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Express Company v. Kountze Brothers/Opinion of the Court

II. The merits. The property was delivered, accepted, and carried under and subject to the provisions of a special contract, and not under or in pursuance of a general undertaking on the part of the defendants to transport the property as common carriers. There can be no doubt, at this time, notwithstanding that able writers once through other wise, that such a receipt, accepted under such circumstances, constitutes an agreement between the company and the owners of the property, and has the same effect in law as if signed by both parties.

The defendants having been thus shown to have been special carriers of the property in question, the court should have instructed the jury that the plaintiffs could not recover in this action.

It is a question of law for the court, and not of fact for the jury, whether facts proved or admitted constitute a special contract or not.

Whenever a special contract exists, changing the character of a carrier from a common to a private carrier, the latter cannot be declared against as a common carrier, but the action must be on a special contract, or for a breach of duty arising out of such contract; and if the declaration in such case set forth the general liability of the defendants as a common carrier, the variance is fatal.

The declaration here was upon a supposed general undertaking as common carriers.

The court should have instructed the jury, that by the terms of this contract, there could be no recovery against the defendants, unless they were guilty of gross negligence or misfeasance in regard to this property, and the loss was occasioned thereby.

The terms of the contract leave no doubt as to the meaning of the parties. And we contend that effect should be given to their stipulation, at least to the extent of relieving the carriers from liability for every degree of negligence, except that which has been termed gross or guilty negligence, or which amounts to positive misfeasance.

This court has never decided, we suppose, that a stipulation against losses from negligence, short of misfeasance or misconduct, cannot be made by a carrier of merchandise. In the case of York Company v. Central Railroad the question did not arise, but there Field, J., would seem to apeak of misconduct of the carrier as a thing alone against which no contract could be maintained.

The spirit of the later adjudications, in those States where the subject has been most carefully considered, is not opposed to any agreement or arrangement between parties to such a transaction, which shall relieve the carrier of property from responsibility for negligence which does not amount to positive misconduct or fraud, misfeasance, malfeasance, or gross negligence, in respect to the subject committed to his care.

The doctrine of Pollock, C. B., in Beal v. South Devon Railway Company, that 'a contract to which a person has signed his name is, quoad him, a reasonable contract; that he has agreed to it, and therefore has no right to complain of it,' is a doctrine which commends itself to good sense.

Mr. Justice DAVIS delivered the opinion of the court.

Before proceeding to consider the merits of this controversy, it is necessary to dispose of the point of jurisdiction which is raised.

It is urged that the Circuit Court had no jurisdiction over the cause, because there was no authority to transfer it. This depends on the construction of the acts of Congress relating to the subject.

On the admission of a new State into the Union, it becomes necessary to provide not only for the judgments and decrees of the Territorial courts, but also for their unfinished business. In recognition of this necessity Congress, after Florida became a State, passed an act providing, among other things, thst all cases of Federal character and jurisdiction pending in the courts of the Territory be transferred to the District Court of the United States for the District of Florida. The provisions of this act were made applicable, at the time of its passage, to cases pending in the courts of the late Territory of Michigan, and were afterwards extended to the courts of the late Territory of Iowa. Congress, in making this provision for the changed condition of Iowa, though proper in the same act to adopt a permanent system on this subject, and extended the provisions of the original and supplementary acts to cases from all Territories which should afterwards be formed into States.

It is contended, if this cause were transferable at all, it went, under these acts of Congress, to the District Court, and not to the Circuit Court. This would have been true if Nebraska had not at the time of the transfer occupied a different judicial status from that occupied by Florida, Michigan, or Iowa, when these laws were passed. These States were not then a part of any one of the judicial circuits, while Nebraska, when this cause was removed, was attached to the eighth circuit. Their District Courts had general Circuit Court powers, while the District Court in Nebraska had only the ordinary jurisdiction properly belonging to the District Courts of the country. If Nebraska had not at the time of the transfer formed a part of a judicial circuit, her District Court would, by virtue of the laws above recited, have been clothed with the general powers of a Circuit Court, and could have taken cognizance of this cause, and it would, in the purview of these laws, have been rightfully transferable to it. To construe these laws so as to limit the right of transfer to the District Court alone, without regard to the powers of that court, would defeat the very object Congress had in view. That object is made plain enough by the legislation relating to this subject. It was, on the admission of a new State, to transfer pending civil cases of a Federal character from the Territorial courts into the District Court, if the State did not form part of a judicial circuit; because in such a case the District Court was invested with Circuit Court powers. But if the State were attached to a circuit, then, as the District Court did not possess this jurisdiction, the cause was transferable to the Circuit Court. To adopt any other construction would render the provisions for the transfer of causes, in case a new State on its admission were attached to a circuit, nugatory.

It is said, if cases of a Federal character were properly transferable to the Circuit Court, this was not one of them; because it does not appear that the suit was between citizens of different States. It is true there is no direct averment to this effect, but it is the necessary consequence of the facts stated in the pleadings, that the parties to the suit were citizens of different States. The averment that the plaintiff were a firm of natural persons, associated together for the purpose of carrying on the banking business in Omaha, and had been for a period of eighteen months engaged in said business at said place, is equivalent to saying they had their domicile there. In this country people usually live and have their citizenship in the place where they do business. Especially is this true of persons engaged in a business requiring capital, and involving risk, at a point which is remote from the great centres of trade and commerce.

The citizenship of the defendant is clearly enough averred. It is alleged that the United States Express Company, the defendant in the suit, is a foreign corporation formed under and created by the laws of the State of New York. The obvious meaning of this allegation is that the defendant is a citizen of the State of New York. The course of proceeding in the court below shows that the parties to the suit recognized it as being of Federal jurisdiction, and it could only be so (as there was no Federal question involved), on the ground that the plaintiffs and defendant were citizens of different States. If the parties had though otherwise, after the cause reached the Circuit Court, the point would have been taken, and an effort made at least to test the jurisdictional question. The record shows that nothing of the sort was attempted.

There remains to be considered the merits of this case, so far as they are presented in the bill of exceptions.

The only subject for review here is the charge given by the court to the jury. The court instructed the jury only on a single point-that of negligence. The jury were told substantially that, although the contract was legally sufficient to restrict the liability of the defendant as a common carrier, yet, if the defendant was guilty of actual negligence, it was responsible. And that it was chargeable with negligence, unless it exercised the care and prudence of a prudent man in his own affairs. The defendant requested the court to charge the jury that it was not liable unless grossly negligent.

To understand what are the rights of the parties to this suit, so far as the court was asked concerning them, it is necessary to see what were the facts proved in the case. It appears that the particular lot of gold dust, which is the subject of this controversy, was confided to the express company for transportation to Philadelphia, on the 29th of September, 1864, and that it was one of a series of shipments of the same kind, running through a period of eighteen months or more. The receipt given for the packages was not different from the ordinary receipts of the company, and was doubtless intended to limit the liability of the company as common carriers. There were two routes employed by the express company to convey their property-one across the State of Iowa, and the other to St. Joseph, Missouri, and thence across that State by the Hannibal Railroad. The latter was the most expeditious route, but the former the safest, as Missouri, although at the time adhering to the Union, was in a disturbed and unsettled condition. The property in dispute was conveyed by the St. Joseph route, and was robbed while in transit across the State by a band of armed men. Under the circumstances in which the country was then placed, no prudent man, in the management of his own affairs, would have sent his property by the Missouri route, if another route were open to him. It seems that the plaintiffs acted on this idea, for one of them testifies that he notified the agent of the company not to send their gold dust by the St. Joseph route. If this testimony be true, it is hard to conceive a grosser case of negligence, for here were two routes-the one safe and the other hazardous-and yet the express company, in defiance of the wishes of the owner of the property, reject the safe, and adopt the hazardous route. Carriers of goods cannot escape responsibility if they behave in this manner, for they are required to follow the instructions given by the owner of property concerning its transportation, whenever practicable. In this case it was practicable to obey the instruction given by the plaintiffs, and the defendant furnishes no excuse for not obeying it.

It is said that the weight of the evidence is against the statement of the plaintiffs, that they directed their goods sent by the Iowa route. Conceding this to be true, it cannot be corrected here. It was a proper matter to be considered by the court below, on a motion for a new trial, but the granting or refusing such motions are not subject to be reviewed in this court.

If the evidence in the case tended to prove the defendant guilty of actual negligence, then the court below were justified in basing upon it an instruction to the jury. That it did tend to prove it is clear, and the charge of the court on the subject correctly stated the law to the jury.

As the court was not asked to instruct the jury on any other point, there is not, as the argument for the plaintiff in error seems to suppose, anything else for this court to review. It is the usual practice for the presiding judge at a nisi prius trial, in his charge to the jury, to take up the facts and circumstances in proof, explain their bearing on the controverted points, all declare what are the legal rights of the parties arising out of them. If the charge does not go far enough, it is the privilege of counsel to call the attention of the court to any question that has been omitted, and to request an instruction upon it, which, if not given, can be brought to the notice of this court, if an exception is taken. But the mere omission to charge the jury on some one of the points in a case, when it does not appear that the party feeling himself aggrieved made any request of the court on the subject, cannot be assigned for error.

