text:
Hartshorn v. Day/Opinion of the Court

THIS case was brought up, by writ of error, from the Circuit Court of the United States of the district of Rhode Island.

It was an action brought by Day against Hartshorn and Hayward, for the violation of a patent for the preparation and application of India-rubber to cloths, granted to E. M. Chaffee in 1836, and renewed for seven years in 1850. Day claimed under an assignment of this patent from Chaffee, on the 1st of July, 1853. The defences taken by Hartshorn and Hayward are stated in the opinion of the court, in which there is also a succinct narrative of the whole case.

The defendants below first pleaded four special pleas, which were overruled upon demurrer. They then gave notice of eleven defences, assailing the validity of the patent. The record was very voluminous, being upwards of a thousand printed pages. One hundred and thirty-five exceptions were taken during the progress of the trial, which lasted for six weeks. After the testimony was closed, the counsel for the defendants offered seventy-four propositions to the court, by way of instruction to the jury, and six supplemental ones with regard to the fraud alleged to have been practised upon Chaffee by Judson. The court then charged the jury as contained in fifteen printed pages of the record, and the case came up to this court upon the following exception:

The court refused to instruct the jury as requested by the defendant's counsel, except so far as the propositions presented by them were adopted or approved in the charge as made, and refused to charge otherwise than as the jury had been instructed. The defendant's counsel excepted to such refusals, respectively, and also to the refusal of said court as to each of said requests. They also excepted to each instruction given by the court contrary to such requests, or either of them.

All this vast mass of matter was open to argument in this court.

It was argued by Mr. O'Connor, upon a brief filed by himself and Mr. Brady for the plaintiffs in error, and by Mr. Richardson and Mr. Jenckes for the defendant, upon which side, also, a printed argument was filed by Mr. Gillet.

There is only room to notice the general points taken by the respective counsel, omitting all subdivisions and illustrations. These would occupy half a volume. The points made on behalf of the plaintiffs in error were the following:

First Point.-The agreement of May 23, 1850, was a valid executory agreement by Chaffee to sell and convey to Goodyear the renewed patent now in question, in case such a patent should issue; and, upon its issue, the equitable ownership thereof vested in Goodyear, subject only to the license reserved to Chaffee to use it in his own business. (Curtis on Patents, secs. 195, 196.)

Second Point.-Chaffee having, by the agreement of September 5, 1850, without notice to Goodyear, without his consent, and, as it would appear, against his will, made another deposition of the patent, and having thereby put it entirely out of his (Chaffee's) power to execute a formal assignment to Goodyear, and thus entitle himself to the payment of the $1,500 by Goodyear, which formed the only condition precedent to a complete investiture of Goodyear with at least the whole equitable ownership of the patent, he, Chaffee, and Day, his assignee, are precluded from availing themselves of such nonpayment by Goodyear as an objection to the use of the patented invention by Goodyear and his licensees. (Hockster v. Delatour, 2 Ellis and Blackburn, 688, and cases cited.)

Third Point.-The agreement between Chaffee and Judson, dated September 5, 1850, construed by itself alone, or in connection with the supplement thereto, dated November 12, 1851, and whether read, as it rightfully may be, in the light of surrounding and attending circumstances, or without such aid, (6 Peters, 68,) was, on the part of Chaffee, an executed contract. No further act of any kind was to be performed on his part; and, as it contained no condition subsequent, nor any clause of cessor, nor any reservation of power to rescind for any cause, the interest vested by it in Judson and his cestuis que trust could not be divested by Judson's omission to make prompt and punctual payments of the annuity. (Brooks et al. v. Stolley, 3 McLean, 526; Woodworth v. Weed, 1 Blatch., 165.)

Fourth Point.-Although it is not deemed material whether the interest acquired by Judson under the agreements between him and Chaffee was of an equitable or legal character, it is submitted that the whole legal title to the patent was thereby vested in Judson, subject to the license reserved to Chaffee to use the invention in his own business.

Fifth Point.-If the grant or agreement set forth in the paper dated September 5, 1850, is to be regarded as having been authenticated by the seal of Chaffee, and the actual execution by him, when of sound mind, of full age, and with knowledge of its contents, was established, neither Chaffee, nor Day, the plaintiff, who was his assignee and privy in estate, could be permitted to allege or prove, in a court of common law, for the purpose of defeating such grant or agreement, or for the purpose of varying its effect, that Chaffee was induced to execute it by threats of a lawsuit, or of hostility, or by false, deceitful, or fraudulent representations.

Sixth Point.-The court below erred in admitting the evidence of Woodman and Chaffee, touching the alleged fraudulent representations, and also in submitting the allegation of fraud to the jury, notwithstanding Woodman's professed nonrecollection that the instrument bore a seal when executed, and his asserted, but groundless disbelief of that fact.

Seventh Point.-Independently of the positions assumed in the preceding fifth and sixth points, the court erred in submitting it to the jury, to find that the instrument of September 5, 1850, was obtained by fraud, because there was no legal evidence in the case to support that allegation.

(The other points related to the pleas and demurrers.)

The points made on behalf of the defendant in error are taken from the brief of Mr. Jenckes, omitting all except those which relate to the power of Chaffee to revoke the power of attorney to Judson, and to assign the patent to Day.

I. The paper of the 5th of September, 1850, supposing it to have been untainted with fraud, conveyed no interest in the extended patent to Judson, or to Goodyear and his licensees. There is no word of grant or conveyance in it. It does not purport to give a license directly to Goodyear or his licensees. It gives Judson no power to grant licenses to any one.

II. The paper of the 5th September, 1850, offered a license to no persons except those who had a right to use the Chaffee patent at the time of its extension.

Hartshorn had no license to use the inventions of either Goodyear or Chaffee during the original term of the Chaffee patent. His license to use Goodyear's inventions was given on the 1st of February, 1851.

III. The legal title of the patent remained in Chaffee, and any action at law for an infringement must have been brought in his name, before his assignment to the defendant in error.

IV. The instrument bearing date November 12th, 1851, being between the same parties, and having relation to the same subject-matter, and purporting to be made for the purpose of correcting errors and omissions in the instrument of September 5th, 1850, the two must be taken togother as one instrument, and be so construed.

V. This instrument makes clear what was of doubtful construction in the former paper, and defines and limits the power of Judson, and the rights and interests which Goodyear and his licensees were to receive, and sets forth the conditions on which they were to receive them.

Judson is, for the first time, empowered to grant licenses as Chaffee's attorney, and Goodyear and his licensees are to have licenses through Judson, solely upon the condition of their severally contributing their share of the amount due Judson for services and expenses.

Judson was not empowered to license any others but the Goodyear licensees.

With respect to all other persons, the power to license was annexed to the legal title which remained in Chaffee. Judson was authorized to sue infringers, but he was not required to do so. If the Goodyear licensees should not comply with the condition on which they were to receive a license to use the Chaffee patent, they might be sued as infringers, and Judson could reimburse himself out of the damages, or by compromising the suit by giving them a license on the terms required. Chaffee had a right to impose this or any other condition, and he was interested in having this condition performed, as he would thereby be relieved from his debt to Judson.

VI. So far as regards the rights of Chaffee, Goodyear and his licensees, and Judson, this instrument is a substitute for the provisions respecting the same subject-matter in that of September 5th, 1850.

These parties are bound by the facts recited in it, or which are necessarily to be inferred from it.

VII. Neither of these instruments gives Judson any interest in the patent itself, or in the profits of the patent, nor do they give him a right to use it, or to license others to use it, except upon conditions precedent, clearly and distinctly specified. Chaffee intended to give him security for the debt due him, and pointed out the fund from which the debt was to be paid, if the parties named should keep their agreement; and Judson took for his security a mere power to collect his dues out of this fund by selling licenses, or by suing for damages. The only interest which Judson took was in the money which might be produced by licenses or by suit, and to the extent of his claim for money advanced for services and expenses.

VIII. This instrument of November 12, 1851, was also executory, and is governed by the rules of law applicable to contracts executory in their nature, and to powers.

So far as the licenses were concerned, Chaffee was the contracting party on the one part, and Goodyear and his licensees on the other. The contract was not executed until the licensees had complied with the conditions under which they were to have a license, and Chaffee parted with nothing until such performance by them. If they neglected or refused to comply, his right of rescission was perfect.

So far as Judson was concerned, he held merely a power, from the proceeds of the execution of which he was to be paid, and to that extent the power operated as a security, and such power was revocable at any time, upon payment of the amount of the debt.

Powers to sell on mortgages are declared to be irrevocable in terms, but the deed and power together are cancelled by payment of the mortgage debt.

A power taken for security is revocable by the death of the grantor of the power. (Hunt v. Rousmaniere's Executors, 8 Wheat., 174.)It is also revocable by the party giving it. (Mansfield v. Mansfield, 6 Conn., 559.)

In this case, the principles of the former case are adopted and carried out to their legitimate conclusions.

A power is irrevocable only when there is an express stipulation that it shall be irrevocable, and when the agent has an interest in its execution. Both of these circumstances must concur. (Story on Agency, sec. 476.)

The interest ceased, when Judson was offered the money for all his disbursements and services. There is no stipulation in the power of the 12th of November, 1851, that it shall be irrevocable.

IX. If the paper of the 5th September, 1850, be construed to give a license directly to Goodyear and his licensees, upon their paying the expenses and annuity, then such license is revocable if the conditions be not performed.

