance Co.

The check, of course, was in professed discharge of the paper dated September 15th, 1868, supra, p. 644; the sum sent being one-third of the $3000, less a deduction of $25 for the premium paid for insurance, and for another small account which Cammack had against Lewis.

Mrs. Lewis went with Mr. Chandlee to the bank, where under his eye she indorsed the check and drew the money; $950.

At a subsequent date, having taken out letters of administration on her husband's estate, in which as already mentioned there were besides herself two children to participate, she filed a bill to recover the remainder of the $3000.

Cammack set up, by way of defence, that the policy was taken out under an agreement between Lewis and himself that he should pay the premiums for the seven years the policy was to run, and in consideration of those payments, and what Lewis owed him, he should, in the event of Lewis's death during the life of the policy, receive two-thirds of the amount of the policy, and pay over the other third to Lewis's wife or his heirs; and in support of this he relied on the instrument signed by himself, dated September 15th, 1868, and, as already stated, found among Lewis's papers; and relied on the further fact of that sum (with a small and just deduction) having been received by Mrs. Lewis, on the policy. But the defence was not sustained; and the court below, holding that Cammack held the policy under the assignment as a mere security for what Lewis owed him, decreed that he should pay over the balance after deducting that small sum. From the decree Cammack appealed.

Mr. T. T. Crittenden, for the appellant; Messrs. A. McCallum and T. J. Durant, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Cammack v. Lewis


text: Talk:Cammack v. Lewis

title: Talk:Cammack v. Lewis


text:
Cammack v. Lewis/Opinion of the Court

If the transaction as set up by Cammack be true, then, so far as he was concerned, it was a sheer wagering policy, and probably a fraud on the insurance company. To procure a policy for $3000 to cover a debt of $70 is of itself a mere wager. The disproportion between the real interest of the creditor and the amount to be received by him deprives it of all pretence to be a bon a fide effort to secure the debt, and the strength of this proposition is not diminished by the fact that Cammack was only to get $2000 out of the $3000; nor is it weakened by the fact that the policy was taken out in the name of Lewis and assigned by him to Cammack. This view of the subject receives confirmation from the note executed by Lewis to Cammack for the precise amount of the risk in the policy, which, if Cammack's account be true, was without consideration, and could only have been intended for some purpose of deception; probably to impose on the insurance company.

Under these circumstances, we think that Cammack could, in equity and good conscience, only hold the policy as security for what Lewis owed him when it was assigned, and such advances as he might afterwards make on account of it, and that the assignment of the policy to him was only valid to that extent.

Whether Lewis was a participant in the fraud, does not fully appear. Such conversations of his as are proved tend to show that he looked upon Cammack as a friend, to whom he was willing to trust the policy assigned, and that he never supposed more would be claimed by Cammack than what he owed him. It is also probable that he believed he would survive the life of the policy, and with the single exception of the note for $3000, given by him without consideration, there is nothing proved against him inconsistent with that view of the matter, and with his fair dealing. At all events, we do not see such evidence on his part of a corrupt transaction, as to forbid the court from doing justice between his administratrix and Cammack, after the amount secured by the policy has been paid by the company to the latter.

The receipt of the one-third of the insurance money by the complainant does not, we think, under all the circumstances of the case, conclude her as a settlement of the matter in dispute. It is obvious that she was ignorant of the full extent of her rights; that she acted hastily and without due consideration, and was largely influenced by the advice of Mr. Chandlee, who had been her husband's friend and adviser, and who was prompted to do what he did by Cammack, while in ignorance of many of the facts of the case.

Besides, the bill in this case, as appears on its face, is brought by her as administratrix, and the receipt by her of the one-third paid on the policy was before any administrator had been appointed. If she has a right to recover all the $3000 as administratrix, it could not be defeated by her receipt of $1000, paid to her in her own right before any administration had been taken out on Lewis's estate.

On the whole, we are of opinion that the decree of the Supreme Court should be affirmed, and it is

SO ORDERED.

title: Cammack v. Lewis/Opinion of the Court


text: Talk:Cammack v. Lewis/Opinion of the Court


text:
Railroad Company v. Hanning

ERROR to the Circuit Court for the District of Louisiana; the case being this:

The New Orleans, Mobile, and Chattanooga Railroad Company-the station-house grounds of whose road in New Orleans came down in one part of the city to the batture of the Mississippi-obtained conveyances of the batture property in front, the same being accurately described by maps annexed to them, and were desirous of building in front of their batture a wharf on the river, and also of repairing an old wharf there.

With a view of enabling them to do this, the General Assembly of Louisiana, by a joint resolution passed March 6th, 1869, gave the company—

'The right to inclose and occupy for its purposes and uses, and in such manner as the directors of the said company may determine, that portion of the levee, batture, and wharf, in the city of New Orleans, between and from [certain streets described] to the lower line of the batture, rights owned by said company.'

And the joint resolution provided that—

'No steamship or other vessel shall occupy or lie at said wharf, or receive or discharge cargo thereat, except by and with the consent of the said company.'

On the 21st of January, 1870, the General Assembly also passed on act, relating to the company, whose second section was in these words: 'The said corporation, its officers, or employees, shall not in any case be liable for any debts contracted or liabilities incurred by any person or persons who shall have contracted, or who shall contract with it, to construct any portion of its road, buildings, or appurtenances, or its rolling stock, or to furnish any materials or labor to be used for such construction, or for its maintenance or operation.