JUDGMENT AFFIRMED.


text: Talk:Express Company v. Kountze Brothers/Opinion of the Court

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text:
Young v. Martin

ERROR to the Supreme Court of the Territory of Utah.

The case was begun in a District Court of the Territory just named, and was carried thence to the Supreme Court of the same, under the provisions of an act of the legislature of the Territory, providing for appeals to the Supreme Court, approved January 18th, 1861. The 1st section of that act provides:

'That hereafter whenever any final order, judgment, or decree is made or rendered in the District Court of the Territory, the party aggrieved may have the same reviewed in the Supreme Court on appeal, by obtaining from the clerk of the court, making or rendering such order, judgment, or decree, a complete transcript of the record of the case, which shall be filed with the clerk of the Supreme Court.'

The 7th section provides that:

'The hearing of the Supreme Court shall be upon the record and argument of counsel; and the District Court is hereby required to sign all bills of exceptions taken to its rulings, decisions, or charge to the jury, which shall be incorporated into and constitute part of the record of the cause.'

The 8th section provides that:

'When the judgment, final order, or decree shall be reversed, either in whole or in part, the Supreme Court may render such judgment as the court below should have rendered, or remand the cause to the court below to proceed according to the decision of the Supreme Court.'

Final judgment was rendered in the District Court against the plaintiffs, on the 14th of March, 1867, and a complete transcript of the proceedings in the case was filed by the plaintiffs, with the clerk of the Supreme Court of the Territory, on the 2d of August, 1867, attached to which transcript was an assignment of errors by the plaintiffs, with a prayer asking that the judgment of the District Court might be reversed, and judgment rendered in favor of the plaintiffs on the record. No bill of exceptions was taken at the trial in said District Court, but in the record the following appeared, to wit:

'August 23d.

'Plaintiffs' counsel filed demurrer to defendant's answer, which was argued by Messrs. Baskin and Hempstead, for plaintiffs, and Messrs. Marshall and Carter, for defendant. Pleadings submitted to the court and held under advisement.'

'August 24th.

'Court overruled demurrer filed by plaintiffs to defendant's an swer, and ruled that defendant has a lien on the goods of E. R. Young & Sons, now in possession of defendant, for freight, both by the McWhurt train and the Irwine train.

'Plaintiffs ordered to reply as though demurrer had not been filed. C. H. Hempstead, Esq., counsel for plaintiff, excepted to the ruling of the court.'

'December 7th.

'C. H. Hempstead, Esq., made a verbal motion praying for judgment and damages on the pleadings. Motion argued by Messrs. Baskin and Hempstead for plaintiffs, and Messrs. Marshall and Carter for defendant.

'Pleadings submitted to the court and held under advisement.'

'December 8th.

'Motion for judgment overruled. Rulings excepted to by plaintiffs' counsel.'

The Supreme Court of the Territory dismissed the appeal, and the plaintiff took this writ of error.

Mr. De Wolfe, for plaintiff in error; Mr. Van Cott, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: Young v. Martin


text: Talk:Young v. Martin

title: Talk:Young v. Martin


text:
Young v. Martin/Opinion of the Court

There is no evidence contained in the transcript that any exceptions were taken to the action of the District Court of the Territory, except such as appears from the minutes of the clerk. These minutes are mere memoranda, stating, in the briefest and most general manner, the proceedings had in court. They do not purport to give the particulars of the proceedings, but only to describe their character. They were made to preserve an account of the general order of business of the court, and to assist the clerk in the subsequent preparation of the formal record. In this case they state that, on a day mentioned, the plaintiffs' counsel filed a demurrer, which was argued and taken under advisement; that, on the subsequent day, the demurrer was overruled, and the plaintiffs excepted. And, also, that afterwards, on a certain day, the plaintiffs' counsel made a verbal motion for judgment and damages on the pleadings; that the motion was argued and, on the following day, overruled, and that the ruling was excepted to.

These entries do not present the action of the court and the exceptions in such form that we can take any notice of them. It is no part of the duty of the clerk to note in his entries the exceptions taken, or to note any other proceedings of counsel, except as they are preliminary to, or the basis of, the orders of judgment of the court. To be of any avail, exceptions must not only be drawn up so as to present distinctly the ruling of the court upon the points raised, but they must be signed and sealed by the presiding judge. Unless so signed and sealed, they do not constitute any part of the record which can be considered by an appellate court.

It is true, as stated by counsel, that the object of a bill of exceptions is to make matter of record what would not otherwise appear as such, and that no bill is necessary where the error alleged is apparent upon the record. So here, had the demurrer been in the transcript, and it had appeared that the plaintiffs had relied upon its sufficiency, and final judgment thereon had passed against them, the error of the court, if any existed, would have been open to examination, for it would have been disclosed by the proceedings. No bill of exceptions, then, could have presented more clearly the ruling of the court. But the demurrer is not in the transcript, and it is only a matter of conjecture whether it was a special or general one; to the form or substance of the answer. Nor is any order overruling the demurrer shown; a statement of the clerk in his entries that such was the fact is all that appears. But, independent of this consideration, the ruling of the court on this point would not be noticed, for it appears that the plaintiffs, instead of relying upon the sufficiency of the alleged demurrer, filed a replication to the answer. They thus abandoned their demurrer, and it ceased to be a part of the record.

The exception to the ruling in denying the motion for judgment on the pleadings is not only subject to the general objection already stated, but to the further objection, that the grounds upon which the motion was made or denied are not given. The motion was not made at the trial, and, as counsel suggests, it may have been denied on a point of practice, without respect to the merits.

JUDGMENT AFFIRMED.

title: Young v. Martin/Opinion of the Court


text: Talk:Young v. Martin/Opinion of the Court


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Gilbert Secor v. United States

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

By an act of March 3d, 1847, making appropriations for the naval service, certain sums were set apart for floating drydocks at Philadelphia, at Pensacola, and at Kittery, which the Secretary of the Navy was directed to have built.

Proposals were received for these docks from several persons, and among them from Gilbert & Secor, who offered to build the dock at Kittery for $732,905. The proposals were made on a basis that the docks should have what is known 'as tar and felt sheathing.' If the sheathing known as 'copper sheathing' was required, the offer was to do the work for an additional sum of $72,742.

Upon an examination of the proposals, and on full consideration of the plans proposed, it was found that the appropriation made by Congress in the act just mentioned, was insufficient to pay for the work on the plan approved by the secretary. Thereupon, under the advice of the Attorney-General, the secretary declined to make any contracts.

At the next session, Congress having considered the matter, passed another act, in which the secretary was directed, in the execution of the act already mentioned, to enter into a contract with Dakin & Moody for the construction of a sectional floating dry-dock, basin, and railways at Philadelphia, and with Gilbert & Secor, for the construction of a balance floating dry-dock, basin, and railways at Pensacola, and with one or the other of the parties for the construction of a floating dry-dock, basin, and railways upon either of those plans that the secretary might prefer for the navy yard at Kittery; provided that such contracts could be made at prices that should not exceed by ten per cent. the prices which had been submitted by either of said parties. It was also provided that the secretary should, in contracting with said parties, enlarge the dimensions of said works at each yard to a capacity sufficient for docking war steamers of the largest class.

Under the powers conferred by this statute, the Secretary of the Navy contracted with Dakin & Moody, for the dock at Philadelphia, and with Gilbert & Secor, for the work at Pensacola.

In determining which of the proposed plans (both of which it seems were patented) he would select for Kittery, he seems to have considered whether he could get the dock at that place copper-sheathed without any additional cost. It is recited in the contract, signed by him and the plaintiffs, for the work at that place, that 'the Secretary of the Navy, in the execution of the aforesaid law, after mature deliberation thereon, and in consideration that the said parties of the second part will copper-fasten said dock at Kittery, according to the specifications for the Pensacola dock hereto annexed, has determined to select, and does hereby select, the balance dock, basin, and railways of Gilbert & Secor, parties of the second part, as best adapted for the navy yard at Kittery.' A contract, with the recital just mentioned, and a provision that the dock should be copper-sheathed, was accordingly concluded. The work was to be done according to minute specifications, for the sum originally proposed, on the assumption that felt and tar sheathing would be used. When executing this contract, Gilbert & Secor had protested against that provision. The contract also provided for the enlargement necessary for war steamers, and for the increase of the price of the work by ten per cent.

The whole work being completed, the price named in the contract, $732,905 was paid to Gilbert & Secor. They, however, contended that this sum was the sum named on an assumption that tar and felt sheathing, and not copper, would be used, and they accordingly asked for the $72,742 additional. The government declining to pay it, Gilbert & Secor then brought suit in the Court of Claims. That court dismissed their petition, and they took the present appeal.

Messrs. Carlisle and McPherson for them, appellants here, contended that the proposals were made under the first act of Congress, that it was in execution of that act, and of the proposals under it, that all which was subsequently done was done; and that what was thus subsequently done amounted to an acceptance of their proposals. No new proposals, it is certain, had been made. Under what else then than the old ones, could anything be done by the government?

