text:
White v. Luning/Opinion of the Court

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

This was an action of ejectment by the defendant in error to recover the possession of certain lands situate in Santa Cruz County, Cal., being a part of the rancho Sal Si Puedes, and containing 1,021 3/4 acres.

By written stipulation of the parties, the case was tried by the court, which found the following facts:--

First, That the rancho Sal Si Puedes lies partly in the county of Santa Cruz and partly in the county of Santa Clara, and was finally surveyed and patented to the claimants, of whom the said White was one, in the year 1861.

Second, On the eleventh day of April, 1866, said White was the owner of certain portions of the said Sal Si Puedes rancho, and, as such owner, mortgaged the same to the plaintiff herein.

Third, An action was afterwards commenced by the plaintiff herein, in the District Court of the Third Judicial District of the State of California for the county of Santa Cruz, against the said White and other defendants, to foreclose said mortgage; and such proceedings were duly had therein, that on the eleventh day of April, 1866, a judgment of foreclosure and sale was entered therein, whereby, among other things, it was decreed that the mortgaged premises should be sold at public sale by the sheriff of Santa Cruz County, and the proceeds of such sale should be paid over to the plaintiff therein. The premises in controversy were embraced in said mortgage, and in the lands directed to be sold by said decree.

Fourth, That afterwards the said White directed the said sheriff to sell said mortgaged premises in parcels, one of which parcels contained 1,021 3/4 acres; and said sheriff thereupon in obedience to said judgment and said directions of said White, on the twentieth day of August, 1866, duly sold said premises in parcels, and at said sale the plaintiff became the purchaser of three of said parcels for the sum of $15,600, the other parcels being sold to other purchasers; which parcels are not separately described in the decree and order of sale, but are embraced in the description therein set forth.

Fifth, That afterwards, and in pursuance of said sale, on the twenty-seventh day of February, 1867, the time for redemption from said sale having elapsed, Albert Jones, sheriff of the county of Santa Cruz, executed, acknowledged, and delivered to the plaintiff his sheriff's deed, wherein it was recited that by a certain judgment of foreclosure and sale, entered in the District Court of the Third Judicial District of the State of California in and for the county of Santa Cruz, in the action of Nicholas Luning, plaintiff, against William F. White, Frances J. White, Eugene Casserly, and Nicholas McCarty, defendants, on the eleventh day of April, 1866, the said sheriff was commanded to sell at public auction, according to law, to satisfy the said judgment, amounting to $23,968.69, and interest and costs of suit, and expenses of sale.

That in pursuance of a certified copy of the order of sale, duly delivered to the said sheriff, he duly advertised, and sold at public auction, on the twentieth day of August, 1866, at twelve o'clock noon, to the highest bidder, for cash, three several parcels of land to the plaintiff for the sum of $15,600, he being the highest and best bidder therefor, and delivered to him a certificate of sale, as required by law; that the time allowed by law for redemption expired without redemption having been made; that said sheriff, in pursuance of said judgment and of the statute in such case made and provided, for the consideration of $15,600 granted and conveyed to the plaintiff the said three parcels of land firstly, secondly, and thirdly described in said deed.

That the premises sought to be recovered in this action are described in said deed as one of said parcels, as follows:--

'All that tract of land situate in the county of Santa Cruz, being part of the rancho Sal Si Puedes, beginning at a post, marked 'S,' which stands in the old fences on the south boundary of the land of W.F.White, S. 46 1/2° E. 6 6/100 chains, from the east line of White's valley partition; thence, by true meridian (magnetic variation, 15° 30' E.), along said fence and on said line of partition the following courses: S. 46°30' E. 20 47/100 chains, S. 60°30' E. 4 12/100 chains, S. 73° E. 4 24/100 chains, S. 77° E. 12 14/100 chains, S. 88 1/2° E. 18 chains, S. 69 1/4° E. 3 70/100 chains, N. 47 1/2° E. 127 chains, to the north boundary of the rancho Sal Si Puedes on the mountains; thence along said north boundary the following courses: N. 52 1/2° W. 11 10/100 chains, S. 75 1/2° W. 15 90/100 chains, S. 79° W. 11 40/100 chains, N. 20° W. 2 chains, S. 83 1/2° W. 12 80/100 chains, N. 72° W. 13 70/100 chains, N. 22 1/4° W. 6 20/100 chains, N. 65° W. 5 16/100 chains, N. 59 1/2° W. 7 93/100 chains, N. 42 1/4° W. 14 71/100 chains, N. 1° E. 11 chains, N. 3° W. 25 90/100 chains, N. 26 3/4° W. 4 50/100 chains, S. 46 1/4° W. 77 75/100 chains, to the pasture fence; thence along said pasture fence the following courses: S. 34°20' E. 11 43/100 chains, S. 10° E. 3 16/100 chains, S. 27 1/2° W. 4 71/100 chains, S. 40° W. 2 36/100 chains, S. 65°50' W. 4 90/100 chains, S. 47 1/2° W. 4 86/100 chains, S. 72 1/2° W. 10 55/100 chains, S. 89 1/2° W. 5 27/100 chains, S. 65° W. 11 74/100 chains, to a post marked S, from which a forked red oak, 12 inches in diameter, marked 'B. T.,' bears S. 65° W., distant 38 Jinks; thence S. 47°42' E. 50 32/100 chains, to a post on the south side of a ravine, and thence S. 41°37' E. 17 32/100 chains to the place of beginning, containing 1,021 3/4 acres.'

Sixth, That the post marked 'S,' being the point of beginning mentioned in said deed, the fence along the line of partition, the mountains, the pasture fence, the forked red oak marked 'B. T.,' the post on the south side of a ravine, all of which are called for in said deed, are all well known and existing monuments, and are all within the county of Santa Cruz. That the said partition fence does not run to or in the direction of either the north boundary of the rancho Sal Si Puedes or the mountains, but runs nearly parallel thereto, and that the course N. 47 1/2° E. 127 chains is not the course of such partition fence, but is nearly at right angles thereto. That the summit of the first range of mountains is the northerly boundary line between said county of Santa Cruz and said county of Santa Clara, and said summit and said county line are about the distance of 127 chains from the point in said fence where the course N. 47 1/2° E. begins, and in the direction of said course.

That the northerly boundary of said rancho Sal Si Puedes is not in the county of Santa Cruz, but in the county of Santa Clara, on another range of mountains, about three-quarters of a mile beyond the summit of said first range of mountains, and beyond the said county line situate thereon in the same (northerly) direction.

That leaving said fence at the point where the course N. 47 1/2° E. 127 chains begins, and running thence the said course and distance, and all the remaining courses and distances as laid down in said deed, but rejecting the words of the call at the end of said course, 'the north boundary of the rancho Sal Si Puedes on,' and, 'along said north boundary,' and changing the last course of the description from S. 41°37' E., so as to make it read S. 41°37' W. 17 23/100 chains to the place of beginning; all other calls, monuments, courses, and distances in said deed completely harmonize, and the lines enclose a tract of land containing 1,021 3/4 acres of land situate entirely within the county of Santa Cruz, being the quantity of land called for in said sheriff's deed, and the same tract of land sued for in this action; or, in other words, if, from the point of beginning, the courses and distances of said description contained in said sheriff's deed, being the field-notes of the survey, are followed from the point of beginning, changing east into west in the last course, the lines would close, embracing the said lands, and would correspond with all the other calls and monuments mentioned in the deed, except that there would be a departure at nearly right angles from the fence at the beginning of the call N. 47 1/2° E. 127 chains, and the lines would not extend to, or in any manner correspond with, the north boundary of the rancho Sal Si Puedes.

Seventh, That if the course N. 47 1/2° E. should be continued some three-quarters of a mile beyond the 127 chains called for in the deed, to the north boundary of the rancho Sal Si Puedes, and from that point the remaining courses and distances be run according to the calls in the said sheriff's deed, the line so run would not follow the north line of the rancho other than its general course, nor touch the partition fence, nor correspond with any of the other subsequent calls named in the deed, nor would the lines close, nor would they enclose the land sued for, nor the quantity called for in the deed.