The instrument contains no words of grant or conveyance known to the common law. There are no covenants which would create an estoppel. The Goodyear licensees obtained nothing more than a license, not connected with any grant, or made part of any grant. Such a license is revocable at common law. (Thomas v. Lovell, Vaughan, 351.)

'A dispensation or license properly passeth no interest nor alters nor transfers property in anything, but only makes an action lawful, which without it would have been unlawful.' (Wood v. Leadbitter, 13 Mees. and W., 843.)

'A license is in its nature revocable.'

X. Hartshorn & Co. were not within the class of persons described in the paper of the 5th of September, 1850, nor in the class to whom Judson was authorized to give licenses by the paper of the 12th of November, 1851.

XI. The question of the performance of the condition of the papers of September 5, 1850, and November 12, 1851, after the papers had been construed by the court, was a question of fact for the jury.

XII. If the jury had found that there was a failure on the part of Judson and of Goodyear and his licensees to perform their part of the agreement of September 5, 1850; that the annuity had not been paid; that the Shoe Associates knew of the non-payment; that Judson was the agent of Goodyear and his licensees in making the paper of 12th of November, 1851, and of the Shoe Associates in all matters relating to the Chaffee patent since its extension; and that there had been an offer in good faith to repay Judson all that had been expended by himself or advanced by the Shoe Associates, on account of this extended patent; then, upon these facts, the revocation of the powers given to Judson and the rescission of those contracts was proper on the part of Chaffee.

The instrument of revocation, the tender of all sums due to Judson, and the notice to Hartshorn & Co., were sufficient.

XIII. The title did not pass from Chaffee by the contracts of May 23, 1850, September 5, 1850, and November 12, 1851, in connection with the instrument executed between Goodyear and his licensees, dated July 1, 1848, in consideration of Judson's agreement in the paper of September 5, 1850, according to the prayer for instruction to the jury, which is made the subject of Exception 1.

XIV. One test of the right of rescission or revocation is, to inquire whether the contract is one that a court of equity would specifically enforce, under the circumstances existing at the time the rescission or revocation is sought to be made.

'The rules of law relating to specific performance, and those applied to the rescission of contracts, although not identically the same, have a near affinity to each other.' (Boyce's Executors v. Grundy, 3 Peters, 210, 216.)

The remaining points are omitted.

Mr. Justice NELSON delivered the opinion of the court.

This is a writ of error to the judgment of the Circuit Court of the United States, holden by the district judge in and for the district of Rhode Island.

The action was brought by Day against the defendants below, for an alleged infringement of a patent for the preparation and application of India-rubber to cloths, granted to E. M. Chaffee, August 31, 1836, and renewed for seven years from the 31st August, 1850. The plaintiff claimed to be the assignee of the patent from Chaffee. The defendants sought to protect themselves under a license derived from Charles Goodyear, whom they insisted was the owner, and not Day, of the renewed patent. Goodyear became the owner of the unexpired term of the original patent on the 28th July, 1844, and on the same day granted to certain persons, called 'The Shoe Associates,' the exclusive use of all his improvements in the manufacture of India-rubber, patented, or to be patented, during the term of any patents or renewals which he might own, or in which he might be interested, 'so far as the same are, or may be, applicable to the manufacture of boots and shoes.'

The defendants claimed a license under the Shoe Associates.

Chaffee, the original patentee, made application to the Commissioner of Patents, the 22d May, 1850, for the renewal of his patent, in which he states that the then present owners were willing and desirous that it should be renewed, and in that event that they ought to make him further compensation for the invention. And on the next day, 23d May, 1850, he entered into an agreement with Goodyear, in which he stipulated to convey to him the patent, on its renewal for the extended term, in consideration of three thousand dollars.

There seems to have been some agreement or understanding that the then owners of the patent, and their licensees, should be at the expense of the renewal.

William Judson had become interested in one-eighth of the patent in 1846, by an assignment from Goodyear; and in 1848 he, in conjunction with Seth P. Staples, was appointed by Goodyear his attorney and agent, in taking out, renewing, extending, and defending his patents; and a fund was provided by Goodyear for defraying the expenses of these proceedings, and placed in the hands of Judson. By the consent of Goodyear, Judson subsequently became his sole agent and trustee of the fund for the purposes mentioned.

The patent was renewed, in pursuance of the application, on the 30th August, 1850. Soon after this renewal, to wit, on the 5th September, 1850, an agreement was entered into between Chaffee and Judson, which recites the renewal, and that the expenses were large, and also that at the time of the renewal the patent was held by Goodyear for the benefit of himself and his licensees; and, further, that he had agreed with Chaffee, for himself and those using the patent under him, that they would be at the expense of the extension, and make an allowance to him, Chaffee, of $1,200 per annum, payable quarterly, during the period of the extension; and reciting also that Judson had had the management of the application for the renewal, and had paid, and became liable to pay, the expenses thereof, and had agreed to guaranty the payment of the annuity of $1,200; and the agreement then provided as follows: 'Now, I (Chaffee) do hereby, in consideration of the premises, and to place my patent so that in case of my death, or other accident or event, it may enure to the benefit of said Charles Goodyear, and those who hold a right to the use of said patent, under and in connection with his licensees, according to the understanding of the parties interested, nominate, constitute, and appoint said William Judson my trustee and attorney, irrevocable, to hold said patent, and have the control thereof, so as no one shall have a license to use said patent or invention, or the improvements secured thereby, other than those who had a right to use the same when said patent was extended, without the written consent of said Judson first had and obtained.'

At the close of the agreement, Judson stipulates with Chaffee to pay all the expenses of the renewal, and also the annuity of $1,200; and also to be at all the expense of sustaining and defending the patent; and Chaffee reserves to himself the right to use the improvement in his own business.

This contract was entered into without the privity of Goodyear, and changed materially the terms and conditions of that made by him with Chaffee on the 23d May. He was at first dissatisfied with the change when it came to his notice, but afterwards acquiesced.

The contract continued in operation down to the 12th November, 1851, when a modification of the same took place.

This last contract recites that there was an omission in that of 6th September, in not stating that if the said licensees continued to use the improvements, they should pay their just proportion of the expenses and services in obtaining the renewal, which it was intended they should pay to Judson; and recites also that there was no stipulation on the part of Judson to pay Chaffee $1,500 per annum, as claimed by him; and it is then agreed that the licensees shall pay their share of the expenses to Judson, as a condition to the granting of a license by him to them; and that, on the payment of such share of the expenses, a license shall be granted to them. And it was further agreed, that Judson should pay Chaffee the $1,500 per annum; and also that Judson might use Chaffee's name in the prosecution of infringements of the patent, or for any other purpose in relation to the use of it, he holding Chaffee harmless from all costs, &c., and he, Judson, to have all the benefits to be derived from said suits.

It will be perceived that the only provision in this agreement differing from that of 6th September, in which Chaffee has any interest, is the one providing for an annuity of $1,500, instead of the $1,200. All the other provisions are for the benefit of Judson. This annuity was paid down to the 1st December, 1852, when some difficulty arose between Judson and Chaffee, and the payment ceased.

And on the 1st July thereafter, Chaffee undertook, in consequence of this default, to revoke and annul the power and control of Judson over the patent, and to forbid his acting in any way or manner under the agreements of the 6th September, and of the 12th November, above referred to. And on the same day, for the consideration of $11,000, assigned the renewed patent to Day, the plaintiff in this suit. Day, on the 2d July, 1853, gave notice to Judson of the assignment, offering to pay, at the same time, all sums there might be due him, if any there were, for moneys advanced in procuring the extension of the patent, or in any other way paid for Chaffee on account of said patent. The above is the substance of the case, as appears from the written agreements of the parties in the record. The questions involved turn essentially upon the points:

1. As to the operation and effect to be given to the three agreements which have been referred to, and especially of that of the 6th September, 1850, between Chaffee and Judson; and

2. The force and effect of the attempted rescindment of these agreements by Chaffee, on the 1st July, 1853, on account of the neglect or refusal of Judson to pay the annuity of $1,500.

1. It is not important to examine particularly the agreement between Goodyear and Chaffee of 23d May, as that was, in effect, superseded by the one entered into with Judson, the 6th of September, to which Goodyear afterwards assented.

It is important only as leading to the latter agreement, and may therefore assist in explaining its provisions.

By this first agreement, Chaffee bound himself to assign to Goodyear the renewed patent, as soon as it was obtained, for the consideration of $3,000. Goodyear became thus equitably entitled to the entire interest in the patent during the extended term, and could have invested himself with the legal title on the payment, or offer to pay the three thousand dollars, had he not subsequently acquiesced in the modification of it with Judson. Judson was the owner, jointly with Goodyear, of one-eighth of the patent. He was also the agent and attorney of Goodyear, generally, in his applications for patents, in obtaining renewals, and in the litigation growing out of the business; and was the trustee of a fund provided by Goodyear to meet the expenses. It was, doubtless, on account of this interest of Judson in the improvement, and his general authority from Goodyear in the management of his patent concerns, that led him to enter into the new arrangement with Chaffee, of the 6th September, in the absence of his principal. Goodyear might have repudiated it, and insisted upon the fulfilment of the first agreement. He thought fit, however, after a full knowledge of the facts, to acquiesce; and his rights, therefore, and those claiming under him, must depend upon this second agreement.