'Nor shall said company, its officers, or employees, be liable for any injury to person or property, or loss of life, which shall be caused by any act or omission of any person or persons so contracting with it, or any of his or their employees or agents.'

In this state of things, on the 28th of November, 1870, the railroad company, through its division engineer, G. W. Bayley, made an agreement with one Michael Carvin, thus:

'Michael Carvin agrees to furnish the timber, planking, and iron work, and all the labor necessary for the rebuilding of the company's wharf in front of their depot grounds,. . . with such mooring-posts, cluster-piles for fenders every twenty feet, rows of piles on boundary lines, above and below, slips or inclines, as the company, through their engineer, may require, for the sum of $40 per square of one hundred square feet, it being understood that only the best quality of twelve-inch square yellow pine timber shall be used for piles, caps, stringers, fenders, and blocking, and the best of three-inch yellow pine planks for covering or flooring, such of the old piles as are sound and good to be sawed off and blocks placed thereon, but new caps, stringers, and planking to be used throughout. The old wharf to be made as good as new, and the new wharf in the best workmanlike manner; two hundred feet of wharf, from the lower line, to be completed in two weeks, and the whole within one month from this date.

'It is also understood and agreed that the said G. W. Bayley, division engineer of the company, shall supervise and direct the work hereby agreed to be done, and that the said work shall be done to his satisfaction.

'Payment to be made in currency, on the 10th of January, 1871, the company's regular pay-day, at the rate of $40 per square for completed wharf, as above specified, on the approval of the estimate or bill for same by said G. W. Bayley, division engineer.'During the progress of the work thus provided for, one Hanning, while walking, as he alleged, across the wharf and using all proper precautions, was precipitated down an embankment the distance of ten feet and received serious injury; the injury, as he further alleged, being wholly caused by the company's negligently removing the planks on the wharf and negligently laying the planking thereon, contrary to its obligations in the matter. He accordingly sued the company, alleging that the wharf was a 'public wharf.'

The place where the wharf was, it appeared, prior to the passage of the joint resolution of March 6th, 1869, authorizing the railroad company to inclose and occupy it for its own purposes and uses, had, like the banks of all rivers in Louisiana, from an early date, been open to the public for passing along.

The court below, refusing to give instructions requested by the plaintiff of an opposite kind, charged that if the jury should believe from the evidence that the wharf had always been free and open to the public, then that when the legislature gave to the company the right to occupy it, it was the duty of the company to take means to warn the public that the rights of the public had ceased, so that persons might avoid going upon it, and that as the company had neglected to take any precautions in this respect, they were liable for the damage.

It also charged that the company was answerable for the acts of its contractor, under the contract with Carvin.

The jury found $10,000 damages for the plaintiff; and judgment being entered accordingly, the present writ of error was taken.

The record sent here was a meagre one. It did not furnish any evidence of what sort of a wharf, as ex gr., whether public or private, this wharf was, further than as might be inferred from the joint resolution of March 6th, 1869, the conveyances of property adjoining it, and the contract with Carvin. Neither did it appear what brought the plaintiff on the wharf, whether lawful business, idleness, curiosity, or some bad purpose.

Messrs. J. A. and D. G. Campbell, for the plaintiff in error:

1. We admit that a servitude of public utility is reserved upon the banks of all of the navigable waters in Louisiana. But in this case this condition of public use ceased with the adoption of the joint resolution of the 6th of March, 1869, and the occupation of the wharf by the railroad company, under their title. This resolution of the legislature discharged the land of the reserved public servitude, and authorized the corporation, as riparian owners, to maintain a wharf in their front for their own uses and purposes, in such manner as the board of directors might determine. The act, therefore, of the defendant, Hanning, in coming upon this property without any business relations with, or invitation, or inducement from the corporation, was a trespass; for we know of no law, custom, or usage which requires a proprietor to maintain fences, sign-boards, inclosures, or sentinels about his property. Addison, in his work on Torts, says:

'If a man's land is not surrounded with an actual inclosure, the law encircles it with an imaginary barrier, which to pass, is to break and enter his close.'

A wharfinger, no doubt, is bound to keep his wharf in a proper condition for intercourse which he invites; but 'a mere passive acquiescence by the owner or occupier, in a certain use of his land by others, involves no liability.' The court in its instruction discarded from its consideration any duty on the part of the defendant to inquire into the title to the property, of its condition, or of his own responsibility to mark where he went. The facts visible to him were of themselves sufficient to put him upon his guard. He saw an inclosure of the levee, and a railway passing over a portion of it, and parties engaged in stripping the wharf of its timbers, and things in confusion about him. Common sense would have told him as readily as a signboard, that such places were dangerous and to be avoided.

2. By force of the contract with Carvin the wharf at the time of the accident was in his possession. The negligence, if any there was, was his, not that of the company; and the company is not responsible for any negligence by him or by those employed by him. The general principle is now settled, that a person, either natural or artificial, is not liable for the acts or negligence of another, unless the relation of master and servant, or principal and agent, exist between them; that when an injury is done to a person exercising an independent employment, the party employing him is not responsible to the person injured. Nor will the reservation of the power to supervise or to inspect the work, throw the liability upon the employer. This is the doctrine laid down in the important English cases of Knight v. Fox, and Steel v. Southeastern Railroad Company, and affirmed in our own courts.