Eighth, That if from the point at the end of the course N. 47 1/2° E. 127 chains the remaining courses and distances should be run as laid down in the said sheriff's deed to the point of beginning of the course '§ 46 1/4° W. 77.76 chains to the pasture fence,' the said line would run along the summit of the said first mountain range in the same general direction of the county line, but would not follow it; running thence the last-named course and distance, the partition fence would be reached, not in the general course of the county line, but in a course nearly at right angles to the general course of said county line. The pasture fence, and all calls, other than these herein in the sixth and ninth findings named as excepted and rejected, would be reached by following the courses and distances called for in the said sheriff's deed.

Ninth, That all the calls in the said description cannot be harmonized so as to enclose the premises sought to be recovered, nor any other land; that the call for continuing the line along White's valley partition fence beyond the point where the call for course and distance is 'N. 47 1/2° E.,' is repugnant and inconsistent; that the call for the northern boundary of the rancho Sal Si Puedes on the mountains is false and mistaken; that the calls to run along that northern boundary till the pasture fence is reached is alike false and mistaken; that without rejecting each of the said false, mistaken, and repugnant calls, the description will not enclose the land in controversy.

That afterwards the defendants entered upon and ousted the plaintiff from said land, and at the commencement of this action were and are still in possession thereof, without any title thereto whatsoever.

The court further found as conclusions of law,--

First, That the said false, mistaken, and repugnant calls in these findings mentioned should be rejected from the said description, and the calls for courses and distances from the starting-point be adopted as descriptive of the lands conveyed by said sheriff's deed, rejecting the said false, mistaken, and repugnant calls therefrom.

Second, That by virtue of said sale and sheriff's deed the title to the land described in the plaintiff's complaint became, and still is, vested in fee-simple absolute in the plaintiff herein, and that the plaintiff is entitled to recover in this action the land and premises described in the complaint by courses and distances, rejecting from the description in the said sheriff's deed the said false, mistaken, and repugnant calls, together with his costs of suit.

The court thereupon gave judgment for the plaintiff.

The defendants thereupon sued out this writ, and assign for error in this court the action of the court below in admitting the sheriff's deed to prove title to the land sued for.

The description of the premises as furnished to the sheriff and that contained in the complaint is as follows:--DESCRIPTION FURNISHED TO THE SHERIFF.

All that tract of land situate in the county of Santa Cruz, being part of the rancho Sal Si Puedes; beginning at a post marked S, which stands in the old fences on the south boundary of the land of W. F. White, south 46 1/2° east 6/100 chains from the east line of White's valley partition; thence, by true meridian (magnetic variation 15°30' east), along said fence and on said line of partition the following courses:--

1. South 46°30' east 20 47/100 chains.

2. South 60°30' east 4 12/100 chains.

3. South 73° east 4 24/100 chains.

4. South 77° east 12 14/100 chains.

5. South 88 1/2° east 18 chains.

6. South 69 1/4° east 3 70/100 chains; thence

7. North 47 1/2° east 127 chains to the north boundary of the rancho Sal Si Puedes on the mountains; thence along the said north boundary the following courses:--

8. North 52 1/2° west 11 10/100 chains.

9. South 75 1/2° west 15 90/100 chains.

10. South 79° west 11 40/100 chains.

11. North 20° west 2 chains.

12. South 83 1/2° west 12 80/100 chains.

13. North 92° west 13 70/100 chains.

14. North 22 1/4° west 6 20/100 chains.

15. North 65° west 5 16/100 chains.

16. North 59 1/2° west 7 93/100 chains.

17. North 42 1/2° west 14 71/100 chains.

18. North 1° east 11 chains.

19. North 3° west 25 90/100 chains.

20. North 26 3/4° west 4 50/100 chains.

21. South 46 1/4° west 77 75/100 chains. to the pasture fence; thence along the pasture fence the following courses:--

22. South 34.20° east 11 43/100 chains.

23. South 10° east 3 16/100 chains.

24. South 27 1/2° west 4 71/100 chains.

25. South 40° west 2 36/100 chains.

26. South 65.50° west 4 90/100 chains.

27. South 47 1/2° west 4 86/100 chains.

28. South 72 1/2° west 10 55/100 chains.

29. South 89 1/2° west 5 27/100 chains.

30. South 65° west 11 74/100 chains to a post marked S, from which a forked red oak, 12 inches in diameter, marked 'B. T.,' bears south 65° west, distant 38 links; thence

31. South 47°42' east 50 32/100 chains to a post on the south side of a ravine; and thence

32. South 41°37' east 17 32/100 chains to the place of beginning, containing 1,021 3/4 acres.

This is the table referred to by the graphic caption.

BOUNDARIES OF LOT NO. 1.

NO. COURSE. DIST. NO. COURSE. DIST.

1 S.46 1/2 E. 20.47       17     N.42 1/4  W.  14.

2 S.60 1/2 E. 4.1218     N. 1x  E.  11.

3 S.73 E.     4.2419     N. 3  W.  25.

4 S.77 E.     12.14       20     N.26 3/4  W.  4.

5 S.88 1/2 E. 18.00       21     S.46 1/4  W.  77.

6 S.69 1/4 E. 3.7022     S.34 1/3  E.  11.

7 N.47 1/2 E. 127.00      23     S.10  E.  3.

8 N.52 1/2 W. 11.10       24     S.27 1/2  W.  4.

9 S.75 1/2 W. 15.90       25     S.40  W.  2.

10      S.79 W.       11.40       26     S.69 5/6  W.  4.

11      N.20 W.       2.0027     S.47 1/2  W.  4.

12      S.83 1/2 W.   12.80       28     S.72 1/2  W.  10.

13      N.72 W.       13.70       29     S.39 1/2  W.  5.

14      N.22 1/4 W.   6.2030     S.69  W.  11.

15      N.65 W.       16.00       31     S.47.42  E.  50.

16      N.59 1/2 W.   7.9332     S.41.37  W.  17.

All that tract of land situate in the county of Santa Cruz, being part of the rancho Sal Si Puedes; beginning at a post marked S, which stands in the old fences on the south boundary of the land of W. F. White, south 46 1/2° east 6.06 chains from the east line of White's valley partition; thence, by true meridian (magnetic variation 15°30' east), along said fence and on said line of partition the following courses:--

South 46°30' east 20.47 chains.

South 60°30' east 4.12 chains.

South 73° east 4.24 chains.

South 77° east 12.14 chains.

South 88 1/2° east 18 chains.

North 47 1/2° east 127 chains; thence the following courses:

North 52 1/2° west 11.10 chains.

South 75 1/2° west 15.90 chains.

South 79° west 11.40 chains.

North 20° west 2 chains.

South 83 1/2° west 12.80 chains.

North 72° west 13.70 chains.

North 22 1/4° west 6.20 chains.

North 65° west 5.16 chains.

North 59 1/2° west 7.93 chains.

North 42 1/2° west 14.71 chains.

North 1° east 11 chains.

North 3° west 25.90 chains.

North 26 3/4° west 4.50 chains.

South 46 1/4° west 77.76 chains to the pasture fence; thence along the pasture fence the following courses:--

South 34.20° east 11.43 chains.

South 10° east 3.16 chains.

South 27 1/2° west 4.71 chains.

South 40° west 2.36 chains.

South 65.50° west 4.90 chains.

South 47 1/2° west 4.86 chains.

South 72 1/2° west 10.55 chains.

South 89 1/2° west 5.27 chains.

South 65° west 11.74 chains to a post marked S, from which a forked red oak, 12 inches in diameter, marked 'B. T.,' bears south 65° west, distant 38 links; thence

South 47°42' east 50.52 chains to a point on the south side of a ravine; and thence

South 41°37' west 17 32/100 chains to the place of beginning, containing 1,021 3/4 acres.

The accompanying map indicates the position of the land in controversy.

The case was argued by Mr. Montgomery Blair for the plaintiffs in error.

A sheriff's deed is strictly construed, and no property passes by it which is not described with reasonable certainty. Mason v. White, 11 Barb. 173; Rector v. Hart, 7 Mo. 531; Clemens v. Raunells, 34 id. 579.

Every part of the description in such a deed must be read and satisfied with reasonable certainty, and no part of it can be rejected for its falsity. 19 N. H. 290; 22 Wis. 167; 1 N. H. 93; Raymond v. Longworth, 14 How. 76; Dyke v. Lewis, 2 Barb. 344; Tallman v. White, 2 Comst. 66; Jackson v. DeLancy, 11 Johns. (N. Y.) 367; Jackson v. Rosevelt, 13 id. 97.