In respect to this agreement, whether the title which passed from Chaffee, in the renewed patent to Judson, was legal or equitable, the court is of opinion that the entire interest and ownership in the same passed to him for the benefit of Goodyear, and those holding rights and licenses under him. The instrument is very inartificially drawn, but the intent and object of it cannot be mistaken. Chaffee, in consideration of the premises, which included the annuity of $1,200, 'and (in his own language) to place my (his) patent so that in case of death, or other accident or event, it (the patent) may enure to the benefit of said Charles Goodyear, and those who hold a right to the use of said patent, under and in connection with his licensees,' &c., nominates and appoints 'said William Judson, my trustee and attorney irrevocable, to hold said patent, and have the control thereof, so that no one shall have a license, &c., other than those who had a right to use the same when said patent was extended, without the written consent of said Judson;' and at the close of the agreement, he reserves the right to use the improvement in his own business. At this time, as we have seen, Judson was the owner of one-eighth of the patent, and was the general agent and attorney of Goodyear in all his patent business transactions. It is apparent that the only interest in the patent, left in Chaffee, was the right reserved for his own personal use. The annuity and indemnity against the expenses of the renewal were the compensation received by him for parting with the improvement. The contract of the 12th November has no material bearing upon this part of the case. Most of the provisions were for the benefit of Judson, in relation to the licensees under Goodyear. The only provision important to Chaffee is the stipulation for the increased annuity of $1,500.

2. Then, as to the attempted rescindment of the contracts. The agreement of 6th September had been in force from its date down to the 1st July, 1853, a period of two years and nearly ten months. During all this time, the licensees of Goodyear, at the date of the renewal of the patent, and those whom Judson may have granted a license to since the renewal, had a right to use the improvement, and especially the Shoe Associates, referred to in their agreement with Goodyear, 1st July, 1848. Besides this stipulation with Goodyear, their right was expressly recognised by Chaffee himself, in the agreement with Judson of 6th of September.

The effect of the rescindment as claimed, and which would be necessary to enable the plaintiff to succeed in his action against the defendants, would be to break up the business of these licensees, by divesting them of their rights under this agreement rights acquired under it from all parties connected with or concerned in the patent, and especially from Chaffee, the patentee, who placed it in the hands of Judson, for the benefit of Goodyear and those holding under him. The effect would also be to deprive Goodyear or Judson, or whichever of them had paid the expenses of obtaining the renewal, of the equivalent for those expenses, except as they might have a personal remedy against Chaffee. To the extent above stated, the agreement of the 6th September was already executed, and, in respect to parties concerned, the abrogation would work the most serious consequences.

As we have already said, the ground upon which the right to put an end to the agreement is the refusal to pay the annuity of $1,500 after December, 1852. Judson proposed to Chaffee to resume the payment in June, 1853, which was declined; but we attach no importance to this fact, especially as we are in a court of law. But, in looking into the agreements of the 6th of September, and also the one of the 12th of November, the court is of opinion that the payment of the annuity was not a condition to the vesting of the interest in the patent in Judson, and of course that the omission or refusal to pay did not give to Chaffee a right to rescind the contract, nor have the effect to remit him to his interest as patentee. The right to the annuity rested in covenant, under the agreement of the 12th of November. One of the objects of that agreement was, to obtain from Judson this covenant. From the terms and intent of the agreement, the remedy for the breach could rest only upon the personal obligation of Judson, as, by the previous one of the 6th of September, the interest in the patent had passed to Goodyear and his licensees, and no default or act of Judson could affect them. Chaffee chose to be satisfied with the covenant of Judson, without stipulation or condition as it respected the other parties, and he must be content with it.

The cases of Brooks v. Stolly, (3 McLean, 526,) and Woodworth v. Weed, (1 Blatchford, 165,) have no application to this case.

The attempt to rescind the contracts, being thus wholly inoperative and void, in the opinion of the court, of course no interest in the patent passed to Day, under the assignment of the 1st July, 1853.

Evidence was given on the trial in the court below, for the purpose of proving that the agreement of the 6th of September was procured from Chaffee by the fraudulent representations of Judson, which was objected to, but admitted.

The general rule is, that in an action upon a sealed instrument in a court of law, failure of consideration, or fraud in the consideration, for the purpose of avoiding the obligation, is not admissible as between parties and privies to the deed; and, more especially, where there has been a part execution of the contract. The difficulties are in adjusting the rights and equities of the parties in a court of law; and hence, in the States where the two systems of jurisprudence prevail, of equity and the common law, a court of law refuses to open the question of fraud in the consideration, or in the transaction out of which the consideration arises, in a suit upon the sealed instrument, but turns the party over to a court of equity, where the instrument can be set aside upon such terms as, under all the circumstances, may be equitable and just between the parties. A court of law can hold no middle course; the question is limited to the validity or invalidity of the deed.

Fraud in the execution of the instrument has always been admitted in a court of law, as where it has been misread, or some other fraud or imposition has been practised upon the party in procuring his signature and seal. The fraud in this aspect goes to the question whether or not the instrument ever had any legal existence. (2 J. R., 177; 13 Ib., 430; 5 Cow., 506; 4 Wend., 471; 6 Munf., 358; 2 Rand., 426; 10 S. and R., 25; 14 Ib., 208; 1 Alab., 100; 7 Misso., 424; 4 Dev. and Bat., 436; C. and H., Notes, part 2, p. 615, Note 306, ed. Gould & Banks, 1850.)

It is said that fraud vitiates all contracts, and even records, which is doubtless true in a general sense. But it must be reached in some regular and authoritative mode; and this may depend upon the forum in which it is presented, and also upon the parties to the litigation. A record of judgment may be avoided for fraud, but not between the parties or privies in a court of law.

The case in hand illustrates the impropriety and injustice of admitting evidence of fraud to defeat agreements of the character in question in a court of law. We have a record before us of 1,055 closely-printed pages of evidence submitted to the jury, and a trial of the duration of some six weeks. Goodyear and his licensees had acquired vested and valuable rights under the agreements in this patent, and who were in no way privy to, or connected with, the alleged fraud, nor parties to this suit; and yet it is assumed, and without the assumption the fraud would be immaterial, that the effect of avoiding the agreements would be to abrogate these rights. They had been in the enjoyment of them for nearly three years, and may have invested large amounts of capital in the confidence of their validity. They were derived from Chaffee himself, the patentee of the improvement. A court of equity, on an application by him to set aside the agreements on the ground of fraud, would have required that these third parties in interest should have been made parties to the suit, and would have protected their rights, or secured them against loss, if it interfered at all, upon the commonest principles of equity jurisprudence.

Some slight evidence was given in the court below, upon the question whether the agreement of the 6th of September was sealed at the time of the execution. But the instrument produced was sealed, and is recited in the subsequent agreement of the 12th November, as an agreement signed and sealed by the parties.

A question was also made, as to the authority of the Shoe Associates to grant a license to the defendants. But they held under Goodyear the right to the exclusive use of the improvement for the manufacture of boots and shoes. They were competent, therefore, to confer the right upon the defendants. Besides, the point is not material in the view the court have taken of the case, as upon that view no interest in the patent vested in the plaintiff under the assignment from Chaffee.

It will be seen, by a reference to the bill of exceptions, that upon our conclusions in respect to several points raised in the case, the rulings in the court below were erroneous, and consequently the judgment must be reversed, and a venire de novo awarded.

title: Hartshorn v. Day/Opinion of the Court


text: Talk:Hartshorn v. Day/Opinion of the Court

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


text: Slater v. Emerson

title: Slater v. Emerson


text: Talk:Slater v. Emerson

title: Talk:Slater v. Emerson


text:
Slater v. Emerson/Opinion of the Court

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the district of Massachusetts.

The facts are stated in the opinion of the court.

It was argued by Mr. Bates and Mr. Bartlett for the plaintiff in error, and by Mr. Hutchins upon a brief filed by himself and Mr. Choate for the defendant.

The following points on behalf of the plaintiff in error are taken from the brief of Mr. Bartlett, as being more condensed than those stated in the brief of Mr. Bates:

I. The single question is, whether by the true and rational construction of the contract it was agreed and understood between the parties that the doing the work within the time prescribed was a condition on which the obligation of plaintiff to give his notes was to depend.

a. It is not sufficient to say that the parties, if such was their intent, might have expressed it so in terms, or might have secured damages for non-performance by an independent covenant. The books abound in cases where parties having inartificially expressed their purpose, the court have construed their agreement to be dependent. This want of express terms, therefore, though it may possibly lead in doubtful cases to a presnmption, is of value solely in that contingency.

b. We are to find, then, either from the reason of the thing, looking at the position of the parties and the surrounding circumstances, or by the application of the settled rules of construction, or by both, what was the intent of the parties; and,

1. The position of the parties is new and unusual. It is believed that a similar case is not to be found in the books. Usually the controversy is between a party contracting to perform and a party who is to enjoy the benefit of the thing to be performed. Here the question is upon the construction of a contract collateral to another, between other parties, which may be called the principal contract; and the entire direct fruits of performance are to be enjoyed by one of those other parties.

2. The extrinsic evidence shows that at the time of making the contract in question another negotiation was, with the knowledge of all parties, pending between one of the parties to the principal contract and a third party, of great pecuniary importance, the consummation of which was entirely dependent on the ability of one of the parties to open its road at a fixed time. That fixed time was the precise period prescribed for the completion of the work by the contract in question. (Ammidown's Testimony.)

3. Such are the surrounding circumstances, and before examining the terms of the contract and the settled rules of construction, it may be fairly asked whether defendent in error, who was already performing and bound to perform the work under another contract for the same remuneration, would be likely to agree that the covenant of plaintiff in error should be dependent, and this, too, when the notes to be given him were not to pay for the labor to be performed under the contract, but to an existing indebtedness of railroad to defendant in error. (Willis's Testimony.) And also whether plaintiff in error would be likely to make any other than a dependent agreement to pay on condition an old debt of a third party.