3. The wharf and batture back of it are in front of the depot grounds of the corporation, and are at the termination of the eastern line of the ferry across the Mississippi River, as will appear from acts of the legislature of Louisiana, which the court will judicially notice. The construction of the wharf was a stage in the construction of the road.

Now the statute of January 21st, 1870, expressly defined and limited the liability of the railroad company, and declared that the company should not be liable for any injury to persons which shall be caused by any act or omission of any person contracting with the company to construct any portion of its road, or to furnish any materials or labor to be used for such construction. This comprises exactly such a case as the present, supposing that the injury was caused by Carvin's neglect.

We conclude, that the corporation is not liable for an injury to the person of one who, having no business with them, or inducement or invitation to come upon their property, came upon it for an idle promenade, and coming upon it, found it in disorder and insecurity from the acts of a contractor engaged in repairing and reconstructing it, and without any agency on the part of the corporation, fell through the floor.

Mr. T. J. Durant, contra.

Mr. Justice HUNT delivered the opinion of the court.

title: Railroad Company v. Hanning


text: Talk:Railroad Company v. Hanning

title: Talk:Railroad Company v. Hanning


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

The first objection presented by the defendant below is, that the wharf in question was not a public wharf; that the plaintiff came upon the same without business, invitation, or inducement; that he was a trespasser, and if he suffered injury it was in consequence of his own wrong.

We are not furnished with the evidence necessary for the decision of this question. The record does not state whether this was the wharf of an active steamboat company, where all travellers were permitted and substantially invited to come and go; whether the plaintiff was there upon the special invitation of some one connected with the wharf; whether by public use and general permission he might deem himself invited to be there, or whether he was an idler without pretence of right or business. The judge submitted the question to the jury, whether the wharf, at the time of the accident, was, and for many years had been, a public place, upon which all people were permitted by law to come and go, and did come and go at pleasure. The jury found the affirmative of this proposition. The only evidence set forth on this point contained in the record, is the legislative resolution of March 6th, 1869, certain conveyances of property adjoining the wharf, as described in maps annexed, and the contract of the company with Carvin. The resolution authorizes the defendants to inclose and occupy for its use, certain portions of the levee, batture, and wharf, in the city of New Orleans, and provides that no vessel shall occupy said wharf except by the permission of the company. The contract with Carvin is important upon another branch of the case, but has no significance upon the question of the manner of occupying the wharf, or to show how or why the plaintiff was on the wharf, at the time he received the injury. So far as it states general rules and propositions, the charge of the judge seems to be correct. Whether it was sound, as applied to the case presented by the evidence, we have not the means of ascertaining. No error appears, and we cannot assume that it is erroneous.

The second objection urged by the defendant below, arises upon the contract with Carvin, already mentioned. It is insisted that the wharf at the time of the accident was in the possession of Carvin; that the negligence, if any, was his, not that of the company; and that the company is not responsible for any negligence by him or those employed by him.

By this contract Carvin agrees: 1, to furnish the materials and the labor necessary for the rebuilding of the wharf in question; 2, to build it with such mooring-posts, cluster-piles for fenders every twenty feet, rows of piles on boundary lines above and below, slips or inclines, as the company, through their engineer, may require, making the old wharf as good as new, and the new in the most workmanlike manner; 3, to complete the whole within a month; 4, to submit to the supervision and direction of the engineer of the company; 5, to do the work to his satisfaction. The company do not yield to Carvin the possession or control of the wharf. They may direct the number of mooring-posts, cluster-piles for fenders, rows of piles, slips, and inclines, paying according to the number of square feet covered. They are at liberty to direct how much material shall be used, and how it shall be laid to make the old wharf as good as new, and to make the new of the best workmanship. They are to supervise the work to be done. They are to direct how it shall be done. This includes the power of controlling and managing the entire performance of the work, within the general limits mentioned. It includes the possession of the wharf, the direction, management, and control of all the details of the work. It makes Carvin their agent and servant, receiving a larger or smaller compensation, as they may expand or contract his work.

The rule extracted from the cases is this: The principal is liable for the acts and negligence of the agent in the course of his employment, although he did not authorize or did not know of the acts complained of. So long as he stands in the relation of principal or master to the wrongdoer, the owner is responsible for his acts. When he ceases to be such and the actor is himself the principal and master, not a servant or agent, he alone is responsible Difficult questions arise in the application of this rule. Nice shades of distinction exist, and many of the cases are hard to be reconciled. Here the general management and control of the work was reserved to the company. Its extent in many particulars was not prescribed. How and in what manner the wharf was to be built was not pointed out. That, rebuilt, was to be as good as new. The new was to be of the best workmanship. This is quite indefinite and authorizes not only, but requires a great amount of care and direction on the part of the company. The submission of the whole work to the direction of the company's engineer is evidence, although not conclusive, that the company retain the management and control. The reservation of authority is both comprehensive and minute. The company have the general control, and it may prescribe where each pile shall go, where each plank shall be laid, where each stringer shall be put down, where each nail shall be driven. All the details are to be completed under their orders and according to their direction. The contractor undertakes in general terms to do the work well. The company reserve the power not only to direct what shall be done, but how it shall be done. This is an important test of liability.