Hence, a description in which the calls cannot be harmonized, and in which several of the calls for monuments and one for courses must be rejected to enclose the land, has not the certainty required by law.

A sheriff's deed does not, like a deed inter partes, admit of the consideration of extraneous circumstances to arrive at its intent. Its intent must be found in its terms; and, if they are contradictory, it is void, unless the circumstances are such as to entitle the grantee to have the deed reformed.

The proceeding to reform it is, in its nature, an equitable one, in which the relief and the grounds upon which it is asked must be stated in the pleadings. In the absence of such a prayer, even if the proof showed a case for equitable relief, it would be error in the court to grant it, either directly by decree reforming the deed, or in effect by rejecting calls found to be false, mistaken, and repugnant.

No case for equitable relief is shown. There is no proof that it was actually made known that the land in question was the land offered for sale, or that it was a fair sale, or that any thing at all was paid for it.

Mr. William Henry Rawle for the defendant in error.

In cases of deeds inter partes, erroneous descriptions will be rejected to conform to the true intent of the deed. Brown v. Huger, 21 How. 306; Howe v. Bass, 2 Mass. 380; Penman v. Wead, 6 id. 132; Caldwell v. Holder, 40 Penn. 168; Lodge v. Barnet, 46 id. 477; Warter v. Picot, 33 Mo. 490; Kellogg v. Muller, id. 571; Park v. Pratt, 38 Vt. 545.

In the case of conflicting monuments, the rule of law is, that the courses and distances are evidence of the true description; and where it appears from the deed that a monument is erroneously inserted, it will be rejected. Shipp v. Miller, 2 Wheat. 316; Barclay v. Howell, 6 Pet. 511; Atkinson v. Cummins, 9 How. 485; Noonan v. Lee, 2 Black, 504; Davis v. Rainsford, 17 Mass. 207; Thatcher v. Howland, 2 Met. (Mass.) 41; Park v. Loomis, 6 Gray (Mass.), 472; Bosworth v. Shutsvort, 2 Cush. (Mass.) 393; Hamilton v. Foster, 45 Me. 40; Evans v. Greene, 21 Mo. 481; Gibson v. Bogy, 28 id. 481; Bass v. Mitchell, 22 Texas, 285; Browning v. Atkinson, 37 id. 633; Bagley v. Morrill, 46 Vt. 99.

It is obvious that when the reason ceases for making monuments control, the rule also ceases; and, a fortiori, where, as in this case, all the courses and four subsequent boundaries harmonize, one conflicting boundary will be rejected.

The expression of the quantity of land contained in the deed is very material. Kirkland v. Way, 3 Rich. 4; Mann v. Pearson, 2 Johns. 37; Fuller v. Caw, 33 N. J. 157; 1 Greenl. on Ev. p. 437, note. So, also, is the question of ownership. Dygert v. Phelps, 25 Wend. 404; Piper v. True, 36 Cal. 619.

In all that relates to the description of the property conveyed, the rules of construction are the same in all deeds, whether inter partes or made by officials. Atkinson v. Cummins, 9 How. 479; Marshall v. Greenfield, 8 Gill & Johns. 358; Lodge v. Barnett, 46 Penn. St. 483; Bartlett v. Judd, 21 N. Y. 200; Mellow v. Hammond, 17 Mo. 192; Wing v. Burgis, 13 Me. 111; Higgins v. Ketchum, 4 Dev. & Bat. (N. C.) L. 414; Farys v. Farys, 1 Harp. (S.C..) 261; Reid v. Healsey, 9 Dana (Ky.), 326; Shewalter v. Pisner, 55 Mo. 219; Doe v. Vallejo, 29 Cal. 388; Quivey v. Baker, 37 id. 471; Dyson v. Leek, 2 Rich. (S.C..) 543; Bates v. Bank, 15 Mo. 311; Bank v. Bates, 17 id. 583; Lisa v. Lindell, 21 id. 128; Coffee v. Silvan, 15 Texas, 354; Hackworth v. Zollars, 30 Iowa. 433; Dygert v. Phelps, 25 Wend. (N. Y.) 402.

MR. JUSTICE DAVIS delivered the opinion of the court.

This is the case of a mortgagor unable to pay his debt, and getting it satisfied by a judicial sale of the mortgaged premises, who, on the ground that no title passed by reason of misdescription in the deed of the sheriff, seeks to prevent his creditor, who purchased them, from recovering possession. And this, too, when, if there be any misdescription, it was presumably caused by him, as they were offered for sale in parcels, by his direction and for his advantage. As the court does not find that the descriptive errors misled any person, or caused any sacrifice of the property, the presumption is, that no one was injured, and that the property brought a full price. Obviously, therefore, there are no merits in this defence. It rests alone on the idea that sheriffs' deeds and ordinary deeds inter partes are subject to different rules of construction. In regard, however, to the description of the property conveyed, the rules are the same, whether the deed be made by a party in his own right, or by an officer of the court. The policy of the law does not require courts to scrutinize the proceedings of a judicial sale with a view to defeat them. On the contrary, every reasonable intendment will be made in their favor, so as to secure, if it can be done consistently with legal rules, the object they were intended to accomplish. Is this deed void for uncertainty of description, or can the property intended to be conveyed be reasonably located by means of that description? The court below located it by adopting, except in one instance, the calls for courses and distances, and rejecting as false and repugnant certain calls for known objects. It is true, that, as a general rule, monuments, natural or artificial, referred to in a deed control, on its construction, rather than courses and distances; but this rule is not inflexible. It yields whenever, taking all the particulars of the deed together, it would be absurd to apply it. For instance, if the rejection of a call for a monument would reconcile other parts of the description, and leave enough to identify and render certain the land which the sheriff intended to convey, it would certainly be absurd to retain the false call, and thus defeat the conveyance.

Greenleaf, in his Treatise on Evidence (vol. i. sect. 301), in speaking on this subject, in effect says, That where the description in the deed is true in part, but not true in every particular, so much of it as is false is rejected, and the instrument will take effect if a sufficient description remains to ascertain its application. Applying this rule to the subject-matter of this deed, we do not think there is any difficulty in reaching the conclusion that the description is sufficiently certain to pass the title to the land.

The court below found, among other things, that if the courses and distances, being the field-notes of the survey, are followed from the point of beginning, changing east into west in the last course, the lines would, by closing, embrace the tract of land sued for, and correspond with all the other calls and monuments mentioned in the deed, except that there would be a departure at nearly right angles from the partition fence at the beginning of the call N. 47 1/2° E. 127 chains, and the lines would not extend to, nor in any manner correspond with, the north boundary of the rancho Sal Si Puedes. There are, therefore, three descriptive errors, which, if removed from the deed, would harmonize all other particulars in it, and leave enough words of description to identify the demanded premises.

These errors will be noticed in the order stated by the court. The deed closes with these words: 'and thence S. 41°37' E. 17.32 chains to the place of beginning.' This distance was correct, and so, except in one particular, was the course. It should have been west instead of east. To follow the course as given would manifestly not close the lines of the survey; and as, other things being equal, boundaries prevail over courses, the court rejected the latter and adopted the former as the true description in this particular. This was so obviously right, that further comment is unnecessary.

The next error relates to the 'fence along the line of partition.'

There is a call for this fence as a boundary during the running of seven courses; but it is plainly a false call, after the sixth course has been run, for the seventh course departs at nearly right angles from the line of the fence, and if this course be rejected and the call for the fence retained, none of the other calls in the deed can be complied with, and the instrument is wholly unintelligible. On the contrary, if this course be accepted as the true description, and the call for the fence be discarded at the termination of the sixth course, there is no difficulty of harmonizing the other parts of the deed, with the exception of the northern boundary, and the difficulty there, we think, can be easily removed. It would therefore be manifestly wrong, not to say absurd, to retain the call for the fence, and reject the call for the course and distance. The reason why monuments, as a general thing, in the determination of boundaries control courses and distances, is, that they are less liable to mistakes; but the rule ceases with the reason for it. If they are inconsistent with the calls for other monuments, and it is apparent from all the other particulars in the deed that they were inadvertently inserted, the reason for retaining them no longer exists, and they will be rejected as false and repugnant. This applies with equal if not greater force to the last and main error in this deed. Adopting the seventh course as the true description, the calls in the deed proceed as follows: 'N. 47 1/2° E. 127 chains to the north boundary of the rancho Sal Si Puedes on the mountains, thence along said north boundary the following courses,' &c.