The second act was passed only because the first one did not make an appropriation sufficient to meet the proposals, and was, in fact, an acceptance of them; the secretary only being required to complete the matter in form.

Mr. Norton, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Gilbert Secor v. United States


text: Talk:Gilbert Secor v. United States

title: Talk:Gilbert Secor v. United States


text:
Gilbert Secor v. United States/Opinion of the Court

The present claim for $72,742.82 is the difference in value between felt and tar sheathing, and copper sheathing, the latter of which, by their contract, Gilbert & Secor, the claimants, were required to put on the dock, and did put on it.

The claimants do not make any question that by the terms of the agreement signed by them, and by the Secretary of the Navy, they were bound to copper sheath the dock, and that this was included in the work which they agreed to do for the aggregate sum already mentioned. Nor do they contend that there was any mistake in reference to that particular, for they protested against that provision of the contract while they signed it.

But the proposition on which their claim is based seems, when fairly stated, to be this: That the act of Congress under which the secretary acted when he made the contract with them, was itself an acceptance of certain proposals made by plaintiffs, and, therefore, taken in connection with those proposals, constituted a contract binding on the government, and that under that contract the dock was built. That those proposals were framed on the basis of allowing the sum now claimed for copper sheathing if copper was used.

But it seems to us that the statement of the case sufficiently negatives the idea that the act of Congress completed a contract.

When did the claimants become bound to build such a work as that specified in their final contract? That work was much larger than the one for which they made proposals. When did they consent to the enlargement? Their proposals of the year previous had been rejected by the secretary. When did they renew them? The proposition which Congress authorized the secretary to accept was ten per cent. larger than any proposal they had made. Did Congress mean to say, we accept your proposal, and give you ten per cent. more than you have asked? Or did it mean to authorize the secretary to make the best terms he could, not exceeding that limit? Clearly it must have intended the latter.

It also appears from the agreement signed, and therefore accepted by the claimants, that the secretary was induced to exercise the option which the act gave him in regard to the two kinds of work, in favor of that of claimants, in consideration that they would copper-fasten the dock without additional charge. Having thus induced the secretary to decide in their favor, they are not at liberty to repudiate this part of their contract.

If these transactions are to be construed by the rules which govern agreements between private individuals, there does not appear to be any reason to infer a contract prior to the written agreement between the parties; not any reason why that agreement should not govern the rights of the parties.

JUDGMENT AFFIRMED.


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


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Kempner v. Churchill

APPEAL from the Circuit Court for the District of Northern Illinois, in which court, Churchill and others, merchants of New York, and judgment creditors of one Levison, filed a bill against a certain Kempner (Levison being impleaded), to set aside a purchase of a whole stock of dry goods which the bill alleged that Kempner, confederating and colluding with Levison how to cheat the complainant, and to hinder, delay, and defraud the creditors of Levison, had proposed to purchase, and had purchased of Levison, for a greatly inadequate consideration, to wit: for fifty-five cents on the dollar.

It appeared, from the testimony, that Levison, who kept a clothing store in Chicago, and had, at the time, a stock of clothes there, worth $6000, went on, about the middle of March, 1866, to New York, where, according to the testimony, he enjoyed the reputation of 'a responsible, paying, first-class customer,' and there laid in an additional quantity, which he purchased on credit, and which cost him $11,622 more. The new goods were forwarded to Chicago; and the whole stock thus cost $17,622. The circumstances attending the sale were thus testified to by Levison:

'The sale was made on the 8th of April, 1866. I came back from New York about the 22d of March, 1866. I was in Chicago some few days; Mr. Kempner came in the store one day, shook hands, and said he had an idea of going to Omaha to open business and, if he could buy a cheap stock of goods, he would take them up there; that was no Saturday, a week before the sale. I told him I had a pretty good stock of goods here that I would sell him, as I had a chance to go into something that would pay me better than this business just now. He said he would see, and come in to-morrow with his brother-in-law, and look over the goods, as he was a better judge of goods and prices than he was. On the following day, he came in with David Adams, and they did look over the stock, and he said would go home and think about it, and come in to-morrow and see me. The next day, he came in and offered me fifty-five cents on the dollar. I got pretty mad at that, and told him seventy cents would not buy them, and went off and left him. A day or two afterwards, he came in again, and we had a talk, and he said the goods were not worth more than that to him, and the had taken advice with some friends, who told him that goods were not worth as much then as they were at the time I bought them, and my credit was not very good in New York, so I had to pay ten or fifteen per cent. more than any one else. He said he wanted to make something on them; he would have to sell them on credit, and wait for his money. I told him it was no such thing, that I did not pay more than any one else; that he might go around town and inquire, and make himself familiar with the prices, and he could find out. I told him it did not make any difference, that that money would not buy them, and I expected to hear from another gentleman in the country, who wanted to go into business in Chicago, and I would, probably, sell out to him; that ended the conversation that day. The next day, I think it was, I met Mr. Kempner and asked him why he circulated the reports around that he had offered me fifty-five cents, and that I was going to sell out. He said he did not circulate any reports, but he would take me in and show me a good honest man, who would tell me where those reports came from. I went in with him to David Witowsky's fur store, on Lake Street; Witowsky said he had heard reports, but could not tell where they came from. We three stood and talked about the value of the goods. I went out after a while and went home to the store. In the afternoon, Mr. Kempner was passing by, and I called him in. We had some talk there about business. He said to me, 'There is some pretty rough talk in town about you; you had better not delay this matter; you had better let me have the goods, and put the money in your pocket, and let the creditors go to the devil,' or words to that effect. I told him I would not sell them for that price anyway. He said, 'That is my offer, and, if you can do any better, do it.' I told him I did not see what I had to fear from the creditors; that I did not owe any one anything that was due, except Freidlander, Steitch & Co. He said, 'You had better look out for them, I know them better than you do.' On Saturday, we came together again, in the store, the 7th of April, 1866. I told him, I wanted to close the trade with him. I asked him to meet me half way in the offer. I had offered them to him before for sixty-five cents; either at this time or before he had offered me fifty-five cents. He said, 'No; he would not give any more than fifty-five cents.' Previous to that, I told him I would sell him the fixtures in the store. He said he would not have them if he bought the stock; that he would move the goods out of the store before he paid for them, or that he would pay for them as soon as he had them out of the store, I think the last were his words; that he did not want to have any trouble with them, for fear the creditors might replevy them. We closed the trade on Saturday, and he said he would come in on Sunday and take stock. On Sunday morning, he came in with David Witowsky, Jr., and David Adams; I was there with Mr. Berk. Before we took stock, Mr. Kempner and I had some conversation; he asked me how much I owed Freidlander, Steitch & Co. and several other parties. I told him I owed Freidlander, Steitch & Co. a little over $3000, and named over some other creditors, but I don't remember their names, or the amounts I gave. He said, 'Little Coleman' would have to suffer too. I told him I did not know that; I only owed him a little over $200, and I might pay that bill. We then went to work and took stock. When we got through taking stock, and we were starting for home, he said, 'You had better give me the key of the store, so as to show that the goods are in my possession.' I then gave him the key of the store, and told him I must have the money for the goods by twelve o'clock the next day. He said, you shall have it as soon as I get the goods moved. On Monday morning, I came down to the store about nine o'clock, or between nine and ten, and the goods were already removed.'

The fifty-five per cent. agreed on between the parties, gave Levison $9725. The bill of the goods sold was, however, made out on the basis of the New York cost, $17,622, and receipted accordingly. The goods were removed to a basement-story, or cellar, at some distance from the store (for the purpose, as Kempner asserted, of saving storage); and the $9725 paid in cash to Levison.

Levison in his answer given, as in his testimony, admitted the fraud. Kempner in his, denied all fraud on his part, and represented himself as having come from California with $12,000 in gold, his only fortune; that being in Chicago he met Levison, who had also been in California, and whom he had known there; that Levison urged him to buy him out; that after several interviews, Levison sent for him and accepted his offer of fifty-five cents for the dollar of cost, saying, 'Well, you shall have them. I am sick of this business; I want to be in some business in which I shall be occupied all day long doing something.' Kempner's answer further asserted that he knew of no judgments or liens on the property, and that the purchase was not made to forestall or delay Levison's creditors; and it denied the conversation stated by Levison in which he, Kempner, was represented as having urged Levison to make a sale and to disregard his creditors. It asserted that the goods were worth nothing like the cost price, and that the consideration paid was not fraudulently below value, and it charged that the complainant's bill was filed in collusion and conspiracy with Levison, to defraud Kempner, while he, Levison, was permitted to go free, with the money paid him.

There was a great amount of testimony (the record having had 260 pages) to show fraud. Much of it was not direct, and some of it was more or less contradictory. Numerous persons were examined to show that the cost price of the goods was too high; but they failed to show that it was so to the extent of forty-five per cent. or near it.

At the time of the sale Levison owed about $15,000. With the cash that Kempner paid him he could show in money and furniture about $13,000, owned by himself. His wife had property.