II. With these preliminary views, we proceed to examine the terms of the contract, and the usual rules of construction.

a. The terms of agreement by defendant in error are, 'that he will complete all the bridge work to be done by him for the Boston and New York Central railroad, ready for laying down the iron rails for one track, on the first day of December next.

b. The agreement on the part of the plaintiff in error is, 'that, in consideration of the premises, he will pay, within two days from the date hereof, the sum of $4,400 in cash; and that he will give said Emerson, on the completion of the bridges, and when the rails for one track are laid to the foot of Summer street, his five notes for $2,000 each, payable in six months; said notes, when paid, to be applied toward the indebtedness of said Railroad Company to said Emerson.'

1. The agreement on the part of plaintiff is 'in consideration of the premises,' and technically these are apt words to create a condition. (Thorpe v. Thorpe, 1 Ld. Raymond, 665; Ackerly v. Vernon, Willes, 157.)

2. That the agreement to give the notes was at least dependent upon prior performance, would seem free from all doubt. This is tested by considering whether an action on the contract could have been maintained before the work was done.

It falls clearly in this respect within the technical rule. 'When a day is appointed for the payment of money, &c., and the day is to happen after the thing which is the consideration of the money, &c., is to be performed,' no action can lie. (Bean v. Atwater, 4 Connecticut, 9; Pordage v. Cole, 1 Saunders, 320; Day v. Dox, 9 Wendell, 129.)

The fact that the notes were not to be given upon performance, but at a period after performance, does not affect it. This only shows that it does not belong to another class of dependent agreements, viz: Where two acts are to be done at the same time, or cases of concurrent covenants, as they are called. (Glazebrook v. Woodrow, 8 T. R., 374; Williams v. Healy, 3 Denio, 363; Gainzly v. Price, 16 Johnson, 267.)

3. Nor does the fact that payment of part of the consideration (viz: the $4,400) was to be made before performance, affect the question whether the agreement for a final payment was dependent or independent. The old case of Terry v. Duntzie, (2 Henry Blackstone, 389,) from which the opposite doctrine was derived, was unfounded in reason, and has been declared not to be law here and in England. (Cunningham v. Morrell, 10 Johnson, 203; Hopkins v. Elliot, 5 Wendell, 496; Grant v. Johnson, 1 Selden, 247; Johnson v. Reed, 9 Mass., 78; Lord v. Belknap, 1 Cushing, 279; Watchman v. Crooke, 5 Gill and Johnson, 254; Bean v. Atwater, 4 Connecticut, 4; Kettle v. Harvey, 21 Vermont, 301; McClure v. Rush, 9 Dana, 64.)

4. But it may be said, that although performance was a condition precedent to delivery by plaintiff of his notes, yet performance within the time was not so.

a. It is important on this point to distinguish between the question whether non-performance within the time will, because of the agreement being dependent, defeat a recovery or the contract itself, and the question whether, notwithstanding such non-performance, assumpsit will not lie to recover for the labor and materials.

b. It would seem to be the settled rule, both here and in England, that if plaintiff has not performed the work in exact accordance with the contract, and there has been no waiver, he cannot recover on the contract, but must recover, if at all, on the common counts for his labor and materials. (2 Greenleaf's Evidence, secs. 104, 136; Chapel v. Hicks, 2 Crompt and Mee, 214; Read v. Banner, 10 B. and C., 440; Alexander v. Gardner, 10 Bingham N. C., 671; Chater v. Leese, 4 M. and W., 295, 311; Jewell v. Schroepel, 4 Cowen, 564; Ladua v. Seymour, 24 Wendell, 62; Britton v. Turner, 6 N. H., 481.)

c. Unless, therefore, time of performance might, in a declaration on the contract, be wholly omitted, this case falls within the rule, and plaintiff would be remitted to his common counts; that it could not be so omitted, plaintiff in error refers to Phillips v. Rose, 8 Johnson, 393; Jewell v. Schroepel, 4 Cowen, 565; Smith v. Guyarty, 4 Barbour, 615; Ladua v. Seymour, 24 Wendell, 61; Gregory v. Hincks, 3 Hill, 380; Watchman v. Crooke, 5 Gill and Johnson, 254; Farnham v. Ross, 2 Hall, 167.

d. As to to the right of defendant in error to recover on common counts, no discussion is necessary. The ruling excepted to declares the agreements to be independent, and that recovery may be, and it was in fact, had upon the counts on the special contract.

III. But, besides and beyond the artificial rules above adverted to, and under which it is submitted plaintiff in error is safe, there are others, founded on the plainest principles of equity and justice, which have guided, if not controlled, the courts, in their construction of this class of contracts; and it is upon these and their application that the case must turn.

Of these, the principal ones are—

1. Where non-performance by plaintiff deprives the defendant, not of part, but of the entire consideration of the contract, the agreement of defendant shall be deemed dependent. (Pordage v. Cole, 1 Wms. Saunders, 320; Duke St. Albans v. Shore, 1 H. Black, 270; Dakin v. Williams, 11 Wendell, 67; Atkinson v. Smith, 14 M. and W., 695.)

2. Where defendant, in case of plaintiff's non-performance, has no other remedy for the injury he sustains except by declaring his agreement dependent. (Pordage v. Cole, 1 Wms. Saunders, 319.)

3. Where the amount of the consideration which defendant will be absolved from paying plaintiff, if his agreement be deemed dependent, is not, or may not be, commensurate with the injury sustained by plaintiff, or, in the language of this court, there 'is no natural connection' between the two; in such case, defendant's contract shall be construed to be independent.

In discussing the application of these principles, plaintiff in error submits at the outset, that almost all the rules of construction in this class of cases are founded upon a struggle of the courts to avoid the old and long-standing doctrines of forfeiture. Thus the rule, that in case of failure to perform, when such failure deprives defendant only of part of the consideration to be received by him, the agreement shall be deemed independent, is founded solely on the ground of forfeiture, and the want of equity in allowing defendant to keep and enjoy the labor and materials of the plaintiff without compensation. So, also, the doctrine, that there is no natural connection between the sum due plaintiff at the time of breach, and the injury sustained by defendant by such breach, proceeds wholly on the thought that the sum so due is forfeited by the breach.

But in the class of cases to which the present one belongs, the doctrine of forfeiture is exploded, and it is well settled that the value of the labor and materials to defendant may be recovered on quantum meruit notwithstanding the breach.

The reason of the rule having therefore ceased, the doctrine will bear revision.

a. As to the first of the above rules, plaintiff in error submits that the failure to perform by defendant, although it left the fruits of his labor in the hands of the railroad, with whom he contracted to do it, and who are fully bound to pay him for it, yet deprived plaintiff in error of the whole consideration for which he made the contract, viz: the time within which performance was to take place.

b. It is important to note that the doctrine regards merely the question of consideration moving from plaintiff to defendant, not the consideration arising from plaintiff's altered condition in consequence of the contract. It seeks to avoid circuity of action which would arise if plaintiff recovered the agreed sum, and defendant, by cross action, recovered it back. (Duke of St. Albans v. Shore, 1 H. Black., 270; Pordage v. Cole, 1 Wms. Saunders, 319; Dakin v. Williams, 11 Wendell, 67; Atkinson v. Smith, 14 M. and W., 65.)1. The necessity for making time a condition of the contract, and the probability that both parties would assent to make it so, have been adverted to, and plaintiff in error now submits, that unless time was the whole consideration, moving from defendant in error to plaintiff in error, there was no consideration at all.

a. For there was already a contract between the defendant in error and the railroad (subsisting and referred to as obligatory in this very contract) to do this same work, the terms of which were not varied one word, except in relation to this very matter of time. The matter of time, then, was the only change effected, and the only benefit derived to plaintiff in error.

b. If both contracts had been made by plaintiff with the railroad, would there have been any other consideration to support the additional contract except time?

c. It cannot be said that the work was done for the plaintiff, or at his request, or for his benefit, so as to form a consideration moving from the defendant in error to him-for it was to be performed, so far only as time was concerned, at his request, and its direct benefit was solely to the railroad.

His relation to the railroad was merely that of an officer, a creditor, and a stockholder; and it is believed that upon no known principles of law could damages be ascertained and assessed in his favor, for a deprivation of such a remote benefit, if defendant in error had failed to perform.

2. This last suggestion, if well founded, emphatically supports the second of the above grounds, viz: that the only remedy plaintiff in error can have for the breach of his agreement by defendant, is to construe his covenant to give his notes to be dependent on complete performance by defendant.

3. The last ground which is often relied on to show the covenants to be independent is, that there is no natural connection between the sum which is claimed to be paid defendant in error and which plaintiff seeks to withhold, and the amount of damages which plaintiff may sustain by defendant's non-performance.

a. If plaintiff in error had in fact received and was now enjoying the results of defendant's labor and materials, and if non-performance would leave defendant in error without remedy, this would be a forcible reason for holding the covenant of plaintiff in error to be independent.

b. But even in such case, as it is settled that no forfeiture is incurred, but defendant might, as against party enjoying the benefit of his labor and materials, maintain an action for his quantum meruit in which the injury by non-performance might be set off and adjusted, it is submitted that the harmony of the law and the symmetry of pleading, which requires in actions on special contracts an allegation of complete performance, would be best preserved by obliging the party to resort to the common counts.

c. But, however this may be in other cases, in this case plaintiff in error does not hold and enjoy the benefit of defendant's labor and materials, but a third party, who has contracted with defendant to pay for them. The defendant is not without remedy against that party, and there may be said to be a natural connection between the amount which defendant in error loses, which is nothing, and the damage which plaintiff in error could recover for breach, which by law cannot, by reason of remoteness, be shown to be anything. In other words, the rule and its reason has no application to a collateral contract, in its nature a guaranty, when, for want of strict performance of the terms of the guaranty, one party has lost his remedy, and the other received no appreciable benefit.