The calls for these boundaries are equally false and mistaken with the call for continuing the line along the partition fence, as is clearly shown in the findings of fact by the court below. There are two ranges of mountains in the direction of the course N. 47 1/2° E. The summit of the first range is the nortnerly boundary line between the counties of Santa Cruz and Santa Clara, and both the summit and county line are about the distance of 127 chains from the point in the partition fence where the course N. 47 1/2° E. begins.

There is another range of mountains in the same northerly direction, in the county of Santa Clara, about three-quarters of a mile beyond the summit of the first range, and the northerly boundary of the rancho Sal Si Puedes is on this range of mountains.

The calls for courses and distances run along the summit of the first range, and do not apply to the second. Besides this, if the summit of the first be treated as the boundary intended to be called for, all other calls, monuments, courses, and distances in the deed completely harmonize, except the two descriptive errors which have already been corrected, and the lines enclose a tract of the precise number of acres sued for, lying wholly within the county of Santa Cruz. But if the call for 'the north boundary of the rancho' be retained as the true description, there is not only conflict with all the remaining courses and distances, but all the subsequent monuments mentioned in the deed, and the lines would not enclose the land in controversy, nor, indeed, any other. With all these facts to rest upon, is not the conclusion irresistible, that the words of the call at the end of the course N. 47 1/2° E. 127 chains-to wit, 'the north boundary of the rancho Sal Si Puedes on the mountains,' and 'along said boundary the following courses' were mistakenly inserted, and should be rejected? Rejecting them, with the other particulars we have named, from the deed as false and inconsistent with the other parts of the description which are true, and of themselves sufficient to make a complete instrument, we are able to give effect to this judicial sale, according to the plain and manifest meaning of the officer who had it in charge.

It is rare, where so many field-notes of the survey of an irregularly shaped tract of land are incorporated in a deed, that there are so few mistakes. The courses and distances in this deed are numerous, and are all correct, except the last; and there the only error is in the course, which is easily corrected, as the call is for the post where the survey begins. And these courses and distances enclose the identical land in dispute. In such a case, it would be wrong to let two false boundaries stand in order to defeat a conveyance.

It is proper to remark that a map will accompany the report of this case, so as to make this opinion intelligible.

Judgment affirmed.

title: White v. Luning/Opinion of the Court


text: Talk:White v. Luning/Opinion of the Court

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


text: Home Insurance Company v. Baltimore Warehouse Company


text: Talk:Home Insurance Company v. Baltimore Warehouse Company


text:
Home Insurance Company v. Baltimore Warehouse Company/Opinion of the Court

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

This was assumpsit by the defendant in error, commenced June 2, 1873, on a policy of insurance issued to it Dec. 7, 1869, by the plaintiff in error, and containing, among others, the following provisions:--

'By this policy of insurance the Home Insurance Company, in consideration of $100 to them paid by the insured hereinafter named, the receipt whereof is hereby acknowledged, do insure Baltimore Warehouse Company against loss or damage by fire to the amount of $20,000, on merchandise hazardous or extra hazardous, their own or held by them in trust, or in which they have an interest or liability, contained in that part of the State tobacco-warehouse No. 2, used by them, lying between Frederick-Street Dock and Long Dock, separated by a street from the south end of the Maryland Sugar Refinery. Other insurance permitted without notice, unless required.

'To cover whilst on the street and pavement around said warehouse. As per application.

'And the Home Insurance Company above named, for the consideration aforesaid, do hereby promise and agree to make good unto the said assured, their executors, administrators, or assigns, all such loss or damage, not exceeding in amount the sum insured, as shall happen by fire to the property as above specified during one year,-to wit, from the seventh day of December, 1869 (at twelve o'clock at noon), until the seventh day of December, 1870 (at twelve o'clock at noon),-the said loss or damage to be estimated according to the actual cash value of the said property at the time the same shall happen; and to be paid within sixty days after due notice and proof thereof made by the insured, in conformity to the conditions annexed to this policy, unless the property be replaced by similar property of equal value and goodness, or the company have given notice of their intention to rebuild or repair the damaged premises.'

Also the following conditions:--

'9. Persons sustaining loss or damage by fire shall forthwith give notice thereof in writing to the company, or its agent, and as soon after as possible they shall deliver as particular an account of their loss and damage as the nature of the case will admit, signed with their own hands. And they shall accompany the same with their oath or affirmation, declaring the said account to be true and just; showing also the ownership of the property insured; what other insurance, if any, existed on the same property, and giving a copy of the written portion of the policy of each company; what was the whole cash value of the subject insured; what was their interest therein; in what general manner (at to trade, manufactory, merchandise, or otherwise) the building insured or containing the subject insured, and the several parts thereof, were occupied at the time of the loss, and who were the occupants of such building; and when and how the fire originated, so far as they know or believe.'

'13. It is furthermore hereby expressly provided, that no suit or action of any kind against said company, for the recovery of any claim upon, under, or by virtue of this policy, shall be sustainable in any court of law or chancery, unless such suit or action shall be commenced within the term of twelve months next after any loss or damage shall occur; and in case any such suit or action shall be commenced against said company after the expiration of twelve months next after such loss or damage shall have occurred, the lapse of time shall be taken and deemed as conclusive evidence against the validity of the claim thereby so attempted to be enforced.'

By an act of the general assembly of Maryland, passed at the January session, 1867, the defendant in error was chartered for the purpose of carrying on the business of warehousemen and forwarders in the city of Baltimore. It was 'expressly prohibited from buying or selling any goods, wares, or merchandise, or other property, as dealers or on commission,' but was authorized to receive and collect the usual and customary rates of dockage, wharfage, storage, and lighterage on all goods deposited with it, which, together with all charges and expenses incurred for labor or otherwise in the receipt, delivery, or custody of such goods, was made a lien thereon.

The tenth section of the charter was as follows:--

'The receipts, warrants, or warehouse certificates issued by this corporation for goods, wares, and merchandise in their possession or under their control, shall, in all cases, be signed by the president or vice-president and secretary of the corporation, and attested by the corporate seal; and copies thereof shall be registered in two books kept for that purpose, one of which books shall be kept by each of the officers whose signatures are to be affixed as aforesaid, which books shall be at all times open for the inspection of dealers with said corporation. The said receipts, warrants, or certificates may be transferred by indorsement thereof; and any person to whom the same may be transferred shall be deemed and taken to be the owner of the goods, wares, and merchandise therein specified, so far as to give validity to any pledge, lien, or transfer made or created by such person or persons; but no property shall be delivered except on surrender and cancellation of said original receipt, warrant, or certificate. Every such receipt, warrant, or warehouse certificate shall contain on its face a notice that the property mentioned therein is held by this corporation as bailees only, and is not insured by this corporation.'

The charter was, in 1870, amended so as to authorize the corporation 'to make advances upon all goods, wares, merchandise, or other property which may be received by or stored with it.'

It was admitted at the trial, that, on the 18th of July, 1870, State tobacco warehouse No. 2 was destroyed by fire; that, at the time of the fire, property was stored by the following persons, in accordance with receipts given by the defendant in error to them respectively, of which the subjoined is a specimen:

The property mentioned in this receipt is held by this corporation as bailees only, and is not insured by this corporation.

BALTIMORE WAREHOUSE COMPANY.

Incorporated 1867.

No. 1168.]

BALTIMORE, May 24, 1870.

Received by the Baltimore Warehouse Company, in store at No. 2 tobacco warehouse, from Hough, Clendening, & Co., one hundred and nine bales cotton, to be delivered according to the indorsement hereon, but only on the surrender and cancellation of this receipt, and on the payment of the charges payable thereon.

Marks.

x Q.

EXPENSES.

mo.

{BALT'O. WAREHOUSE Co. CEAL. }

JAMES HOOPER, president.

JAMES B. EDWARDS, Secretary and Registrar.

Copy.]

BALTIMORE, _____ 18 __.

Deliver to the order of _____ the within-described merchandise.

(Signed) HOUGH, CLENDENING, & Co.

Hough, Clendening, & Co., cotton $52,863.

Hawkins, Williamson, & Co., cotton 26,861.

Total $98,984.29That all of said property was destroyed by fire on the 18th of July, 1870, except that embraced in a salvage statement made by a committee appointed by the underwriters, and signed by George B. Coale for the committee.