As to the conspiracy alleged by Kempner between the complainants and Levison, it appeared that the sale having been made on the 9th, Levison was arrested on the 10th upon the affidavit of a brother-in-law to one of the complainants; that on the 11th, complainant came to Chicago; that he staid until the 14th; that while here he discharged the warrant of arrest of Levison, and employed Levison's previously retained counsel, to collect his debt out of the goods sold to Kempner; that on the 16th (Sunday intervening), Levison confessed judgment to the complainants; that on the 17th he confessed judgments to seven other of the creditors, now complainants, and on the same 17th April this bill was filed as a creditor's bill, on executions returned unsatisfied as against Levison; that none of these demands were due at the time under three months, except one, which rested in open account; that those judgments were confessed in the office of Levison's attorneys; and, that the bill waived an answer on oath.

The parties defendant were Jews.

The court below, on view of all the evidence, decreed the sale fraudulent, and Kempner appealed.

Mr. S. A. Goodwin, for the appellant:

We charge that the bill has been filed by collusion between the complainants and Levison, and we think that the dates at which, and the circumstances wherein the judgments were obtained show that.

But passing to the complainants' case, it is certain that they must establish affirmatively, that the sale was fraudulently intended by Levison, and, as a fact, that Kempner conspired with Levison to cheat and defraud the creditors by having such sale made with the design of keeping the merchandise beyond the reach of process of law; and that the sale was in fact made for such purpose, that is to say, to hinder and delay creditors. These are the allegations of their bill.

The bona fides of the purchase by Kempner is affirmatively established. Levison's whole indebtedness on the 9th of April, 1866, was within $15,000. He had full $13,000 money and chattels. The complainants do not allege nor show, nor did Levison, as a witness, pretend that he had not notes, claims, and choses in action, or other moneys to meet the balance of $1100 in full. His wife had money. It is incumbent on the complainants to show affirmatively that Levison was bankrupt, before they can charge that the sale was fraudulent. The complainants do not show anywhere in the case, that Levison has not now, nor that he has not always had money enough to pay these creditors all he owes. The answer which the complainant's solicitors drew for him does not deny that he has such money.

Kempner could not know of a fraudulent purpose which Levison did not entertain, so far as shown, for he (Levison) substantially negatives that. In the absence of that main necessary fact, the complainants have attempted to prove some remarks, which, if substantiated, they seem to suppose would show Kempner cognizant of some wrong intention. But they are all unsatisfactory for the conclusion, and every one of them denied by Kempner and disproved. Besides, if considered proved, they would not indicate knowledge or intent on Kempner's part, that the money paid would not be applied to satisfy creditors. If the sale was honest and fair, and for a fair price, it could make no difference that the creditors might not be paid in full. Purchases are often made of the stocks of insolvents, and rightly and honestly, although such consequences necessarily ensue.

As to the value of the goods there is a difference of opinion, but the preponderance is with the defendant. Inadequacy of consideration is thus exploded, either as a badge of fraud per se, or as a motive for a fraudulent collusion with Levison. Kempner's purpose of going into trade was a legitimate one. The right to sell was perfect in Levison, either at wholesale or retail. The right to buy and make a good, or even a hard bargain, cannot be denied to a purchaser, there being no fraudulent conspiracy between vendor and vendee.

The debts of Levison were not due. No suit had been commenced, or even threatened. Kempner could therefore have had no design to place these goods beyond the reach of an execution in behalf of these creditors. Levison's creditors had no lien on them fixed or inchoate. Nor had they begun, or threatened to begin any proceedings to mature a lien. The full price paid put Levison in funds to pay his creditors.

The Supreme Court of Illinois say, in Waddams v. Humphrey,

'No matter how much a man may be indebted, he may sell his property for a fair price, or even for a price below the market value, if done honestly and with no view to delay, hinder, or defraud creditors of their just dues. A debtor may sell his property for a fair price, even if he sells it with the avowed intention of defeating an honest claim, if no lien exists to forbid it.'

It was reasonable prudence for Kempner to remove the goods at once into his own possession after the inventory was made. Prompt possession has never before been urged as a badge of fraud. On the contrary, possession left with the vendor has always been considered ground of suspicion. It is idle to say that the possession was in haste to avoid seizure by creditors. There was not only no such thing threatened, but not one of Levison's creditors was in a position, legally, to touch these goods by attachment, replevin, execution, or other process.

These parties were all Jews, and with them Sunday is always a seculer and convenient day for any extra work.

Will it be said that the receipt on the invoice of goods soid, was taken for the whole sum fraudulently? The charge is without foundation. All the parties connected with the sale well knew the amount Kempner was to give. It was openly and notoriously known, and talked about by near a dozen witnesses. How then could Kempner expect to keep it a secret by the form of the receipt?Deeply as the law abhors fraud and crime, it equally abhors the imputation of either, except upon clear and controlling evidence. And the onus is therefore upon the creditor who assails a sale to show the fraud which he relies on.

Levison's testimony is worth very little, situated as he is, interested to pay his debts with property which he once sold, while he keeps the $10,000 consideration-money in his pocket, and proclaims his own turpitude.

Mr. Gillet, contra.

Mr. Justice GRIER delivered the opinion of the court.

title: Kempner v. Churchill


text: Talk:Kempner v. Churchill

title: Talk:Kempner v. Churchill


text:
Kempner v. Churchill/Opinion of the Court

It has been frequently held that fraud ought not to be presumed, but must be proved. But the evidence of it is almost always circumstantial. Nevertheless, though circumstantial, it produces conviction in the mind often of more force than direct testimony.

It would be a troublesome, as well as an unprofitable task, to examine all the very astute arguments, founded on the large mass of testimony contained in the record, to show that the court below have come to a wrong conclusion. It suffices to say that it sufficiently appears that the evidence before the court fully justified their conclusion.

It is true that mere inadequacy of consideration, unless extremely gross, does not per se prove fraud. But the direct testimony here confirms the fact that Kempner urged the acceptance of his offer to purchase with arguments such as this: 'There is some pretty rough talk in town about you. You had better not delay this matter. You had better let me have the goods and put the money in your pocket, and let the creditors go to the devil.'

The circumstantial evidence amply confirms this direct evidence of fraud.

1st. The false receipts given for full value on Saturday.

2d. The account of stock made out on Sunday.

3d. The removal of the goods into a cellar on Monday.

The defendant's endeavor to prove by experts, that the price given was sufficient, tends only to confirm the correctness of the decree of the Circuit Court, which is

AFFIRMED WITH COSTS.


text: Talk:Kempner v. Churchill/Opinion of the Court


text:
Mattingly v. Nye

APPEAL from the District of Columbia; the case being thus:

Nye, a man not very provident, bought a city lot of no great value in Washington, with some money that he had, and on the 25th June, 1857, had it conveyed in trust for his wife and children, to one Harkness as trustee. The purchase and conveyance in trust was made, as it seems by Harkness's own account of it, by Nye at the suggestion of Harkness, 'who, living in the neighborhood of Nye, and having frequent opportunities of seeing the destitution and need of the family, and the infirm and broken health of the wife, interested himself in securing a home for herself and children, proposed a conveyance by which the property should be secured against the contingencies of any future recklessness or want of care in the said Nye.' On the 21st July, 1860-that is to say a little more than three years after this transaction-Nye obtained money of one Mattingly, a person with whom he had had frequent money dealings, and sometimes as it seemed at exorbitant rates (including some dealings before the purchase), making, for the money now got, an assignment of a certain claim, but whether in satisfaction or as security the assignment did not clearly show. The money not being repaid, Mattingly sued and obtained judgment against him on the 10th June, 1863; and execution having issued without result, he now filed a creditor's bill against him, his wife and children, making the trustee also a party, to set the trust aside, and have satisfaction from the property conveyed. The bill alleged that at the date of the purchase and settlement Nye owed him money; but this was denied by the answer, and, as this court considered on an examination of the evidence, not true!

It was also asserted in Nye's answer that the judgment given was given by default, and that nothing was due by him to Mattingly even then.

The question was, therefore, the validity, as against a party becoming a creditor three years afterwards, of a settlement in favor of his family, made by a man not indebted at the time, and made apparently without fraudulent intent in fact; the case being complicated only by the point set up in the answer of Nye, to wit, that the judgment on which the creditor's bill was filed was for an unfounded claim, and got through his own default.

The court below thought the settlement good; and dismissing the bill, Mattingly appealed.

Messrs. Cox and Phillips, for the appellant.

Mr. Bradley, contra, relied on Sexton v. Wheaton; and note thereto in 1 American Leading Cases, 1. He contended also, that there being a proceeding in equity which rested wholly on an assumption of a valid judgment, as a base, it was competent for the defendant to show that in fact the judgment had no validity; even if by so doing he impeached it collaterally.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Mattingly v. Nye


text: Talk:Mattingly v. Nye

title: Talk:Mattingly v. Nye


text:
Mattingly v. Nye/Opinion of the Court

This is an appeal in chancery from the decree of the Supreme Court of the District of Columbia. The case as disclosed in the record is as follows: On the 10th of June, 1863, the complainant recovered a judgment at law against the defendant, J. W. Nye, for $2450, with interest from the 21st of July, 1860, until paid, and costs; a ''fi. fa. was issued and returned nulla bona''. The defendent has no property liable to execution. On the 25th of June, 1857, Nye bought and paid for the property described in the bill. It was conveyed by deed of that date to the defendant, Harkness, in trust for Mary Nye, the wife of J. W. Nye, and her children. The legal title is still in Harkness upon that trust. The bill is a creditor's bill, filed to reach this property. It alleges, in addition to the facts already stated-which are not controverted-that a large part of the indebtedness for which the recovery at law was had, subsisted at the time the property was bought and conveyed, and that hence it is liable in equity to be applied, in satisfaction of the judgment.