Camp v. The Wardens, was a case arising in Louisiana, and very much like the present in its facts. The owners were there held liable. All the authorities are cited and commented upon by the court, both of the common and the civil law. The civil law, it was said, held the same rules on this subject as the common law.

In Painter v. Mayor, Strong, J., holds the defendant not to be liable, and says, 'The defendants have no control over the men employed by the contractors or over the contractors themselves. They could not dismiss them or direct the work.' The cases are reviewed and the rule laid down as it is herein above stated.

Knight v. Fox, and Steel v. Southeastern Railroad Co., are cited by the defendant. The first contains nothing in hostility to the suggestion made. In Steel v. Southeastern Railroad Co. it was held that the company was not liable for any injury done by the contractor, and the contract contained an authority to the company to superintend and direct the work. The case shows that the act which caused the injury was committed in violation of their orders. They expressly forbade the digging of a certain channel. It was dug in violation of this direction, and for the damage resulting therefrom, the court held them not to be liable. This order to the contrary does not necessarily exempt the principal, but it is a circumstance of weight.

It is said that by the act of the General Assembly, passed January 21st, 1870, the liability of this corporation is defined in a number of cases. The second section of the act declares 'that the said corporation, its officers, or employees, shall not, in any case, be liable for any debts contracted or liabilities incurred by any person or persons who shall have contracted, or who shall contract with it, to construct any portion of its road, buildings, or appurtenances, or its rolling stock, or to furnish any materials or labor to be used for such construction, or for its maintenance or operation. Nor shall said company, its officers, or employees, be liable for any injury to person or property, or loss of life, which shall be caused by any act or omission of any person or persons so contracting with it, or any of his or their employees or agents.'

This was doubtless intended as a declaration of the rights of the company convenient to be embodied in its charter, and is in affirmance of the existing law. It contains two general principles: 1st, that the corporation shall not be liable for the debts to third parties of those contracting to construct its road or to furnish materials therefor. It would not be upon general principles of law. The statement, in fact, confers no exemption. 2d, that it shall not be liable for injury to person or property caused by the acts of such contractors or their servants. In each of these instances the exemption is in the case of contractors, who are themselves the principals, not when they are the agents or servants of the company. In each case there could be no liability at common law had the statute not been passed. We think that, upon general principles of law, the company in this case are responsible for the negligence of Carvin, and that this statute does not alter its position.

It would seem that, prior to the passage of the act authorizing the defendants to occupy and possess the wharf, it had been open to the public, free to the passage of all, at their pleasure to come and go. The judge charged, in substance, that this right of passage to the public continued until some notice should be given to those accustomed to use it that their rights had ended. This principle is one of quite general application. A railroad or steamboat company, by the departure and arrival of their conveyances, give an invitation to all who desire to approach their boats or cars to pass over their wharf or platform. One accustomed so to pass cannot be deemed a trespasser in repeating his act after a new station or landing has been adopted and the cars or boats have ceased to use the old one. To exclude the passer's right so as to make him in fault, and to prevent his recovery for an injury sustained by leaving the place in a bad condition, notice must have been given of its changed character, and that the rights of passers are terminated. This principle is so familiar, and exists in so many forms, that it is unnecessary to elaborate it.

Upon the whole record we are all of the opinion that the judgment should be

AFFIRMED.


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


text:
United States v. Bennett (82 U.S. 660)

ERROR to the Circuit Court for the Southern District of Ohio; the case being thus:

By the acts of July 1st, 1862, and July 13th, 1866 it was made lawful to transport distilled spirits without payment of taxes, from a bonded warehouse owned by the distiller to any general bonded warehouse used under the internal revenue laws, upon giving a 'transportation bond,' and complying with certain regulations prescribed. One duty of the party transporting, was the production to the collector where his distillery is, of a certificate of the collector to whose district the spirits were to be removed, that they were duly received and stored in the warehouse or district to which they were shipped. And, by an act of March 2d, 1867, it is enacted:

'That in case any bond, under which any distilled spirits shall have been withdrawn from a bonded warehouse, is forfeited by failure to furnish or produce, at the proper time, the evidence required by law or regulation, that the articles named in the bond were duly received and actually stored in the warehouse or district to which they were shipped, or by other breach of the obligation, the obligors in the bond shall pay the total amount of duties upon the articles removed under the bond, together with 50 per centum upon that amount.'

These acts being in force, Bennett & Carpenter gave their bond, dated August 19th, 1867, conditioned that they would within thirty days from the date thereof, transport fifty barrels of distilled spirits from their bonded warehouse at Greenville, Ohio, directly to the bonded warehouse owned by Church Howe at Boston, Massachusetts, and deliver them to the collector of internal revenue of that district; and that they should, within fifteen days, produce to the collector of internal revenue of the fourth district of Ohio the certificate of such collector that the spirits had been duly delivered and placed in the warehouse designated, according to law.

This bond being in existence and in the possession of the United States, Congress, on the 11th of January, 1868, passed an act entitled 'An act to prevent frauds in the collection of the tax on distilled spirits.' It read thus:

'Be it enacted that from and after the passage of this act, no distilled spirits shall be withdrawn or removed from any warehouse for the purpose of transportation, redistillation, rectification, change of package, exportation, or for any other purpose whatever, until the full tax on such spirits shall have been duly paid to the collector of the proper district. And all acts, and parts of acts, inconsistent with the provisions of this act, are hereby repealed.'