IV. The remaining exception is to the ruling of the court, compelling plaintiff in error to prove and adjust his damages for breach of the contract by way of offset, recoupment, or reduction of damages of defendant in error in this action, and thus depriving him of his election to bring a cross action.

Plaintiff in error has been able to find no case in which the doctrine is established, that it is compulsory on a defendant to come prepared with his proofs of such damage, or have the damages assessed at a nominal sum, and be barred of his cross action. The question may be important in this case, the principle is fit to be settled, and plaintiff in error submits that the ruling was wrong.

V. The statement of counsel to Emerson should have been admitted to show that, in opinion of Emerson, the work could have been done by December 1st.

I. The first exception is as follows: 'The defendant offers to prove, that just prior to the signature of the contract, both parties being present, the counsel of the plaintiff told him that, unless he was sure that he could complete the bridges by December first, he ought not to sign the contract, and could not recover if he did not complete them by December first; but the court refused to admit the same.' To which refusal the defendant excepted.

Such testimony was clearly inadmissible. The contract must speak for itself. The conversations of the parties, their understandings and expectations, and the suggestions of counsel, cannot affect or control the construction of this contract. This would be to vary or modify its terms by parol. (1 Greenleaf on Evidence, sec. 275, p. 327; Weatherhead's Lessee v. Baskerville, 11 Howard; Van Buren v. Digges, 11 Howard, 461; Grant v. Naylor, 4 Cranch, 224.)

II. The second exception is as follows: 'The defendant offers to prove that, at the time the contract was drawn up, the element of time was talked over by the plaintiff and the defendant, and that plaintiff assented that time was the essence of the contract; but the court refused to admit the same.' To which refusal the defendant excepted.

The same answer may be made to this as to the first exception. When the contract is reduced to writing, all the conversations of the parties, leading up to it, are merged in it. (1 Greenleaf on Evidence, sec. 275, p. 327.)

III. The third exception is as follows: 'The defendant moved the court to rule and instruct the jury, that by the true construction of said contract declared upon, the plaintiff would not be entitled to recover, without showing that the work was completed, ready for laying down the rails for one track, by the first day of December, 1854; but the court refused so to instruct the jury, but did instruct them, that the agreement on the part of the defendant, to give the notes in said agreement mentioned, was not dependent upon the completion of said work, ready for laying down said rails for one track, at the time limited by said contract.' To which ruling the defendant excepted.

It is sometimes difficult to determine whether covenants and promises are dependent or independent. Some rules of construction are laid down in the books, but, after all, each case is to be governed by its own circumstances. (Philadelphia W. and B. R. R. Co. v. Howard, 13 Howard, 307.)

1. The courts incline to consider covenants and promises independent, rather than dependent, to save forfeitures. The burden is on him who alleges dependency. (Platt on Covenants, p. 35, [78, 79,] Law Library, vol. 3.)

If there are no terms which import a condition, or which expressly make one promise dependent on the other, they are construed to be independent; and in this contract there are no such. Platt on Covenants, Law Lib., vol. 3, p. 32, [72, 73.]

More than this the terms import the contrary. In that part containing the promise, the condition of time is wholly omitted thus indicating an intention not to make it dependent on time, but on work done.

2. The failure to perform on the day does not go to the whole consideration, and there is no natural connection between the amount to be paid for the work done after the day, and the injury or loss inflicted by a failure to perform on the day. (Platt on Covenants, Law Lib., vol. 3, p. 40, [90, 94;] Philadelphia W. and B. R. R. Co. v. Howard, 13 Howard.)

3. The forfeiture of the amount to be paid for the whole work, in consequence of its not being completed by the day, would be unreasonable in this case. By construing the promises as independent, the plaintiff can recover his exact damages (if any) or have them recouped. Thus the rights of both parties are secured. Platt on Covenants, vol. 3, Law Lib., p. 40, [90.]

4. The defendant in error completed the bridges. The plaintiff in error has had the benefit of his labor. The objection is, that it was not done at the day, (for which, however, the plaintiff in error claimed no damages.) It would be manifestly inequitable for the plaintiff in error to receive the benefit of this labor without paying for it. The objection taken is technical, and ought not to be sustained, unless the language is clear, and the rule of law imperative. (Philadelphia v. W. and B. R. R. Co., 13 Howard, 307; Van Buren v. Digges, 11 Howard, 461.)

5. The promise of the plaintiff in error was not dependent upon the completion of the bridge work by December 1st, because the notes were not to be given upon the completion of the bridges. Something more was to be done, to wit, the laying of the rails by another party. How can the promise of the plaintiff in error be said to be dependent upon the completion of his work by December 1st, when the completion of the work at that time would not then entitle the defendant in error to his notes?

6. When the acts stipulated to be done, are to be done at different times, the stipulations are to be construed as independent of each other. (Goldsborough v. Orr, 8 Wheaton, 217.)

Taking this decision as a guide, these promises must be construed as independent; for the promise of the defendant in error was to complete the bridges by December 1st, whereas the promise of the plaintiff in error was not to give the notes at that time, but when the rails were laid.

7. The plaintiff in error promised to pay the defendant in error $4,400 in cash, within two days from the date of the contract, and to give his notes upon the completion of the bridges and laying the rails. So far as this cash payment is concerned, the promise is clearly independent, as it necessarily preceded the completion of the work. If the construction contended for by the plaintiff in error be adopted, the same promise will be construed both as dependent and independent-dependent as to the giving the notes, independent as to the payment of cash. Platt on Covenents, Law Library, vol. 3, p. 43, [96.]

IV. The fourth exception is as follows: 'The defendant further requested the court to rule and to instruct the jury, that if the plaintiff failed to complete said work, ready for laying down the iron rails for one track, by the said first day of December, there was thereby a failure of the consideration of said contract, and the plaintiff would not be entitled to recover the amount claimed by him, or any part thereof; but the court refused so to instruct the jury.' To which refusal the defendant excepted.

Very clearly, these instructions ought not to have been given. The consideration of the plaintiff in error's promise to pay the money and to give the notes, was the promise of the defendant in error to do the work, and not merely his promise to do it by December 1st. He having completed the work to their acceptance, there was clearly not a total failure of consideration.

V. The last exception is as follows: 'His honor the judge having first called upon the defendant to offer evidence, if he saw fit, of any actual damage by him sustained by the non-performance of said work within the time limited by said contract, and the defendant declining to offer any such evidence, and admitting that no such actual damage was claimed by him in this suit, the court thereupon instructed the jury to deduct from any sum they might find for the plaintiff the sum of one dollar, as nominal damages for the said non-performance of plaintiff.' To which direction the defendant excepted.

It is difficult to discover what there is objectionable in this direction. Undoubtedly, the plaintiff in error was entitled to have deducted in this suit any damage which he could show that he had sustained from the non-performance of the work within the time limited by the contract; and if the court had refused to admit testimony of such damage, he might well have excepted; but he expressly waived all claim to damage in this suit. In the absence of any proof or claim by him, the court directed a deduction of nominal damages. What more or different could the plaintiff in error require? (Winder v. Caldwell, 14 Howard, 434.)

Mr. Justice McLEAN delivered the opinion of the court.

This case is before us on a writ of error to the Circuit Court of Massachusetts.

The action was prought by Emerson against Slater, on an agreement made the 14th day of November, 1854, in which Emerson, 'in consideration of the agreement of said Slater, hereinafter contained, and of one dollar to him paid, covenants and agrees, with said Slater, that he will complete all the bridge work to be done by him for the Boston and New York Central Railroad Company, ready for laying down the iron rails for one track, by the 1st day of December next.'

'And the said Slater, in consideration of the premises, hereby agrees, with said Emerson, that he will pay him, within two days from the date hereof, the sum of forty-four hundred dollars, in cash. And the said Slater further agrees, that he will give to the said Emerson, on the completion of the bridges, and when the rails for one track are laid to the foot of Summer street, in Boston, from Dedham, his (said Slater's) five notes, for two thousand dollars each, dated when said notes were given, as above provided, and payable in six months from their date, to the said Emerson or his order. Said notes, when paid, are to be applied towards the indebtedness of said Boston and New York Central Railroad Company to said Emerson; it being understood that this agreement is in no may to affect any contract of said Emerson with said company, or any action now pending.'

The execution of this agreement was admitted, and that the work upon the bridges, in said agreement set forth, was completed, ready for laying down the iron rails for one track, about the middle of December, 1854, and that the rails were laid to the foot of Summer street, in Boston, from Dedham, about the last of the same month.

It was proved that the defendant was President of the Boston and New York Central Railroad Company, and a stockholder and bondholder in the same. The corporation failed on or about the 2d of July, 1954. The company was then indebted to the plaintiff, and did not pay him. In the second week of July, there was a crisis in the affairs of the company, and Emerson suspended his work, so far as regarded new outlays. In August a new arrangement was made, and he went on till the first or second week in November, and then he kept a force on the great bridges sufficient to retain possession of the work, and would not surrender it; the witness (Willis) then made an effort to get the bridges completed. The question was, how much Emerson would take. The company owed him some ten to fifteen thousand dollars, and was then insolvent as respected meeting its engagements.