Nye and Harkness only answered. Harkness denies that there was any indebtedness by Nye to the complainant at the time of the purchase and conveyance of the trust property. Nye alleges usury in the transactions between him and the complainant to a very large extent; that they had settled everything before the trust property was conveyed to Harkness, and that he then owed the complainant nothing; that the judgment was rendered by default; that he intended to defend, and could have done so successfully, but that he was prevented by extreme illness.

Testimony was taken upon both sides. The court below dismissed the bill.

The case involves several legal propositions which it is proper here to state.

1. The statute of 13 Eliz., ch. 5, is in force in the county of Washington, but it does not affect a conveyance like this as to subsequent creditors, unless fraud was intended when it was made. (Sexton v. Wheaton, 8 Wheation, 239; S.C.. 1 American Leading Cases, 1.) The whole learning of the law upon this subject is so fully developed in the note to this case in the work last mentioned, that it would be a waste of time to do more than refer to it.

2. Such settlements, though voluntary, are founded upon a meritorious consideration, and will be upheld and enforced in equity against the husband.

3. The judgment is conclusive in respect to the parties to it. It cannot be impeached collaterally, and it cannot be questioned upon a creditor's bill.

If in this case there is any ground of equitable relief, it should have been presented by a cross-bill, or other proper proceeding had directly, to affect the judgment.

Here the question is not as to the conclusiveness of the judgment, but as to the indebtedness of Nye to the complainant when the property was conveyed to Harkness. The trust deed bears date on the 23d of June, 1857. The judgment was recovered on the 10th of June, 1863, nearly six years later. The judgment was founded upon an assignment by Nye to the complainant of $2450 of a claim in favor of Bargy and Stewart against the United States. Nye was the assignee of those parties, and his assignment to the complainant is dated July 21st, 1860. This was about three years before the date of the judgment.

But it is alleged by the complainant that the consideration of this assignment included two debts due to him from Nye, evidenced by instruments bearing date on the 2d of November, 1853, and amounting together to $1650. One is an order by Nye on General McCalla to pay the complainant the sum of $1450 out of the claim of Bargy and Stewart before-mentioned. The other is a like order for the payment of $200 out of the same claim, or out of another claim which is mentioned, payment to be made out of the first money which should be received on either, after reserving $500 to meet a previous order which Nye had given. The complainant insists that these two orders represented debts which subsisted more than two years before the execution of the trust deed, and which still subsist. Nye insists that they were given and received in discharge of all his liabilities to the complainant down to their date, and that the complainant took them at his own risk. Here lies the strees of the controversy between the parties.

Nye and the complainant were both examined as witnesses. A considerable mass of other testimony is found in the record. It is to some extent conflicting, but we have had no difficulty in coming to a satisfactory conclusion as to the facts. We think they are as follows:

The complainant made advances of money to Nye from time to time and charged him high rates of usury. Nye evinced a strange fatuity in submitting to whatever terms the complainant thought proper to impose. The order for $1450 was given to the complainant for a much larger sum than he claimed to be due; Nye testifies that it was for double the amount. It was not doubted then that the claim to which the order refers would be speedily sanctioned by Congress, and paid by the government. A committee of the House of Representatives had unanimously reported a bill to pay it. This has occurred more than once since. There has been at no time any adverse action; but the claim has not yet been finally acted upon and is still pending before Congress. According to the testimony of Nye, at the same time that he gave this order to the complainant he gave a like order to William G. White for double the amount of a debt due to him. The condition upon which both orders were given was the same. It was that the creditors should take them in discharge of their debts, and that Nye was to be under no further personal liability touching either the debts or the orders. He avers that they were received by the complainant and White respectively with this agreement.

White was examined as a witness. Speaking of these orders, he says: 'That order in my favor was taken by me in full satisfaction of my claim on Mr. Nye; I understood from Mr. Mattingly that he received the order from Mr. Nye in satisfaction of his claim.' The complainant in his testimony admits that he advanced but $100 for the order for $200, but says, the balance was 'in consideration of advantages, benefits, and favors I had done him.' This order was taken like the other, with the understanding that there was to be no personal liability on the part of the drawer. The creditor was to look alone to the fund upon which it was drawn for payment.

These conclusions receive strong support from the fact that on the 5th of January, 1857, the complainant addressed a letter to S. W. McKnew, in which he stated that he had settled with Nye, and, in effect, that Nye owed him nothing. He complains that this letter was obtained from him by unfair means. The testimony of McKnew shows that in this he is mistaken.

In regard to the assignment of $2450 of the Bargy and Stewart claim, upon which the judgment was recovered, Nye testifies that the only consideration for it, in addition to the pre-existing orders of $1450 and $200, was a further advance by the complainant of $200-$100 in money and the same amount in groceries.

The complainant says: 'We had in 1860 such a settlement as we always had. He obtained further advances-one of $400, one of $200, and some smaller amounts at different times which I do not recollect.' Even this would leave a large margin of difference between the amount assigned and the amount of the consideration. There are several features in the complainant's testimony which impress us unfavorably, but it is not necessary to dwell upon them. Nor is it material to consider the facts relating to the last assignment. We are entirely satisfied that the orders of November 2d, 1853, were taken by the complainant upon the terms stated by Nye and White. There was, therefore, no indebtedness by Nye to the complainant when the trust deed was executed to Harkness, nor subsequently, until the assignment of July 21st, 1860, was given, if there were before the rendition of the judgment. This is decisive of the case before us. Harkness and Mrs. Nye were neither parties nor privies to the judgment. Their rights, legal and equitable, were vested and fixed by the deed. Neither Nye nor the complainant could do anything subsequently to impair them. The settlement of 1860 between those parties, and the judgment recovered upon the instrument then given, could have no retroactive effect, so far as the rights of trustee and cestui que trust were concerned.

The court below, we think, properly dismissed the bill, and the decree is

AFFIRMED.

title: Mattingly v. Nye/Opinion of the Court


text: Talk:Mattingly v. Nye/Opinion of the Court


text:
Avendano v. Gay

ERROR to the Circuit Court of Louisiana.

Avendano brought suit in the court below against Gay; and, in the course of the trial, offered certain evidence, which was objected to by the defendant, but which was admitted, notwithstanding, by the court. The defendant excepted, and a bill of exceptions was sealed. A verdict was given against the plaintiffs, who brought the case here on error. The writ of error was allowed on the 9th of July, 1867. The citation was issued on the 10th, and served on the 11th. On the 16th of July, a 'statement of facts,' by the judge who heard the case, was filed, and the cause in this state was here.

Mr. Durant, for the plaintiff in error, referring to the action of the court below in admitting the evidence, contended, that upon the case, as found by the court below, the judgment ought to be reversed.

Mr. Janin, contra, observing that the admission of the evidence was on the plaintiff's own offer, relied on Generes v. Bonnemer, as disposing of the case; quoting the following passage: 'To permit the judge to make a statement of facts, on which the case shall be heard here, after the case is removed to this court by the service of the writ of error, or even after it is issued, would place the rights of parties, who have judgments of record, entirely in the power of the judge, without hearing and without remedy. The statement of facts, filed without consent of the parties, must be treated as a nullity; and, as there is nothing of which error of the court below can be predicated, the judgment must be affirmed.'

Mr. Justice MILLER delivered the opinion of the court.

title: Avendano v. Gay


text: Talk:Avendano v. Gay

title: Talk:Avendano v. Gay


text:
Avendano v. Gay/Opinion of the Court

In order to show error in the proceedings in the Circuit Court, the counsel of the plaintiff in error, who was plaintiff below, has referred to a bill of exceptions taken by the defendant to the ruling of the court admitting evidence, offered by plaintiff against defendant's objection. If there was error in the ruling, it was at plaintiff's request, and to the prejudice of defendant, and can form no ground of reversing the judgment, which, notwithstanding this testimony, was for the defendant.

Counsel also attempts to impugn the judgment, as not being supported by the facts of the case, and relies on what purports to be a statement of the facts found by the court. But the statement is filed in the court several days after the issue and service of the writ of error in this case, and is, therefore, a nullity, as we decided in the case of Generes v. Bonnemer.

JUDGMENT AFFIRMED.

title: Avendano v. Gay/Opinion of the Court


text: Talk:Avendano v. Gay/Opinion of the Court


text:
The Baltimore

THE schooner Woolston, with a cargo of coal, and the steamer Baltimore, collided in the Potomac, on the 16th of December, 1863, and the schooner and her cargo sank. The owners of the schooner accordingly libelled the steamer in the Admiralty Court of the District. The libel averred that the collision had been caused wholly by the steamer's fault, and that the schooner had sunk in such deep water as to make both her and her cargo a total loss, since the cost of raising either, or both, would be greater than its or their value.