On the 17th of April, 1869,-that is to say, about fifteen months after the passage of the last above quoted act,-the United States brought an action of debt on the bond which, as already mentioned, Bennett & Carpenter had given on the 19th of August, 1867.

The breaches assigned were that Bennett & Carpenter did remove the spirits from their warehouse at Greenville, but did not transport them, or, within thirty days from the date of their obligation, complete the transportation of the same to the bonded warehouse of Church Howe at Boston, and deliver the same to the collector of internal revenue thereat; and that they did not within fifteen days thereafter produce to the collector of the fourth district of Ohio the certificate of such collector, showing that the spirits had been duly delivered and placed in the warehouse of Church Howe, according to law.

The defendants interposed no traverse of the breaches alleged, but pleaded that after they had failed to comply with the conditions of their bond, to wit, on the 1st day of January, 1868, the assessor of the fourth district of Ohio assessed Bennett p Carpenter for their non-compliance the full taxes imposed by law on the said spirits, and that they paid to the said collector all the taxes thus assessed. They further pleaded that though they had not paid the penalty assessed against them, the said Bennett & Carpenter, on the said 1st day of January, for failure to comply with the conditions of their bond, yet that before it became payable under the assessment, the law providing for such penalty was wholly repealed, without any saving clause. To this plea the plaintiffs demurred, and the court gave judgment for the defendants. To that judgment the United States took this writ of error.

The plea admitted, of course, the execution of the bond, the breach of its conditions, and the non-payment of the penalty assessed against Bennett & Carpenter for the breach. It relied only upon the averment that the statute under which the bond was given was repealed before the penalty became payable. Whether it was repealed, or not, was of course a question of law, and was the only question in the case.

Mr. G. H. Williams, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, for the plaintiff in error; Mr. H. L. Burnett, with whom was Mr. J. D. Cox, contra.

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

title: United States v. Bennett (82 U.S. 660)


text: Talk:United States v. Bennett (82 U.S. 660)


text:
United States v. Bennett (82 U.S. 660)/Opinion of the Court

It is very obvious, we think, that this case is not the case of an entire repeal of a former act which imposed a penalty. The act of 1868 repealed former acts only so far as they were inconsistent with its provisions. It is needful, therefore, to note carefully what its provisions were. Plainly, it had no reference to spirits that had been withdrawn from a bonded warehouse for transportation to another before its enactment. It provided a system for the future, and looked exclusively to that. It regulated conduct from and after its pasage, and declared that therefter no spirits should be removed without payment of the full tax. It was only as the prior acts might affect spirits in bonded warehouses after its enactment that they could be inconsistent with its provisions. So far those acts were repealed. But spirits which had been removed before were not in its purview. We are unable to perceive how provisions respecting transportation in 1867 can be inconsistent with regulations respecting custody in 1868. The subjects are not the same, and the statutes are rules of action intended for different times. We think, therefore, that in their application to removals of distilled spirits in 1867, the acts of Congress of 1862, 1866, and 1867 were unaffected by the act of 1868, and consequently that the plea of the defendants was no sufficient answer to the plaintiffs' declaration. Hence the demurrer should have been sustained.

JUDGMENT REVERSED, and the cause remitted for further proceedings

IN CONFORMITY WITH THIS OPINION.

At the same time with the case above reported, were argued by the same counsel and adjudged another case between the same parties, also the case of United States v. Crane et al., and of the United States v. Crane, Wells et al.; cases which the court declared to be in principle exactly like the case which it had just decided. For the reasons above therein given, the judgment in each was reversed, and the record remitted for further proceedings in accordance with the opinion in that case.


text: Talk:United States v. Bennett (82 U.S. 660)/Opinion of the Court


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Insurance Company v. Lyman

ERROR to the Circuit Court for the District of Louisiana.

Lyman & Co. brought their action in the court below against the Merchants' Mutual Insurance Company of New Orleans, for the sum of $12,000, the value of the brig 'Sailor Boy,' lost at sea on the 8th of January, 1870, and which was insured, as they allege, by the said company. Their petition set forth that on the 30th of October, 1869, the company had issued a policy to them on the brig for the sum named, which insured her until January 1st, 1870.

That on the 15th December, 1869, they applied to the company to insure them in the same sum, upon the same vessel for three months, from the said 1st January, 1870.

That after taking time to consider, the company, on December 24th, 1869, proposed to renew the insurance for the premium of $600, and that on December 31st the plaintiffs accepted this proposition for renewal, and that the company on that day agreed with them that it would issue the policy, and make it out and send it to them, and receive the premium.

That on the 15th January, 1870, the plaintiffs sent for the policy and paid the premium, and the company issued to plaintiffs the policy annexed to the petition; that the said policy was not a compliance with and a formal statement of the agreement to renew the insurance, made December 31st, 1869.

That on the 8th of January, 1870, the brig was lost, &c.

Along with their petition, the plaintiffs filed two policies of insurance, on their face such as above stated; that is to say, one dated October 30th, 1869, for two months, expiring January 1st, 1870, and one dated January 15th, 1870, and which, by its terms, purported to make an insurance 'from the 1st January, 1870, to the 1st of April, 1870.'