Previously to and at the time of said fire, the defendant in error held a policy, substantially in the same form as that now in suit, issued by the Associated Firemen's Insurance Company of Baltimore, in the sum of $10,000. The following policies in the names of other parties as assured, covering only specific portions of said property hereinafter mentioned, were in force, viz.:--

On the property stored by Elliott Bros., three policies of the following companies, viz., in name of Elliott Bros.:--

-

$20,

On the property stored by F W. Beck & Co. policies in their name as assured in—

On that of Hough, Clendening, & Co. in their name as assured: -

W. H., The Atlantic (1 $3,500 and 1 for $6,000)= 9,

W. H., The Home Ins. Co. of Baltimore for 6,

W. H., The Citizens' Ins. Co. of Baltimore for 1,

Said last-mentioned policies covered 676 bales of cotton, if the two $6,000 policies of the Peabody and Atlantic were each on 110 separate bales, and 566 bales, if they both were only the same 110 bales, and that said cotton was worth at the time of the fire $78.32 per bale.

On the property stored by Hawkins, Williamson, & Co. in their name as assured:--Royal Ins. Co. for $10,

On the property stored by F. L. Brauns & Co. in their name as assured:--

It was also admitted that the defendant in error had advanced to the owners of said property, on the deposit thereof, the sums hereinafter named, and that it held the said property as security therefor, viz.:--

To Hough, Clendening, & Co......... $48,

" Hawkins, Williamson, & Co........ 16,

" McCloud & Co...................... 1,

" F. W. Beck & Co................... 4,

---

$71,

It was further admitted, that all of the before-mentioned policies marked 'W. H.' were made payable on their face to the defendant in error, in these words: 'Loss, if any, payable to the Baltimore Warehouse Company,' and delivered to and held by it as additional security for advances at the time of the making of said advances.

Among other points on which no agreement between the underwriters and the insured could be reached, was the question whether the general policy of the plaintiff in error and that of the Associated Firemen's Insurance Company were liable to contribute with the specific policies for losses on the property covered by the latter.

Cases involving this question were instituted in the State courts. Among others, was one by Hough, Clendening, & Co., to the use of the warehouse company, on a specific policy against the People's Insurance Company.

For the purpose of awaiting the decision by the State courts of this question of contribution, and also of the question whether the policies of the Peabody and Atlantic companies covered the same lot of one hundred and ten bales of cotton, or two lots each of that number, amounting together to two hundred and twenty bales, the plaintiff entered into a written agreement with the defendant, extending, to a named day, the period within which suit might be brought on the policy sued on in this case. The final decision of these questions not having been made within the period prescribed in the first agreement, another agreement was made, providing for a further extension. Pending this state of facts, the defendant in error presented to the plaintiff in error preliminary proof as to, and received payment for, twenty-four bales of cotton, which were not covered by any of the specific policies, nor affected by any of the questions involved in the cases pending in the State court, nor otherwise the subject of dispute. When this payment was made, the plaintiff in error asked to have its policy surrendered. Hooper, the president of the defendant in error, refused to surrender it, saying that he wanted to retain it to cover all losses, whether then seen or not,-all against which it might turn out, from the decision of the cases then pending, or from other causes which could not then be anticipated or seen, that the defendant in error was not otherwise protected; adding that some of the companies which had issued specific policies were already contending that the policies issued by the plaintiff in error and the Associated Company were bound to contribute to the losses covered by the specific policies. He also then made claim for the one hundred and ten bales of cotton, if not covered by the policies of the Peabody and Atlantic, on the ground that the policy in suit was intended to cover all losses of every kind which could not be seen or specified. Coale, the agent of the plaintiff in error, denied that it could be held responsible for any other loss than that of the twenty-four bales. No final settlement was made. But, after consulting with the home officers of his company, he settled for the twenty-four bales, allowed Hooper to retain its policy, and took a receipt for the special settlement then made. No objection to the want of preliminary proof as to the claims retained was made, until a few days before the institution of this suit. The plaintiff in error denied its liability on these claims, until the decision of the State court in one of the cases pending in it; after which Coale, its agent, admitted that its liability was thereby established, and made various calculations of the amount thereof.

Barney, who was elected president of the defendant in error after the fire, and after the settlement between Hooper and Coale, became convinced that the policies of the Peabody and Atlantic companies covered only the same lot of one hundred and ten bales, and settled with these companies on that basis. It was not sought at the trial to bind the plaintiff below by that settlement; but the question, whether one hundred and ten bales were uncovered by specific policies or not, was left as an open one to the jury for their decision.

At the trial, the above-mentioned facts having been all proved, and the defendant in error having proved that Frank P. Clark was a lawyer by profession; that he had occupied himself in making insurance adjustments, as a specialty; and that, in 1870, he had devoted himself principally to that business,-offered as part of his evidence several statements or adjustments made by him as illustrations of the results arrived at upon the different theories of adjustment therein adopted. The plaintiff in error objected to their admission in evidence; but the court overruled the objection, and allowed them to go to the jury, only for the purpose of assisting them in calculating the amount of liability of the plaintiff, upon the several hypotheses of facts stated in said calculations, with the express instruction, that they were admitted only as calculations to aid the jury, and were in no way binding on them. To this ruling the plaintiff in error excepted.

The plaintiff in error afterwards offered in evidence a letter, which was admitted to be part of a negotiation for a compromise; offering to read only a portion of it, if the whole was objected to. The defendant in error objected to the reading of any part of it. The objection was sustained, and the plaintiff in error excepted.

The plaintiff below thereupon submitted several prayers to the court for instruction to the jury, which said prayers were refused, except the fifth, which was as follows:--

5th, If the jury shall find, from the evidence, that Hooper, the president of the plaintiff, at the time of receiving from the defendant the moneys receipted for on the said policy for the losses mentioned therein, was requested by Coale, the defendant's agent, to surrender the said policy, but refused to do so, and notified Coale that he retained the said policy in order to assert, against the defendant thereafter, any claims thereunder not then known to him, but which might thereafter appear; and that said Coale accordingly left said policy in the hands of Hooper, and wrote and signed the receipt written thereupon, and altered the usual receipt of the company to conform thereto in the manner testified to by said Coale, and sent to the defendant a copy of said receipt as altered, with the memorandum thereon proven by said Coale;

And if the jury shall further find, that said Coale did not, nor did the defendant, make any objection to the retention of said policy by said Hooper, for the purpose aforesaid, but, on the contrary, assented thereto, and that said Coale simply denied and protested that the defendant was not liable, and would not and did not recognize or concede its liability under the terms of said policy for any other losses than those paid and receipted for as aforesaid;

And shall further find, that the agreements for the waiver of the thirteenth condition of said policy, which have been given in evidence, were executed by the defendant, for the purpose of giving to the plaintiff a continuing right to assert by suit its claims reserved by Hooper, as aforesaid, pending litigation in the State courts, involving the legal principles on which the respective rights of the parties under said policy might depend; and that no suggestion or intimation of any defence to said claims on the ground of defect or failure of preliminary proof or notice under the ninth condition of insurance, was made by defendant or its said agent, until a short time before the institution of this suit, and after ineffectual efforts between the parties to settle the claims of the plaintiff under said policy upon their merits, then—

The jury are entitled, from such facts, with the other facts in the case, to find that the defendant waived the compliance by the plaintiff as to such reserved claims, with the fifteenth paragraph of the ninth of the conditions of insurance attached to the policy.

And if the jury find such waiver as aforesaid, then the failure to offer such preliminary proof is no bar to the plaintiff's right to recover in this suit.

The defendant below, at the same time, presented the following seven prayers, and prayed the court to give to the jury the several instructions therein asked for:--

1. The policies obtained by Hough, Clendening, & Co. upon their cotton, and made payable to the Baltimore Warehouse Company, being for a different assured, were upon a different interest from that covered by the policy now in suit; and the latter is not bound to contribute to any losses for which the former are liable.