The defendant then introduced an agreement between the Boston and New York Central Railroad Company, a corporation, and Charles Emerson, of Boston, in which Emerson agreed to build and complete, sufficient for the passage of an engine over the same, on or before the first day of May next, all the bridging as now laid out and determined upon by the engineer of said railroad, from the wharf near the foot of Summer street, in Boston, and from South Boston across the South Bay, so called, to the Dorchester shore, in Dorchester, in the manner and with the materials hereinafter described, and to finally complete the same to the satisfaction of the State commissioner and the engineers of said railroad, as soon after the first day of May next as may be. Several other bridges were required to be built on the road, Emerson furnishing all the materials, excepting the iron rails, chains, and spikes, which were to be furnished by the Railroad Company. This contract was dated the 23d of December, 1853, and signed by the parties.

A receipt, dated November 15th, 1854, signed by Emerson, acknowledged the payment of forty-four hundred dollars, by Slater, of the contract first above stated.

E. B. Ammidown, a witness, stated he was a director on the railroad, and that in November, 1854, there were negotiations pending for a contract for a through route from Boston to New York, between the Boston and New York Central Railroad Company and the Norwich and Worcester Railroad Company, and the Steamboat Company plying between Norwich and New York. The contract then existing between said Steamboat Company and Norwich and Worcester Railroad Company with the Boston and Worcester Railroad Company would expire about December 1st, 1854. It was necessary that said Steamboat and Norwich and Worcester Railroad Companies should make a new contract. They preferred to contract with us instead of the Boston and Worcester Railroad Company, provided our road could be ready to run by December 1st, 1854. The only part of our road, as to which there was any doubt of its completion, was the bridges, which the plaintiff was making. The whole matter was talked over, in the presence of the plaintiff. We regarded it as of very great importance. I considered the loss of that contract equal to a quarter of a million of dollars, and the plaintiff said half a million. Committees from Norwich and Worcester Railroad and Steamboat Companies came on, to make the arrangement, and went over part of the road. Whether this was before or after the contract the witness cannot say, but he has little doubt that it was before.

J. C. Hurd, a witness, and who was also a director, and as a committed, about the 14th of August, 1854, made a parol contract with Emerson to pay him $17,000, and secure to him $6,000 of Farnum, with endorsements. A larger sum than $17,000, he thinks, was paid at the time of the contract. Emerson agreed to go on and finish the work, but he declined to sign a written agreement.

On the above evidence, the defendant moved the court to rule and instruct the jury, that by the true construction of said contract declared on, the plaintiff would not be entitled to recover without showing that the work was completed, ready for laying down the iron rails for one track, by the first day of December, 1854; but the court refused so to instruct the jury, and did instruct them that the agreement on the part of the defendant to give the notes in said agreement mentioned was not dependent on the completion of said work, ready for laying down said rails for one tract, at the time limited by said contract. To which ruling and refusal the defendant excepted.

And the defendant further requested the court to rule and instruct the jury, that if the plaintiff failed to complete said work, ready for laying down said iron rails for one track, by the said first day of December, there was thereby a failure of the consideration of said contract, and the plaintiff would not be entitled to recover the amount claimed by him, or any part thereof; but the court refused so to instruct the jury. To which refusal the defendant excepted.

The judge having first called upon the defendant to offer evidence, if he saw fit, of any actual damage by him sustained by the non-performance of said work within the time limited by said contract; and the defendant declining to offer any such evidence, and admitting that no such damages were claimed by him in the suit, the court thereupon instructed the jury to deduct, from any sum they might find for the plaintiff, the sum of one dollar-as nominal damage, for the said non-performance of plaintiff. To which the defendant excepted.

The jury found for the plaintiff ten thousand one hundred and ninety-nine dollars.

The declaration contains four counts. The first one alleges the work was completed by the 1st of December, 1854; the second, on the 20th of December; third, the same time; the fourth, the same as the second, with an allegation that the defendant waived the time fixed for the work to be completed to the 20th of December.

This contract cannot be satisfactorily understood or construed without reference to the circumstances under which it was made. From the evidence, it appears that the work to be completed by the 1st of December was provided for by a previous contract, dated 17th December, 1851, in which the details and prices of the work were specially stated to be so constructed as to admit of an engine to run over it on or before the 1st of May ensuing, and the whole to be completed as soon after that period as practicable.

The company, it seems, had become embarrassed, and were unable to make payment for the work as it progressed; still the contractor, Emerson, was unwilling to give up the contract, and retained a few hands in his employ on different parts of the work, so as to retain the possession of it.

Another fact to be noticed as important was, that if the road could be completed by the 1st of December, the company had an assurance that a contract could be made with the Steamboat Company plying between Norwich and New York, making a continuous line between Boston and New York. This was considered an object of great importance-equal, as was supposed by a witness, to a quarter of a million of dollars, and, as the plaintiff supposed, to half a million.

The defendant was President of the Boston and New York Central Railroad-a stockholder and a bondholder in the same; but it does not appear that he had any authority to bind the company, as he entered into the contract in his individual capacity.

Under these circumstances, the contract on which the action is prosecuted was made. It will be at once perceived there was a strong motive to have the work completed by the 1st of December ensuing, by all who had an interest in the Central railroad. The sum to be paid by Slater was not in addition to the price stipulated in the former contract, but in discharge of so much of that contract.

All these facts being admitted or undisputed, we will consider the language of the contract. It states 'that the said Emerson, in consideration of the agreement of said Slater, hereinafter contained, and of one dollar to him paid, the receipt whereof is acknowledged, covenants and agrees with said Slater, that he, the said Emerson, will complete all the bridge work to be done by him for the Boston and Central Railroad Company, ready for laying down the iron rails for one track, by the 1st day of December next.'

There is no ambiguity in this language. No one can misconstrue it. The work specified was to be completed by the 1st day of December. And the said Slater, 'in consideration of the premises,' that is, the completion of the work, 'hereby agrees with said Emerson, that he will pay him, within two days from the date hereof, the sum of forty-four hundred dollars in cash; and the said Slater further agrees that he will give to the said Emerson, on the completion of the bridges, and when the rails for one track are laid to the foot of Summer street, in Boston, from Dedham, his (said Slater's) five notes for two thousand dollars each, dated when said notes are given, as above provided, and payable in six months.'

The notes were to be given on the completion of the bridges, and when the rails for one track are laid to the foot of Summer street, in Boston; and from this it is argued that the covenants in the agreement are independent. Much is found in the opinions of courts and elementary writers in regard to dependent and independent covenants. And it is said, 'where the acts stipulated to be done are to be done at different times, the stipulations are to be construed as independent of each other.' This, as a general rule, is correct, but it is subject to the intention of the parties, as signified in the language of the contract. The great rule is to ascertain the intent of the parties from the language used.

The work was to be done by the 1st day of December; and Slater agreed to give his notes, payable in six months after the work was completed; the time of giving the notes, therefore, is referable to the time fixed for the completion of the work. In no just or legal sense can this language be held to enlarge the time limited in the contract.

It is said by some writers, that it is impossible to make time of the essence of the contract where damages may compensate for the delay. But this is not correct as a general proposition. And a more fit illustration of this can scarcely be found than the contract under consideration. The amount of compensation for the work is not increased or diminished by the new contract. The first contract stands is all its force, unaffected by the second, except that the payments made under the second shall be applied as a credit on the first. The obligation assumed by Emerson in the new contract was, to finish the work, as stated, by the 1st of December, in consideration that forty-four hundred dollars should be paid to him in two days, and notes given for ten thousand dollars on the completion of the work. Slater, having no other interest in the work than any other stockholder and bondholder of similar amounts, paid the forth-four hundred dollars, and agreed to give his individual notes for the ten thousand dollars. In this contract he stands in the relation of a surety, and can only be held responsible under his agreement.

That time was an essential part of this contract is clear from the circumstances under which it was made, and the intent of the parties, as expressed. The continuous line to New York was the strong motive to Slater, and that could be secured only by the completion of the work on or before the 1st of December.

The defendant prayed the court to instruct the jury that the plaintiff could not recover without showing the work was completed, ready for laying down the iron rails for one track, by the 1st day of December, 1854, which the court refused to do. In this, we think, there was error. On a contract where time does not constitute its essence, there can be no recovery at law on the agreement, where the performance was not within the time limited. A subsequent performance and acceptance by the defendant will authorize a recovery on a quantum meruit.

It is difficut to perceive any satisfactory mode by which the defendant in the Circuit Court could recoup his demages for the failure of the plaintiff to perform in that action, or by bringing another suit. As a stock and bond holder, his damages would be remote and contingent. To ascertain the general damage of the company by the failure, and distribute that amount among the members of the company in proportion to their interests, would seem to be the proper mode; and this would be complicated, and not suited to the action of a jury.

The judgment of the Circuit Court is reversed, with costs.

title: Slater v. Emerson/Opinion of the Court


text: Talk:Slater v. Emerson/Opinion of the Court


text:
Schuchardt v. Babbidge

THIS was an appeal from the Circuit Court of the United States for the southern district of New York, sitting in admiralty.

The facts are stated in the opinion of the court.

It was argued by Mr. Cutting upon a brief filed by himself and Mr. Hamilton for the appellants, and Mr. Benedict for the appellees.

The arguments of counsel, with respect to the relative rights of the claimants and libellants to the fund in court, are omitted.