On the trial it appeared that the plaintiffs, when they renewed the policy of the 15th January, and paid the premium for insurance, knew that the vessel was lost, and that the defendants had no such knowledge or information.

As on this state of facts it would be obvious that no action could be sustained on the policy-and indeed that, in point of fact, the taking of such a policy, and causing the defendant to sign it would have been a fraud-the plaintiffs framed their petition on the assumption, and directed their evidence to the showing that the execution of the policy was but carrying into effect an agreement made before the loss of the vessel.

In order to sustain this their case they offered in evidence the deposition of their agent, which gave an account of conversations had by him in reference to a renewal of the insurance with some one in the defendants' office. The defendants objected to this testimony, on the ground that there was written application for and contract of insurance between the parties for the same amount of insurance and same amount of premium, on the same object insured, the vessel called 'Sailor Boy,' by the same plaintiffs as insured, and same defendants as insurers, for the same space of time, to wit, from the 1st day of January, 1870, to the 31st March, 1870; that the plaintiffs had no right to contradict the written application aforesaid by proof of a previous verbal contract; that the plaintiffs' right of action, if any, was on the written application and contract aforesaid, and that they could not ignore the said written contract to fall back on an alleged previous verbal contract of the same tenor and purport; that the evidence showing that when the said written contract was executed, the plaintiffs and their agents were aware of the fact of the previous loss and abandonment of the 'Sailor Boy,' the said written application and policy were not binding in law, but were nevertheless the contract of the parties subject to be gainsaid by proper allegations and proof of fraud; that the plaintiffs could not ignore the written contract.

But the court ruled as follows:

'The plaintiffs put their entire case upon a verbal contract to renew the insurance made, as they allege, on the 31st day of December, eight days before the loss. They admit that when they sent for the written policy, on the 15th of January, they knew of the loss, and that they could not recover on the written policy standing by itself, but they say that the real contract was made on the 31st of December, and that they had a right to go to the jury on that issue.'

The court accordingly overruled the objction and admitted the testimony.

The testimony admitted was that of a single witness. It went to show that on the 15th December, 1869, he was directed by the agent of the plaintiffs 'to go to the company's office and see if they would renew the policy, and to get the rate; that he saw the secretary, who said that the company would renew, but that he could not then give the rate, but would let the agent know; that the witness had himself done nothing further in the matter till December 31st, though he heard that the company had informed the agent of the rate, 5 p. c., and that it was satisfactory; that on the 31st he was again told by the agent to go and renew the policy; that about half-past three in the afternoon of that day he went to the company's office, and asked to have the policy renewed; that a clerk, or person standing at the desk, to whom he applied, told him that the secretary had gone home, and that there was no one in the office who could do it, but that he would speak to the secretary when he came in, in the morning, and have it attended to the first thing; that the witness did nothing further until the 15th January, when the agent of the plaintiffs sent him to the company for the policy.'

The witness stated the transaction of that day as follows:

'I went to the office of the defendants, and asked the man at the corner of the desk for the policy on the 'Sailor Boy.' He turned over his book, but could not find it; said he would go and see the secretary. He went into the back office and returned with the secretary. The secretary said that he did not know that a policy had been ordered. I told him that I had ordered it the 31st of December. He said there had been no application made out. I told him I did not know anything about that; that no one said anything about an application to me. He said there should be one, and told the clerk to make one out for me to sign. The clerk made it out, and I signed it, and paid the premium, $510. The secretary asked me if anything had been heard from the vessel; I said, 'Not that I knew of."

Upon cross-examination the witness testified that he was requested by the president of the company, after payment of the insurance money had been demanded, to come to the office and identify the person to whom he had made application on 31st December, but that he was not able to recognize or identify any one as the person.

A verdict was given, and judgment entered for the plaintiffs, for the sum insured, and interest.

The case being now here on error,

Mr. W. M. Evarts, for the insurance company, plaintiff in error, argued that there was error:

1st. In admitting evidence of a parol contract of insurance of the same subject, and for the same risk between the same parties, as the written policy given in evidence by the plaintiffs. For that the plaintiff had a complete written contract made on the 15th of January, upon a written application made on that day; and by a policy on that day dated. And that the fact that it was void from a fraud of his part, did not make it less the written contract of the parties, or a contract of that date, nor affect its efficacy under the rule of evidence, to exclude parol evidence of a written contract.

2d. In submitting to the jury the evidence offered as showing or tending to show a contract of insurance by the defendant, made on the 31st of December, when the said evidence showed no such contract, but on the contrary showed a failure to make any contract, or to treat concerning such a contract. For that the proof showed that all that happened on that day, was that the messenger of the plaintiffs went to the insurance office, after business hours, and failed to find any one with whom to treat concerning the insurance.

Mr. T. J. Durant, contra:

1st. The evidence was not offered to contradict the written contract, but to show the circumstances under which it was made, and to show to what state of facts it really referred, by explaining that the instrument, made on the 15th January, only put in writing what had been agreed to between the parties on the 31st December previous, to which date and fact the policy related back. In other words, it was offered to show that the policy was but the expression, in a written form, of the verbal contract previously made.

2d. But we had a right to abandon our written contract altogether, and recover on our parol contract, not relying on the written policy except as evidence, if we chose so to use it, and as giving part of the history of the transaction.