2. If the jury find, that, in the course of dealing between the Baltimore Warehouse Company and its depositors, the latter, before receiving advances upon goods stored, were required to insure the same to an amount not less than the sum advanced, and that for the purpose of securing the said warehouse company the policies in such cases were made payable to the warehouse company, and were delivered to them at the time of procuring such advances; and shall further find, that the two policies of $6,000 each, issued on the twenty-fourth day of May, 1870, by the Atlantic and Peabody Insurance Companies, were obtained by Hough, Clendening, & Co., with knowledge on the part of said companies that they were intended to secure the warehouse company for advances, and that Hough, Clendening, & Co. then took them to the said warehouse company, and that the latter received them without notice to the said warehouse company of the circumstances under which they were obtained; and that, upon the faith thereof, the said warehouse company, their officers believing that each policy insured the full quantity mentioned in the same, and that the two together covered two hundred and twenty bales, thereupon advanced to Hough, Clendening, & Co. a sum of money larger than would have been advanced but for the existence of both said policies, and the belief that they were independent of one another,-then the said Atlantic and Peabody companies were respectively bound as between them and the said warehouse company by the representations contained in the respective policies, and could not limit their responsibility to a joint responsibility for one hundred and ten bales of cotton; but were each liable, as separate insurers, t the amount of one hundred and ten bales.

3. If the jury shall find from the evidence, that, from the time of the fire of July 18, 1870, until after the 25th of June, 1872, no claim or demand was made by the plaintiff on the defendant for any loss by reason of said fire, except for the twenty-four bales of cotton mentioned in the written proofs and settlement offered in evidence, and for an alleged liability of the defendant, under the policy declared on, for contribution with the special policies set forth in the agreement filed in this case,-then there is no evidence before the jury from which they can infer a waiver of preliminary proof, on the part of the defendant, in regard to any other claim under the policy declared on, except the claim for contribution with the said special policies.

4. By the ninth condition of the policy upon which this suit is brought, it was made necessary for the insured, after the fire, forthwith to give notice of their loss to the defendant, and as soon as possible thereafter to deliver as particular an account of their loss and damage as the nature of the case admitted of, and to accompany the same with proof as therein provided; and no acts or declarations of the agent, Coale, subsequent to the 10th of October, 1870, are admissible to show waiver by the defendant of said condition.

5. In determining the question, whether there has been a waiver of preliminary proof, the jury cannot consider declarations of the defendant's agent, Coale, made to parties other than the officers or agents of defendant, denying the defendant's liability to the plaintiff for any loss whatever beyond that of the twenty-four bales of cotton which were included in the settlement offered in evidence.

6. There is no evidence in this case of any waiver, on the part of the defendant or of its agent, in such manner as to bind them, of notice of loss and preliminary proof as to the one hundred and ten bales of cotton alleged to have been left without specified insurance by reason of the Atlantic and Peabody policies of $6,000 being upon the same one hundred and ten bales.

7. That, if the jury shall find from the evidence and under the instructions of the court that, at the time of the fire of July 18, 1870, there were one hundred and ten bales of cotton deposited by Hough, Clendening, & Co. in the warehouse of the plaintiff, which were not covered by any of the special policies taken out by said Hough, Clendening, & Co., and made payable to plaintiff, and that the plaintiff had notified the said Hough, Clendening, & Co. that they themselves must insure all cotton deposited by them; and if the jury shall find that there was, on the part of the defendant, a waiver of preliminary proof in regard to the loss on said one hundred and ten bales, and that the plaintiff is entitled to recover on account of said loss,-then the amount the said plaintiff is entitled to recover on account of said one hundred and ten bales should be two-thirds of plaintiff's own loss by reason of the damage of said bales by said fire; and, in order to ascertain the plaintiff's own loss on said one hundred and ten bales, the salvage thereon received by the plaintiff, and the amount due on all the said special policies, should be deducted from the total amount advanced by the plaintiff to the said Hough, Clendening, & Co.

The court rejected all of said prayers of the defendant, excepting the fifth, and instructed the jury as follows:--

If the jury shall find, from the evidence in this case, that, at the time of the fire of July 18, 1870, there were one hundred and ten bales of cotton in the warehouse of plaintiff, deposited by Hough, Clendening, & Co., which were not covered by any of the special policies taken out by said depositors; and that on said one hundred and ten bales the plaintiff had made advances, which were unpaid at the time of the fire; and shall further find for the plaintiff as to the waiver of preliminary proof, under the fifth prayer of the plaintiff, which is granted by the court,-then the plaintiff is entitled to recover in this action for the two-thirds of all loss or damage to said one hundred and ten bales, to the extent of its advances as aforesaid.

And if the jury shall find, from the evidence, that there was other cotton deposited by depositors in plaintiff's warehouse, and which was covered by special policies of insurance given in evidence in this case, and upon which plaintiff had made advances, then the said plaintiff is entitled to recover also for the two-thirds of all loss or damage to said cotton, to the extent of its advances on the same, less the amount which the jury may find to be due from said special policies made payable to the said plaintiff, each of said special policies contributing to the loss on the cotton insured by it with the general policies held by the plaintiff.

The defendant thereupon excepted to the rejection by the court of its first, second, third, fourth, sixth, and seventh prayers, and to the granting of the fifth prayer of the plaintiff, and to the instruction given to the jury in accordance therewith, and also to the court's instructions, and severally to each proposition in said instruction contained.

The jury found a verdict for the plaintiff below for $16,585.73, and judgment was rendered thereon; whereupon the defendant below brought the case here, and assigns for error,--

1st, The admission of the statements or adjustments of the witness Clark.

2d, The refusal to admit the letter from Barney to Coale.

3d, The admission of the record of the suit of Hough, Clen dening, & Co. v. ''People's Ins. Co.''

4th, The granting of plaintiff's fifth prayer.

5th, 6th, 7th, 8th, 9th, 10th, The rejection of the defendant's second, third, fourth, sixth, and seventh prayers.

11th and 12th, The first and second paragraph of the charge to the jury, as given.

Mr. A. W. Machen and Mr. Thomas Donaldson for the plaintiff in error.

The plaintiff in error is not bound to contribute to the payment of losses for which the policies of Hough, Clendening, & Co. are liable. They were for a different assured, and upon a different interest. There was, therefore, no double insurance. The memorandum upon their face, the 'loss, if any, payable to the Baltimore Warehouse Company,' does not affect the principle; but is simply 'a mode of appointing that the loss of the party assured shall be paid by the company to such third person.' Bates v. ''Equitable Ins. Co.'', 10 Wall. 33; Grovesnor v. ''Atlantic Fire Ins. Co., 17 N. Y. 391; Hale v. Mech. Mut. Fire Ins. Co., 6 Gray, 172; Fogg v. Middlesex Manuf. Co.'', 10 Cush. 346; Macomber v. ''Cambridge Mut. Ins. Co.'', 8 id. 135; Young v. ''Eagle Fire Ins. Co., 14 Gray, 153; State Mut. Fire Ins. Co. v. Roberts, 31 Penn. 438; Loring v. Manuf. Ins. Co., 8 Gray, 28; Woodbury Savings Bank v. Charter Oak Ins. Co., 29 Conn. 374; Turner v. Quincy Mut. Fire Ins. Co.'', 109 Mass. 568; Tallman v. ''Atlantic F. & M. Ins. Co.'', 29 How. Pr. 71.

The decision of the Court of Appeals of Maryland in Hough, Clendening, & Co. v. ''People's Ins. Co.'', 36 Md. 398, cannot bind the plaintiff in error, which was in no sense a party to that case, nor can it affect the decision of this court in the present suit. 1 Greenl. Ev., sect. 523; Carpenter v. ''Prov. & Wash. Ins. Co.'', 16 Pet. 495, 511.

The circumstance that that court, long after this contract was entered into and the occurrence of the loss, put an erroneous construction on another contract between other parties, cannot alter the meaning of this. Martineau v. Kitching, L. R. 7 Q. B. 436; ''North Brit. Ins. Co. v. Moffatt, L. R. 7 C. P. 25; Lee v. Adsit'', 37 N. Y. 78.

The respective policies of the Atlantic and Peabody Insurance Companies each appearing to be on one hundred and ten bales of cotton, without indicating any identity of subject-matter, and there being in the warehouse two distinct lots to which the were respectively applicable, and having been accepted and acted upon by the warehouse company as covering distinct lots, on both of which it made advances, the former companies knowing that the policies were made to cover advances,-it was not competent for them to contradict the representations contained in their respective policies. Each of said companies was liable, as a separate insurer, to the amount of one hundred and ten bales.

No suggestion of a claim for a loss on one hundred and ten bales, as uninsured by any particular policy of any depositor, having been made until after the lapse of some two years from the time of the loss, there was no evidence from which the jury could infer any waiver of preliminary proof in regard to said one hundred and ten bales.