These allegations, both as to the fault and the total loss, the answer explicitly denied. The testimony as to the question of fault, need not be stated, since it appeared that a part of it was given below, was not in the record sent to this court, and the court therefore did not pass at all upon the merits. On the other matter, the matter of total loss, it rather showed that the water in which the schooner went down, was not so deep but that her masts were visible eighteen feet above the water, and that her position, as she lay, was clearly discernible.

No proof was given of the fact of a total loss, further than that the vessel sunk.

The court, regarding the steamer as in fault, entered a decree for the libellants, and, upon the report of a commissioner, decreed, as damages, notwithstanding exceptions by the respondents, the full value of the schooner and cargo, at the time of the collision, and awarded to the libellant's counsel $500 as a fee. This decree having been affirmed by the Supreme Court in general term, the case was now here on appeal.

Mr. Ashton, for the appellant:

I. The most palpable error in law of the court below, and one considerable, as respects amounts, relates to the assessment of damages.

The true measure of the damages in this case, was the expense of raising and repairing the vessel, so as to make her equal to the value before the collision, and the expense of raising the cargo, and the amount of any deterioration which it might have undergone in consequence of the sinking.

Mr. Justice Grier, in a collision case in the third circuit, forcibly observes:

title: The Baltimore


text: Talk:The Baltimore

title: Talk:The Baltimore


text:
The Baltimore/Opinion of the Court

'This is not the first instance in which I have had to notice that where one vessel has been so unfortunate as to come into collision with another, the parties injured suppose that the insurance doctrine of abandonment will apply to their case, and they may, therefore, increase the damages by their own neglect. We are all wise after the event, and if a judge can point out how the accident might have been avoided, the unfortunate party is condemned to pay the damage. But this amount cannot be increased by the negligence or folly of the injured party. The only measure of damages is the amount it would cost to repair the damage, with some allowance for demurrage.'

In that case, the District Court had allowed the difference between the value of the vessel, before the collision, and the amount realized by the owners by a sale of the hull, after the collision. The decree was reversed by the Circuit Court, and the amount which it would have cost to repair the vessel was alone allowed.

This principle was directly adjudged to be the correct one by this court, in the case of The Catharine, where the court said, that in a case of a vessel sunk by a collision, the inquiry to be made is, as to the practicability of raising the vessel and cargo, and repairing the former, and that the expense attendant thereon is the principal ingredient of the damage proper to be allowed. The court, in that case, condemn the principle which governed the court below in the present case, in respect to the damages; that is, that the owners of the schooner had a right to abandon her as a total loss, and look to the steamer for compensation. With this authority, there is no use of discussing further the law.

The libel here alleged a total loss. The answer denied it. There was no evidence before the court on the point. It was not proved; and yet the court, without evidence, gave the full damages claimed. But this is not all. All the evidence in the case shows that the vessel probably, and the cargo certainly, which was coal, might have been raised.

Numerous witnesses for the libellants spoke of having seen the masts, recognizing their color, and also of having seen sails of the schooner above water, as late as June, 1864, the collision having occurred in December, 1863.

No effort was made by the libellants to raise either vessel or cargo; and no proof given to show that this was impossible, or that the cost would have been greater than their value. Of course, the coal could have been taken out without much expense.

For these reasons alone, the decree should be reversed, and the case remanded for an inquiry as to the actual damage sustained, according to the legal principles heretofore applied by this court.

[The counsel then went into an argument on the merits, unnecessary to be reported, as the judgment here was given on an assumption made for this hearing alone, that on this point the decree was correct.]

II. The counsel fee was, perhaps, not warranted by any statute, or entirely correct practice. But the error, as to the measure of damages, is the error which we insist on.

Messrs. Williams and Fendall, contra, contended,

I. That while, of course, this court now had, under any circumstances, the right to review on appeal, cases in admiralty, and to reverse decrees of the Circuit Court upon them, yet that the decree of the judge who heard the cause in the first instance having been in favor of libellants, and that decree having been affirmed by a full court at the General Term, and testimony supporting their decision, the decree would not be reversed on mere doubts raised here.

II. That the vessel was sunk in so deep water that nothing but the top of her masts could, even by the testimony of the libellant's witnesses, be seen; and that, under those circumstances, she was so far worthless, as that she might be properly abandoned to the wrongdoers who struck and sunk her; that such parties had no right to call on the injured party to undertake a task desperate, or nearly so.

III. That the allowance for fees to counsel in admiralty was correct, as was decided both in The Apollon, and in Canter v. The Ocean Insurance Company.

Mr. Justice CLIFFORD delivered the opinion of the court.

Cases of admiralty and maritime jurisdiction, since the passage of the act of the 3d of March, 1803, cannot be brought here for re-examination in any other mode than by appeal; and the provision is, 'that upon such appeal, a transcript of the libel, answer, depositions, and all other proceedings, of what kind soever in the cause, shall be transmitted to' this court. Prior to that time, the judgments and decrees of the Circuit Courts in civil actions and suits in equity, whether brought there by original process, or transferred there from the courts of the several States, or from the District Courts, could only be removed into this court for revision by writ of error; and the further provision was, that there should be no reversal in this court for any error in fact, which still continues to be the rule of law in respect to all cases brought here from the Circuit Courts by writs of error.

Power to reverse for error, in fact, any judgment or decree of a Circuit Court brought here for revision, being absolutely prohibited, it became necessary to prescribe some mode by which the facts in equity suits and in cases of admiralty and maritime jurisdiction should be ascertained and embodied in the record, and it was accordingly provided in the 19th section of the Judiciary Act, that it should be the duty of the Circuit Courts in such cases to cause the facts on which they founded their sentence or decree fully to appear upon the record in some one of the modes therein described, and while that provision remained in force this court had no more right to re-examine the facts found in such a case than the court possesses in a common law suit where the facts are found by the verdict of a jury.

Appeals, however, are now allowed to this court by the amendatory act, in all such cases where the matter in dispute, exclusive of costs, exceeds the sum or value of $2000, and so much of the 19th section of the Judiciary Act as provided for the finding of the facts in the Circuit Court, and so much of the 20th section of the same act as provided that such cases should be removed into this court by writs of error, are repealed.

Viewed in the light of the repealing clause in that act, and the requirement that the transcript shall embrace the depositions as well as the pleadings and proceedings in the case, it is evident that Congress intended that this court shall hear and determine the whole merits of the controversy. Provision in also made by that act, that new evidence may be received by this court, in admiralty and prize causes, which shows to a demonstration that the facts, as well as the law of the case, are open to revision on the appeal.

Where the appeal involves a question of fact, the burden is on the appellant to show that the decree in the subordinate court is erroneous, but it is a mistake to suppose that this court will not re-examine the whole testimony in the case, as the express requirement of the act of Congress is, that the Supreme Court shall 'hear and determine such appeals,' and it is as much the duty of the court to reverse the decree from which the appeal is taken for error of fact, if clearly established, as for error of law.

Appeal was taken in this case from the decree of the Supreme Court of the District affirming the decree of the District Court, sitting as a court of admiralty in a cause of collision, civil and maritime.

By the transcript, it appears that the owners of the schooner J. W. Woolston filed a libel in rem against the steamer Baltimore, her engine, machinery, boats, apparel, tackle, and furniture, claiming damages as for a total loss of the schooner and her cargo, consisting of two hundred tons of coal, and also for the loss of the freight on the cargo, and for the loss of the equipment of the schooner.

Bound on a voyage from Philadelphia to the port of Washington, the schooner, when the collision occurred, was coming up the river Potomac towards her port of destination. Though cloudy, the night was not very dark, and the schooner had a light at her bow, under the jib-boom, and she had two good lookouts properly stationed in the forward part of the vessel. She was steering west-northwest, with all her sails set, and was proceeding safely on her voyage up the river under a good breeze, when the lookouts described the steamer heading in a southeasterly direction and coming down the river, and the charge in the libel is, that the steamer, when she was not more than three hundred yards from the schooner, suddenly changed her course, came down on the schooner, and struck her near midships, and caused her to sink in the deepest part of the channel. Due vigilance, it is alleged, was practised by the schooner to prevent the collision, and that it was occasioned solely by the gross negligence and culpable mismanagement of the steamer.

Pursuant to the warrant issued for the purpose, the steamer was arrested and the claimants appeared and gave a bond for her value in the sum of $8350. In their answer they admit that the state of the wind and the weather at the time of the collision is correctly described in the libel, but they allege that the proper course of the schooner in coming up the river was northwest by west half west; that instead of pursuing that course she was heading, when first seen by the steamer, diagonally across the river; that the bell of the steamer was immediately rung and her engine stopped, but that it was too late to avoid the collision; that the collision was wholly occasioned by the fault and carelessness of those in charge of the schooner in attempting to cross the bows of the steamer instead of keeping their course, as they were bound to do by the well-known rules of navigation.

I. Testimony was taken on both sides, but the court is not inclined to decide the merits of the controversy, as the clear inference from the certificate of the clerk is, that the whole testimony taken in the District Court is not contained in the copy of the record transmitted to this court. Although the record in that behalf is apparently defective and incomplete, still the court deems it proper to determine some of the questions presented for decision, as otherwise it may hereafter become necessary to send the case back a second time.