Thus viewing the case, the fact that the vessel was lost on the 8th of January, and that the loss was known to the assured is unimportant.

Corporations may contract by parol, and a verbal contract to issue a policy may be as binding as any contract in writing.

The evidence did tend, in some degree certainly, to show the exact thing which it was offered to show, and was proper to go to the jury for what it was worth.

Mr. Justice MILLER delivered the opinion of the court.

title: Insurance Company v. Lyman


text: Talk:Insurance Company v. Lyman

title: Talk:Insurance Company v. Lyman


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Insurance Company v. Lyman/Opinion of the Court

Undoubtedly a valid verbal contract for insurance may be made, and when it is relied on, and is unembarrassed by any written contract for the same insurance, it can be proved and become the foundation of a recovery as in all other cases where contracts may be made either by parol or in writing. But it is also true that when there is a written contract of insurance it must have the same effect as the adopted mode of expressing what the contract is, that it has in other classes of contract, and must have the same effect in excluding parol testimony in its application to it, that other written instruments have.

Counsel for the defendants in error here, relies on two propositions, namely, that the policy, though executed January 5th, is really but the expression of a verbal contract, made the 31st day of December previous, and that the loss of the vessel between those two dates does not invalidate the contract, though known to the insured and kept secret from the insurers; and secondly, that they can abandon the written contract altogether and recover on the parol contract.

We do not think that either of these propositions is sound.

Whatever may have been the precise facts concerning the negotiations for a renewal of the insurance previous to the execution of the policy, they evidently had reference to a written contract, to be made by the company.

When the company came to make this instrument, they were entitled to the information which the plaintiffs had of the loss of the vessel. If then they had made the policy, it would have bound them, and no question would have been raised of the validity of the instrument or of fraud practiced by the insured.

On the other hand, if they had refused to make a policy, no injury would have been done to the plaintiffs, and they would then have stood on their parol contract if they had one, and did not need a policy procured by fraudulent concealment of a material fact at the time it was executed and the premium paid.

To permit the plaintiffs, therefore, to prove by parol that the contract of insurance was actually made before the loss occurred, though executed and delivered and paid for afterward, is to contradict and vary the terms of the policy in a matter material to the contract, which we understand to be opposed to the rule on that subject in the law of Louisiana as well as at the common law.

We think it equally clear, that the terms of the contract having been reduced to writing, signed by one party and accepted by the other at the time the premium of insurance was paid, neither party can abandon that instrument, as of no value in ascertaining what the contract was, and resort to the verbal negotiations which were preliminary to its execution, for that purpose. The doctrine is too well settled that all previous negotiations and verbal statements are merged and excluded when the parties assent to a written instrument as expressing the agreement. And it is hardly necessary to say, that the party who has destroyed the validity of that contract by his own fraud, cannot for that reason treat it as if it had never been made, and recover on the verbal statements made before its execution.

We may add that, as the only testimony offered to prove this parol contract, was the deposition of a single witness, made part of the bill of exceptions, we do not see in that deposition sufficient evidence of a completed contract, of an agreement assented to by both parties at any one time, to be submitted to a jury, even if the written contract had never been executed.

A NEW TRIAL.


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Haffin v. Mason

ERROR to the Circuit Court for the Southern District of New York; the case being thus:

The act of June 30th, 1864, 'to provide internal revenue to support the government,' &c., makes it the duty of distillers to make and return to the assessor of their district, a list of the merchandise made or sold by them; and if they make a list which in the opinion of the assessor is false or fraudulent, or contains any unerstatement or undervaluation, it is made the duty of the assessor-it being made 'lawful' for him first to give notice to the party, and summon such party before him to give testimony and to answer interrogatories respecting his trade and sales, and in case of a neglect of the party on such notice to come before him, then to have him summoned before the judge of the district whose duty it is made by himself or his commissioner, on the parties being brought before him, to hear the case-to make, according to the best information he can obtain, a true list, according to a form which the statute prescribes, 'of the property, goods, wares, and merchandise, and all articles or objects liable to duty or tax,. . . and assess the duty thereon,' adding in certain cases penalties prescribed; 'and the amount' so added to the duty 'shall in all cases,' says the act, 'be collected by the collector at the same time and in the same manner with the duties; and the lists or returns so made. . . shall be taken and reputed as good and sufficient lists or returns for all legal purposes.' Other parts of the act authorize distress and sale of the party's property for non-payment of duties lawfully assessed.

With this act in force Hyatt, assessor of internal revenue for one of the districts of New York, being, or professing to be, of the opinion that Haffin and Wagner, distillers there-who had made certain returns which they alleged to be true, and paid taxes upon them-had not in a list rendered by them, made a true return of liquors which they had distilled during a term specified, made out-in a form somewhat peculiar, and purporting to be an assessment upon 'deficiency on returns,' and without giving to the distillers any notice of the increased enumeration or of his action, and so without giving them any opportunity to be heard-a new list, which, having duly certified, he gave to one Mason, the collector of the district, that he might collect the amount charged. Mason made a demand at the distillery for payment of the sum, and payment being refused, he distrained upon the distillery and other property of the distillers and sold it at auction; the distillers being present and protesting against the sale. Hereupon they brought an action of trespass against both Hyatt and Mason, on the ground that the whole proceeding was wrongful, as they had made correct returns of their business, paid all the taxes properly chargeable upon it, and done nothing which justified the action of the assessor. Plea, 'not guilty.' On the trial the plaintiffs having given evidence tending to show, as they considered a non-compliance by Hyatt, the assessor, with requisitions made by the internal revenue act, requisitions (as they considered) precedent to any lawful levy on a new list-and the new list in this case being in evidence without objection, and without any point raised as to its form or sufficiency-requested the court to charge 'that the defendants were liable in this action, and that the plaintiffs were entitled to judgment for the value of the property seized and sold by the defendant, Mason, as aforesaid.'