With respect to the jurisdiction of the court, Mr. Cutting's point was this, viz:

Although courts of admiralty in the United States have no power to foreclose a mortgage of a vessel by a sale, or to transfer the possession to the mortgagee, (17 Howard, 399, Bogart v. The Steamboat John Jay,) they may entertain an application by the mortgagee, after a sale, to be paid out of the proceeds of the sale in the registry of the court. (Propeller Monticello, 17 Howard, 152; Admiralty rule, 43.)

Mr. Benedict's point was this:

This is really a suit to foreclose a mortgage, even if it were an original suit against the ship. As a suit against the proceeds, it is in substance a suit in equity, for relief against a regular degree in admiralty. In either case, the District Court had no jurisdiction. (Case of the John Jay, 17 Howard, 399.)

Mr. Justice NELSON delivered the opinion of the court.

title: Schuchardt v. Babbidge


text: Talk:Schuchardt v. Babbidge

title: Talk:Schuchardt v. Babbidge


text:
Schuchardt v. Babbidge/Opinion of the Court

This is an appeal from a decree of the Circuit Court of the United States for the southern district of New York, sitting in admiralty.

Between sixty and seventy libels had been filed in the District Court by material men-men who had furnished supplies; also, by shippers of goods and passengers-against the ship Angelique, of which S. W. Jones was master. These several proceedings were commenced in July and August, 1853, and interlocutory decrees, condemning the vessel, were entered in all of them, and final decrees in some six or seven. One of the parties obtaining a final decree issued execution, and the vessel was sold, and the proceeds brought into court. The vessel sold for $6,900.

In this stage of these proceedings, the present appellants filed their libel against the proceeds of the ship in court, setting, forth, that, being the owners of the vessel, they sold and delivered her to one A. Pellitier, for the sum of $15,000, on the 7th May, 1853; that of this sum a promissory note of the vendee was given for $5,000, payable in six months, which was secured by a mortgage upon a moiety of the vessel to the vendors, which was duly recorded, in pursuance of the act of Congress, on the 9th May, 1953, in the office of the collector of customs of the port of New York, where the vessel was then registered, and a copy of the mortgage was also filed in the office of the register of deeds of the city and county of New York.

The libel prayed process against a moiety of the proceeds of the vessel in court, claiming the same under, and by virtue of, the mortgage.

Several of the libellants, who had obtained either final or interlocutory decrees, above referred to, appeared, and put in answers to this libel of the mortgagees, setting up their proceedings, and the decrees condemning the vessel to pay their respective claims to the proceeds, in defence.

The case went to a hearing, when the District Court decreed to dismiss the libel. On an appeal, the Circuit Court affirmed the decree.

The libel filed in this case is a libel simply to foreclose a mortgage, or to enforce the payment of a mortgage, and the proceeding cannot therefore be upheld within the case of the John Jay, heretofore decided by this court. (17 How., 399.)

The proper course for the mortgagees was to have appeared as claimants to the libels filed against the vessel, in which the questions presented in the case might have been raised and considered; or, on the sale of the vessel, and the proceeds brought into the registry, they might have applied by petition, claiming an interest in the fund; and if no better right to it were shown than that under the mortgage, it would have been competent for the court to have appropriated it to the satisfaction of the claim. As the fund is in the custody of the admiralty, the application must necessarily be made to that court by any person setting up an interest in it. This application by petition is frequently entertained for proceeds in the registry, in cases where a suit in the admiralty would be wholly inadmissible. The decree of the court below is therefore right, and should be affirmed.


text: Talk:Schuchardt v. Babbidge/Opinion of the Court


text:
New York and Virginia Steamship Company v. Calderwood

THIS was an appeal from the Circuit Court of the United States for the southern district of New York.

It was a libel filed by Calderwood, and the other owners of a schooner called the 'Sprightling Sea,' against the steamship Roanoke, her tackle, &c., in a case of collision at the place and under the circumstances stated in the opinion of the court.

In July, 1853, the district judge decreed that the libellants should recover against the steamship the damages occasioned by the collision, and referred the case to a commissioner to ascertain the amount.

In September, 1854, the commissioner reported that there was due to the libellants, for the value of the vessel at the time of the collision, after deducting the amount for which the vessel sold $4,442.00

Amount added to the value above by court 200.00

The value of the freight     162.00

Interest on the above amounts, from Oct. 17, 1852 672.56

-

$5,476.56

The sum of five thousand four hundred and seventy-six dollars and fifty-six cents.

This report was confirmed by the District Court, and, upon appeal, the decree was affirmed by the Circuit Court, an appeal from which brought the case here.

It was argued by Mr. Van Winkle for the appellants, and Mr. Benedict for the appellees.

In a case of this kind, where the points of law are connected with the evidence, they can only be stated in general terms, although they may not be understood by the reader without a recital of the evidence. They were these on the part of the appellants. Mr. Van Winkle, after stating his version of the case, contended that the schooner was clearly to blame.

1. She was negligent; she was proceeding up a narrow river in the night time, without a pilot on board, without a light in her binnacle, and without a light displayed in any part of her hull or rigging. The steamer was moving as slowly as she could by steam; had three lights displayed, which were visible for miles; had a competent lookout, and at the approach of the danger, in the emergency, ported her helm. If the light first seen on her larboard bow was that of the schooner, she still did all she could do by hugging the easterly side of the channel, so as to pass the schooner on the larboard hand. (Trinity House Rule of 30th Oct., 1840.)2. It is the duty of a sailing vessel in a river or roadstead to carry a light at night, conspicuously displayed in her rigging: if not imperative on her to do so, it is a precautionary measure, dictated by prudence, and if neglected, precludes a recovery, except for wilful damage. (The Rose Gilmor, 2 Wm. Rob., 4; The Columbine, Norwood, Ibid., 33.)

3. If the schooner was not to blame, or not so much so as to render her liable, then it was a case of inevitable accident, and the loss must remain where it fell. (Stainback v. Rae, 14 How., 532.)

4. The true state of the case seems to be, that the two vessels, when they respectively discovered each other, were approaching on opposite courses on a line, or on parallel lines so close as to amount to the same thing; that the steamer ported her helm, bore off to the starboard, close to the edge of the channel, which is here very narrow; but the schooner, through mistake or mismanagement, changed her course, fell with the wind, and ran across the steamer's bows.

If this be so, the steamer was not the cause of the accident, but the schooner was.

5. But, admitting that the schooner kept her course, the steamer, as in duty bound, tried to pass to the leeward of her. The schooner's navigators had no right to persist in their course, when they knew, or ought to have known, by so doing they incurred the imminent danger of forcing the steamer ashore, in her endeavors to pass to the leeward. It comes within the exceptions laid down in St. John v. Paine et al., (10 Howard, 582.)

Mr. Benedict's points were the following:

I. The plan of the position of the vessels at the time of the collision, asserted by the defendants, and proved by them to be a fair plan of the place of collision, exhitits the schooner close in shore, in a deep bay, heading along shore, and the steamer far out of the channel-also close in shore, heading at the schooner-a position so surprising as to put the steamer on her defense, with the strongest presumption against her-the wind being about south, and the schooner close-hauled on the privileged tack. They do not produce a lookout. The captain and pilot say they had a lookout. If so, the not producing him is ground of strong suspicion.

II. Their helmsman, Henson, is called to explain, and he says, 'It was a kind of cloudy night; once in a while you would see the stars; it was not very thick or cloudy.' This is corroborated by all our witnesses and is true, although the captain and pilot swear it was pitch dark; could hardly see the width of this room. He says, also, 'The steamer was running N. W. half W., pretty much down the channel, rather more on the east, if anything.' 'There was ample room to have gone clear of her.' Under these circumstances, they would never come together.

They, however, came together, the steamer having changed her course, before the collision, towards the east shore. 'The pilot told me to keep her a little more to the east. He told me to port the helm, to give her more room. The next words he said were, 'hard a-port."

'Before we (steamer) changed our course, she was heading about down the channel. After we changed, she was heading towards the east shore.

The steamer struck the schooner, and cut her half in two.

I take this as the best account of the state of things in the steamer, for, although their other witnesses vary from it, it is quite clear that the man at the wheel is altogether the most reliable, and the pilot and the captain evidently are so much biased as not to be quite reliable. The weight of testimony is overwhelming in favor of this account of the matter.

III. The schooner was close-hauled, jam on the wind, her starboard tacks aboard, and continued so; all our witnesses swear to this. They know, and they alone know, how our sails were trimmed; and as soon as we saw the steamer's approach, we held up forward a good signal-light, and we were as close in shore as possible.

The testimony of some of their witnesses, that it was so dark that they could not see half the width of the room, although not true, is evidence that they did not see us, and are not, therefore, reliable witnesses as to our position, &c.

IV. By the settled law of navigation, the steamer is always held to have a free wind. She has so, in fact, being moved by a force within herself, and under her control. She makes the wind blow as she pleases, and she is therefore bound to avoid a sailing vessel. At this time she had also the outside atmospheric wind free, and the schooner was close-hauled on the wind on her starboard tack. On all grounds she had the right to hold her course, and the steamer was bound to avoid her.

V. The alleged declarations of the captain are of no value. They are highly improbable, in the sense in which they are offered. He says he never said so. What he did say may have been misunderstood or misremembered, so as to convert the mere language of civility into that of deliberate judgment, or he may have been adroitly led to say what he never intended to say. The question is not what the master said weeks afterwards, but what are the facts. He could not thus destroy the rights of the owners.

VI. There was a vessel at anchor on the western shore, a little further down, with a light up, and we showed a warning light just before the collision.