Directions were given to the commissioner to whom the cause was referred, in the decretal order, to take proof of the value of the schooner, her cargo, furniture, and fixtures, at the time she collided with the steamer, and also to inquire into the damage which thereby accrued to the libellants, and the cost of the suit, including an allowance for fees to the counsel of the libellants, and to report the same to the court.

Agreeably to those directions the commissioner heard the parties and reported that the libellants were entitled to recover $5000 for the actual value of the schooner at the time she was sunk, $1521.96 for the value of the cargo, $200 for the value of the furniture and fixtures, $450 for the loss of freight, and $100 for profits on the cargo, together with costs of suit, including $500 as an allowance for fees to the counsel of the libellants.

Exceptions were duly taken by the claimants to the report of the commissioner, setting forth thereto three objections: (1.) That the finding as to the value of the vessel is erroneous. (2.) That the allowance of counsel fees is unauthorized. (3.) That the allowance for profits on the cargo is incorrect. Both parties were heard, and the court sustained the third exception, but overruled the first and second, and confirmed the report, striking out the $100 for profits on the cargo.

II. Suppose the libellants are entitled to recover, still the claimants insist that the rule of damages adopted by the District Court is erroneous.

Owners of ships and vessels are not now liable for any loss, damage, or injury by collision occasioned without their privity or knowledge, beyond the amount of their interest in such ship or vessel and her freight then pending. Subject to that provision in the act of Congress, the damages which the owner of the injured vessel is entitled to recover are estimated in the same manner as in other suits of like nature for injuries to personal property, and the owner, as the suffering party, is not limited to compensation for the immediate effects of the injury inflicted, but the claim for compensation may extend to loss of freight, necessary expense incurred in making repairs, and unavoidable detention.

Restitutio in integrum is the leading maxim in such cases, and where repairs are practicable the general rule followed by the admiralty courts in such cases is that the damages assessed against the respondent shall be sufficient to restore the injured vessel to the condition in which she was at the time the collision occurred; and in respect to the materials for the repairs the rule is that there shall not, as in insurance cases, be any deduction for the new materials furnished in the place of the old, because the claim of the injured party arises by reason of the wrongful act of the party by whom the damage was occasioned, and the measure of the indemnification is not limited by any contract, but is coextensive with the amount of the damage.

Such repairs, in consequence of a collision, may enhance the value of the vessel and render her worth more than she was prior to the accident, and in that state of the case the rule in insurance cases is that one-third of the value of the new material is deducted, because the new material is more valuable than the old, but the rule is not so where the repairs are required in consequence of a culpable collision.

Restitution or compensation is the rule in all cases where repairs are practicable; but if the vessel of the libellants is totally lost, the rule of damage is the market value of the vessel (if the vessel is of a class which has such value) at the time of her destruction.

Allowance for freight is made in such a case, reckoning the gross freight less the charges which would necessarily have been incurred in earning the same, and which were saved to the owner by the accident, together with interest on the same from the date of the probable termination of voyage.

Evidence, however, that the injured vessel is sunk is not of itself sufficient to show that the loss was total, nor is it sufficient to justify the master and owner in abandoning the vessel or the cargo unless it appears that the circumstances were such that the vessel could not be raised and saved, or that the cost of raising and repairing her would exceed or equal her value after the repairs were made.

Experience shows that in many cases where the injured vessel is sunk, especially when the disaster happens in rivers or harbors, the vessel may be raised at moderate expense, and that the cargo, if not perishable, may be saved and restored to the shipper, or carried forward to the port of destination, and the rule in such cases is to award such damages only as will compensate the owners for the loss incurred, which is held to include the expense of raising the vessel and putting her in repair, with a proper allowance for the loss of freight and for the damage to the cargo, and for the detention of the vessel during the time necessary to make the repairs and fit the vessel to resume her voyage.

Justice as well as sound policy forbids that the owner of a vessel sunk by collision should be allowed to recover the full value of the vessel and cargo except in cases where the entire property is lost by the disaster, which is not true in a case where, by reasonable exertions, the vessel may be raised and the cargo saved by the use of such nautical skill as the owners of vessels usually employ in such emergencies. Owners of vessels seeking redress in such cases must be prepared to show, not only that those in charge of the other vessel were in fault, but that no negligence on their part has increased or aggravated the injury. Damages are awarded in such cases for the injury done to the vessel and cargo by a wrongful act, but if the party suffering the injury to his property will not employ any rasonable measures to stop the progress of the damage, but wilfully and obstinately, or through gross negligence, suffers the damage to augment, it is his own folly, and the law will not afford him any redress for such part of the damage as proceeded directly from his own culpable default.

Persons injured in their property by collision are entitled to full indemnity for their loss, but the respondents are not liable for such damages as might have been reasonably avoided by the exercise of ordinary skill and diligence, after the collision, on the part of those in charge of the injured ship.

Responsive to these views, the suggestion is, that the libel alleges that the schooner and cargo were sunk in such deep water as to make both a total loss, but the insuperable difficulty in the way of that suggestion is, that the allegation of the libel is expressly denied in the answer, and the libellants failed to introduce any proof to support their allegation. Subsequent to the disaster, several witnesses saw the schooner, and they concur that her masts were some eighteen feet out of water, and that she lay with her stem to the west-northwest, in the exact course in which she was steering when she was sunk by the steamer. Theory of the libellants is, that the vessel and cargo were of no value, but the court cannot adopt that theory in the absence of any proof to warrant the conclusion.

Decided cases may be found where it is held that the owner of the injured vessel is not bound to raise the vessel in a case where she was sunk by a collision, but it is clear, that the court cannot award damages for a total loss, where it appears probable that the vessel and cargo may be raised without much expense, and restored to their owners.

III. Due exception was also taken to that part of the report of the commissioner in which he allowed to the libellants, the sum of five hundred dollars for counsel fees, but the District Court overruled the exception and confirmed the report.

Taxable costs are recognized by the Judiciary Act, in several of its sections, as a part of a judgment or decree in a Federal court, but it contains no fee bill, nor does it furnish any express authority for any such taxation. Costs have usually been allowed to the prevailing party, as incident to the judgment, since the statute 6 Edw. I, c. 1, § 2, and the same rule was acknowledged in the courts of the States, at the time the judicial system of the United States was organized.

Circuit Courts, under the Judiciary Act, have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, in the cases described in the 11th section of that act.

Cases of Federal cognizance, commenced in a State court, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, may be removed, under the conditions specified in the 12th section of the act, into the Circuit Courts.

Such courts also may make and establish all necessary rules for the orderly conducting of business in the said courts, provided such rules are not repugnant to the laws of the United States.

Where the plaintiff or petitioner recovers less than five hundred dollars, or the libellant, upon his own appeal, recovers less than three hundred dollars, he shall not be allowed, but, at the discretion of the court, may be adjudged to pay costs. Appeals from the decrees of the District Court to the Circuit Court were allowed by that act, where the matter in dispute exceeded, exclusive of costs, the sum or value of three hundred dollars, and the final judgments rendered in the District Courts might be re-examined in the Circuit Court on writ of error, where the matter in dispute exceeded, exclusive of costs, the sum or value of fifty dollars; and a similar provision is made for the re-examination by this court of the final judgments and decrees of the Circuit Courts, where the matter in dispute, exclusive of costs, exceeds the sum or value of two thousand dollars.

Just damages for delay and single or double costs may be adjudged to the respondent in error, at the discretion of the court, in all cases where the judgment or decree is affirmed.

Provision is also made that the district attorney shall receive, as compensation for his services, such fees as shall be taxed therefor in the respective courts, before which the suits or prosecutions shall be, and the act makes no other provision for his compensation.

Weighed in the light of these several provisions in the Judiciary Act, the conclusion appears to be clear that Congress intended to allow costs to the prevailing party, as incident to the judgment, as most of the regulations referred to would be meaningless upon any other theory. Concede that to be so, still the inquiry arises, by what rules was the taxation to be regulated, and what were the rates of fees to be allowed; to which inquiries there can be but one answer, unless it be assumed that Congress intended to leave the whole matter to the discretion of the court trying the case, which cannot be admitted. Reject that construction, and the only reasonable one which can be adopted is, that the Federal courts were referred to the regulations upon the subject in the courts of the State, and no doubt is entertained that such was the intention of Congress, as conclusively appears by the terms of the Process Act, which was passed five days after the approval of the Judiciary Act. By that act the modes of process and the rates of fees allowed in the Supreme Courts of the States, were expressly adopted as regulations in that behalf, in common law suits, in the District and Circuit Courts established by the prior act. Rates of fees, in causes of equity and of admiralty and maritime jurisdiction, were also prescribed by that act, and they were therein declared to be the same as are and were last allowed by the States, respectively, in the court exercising supreme jurisdiction in such causes. State forms of writs and executions were also adopted by the same act, and the rates of fees and the forms and modes of process ever after remained the same, except so far as they have been changed by subsequent legislation, or by the rules ordained by the Supreme Court. Temporary though the act was, still it was of sufficient duration to put the new system in complete operation.