The court refused so to charge, and directed the jury to find for the defendants, which they did. Judgment having been entered accordingly, the plaintiffs brought the case here.

Messrs. J. Hubley Ashton and H. F. Averill, for the plaintiffs in error:

1. The only authority which Mason had for seizing and selling the property, was the 'list' given him by Hyatt. In this 'list' he must find justification, or he is a trespasser. Now this list affords him no protction, unless under the Internal Revenue Act Hyatt had the power to make it. And these statutes, so far as they operate to take away the rights of the citizen, must be construed strictly. They cannot have an equitable construction, nor be extended by implication. Every substantial requisite of the law must be shown to have been complied with. No presumption can be raised in behalf of a collector who sells property for taxes to cover any radical defect in the proceedings. Now, here the assessor was bound to give notice to the distillers of his dissatisfaction with their returns, in order that they might show them to have been true. When it was made lawful for him to do this, it was made obligatory. The assessor is not to proceed inquisitorially, and to be at once detective, prosecutor, and judge. Suppose that in fact the returns which the plaintiffs made were true. What a case have we of oppression by a subaltern officer of the revenue. Undoubtedly their notice was a prerequisite.

2. The list was void on its face. It purports to be an assessment upon 'deficiency on returns' of distilled spirits. There is no tax known to the law 'on deficiency on returns.'

3. That both defendants are liable for the trespass, would seem from the case of Smith v. Shaw.

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

Mr. Justice DAVIS delivered the opinion of the court.

title: Haffin v. Mason


text: Talk:Haffin v. Mason

title: Talk:Haffin v. Mason


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Haffin v. Mason/Opinion of the Court

In the view we take of the case, it is not necessary to notice anything that occurred at the trial, except the refusal of the court, on the request of the plaintiffs, to charge 'that the defendants were liable in this action, and that the plaintiffs were entitled to judgment for the value of the property seized and sold by the defendant, Mason.' The refusal to give this instruction was excepted to and is assigned for error. If, in the state of this record, both these defendants were not liable in an action of trespass, the charge, as prayed, was incorrect, and therefore properly refused.

We are not required to consider whether the assessor was not liable, because the proposition which the court was asked to sanction assumed the liability of both, and a party cannot assign for error the refusal of an instruction to which he has not the right to the full extent as stated, nor is the court bound to modify the instruction moved for by counsel, so as to bring it within the rules of law. If the plaintiffs wished to test the question whether, under the evidence in the case, they could not recover against the assessor alone, they should fave fashioned their instruction to meet that emergency.

If they did not choose to do this, they are precluded from raising the question here, and the only point for decision is whether the court below erred in refusing the instruction in the terms in which it was presented.

A ministerial officer, in a case in which it is his duty to act, cannot on any principle of law be made a trespasser. This court, in the recent case of Erskine v. Hohnbach, applying this doctrine to a collector of internal revenue, say, that his duties in the enforcement of a tax-list are purely ministerial, and that 'the assessment duly certified to him is his authority to proceed, and, like an execution to a sheriff, regular on its face, issued by a tribunal having jurisdiction of the subject-matter, constitutes his protection.'

The assessment in this case, duly certified by Hyatt, the assessor, was received in evidence without objection, and no point was raised as to its form or sufficiency. If, then, the assessor had the right to decide the question, whether the plaintiffs were liable to the increased taxation, the list delivered by him to the collector, properly certified, was his warrant to seize and sell the property, in case the taxes were not paid, after he had made demand for them.

It was not the business of the collector to inquire into the case to ascertain whether the assessor had reached a proper conclusion upon the matter submitted to his judgment, nor had he any right to refuse to enforce the assessment.

The act of June 30th, 1864, confers authority on the assessor to make an increased enumeration in case the distiller has not rendered a true account of his business, and directs the manner of proceeding, in order to find out the deficiency. This mode was not pursued by the assessor, and as the case stands, it would seem that the plaintiffs have been adjudged to pay a large amount of money without the opportunity to be heard, and which they swear they do not owe the United States. It is presumed the assessor had grounds for his action, which would relieve the case of its apparent hardship, but whether he had or not, the collector is protected. This officer had the right to suppose the taxes were due, and that all proper steps had been taken to ascertain this fact. If he could not rightfully act on this supposition, it is difficult to see how he could be protected in collecting taxes, when the authority of the assessor to levy them was given by law, and the precept for their collection was regular on its face. It follows, from these views, that the Circuit Court was right in refusing the instruction as prayed for, and that, on the ground that the collector was not a trespasser, the judgment must be

AFFIRMED.

title: Haffin v. Mason/Opinion of the Court


text: Talk:Haffin v. Mason/Opinion of the Court