The probability is, that on board the steamer they came to the conclusion that the schooner had changed her course, by transferring their first observation of the vessel at anchor, with a light up, to the schooner with its signal light temporarily exposed; and from these negligent observations, supposing both vessels to be one, they mistook the position of the schooner, and endeavored to cut in between her and the shore, when she was within a few feet of the shore, and this caused that collision. If the steamer had kept the channel, or had taken a sheer to westward a minute before collision, she would have passed clear of us.

Mr. Justice CAMPBELL delivered the opinion of the court.


text: Talk:New York and Virginia Steamship Company v. Calderwood


text:
New York and Virginia Steamship Company v. Calderwood/Opinion of the Court

This is a case of collision, in which the steamship Roanoke is charged with having carelessly and negligently run into and afoul of the schooner Sprightling Sea, in the Elizabeth river, Virginia, in October, 1852.

The facts disclosed by the pleadings and proofs are, that the schooner was ascending the river between 10 and 11 o'clock, P. M., and sailing at a rate of six miles per hour, with the aid of the tide. She was close-hauled, on her starboard tack, at a time when she descried the steamship descending the river, on her voyage to Richmond. The collision occurred on the eastern side of the river, 'out of the ship channel,' 'near an edge of shoals,' and 'within a length or two of them.' The object of those who managed the schooner was to avoid all danger, by leaving as large a space as possible for the steamer, whose lights had been seen. For this purpose, they approached as nearly as possible the eastern shore the usual shore, for vessels navigated as she was, to ascend the river. The schooner did not carry a light in her fore rigging; but one was exhibited from her breast-hook some time before and till the time of the collision; and the steamer was hailed, and told to keep off.

The night was 'dark and rainy;' the steamer was not running at any time at an improper rate of speed. The officers of the steamship discovered the light on the schooner, and supposed it to belong 'to a vessel at anchor;' but they say the 'light disappeared, and the next time they saw it, it was near by, under the bow of the steamer.' The probability is, that the officers of the steamship were mistaken in their conclusions in reference to the course of the schooner, and under that mistaken impression went to the eastern side, and thus encountered her. No orders were given by the pilot in respect to the management of the steamer till the instant of the collision.

This court has decided that neither rain, nor the darkness of the night, nor the absence of a light from a barge or sailing vessel, nor the fact that the steamer was well manned, and furnished, and conducted with caution, will excuse the steamer for coming in collision with the barge or sailing vessel, where the barge or sailing vessel is at anchor, or sailing in a thoroughfare, out of the usual track of the steam vessel. In the present instance, the steamer had notice that a vessel was before her, and was near her track, and, under the circumstances, she was bound to take efficient measures to avoid the schooner.

The only facts we notice in the management of the schooner, which have occasioned a hesitation to affirm the decree, are the absence of a licensed pilot, and that the schooner did not exhibit an efficient light. The proofs in the case do not allow us to charge these omissions as indications of negligence; but, that the case may not be misunderstood, we assert that the ruling principle of the court is, that an obligation rests upon all vessels found in the avenues of commerce to employ active diligence to avoid collisions, and that no inference can be drawn from the fact, that a vessel is not condemned for an omission of certain precautionary measures in one case, that another vessel will be excused, under other circumstances, for omissions of the same description.

The decree of the Circuit Court is affirmed.


text: Talk:New York and Virginia Steamship Company v. Calderwood/Opinion of the Court


text: 1911 Encyclopædia Britannica/Indri

title: 1911 Encyclopædia Britannica/Indri


text:
Williams v. McLane

THIS case was brought up, by writ of error, from the District Court of the United States for the middle district of Alabama.

The case is stated in the opinion of the court.

It was argued by Mr. Phillips for the plaintiff in error, and Mr. Hilliard for the defendant.

Mr. Phillips made the following points:

The answer of garnishee is required by the statute to be under oath, and when not disproved, must be taken as true. (Code, sec. 2,540; Davis v. Knapp & Shew, 8 Mo., 657; Kergen v. Dawson, 1 Gilman, 89; Muson v. Campbel, 2 Pike, 511.)

The plaintiff by the statute is allowed to 'controvert' the answer; that is, he may show it to be untrue. The present code of Alabama does not point out the particular mode of proceeding; but when the issue is made up, it is evident the trial must proceed as in other cases. The statute, as it existed before the adoption of the 'code' in express terms requires that 'an issue shall be formed and tried as in other cases. (Clay's D., p. 60, sec. 25; Code, sec. 2,546; Thomas v. Hopper, 5 Al. Rep., 442.)

Not only the answer denies any indebtedness, but the promissory notes produced and proved, import a consideration. This by the law merchant and by the statute of Alabama. (Code, p. 424, sec. 2,278.)

By the well-established judicial construction of the attachment law, 'no demand can be recovered by writ of garnishment, on which the defendant in the judgment, who is also the creditor of the garnishee, could not maintain debt or indebitatus assumpsit.' (Self v. Kirkland, 24 A. R., 277.)

It follows that the proof required by the present plaintiff is the same as would have been required of the defendant in the judgment, if he had brought the suit. Could he have recovered on the evidence in this record?

There being no evidence disproving or tending to disprove the answer which denied any indebtedness, and nothing impeaching the consideration of the notes, there was no predicate for the charge as to 'fraud and collusion.' The bill of exceptions sets out all the evidence in the cause. Where the facts are not disputed, fraud is a question of law. (Swift v. Fitzhugh, 9 Port, 66, 67; Gillespie v. Battle, 15 A. R., 285.)The points made by Mr. Hilliard were the following:

The answer of garnishee is not taken as true, when controverted by the plaintiff, his agent, or attorney. (Code, sec. 2,546.)

The code provides, that the answer of a garnishee being controverted by the oath of the plaintiff, his agent, or attorney, an issue must be made up under the direction of the court; and if required by either party, a jury must be empanelled to try the facts. (Code, sec. 2,546.)

The answer of garnishee is not evidence for himself upon the trial of this issue; the onus of disproving the facts of the answer of garnishee does not rest on the plaintiff. (Travis v. Taritt, 8 Ala., 574; Myatt v. Lockhart, 9 Ala., 94, 95.)

The only proof offered by garnishee to the court and jury, going to show that he was not indebted to defendant in execution, was that certain promissory notes had been made by said defendant, but the date of said notes, or rather the actual time of their execution, did not appear from any testimony. They were merely offered by garnishee as a set-off against the plaintiff's suit for the excess of money remaining in garnishee's hands after satisfying the debts provided for in the mortgages; and the consideration of said notes was not in proof.

The charge of the court, if erroneous, is in favor of the garnishee, and he cannot revise it in this court.

The counsel for plaintiffs requested the court to charge the jury, that their judgment against the defendant was a lien on his house and lot; and that they were entitled to the proceeds arising from the sale of said property, after the notes named in the mortgages were satisfied. This charge the court refused.

If the court erred in this, then garnishee cannot complain of it, nor can he of the remaining part of the charge; for if the judgment of plaintiffs be a lien, then they can recover, irrespective of the question of fraud.

The charge should have been given by the court. (19 Ala., 195, 196; 19 Ala., 753; 21 Ala., 504; Hazard v. Franklin, 2 Ala., 349.)

The charge of the court on the second point, as to fraud, was clearly correct.

It was a question for the jury; the facts were disputed; the very existence of the notes denied; the silence of garnishee respecting them, in his interview with plaintiff's counsel on the day of sale; his offer to relinquish his claim to the house and lot, upon being paid the remainder of the sum due on the notes named in the mortgages; the good faith of the entire transactions between garnishee and defendant in execution being contested-all this, and other facts appearing in evidence, presented a case which a jury alone could decide. The very proceeding, being an issue made up under the code, was a question of fraud or no fraud, and either party was entitled to a jury. (Code, sec. 2,546.)

The general principle, that no demand can be recovered by writ of garnishment, on which the defendant in the judgment could not recover, is conceded; but this principle does not affect this case.

The court, if it erred, was in error in instructing the jury, that if fraud existed between defendant and garnishee, then defendant (Mahone) could not recover, in action against garnishee, (Williams,) the excess in the hands of garnishee arising out of the sale of the house and lot.

Why could he not recover? Because of certain fictitious notes, fraudulently executed by said defendant to said garnishee, for the very purpose of defrauding creditors.

This is obviously incorrect; it ignores the very principle that it seems to sustain, viz: that a party to a fraudulent contract cannot invoke the aid of a court to sustain it.

Williams holds in his hands a fund arising out of a bona fide transaction; and yet Mahone, to whom the fund belongs, cannot recover it, because Williams sets up these fictitious notes, executed by Mahone, with a fraudulent intent. A set-off is in the nature of a cross-action, and, by the ruling of the court, Williams could recover upon fictitious and fraudulent notes.

But if the charge of the court be correct upon that point, and if it be true that Mahone could not recover from Williams, because of fraud, yet plaintiffs may subject the fund in the hands of garnishee to their debt. A garnishee is called into court to answer, not only as to his indebtedness to defendant, but as to his having in his possession the property, money, or effects, of defendant. (See Record, p. 2.)

The jury, by their verdict, found, after reviewing all the testimony, that garnishee was indebted to defendant in execution, and the judgment was correctly entered in favor of plaintiffs against garnishee, for the amount remaining in his hands, after satisfying the debts secured by mortgage.

Mr. Justice CAMPBELL delivered the opinion of the court.

title: Williams v. McLane


text: Talk:Williams v. McLane

title: Talk:Williams v. McLane