The declarations of the agent, made after the lapse of the period within which preliminary proof should have been made, could not have the effect of a waiver of such proof as against the company. 1 Tayl. Ev., sects. 539, 540.

The plaintiff's fifth prayer, which was granted, is liable to special objection, because the facts selected, if found by the jury, did not authorize a finding of a waiver of preliminary proof,-certainly not as to all the claims of loss now made, and not as we suppose to any of them; and because it was improper to leave to the jury the construction of the written agreements referred to, and the determination of their effect.

The statements of calculations and adjustments made by the witness Clark, and offered in evidence, were not proper evidence to go to the jury; being both irrelevant and calculated to mislead it.

The part of Barney's letter offered in evidence was competent, and should have been admitted. A statement accompanying an offer of compromise, even if intended as an inducement to a compromise, is admissible. Seldner v. Smith, 40 Md. 602.

Mr. John H. Thomas, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

The most important question in this case relates to the proper construction of the defendants' policy of insurance. It is contended on their behalf that it covered only the warehouse company's interest in the goods contained in the warehouse. If this is the true meaning of the contract, the instruction given by the Circuit Court to the jury was erroneous. If, on the other hand, the policy covered the merchandise itself, and not merely the interest which the warehouse company had therein, there is no just ground of complaint of the charge of the circuit judge. Blanket and floating policies are sometimes issued to factors or to warehousemen, intended only to cover margins uninsured by other policies, or to cover nothing more than the limited interest which the factor or warehouseman may have in the property which he has in charge. In those cases, as in all others, the subject of the insurance, its nature and its extent, are to be ascertained from the words of the contract which the parties have made. It is as true of policies of insurance as it is of other contracts, that, except when the language is ambiguous, the intention of the parties is to be gathered from the policies alone. There are cases in which resort may be had to parol evidence to ascertain the subject insured; but they are cases of latent ambiguity. So, in the construction of other contracts, parol evidence is admissible to explain such ambiguities. In this particular, the rule for the construction of all written contracts is the same. Lord Mansfield said long ago that courts are always reluctant to go out of a policy for evidence respecting its meaning. Loraine v. Tomlinson, Doug. 564. And so are the authorities generally. Astor v. ''Union Ins. Co.'', 7 Cow. 202; Murray v. Hatch, 6 Mass. 465; Levy v. Merrill, 4 Greenl. 480; ''Baltimore Fire Ins. Co. v. Loney'', 20 Md. 36; Arnould on Ins. 1316, 1317, and notes; 2 Greenl. on Ev. 377. It is no exception to the rule, that, when a policy is taken out expressly 'for or on account of he owner' of the subject insured, or 'on account of whomsoever it may concern,' evidence beyond the policy is received to show who are the owners or who were intended to be insured thereby. In such cases, the words of the policy fail to designate the real party to the contract, and, therefore, unless resort is had to extrinsic evidence, there is no contract at all. Finney v. ''Bedford Ins. Co.'', 8 Met. 348.

Turning, then, to the policy issued to the plaintiff below, and construing it by the language used, the intention of the parties is plainly exhibited. Its words are, The Home Insurance Company 'insure Baltimore Warehouse Company against loss or damage by fire, to the amount of $20,000, on merchandise hazardous or extra-hazardous, their own or held by them in trust, or in which they have an interest or liability, contained in' a certain described warehouse. There is nothing ambiguous in this description of the subject insured. It is as broad as possible. The subject was merchandise stored or contained in a warehouse. It was not merely an interest in that merchandise. The merchandise of the warehouse company, owned by them, was covered, if any they had. So was any merchandise in the warehouse in which they had an interest or liability. And so was any merchandise which they held in trust. The description of the subject must be entirely changed before it can be held to mean what the insurers now contend it means. If, as they claim, only the interest which the warehouse company had in the merchandise deposited in their warehouse was intended to be insured, why was that interest described as the merchandise itself? Why not as the assured's interest in it? Throughout the policy, wherever the subject intended to be insured is spoken of, it is described, not as a partial interest, not as a mere lien for advances and charges upon the goods held in storage, but as the property itself, whatever might be the existing rights to it. Thus the insurance company covenanted to make good to the assured all such loss or damage, not exceeding the sum insured, as should happen by fire 'to the property as above specified.' What that specification was, we have seen. The policy also contained a provision that, in case of fire, the 'property' destroyed might be replaced by similar 'property' of equal value and goodness. There are other like designations. Nowhere is any less interest in the goods insured alluded to than the entire ownership. The words of the policy are not satisfied if their import be restrained, as the plaintiff in error seeks to confine it. The parties to whom the policy was issued were warehouse-keepers, receiving from various persons cotton and other merchandise on deposit. They were empowered by their charter to receive bailments and to make charges against the bailors for handling, labor, and custody. They were also authorized to make advances upon the goods deposited with them, and their charges, expenses, advances, and commissions were made liens upon the property. They had, therefore, an interest in the merchandise deposited with them, which they might have caused to be specifically insured. It was also at their option to obtain insurance upon the entire interest in the merchandise, whether held by them or by the depositors. Nothing in their charter forbids such insurance. It is undoubtedly the law that wharfingers, warehousemen, and commission-merchants, having goods in their possession, may insure them in their own names, and in case of loss may recover the full amount of insurance, for the satisfaction of their own claims first, and hold the residue for the owners. Waters v. ''Monarch Assur. Co.'', 5 Ell. & Bl. 870; London and North-western Railway Co. v. Glyn, 1 Ell. & Ell. Q. B. 652; DeForest v. ''Fulton Ins. Co., 1 Hall, 136; Siter v. Moritz'', 13 Penn. St. 219. Such insurance is not unusual, even when not ordered by the owners of goods, and when so made it inures to their benefit. And such insurance, we must hold, the warehouse company sought and obtained by the policy of the plaintiff in error. The words 'merchandise held in trust' aptly describe the property of the depositors. The warehouse company held merchandise in trust for their customers, not, it is true, as technical trustees, but as trustees in the sense that the goods had been entrusted to them. They were not empowered by their charter to hold property under technical trusts cognizable only in equity. Hence, when they sought insurance of merchandise held by them in trust, it must have been intended of such as they held in trust, in a mercantile sense, goods entrusted to them by the legal owners. That such is the meaning of the words as used in this policy we cannot doubt. And such has been held by courts of the highest authority to be the meaning of similar words in fire policies. In Waters v. Monarch Fire and Life Assurance Company, above cited, the policy was issued to persons described as corn and flour factors, who were, in fact, flour-merchants, warehousemen, and wharfingers. It was on goods in their warehouses, and on goods in trust or on commission therein. The assured had in their warehouses goods belonging to their customers, deposited with them as warehouse-keepers, and on which they had a lien for charges for cartage and warehouse rent, but no further interest of their own. They made no charge to the customer for insurance, nor was the customer informed of the existence of the policy. It was ruled that the goods were held in trust, within the meaning of the policy; and, there having been a destruction by fire, that the assured were entitled to recover their entire value, applying so much as necessary to cover their own interest, and holding the remainder as trustees for the owners. Lord Chief Justice Campbell said, 'It was not intended to limit the policy to the personal interest of the plaintiff, for in this and all other floating policies the promise is to make good the damage to the goods.' A similar ruling was made in the London and North-western Railway Co. v. Glyn, supra. There the plaintiffs, who were common carriers, had obtained insurance of goods against fire, in a company of which the defendant was treasurer. The policy declared 15,000 to be insured 'on goods their (the plaintiffs') own and in trust as carriers' in a certain warehouse, and it was stipulated that the company were to be liable to make good to the 'assured' all loss which they, 'the assured,' should suffer on the property therein particularized. In an action on the policy, it was held, that, to the extent of 15,000, the whole value of the goods in the warehouse in the plaintiffs' possession was insured by it, and not merely their interest in the goods; and that the plaintiffs would be regarded as trustees for the owners of the amount thus recovered, after deducting their charges as carriers.