Subsequent to the passage of that act, the costs taxed in the Circuit and District Courts were the same as were allowed at that time in the courts of the State, including such matters as the travel and attendance of the parties, fees for copies of the case, and abstracts for the hearing, compensation for the services of referees, auditors, masters, and assessors, and many other matters not embraced in the fee bills, since passed by Congress.

Most of the provisions of that act were incorporated into the second section of the act of the 8th of May, 1792, but the particular regulation, adopting the State fee bill as the rate of fees in the Circuit and District Courts, was not reproduced in that section, as that fee bill had already been adopted by the Federal courts.

Since that time, costs in the Circuit and District Courts, held in the old States, have been taxed under that regulation as adopted by that act, except so far as the rates of fees have been changed by subsequent legislation.

Congress, by the act of the 1st of March, 1793, regulated more specifically the taxation of costs in admiralty proceedings in the District Courts.

Fees of the attorney and counsellor were prescribed by the 1st section of the act. They were a stated fee of three dollars for drawing and exhibiting the libel, claim, or answer in each cause; three dollars for drawing interrogatories, and three dollars for all other services in any one cause. Nine dollars only could be taxed for the services of an attorney or counsellor, but the 4th section of the act provided, that there be allowed and taxed, in the Federal courts, in favor of the parties obtaining judgments therein, such compensation for their travel and attendance, and for attorney and counsellor's fees, except in the District Courts, in causes of admiralty and maritime jurisdiction, as are allowed in the Supreme or Superior Courts of the respective States. Passed to continue in force only for one year, and, from thence, until the end of the next session of Congress thereafter, it was suffered to expire, but it was renewed by the act of the 31st of March, 1796, and was continued in force two years longer, and to the end of the next session of Congress.

Detailed provision was made by the subsequent act of the 28th of February, 1799, for compensation to marshals, clerks, district attorneys, jurors, witnesses, and criers, but the special provision allowing counsel fees was dropped.

Even while it remained in force, it did not authorize such an allowance in a case like the present, as cases of admiralty and maritime jurisdiction in the District Courts were expressly excepted from the operation of the provision. Ordinary costs in admiralty suits were doubtless taxed under that act, as if it was in force long after it had expired, but it never furnished any authority to charge counsel fees in the District Courts; but if it did, and if it had not expired, it would be repealed by the present law.

Fees and costs, allowed to the officers therein named, are now regulated by the act of the 26th of February, 1853, which provides, in its 1st section, that in lieu of the compensation now allowed by law to attorneys, solicitors, proctors, district attorneys, clerks, marshals, witnesses, jurors, commissioners, and printers, the following and no other compensation shall be allowed.

Attorneys, solicitors, and proctors may charge their clients reasonably for their services, in addition to the taxable costs, but nothing can be taxed as cost against the opposite party, as an incident to the judgment, for their services, except the costs and fees therein described and enumerated. They may tax a docket fee of twenty dollars on a final hearing in admiralty, if the libellant recovers fifty dollars, but if he recovers less than fifty dollars, the docket fee of the proctor shall be but ten dollars.

Reference is made to two cases where counsel fees were allowed, but it is a sufficient answer to those cases to say, that they were decided before the act of Congress, under consideration, was passed. They do not, therefore, furnish the rule of decision in the case before the court.

DECREE REVERSED.

title: The Baltimore/Opinion of the Court


text: Talk:The Baltimore/Opinion of the Court

title: Talk:The Baltimore/Opinion of the Court


text:
Bardley v. Rhines' Administrators

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

Section eleven of the Judiciary Act of 1789, which defines the jurisdiction of the Circuit Courts as regards citizenship, after declaring that no person shall be sued in any other district than that of which he is an inhabitant, or in which he shall be found at the service of the writ, adds:

'Nor shall any District or Circuit Court have cognizance of any suit to recover the contents of any promissory note or other chose in action, in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange.'

With this provision in force Bradley sued the administrators of one Rhines in the court below, describing himself in the declaration as a citizen of Kentucky, and alleging the defendants, whom he described as administrators, to be citizens of Pennsylvania. He declared, in a special count on a contract of lease, and in two common counts for money had and received by defendants' intestate to plaintiff's use, and for money laid out and expended at his request. The lease, which was set out in the declaration, was made by Breeden & Co., described as of Elk County, Pennsylvania, as lessors, and Andrew Hines and Hiram Carmen, lessees, and it was alleged that Breeden & Co. had assigned the lease to the plaintiff.

A trial was had before a jury on the plea of the general issue, in which the plaintiff offered in evidence the lease, its execution and assignment being admitted by defendants. The court refused to admit the lease in evidence, and the plaintiff took a bill of exceptions to the ruling. As the lease was the foundation, so to speak, of the plaintiff's action, the plaintiff, after its rejection by the court, offered no further evidence, and verdict and judgment went for the defendant. The ruling of the court just mentioned was the error assigned.

Mr. Lucas, for the plaintiff in error:

1. Neither in point of fact nor law was this lease a chose in action. A lease and the term created by it, so far as the tenants are concerned, constitute a chattel real, and so far as the landlord is concerned, they are but a part of his original eatate in the premises leased. Had a sum of money been due from the tenants to Breeden & Co. as rent, and had Breeden & Co. continued to be the owners of the lands leased, and simply assigned to the plaintiff the lease as the evidence of the debt due by the tenants for such rent in arrears, it would, under those circumstances, have been a case of an assignment of a chose in action merely.

But here Breeden & Co. were, at the time of the making of the lease, the owners of the land in fee. During the continuance of the lease, and before the expiration of the term, Breeden & Co. sold and conveyed the whole of the leased premises to Bradley, the present plaintiff, in fee. This conveyance carried with it the lease, with all its benefits, without any formal assignment of the lease.

Wherever the right passes by operation of law, the case does not fall within the exception contained in the 11th section of the Judiciary Act.

2. It does not appear that Breeden & Co. were citizens of Pennsylvania when the suit was brought. The presumption is the other way; and the jurisdiction, thus presumably existing, can be defeated only by positive proof that the presumption is a false one in fact.

3. The objection to jurisdiction upon the ground of citizenship, in actions at law, can only be made by a plea in abatement, as is decided by this court in De Sobry v. Nicholson. It came, therefore, too late.

Mr. Wills, contra (citing on his first point various statutes of Pennsylvania), contended that the ruling was correct, because

1. That Hiram Carmen, the partner and survivor of the defendant's intestate, could alone be sued by the law of the State named.

2. That the plaintiff suing as assignee of Breeden & Co., who are citizens of Pennsylvania, the Circuit Court for that district could have no jurisdiction of the action under the 11th section of the Judiciary Act of 1789.

Mr. Justice MILLER delivered the opinion of the court.

title: Bardley v. Rhines' Administrators


text: Talk:Bardley v. Rhines' Administrators

title: Talk:Bardley v. Rhines' Administrators


text:
Bardley v. Rhines' Administrators/Opinion of the Court

The first proposition made by the counsel for the defendant in error, and by which the ruling of the court is maintained, depends for its soundness on the construction to be given to certain statutes of Pennsylvania, and will not be examined by us if the ruling of the court is well founded as to the second proposition.

There can be no doubt that the lease sued on here is a chose in action, and the assignors are described in the instrument as residing in the same State with defendants.

Two propositions are relied on as taking this case out of the prohibition of the statute: 1. That the plaintiff having purchased the lands which were the subject of the lease, became entitled thereby to the benefit of the lease, and the assignment was not necessary to enable him to maintain the action.

If he had shown, or offered to show that he had become the owner of the land, the court would probably have permitted him to do so. But as he only offered the lease and the assignment, the court could not admit them on the ground of a purchase of which there was no evidence.

2. Then it is argued that although Breeden & Co. might have been, as the lease shows, citizens of Pennsylvania when the lease was made, this may not have been so when suit was brought; and that, as the plaintiff was a citizen of Kentucky, and the defendants, of Pennsylvania, this makes a prim a facie case of jurisdiction in the court, which can only be defeated by evidence that the assignors were citizens of the same State with defendants when the suit was brought.

This court has decided the proposition otherwise. In Turner v. Bank of North America, the plaintiff recovered judgment in the Circuit Court as assignee of Biddle & Co. The only error assigned was, that it did not appear in the record that Biddle & Co. were citizens of a State other than North Carolina, in which district the defendant resided, and where he was sued; and for this cause, the judgment was reversed. The soundness of this decision is recognized in the cases of Mollan v. Torrance, and Bank of United States v. Moss, and we take the doctrine to be settled, that when a party claims in the Federal courts through an assignment of a chose in action, he must show affirmatively that the action might have been sustained by the assignor if no assignment had been made.

The case of De Sobry v. Nicholson, relied on by plaintiff's counsel, is not in point. There plaintiff had become possessed of all his partner's interest in the contract sued on without assignment, and none was relied on. The partner not being a necessary party, his citizenship in the same State with defendant did not defeat the jurisdiction.

JUDGMENT AFFIRMED.


text: Talk:Bardley v. Rhines' Administrators/Opinion of the Court