In opposition to this construction of the policy now before us, our attention has been called by the plaintiffs in error to a provision in the charter of the warehouse company, and to the notice accompanying the receipts they gave for the merchandise delivered to them in storage. The tenth section of their charter, after requiring that the receipts, warrants, or warehouse certificates issued by the corporation for goods, wares, and merchandise in their possession, should be signed by the president or vice-president and secretary, and attested by the corporate seal, after requiring that copies should be registered, and declaring that they should be transferable by indorsement, enacted that every such receipt, warrant, or warehouse certificate should contain on its face a notice that the property mentioned therein was held by the corporation as bailees only, and was not insured by corporation. Accordingly, all the warehouse receipts did contain such notices. But we are unable to perceive how these facts can have any bearing on the proper construction of the policy. The company was not prohibited by its charter from obtaining insurance to their full value of the goods left with them in bailment. At ost, the requirement of the charter was that they should not themselves become insurers. And the notice required to be given to the bailors meant no more than that neither the receiving of the goods nor the certificate of receipt amounted to a contract of insurance. It would be straining the language of the notice most unwarrantably, were we to treat it as amounting to an engagement that the company would not obtain insurance of the property from some corporation authorized to insure.

Without pursuing this discussion further, we have said enough to vindicate our opinion that the policy upon which this suit was brought covered the merchandise held by the warehouse company on storage, and not merely the interest of the bailees in that property. It follows, necessarily, that there was double insurance. The policy issued to the warehouse company, and those obtained by the depositors of the merchandise, covered the same property, and they were for the benefit of the same owners. The persons assured were the same; for if the policies taken out by Hough, Clendening, & Co. were upon their goods, notwithstanding the memorandum that the loss, if any, was payable to the Baltimore Warehouse Company, as may be conceded was the case, so was the policy now in suit. The insurers are liable, therefore, pro rata, each contributing proportionately. It follows that the plaintiffs in error have no reason to complain of the refusal of the court below to affirm their first and seventh points, and none to complain of the instructions given to the jury respecting the extent to which the plaintiffs were entitled to recover, if they could recover at all.

The next question presented by the record, which we propose to consider, is raised by the fourth, the seventh, eighth, and the ninth assignments of error. Those assignments complain of the affirmance of the plaintiffs' fifth point, and of the disaffirmance of the defendants' third, fourth, and sixth. Beyond doubt it was a question for the jury whether furnishing preliminary proof of loss was waived by the defendants or by their authorized agent, if there was any evidence of waiver to be submitted to them. And we think there was such evidence. The defendants were an insurance company of the State of New York. By the act of the Maryland legislature, which empowered them to do business in Maryland, the agent of the company was required to have authority 'from the parent office or offices to settle losses, without the interference of the officer or officers of the said parent office or offices.' Mr. Coale was their agent, and clothed with such authority. He could, therefore, waive the presentation of preliminary proofs, and his waiver was binding on his principals. ''Franklin Fire Ins. Co. v. Chicago Ice Co.'', 36 Md. 102. A waiver may be proved indirectly by circumstances as well as by direct testimony. If, after the time for presenting preliminary proofs had gone by, Mr. Coale acted and spoke as if they had been presented in season; if, while resisting the claim upon his company, he placed his objections entirely upon other grounds, and never alluded to any failure of the plaintiffs to exhibit preliminary proofs until those other grounds were apparently swept away; if, after making a payment for a loss of twenty-four bales of cotton, and after he was notified that the policy would be retained in order to assert afterwards other claims upon it, he expressly waived another one of its conditions, for the purpose of giving to the plaintiffs a continuing right to bring a suit,-the jury might well have inferred that the condition of giving notice of the loss and making preliminary proof had been waived. Such conduct on his part was consistent with a conclusion that such a waiver had been made. It is difficult to account for it, if there had been none. Yet all this evidence, and more, was before the jury. These assignments of error, therefore, cannot be sustained.

The sixth assignment of error requires but a single remark. We do not see that the evidence war anted the hypothesis upon which the defendants' second prayer was based; but if it did, it would be impertinent to the case. If the plaintiffs were mistaken in regard to their rights as against other insurers, such a mistake cannot affect their claim on the defendants' policy.

The tenth assignment has already been shown to be unfounded, by what we have heretofore said.

It remains only to notice some rulings of the Circuit Court in respect to offers of evidence. The court admitted in evidence, notwithstanding objection by the defendants, several statements or plans of adjustment of the loss, made by an expert, and founded upon different theories of the law. They were not admitted as evidence of the facts stated in them, or as obligatory upon the jury, but only for the purpose of assisting the jury in calculating the amount of liability of the defendants upon the several hypotheses of fact stated in them, and stated only hypothetically. It is impossible that the defendants could have been injured by their reception, and without some such assistance no intelligent verdict could have been rendered. The jury was left free to accept either hypothesis, or reject them all. We think there was no error in admitting the calculations.

Nor was there error in receiving the record of the suit of Hough, Clendening, & Co. v. ''People's Ins. Co.'', in the Maryland courts, under the circumstances of the case. The present parties had agreed to extend the time within which this suit might be brought until the decision of the questions involved in the suit of Hough, Clendening, & Co. The record of that suit, therefore, was evidence to show its termination. But if not, it was merely irrelevant, and it is not shown that it tended in the least to mislead the jury. A judgment is not to be reversed because evidence was admitted at the trial which could have had no bearing upon the issue, unless it appears that it was misleading in its tendency.

The only remaining assignment of error is that the Circuit Court would not receive in evidence any part of a letter written by the president of the warehouse company to Mr. Coale, the defendants' agent. The letter was an offer of compromise, and as such, upon well-recognized principles, it was inadmissible. And it contains no statement which can be separated from the offer and convey the idea which was in the writer's mind. The court was clearly right in rejecting it.

Judgment affirmed.


text: Talk:Home Insurance Company v. Baltimore Warehouse Company/Opinion of the Court


text:
Stanton v. Embrey

ERROR to the Supreme Court of the District of Columbia.

On the 13th of January, 1872, the plaintiff below, administrator of Robert J. Atkinson, filed his declaration, claiming from the defendants $10,000 with interest, from May 1, 1871, for services alleged to have been performed by the deceased in prosecuting a claim in their behalf against the United States, before the third auditor of the treasury, from 1865 to Feb. 3, 1870, and subsequently by himself, as administrator, before the secretary and other officials of the Treasury Department.

The defendants pleaded in abatement the pendency of a suit against them, by the same plaintiff and for the same cause of action, in the Superior Court of the county of New London, in the State of Connecticut; to which plea the plaintiff demurred. The court sustained the demurrer, and granted the defendants leave to plead over; whereupon they pleaded the general issue.

The defendants were the owners of certain steamers, which were used by the United States during the war of the rebellion at New Orleans, La., and for which use they had a claim for compensation to the amount of $45,925.07. Atkinson prosecuted it until it was allowed by the accounting officers, and a settlement made. He died before the warrant for the money was issued to the defendants. His services were rendered upon a contract for a contingent remuneration, the amount of which was not fixed. Attorneys prosecuting such claims before the departments usually harged contingent fees of from twenty to twenty-five per cent, which the plaintiff's witnesses regarded as a reasonable charge. Atkinson, who was at one time third auditor of the treasury, was conversant with the rules of the Treasury Department, and, as sole attorney, rendered services in this case, by preparing and filing printed briefs.

Several prayers for instructions to the jury were presented by the defendants; but the court refused them all, and charged substantially as follows:--

Where an attorney in the exercise of his ordinary labor and calling, and with the instrumentalities of his professional learning and industry, undertakes to work out a desired result for his client, not through personal influence, but through the instrumentalities of the law,-by persuasion, as distinguished from influence,-such an undertaking is not an unlawful one, or contrary to public policy. That, in dealing with the government and its departments, there is frequently and necessarily required a degree of knowledge and skill, and an acquaintance with forms and principles, not possessed by the unlettered citizen, before a person can obtain that which is justly his due. When, therefore, the class of persons possessing such knowledge perform that labor as attorneys, no reason exists for defeating them of their compensation. If, therefore, Atkinson's employment was that of a professional man in the line of his profession, and not for the purpose of exercising and wielding an undue influence over the administrative officers of the government, and was so engaged by the defendants, the plaintiff is entitled to recover. That, in the absence of any special agreement between the parties as to the amount of his compensation, the law presumes that his reward shall be commensurate with his labor; and, although the percentage or amount which other attorneys have received in similar cases cannot alone govern in this, it is proper to be considered in determining what the intestate's reasonable compensation should be; and that, if they found that the claim was satisfied through the efforts of the deceased, and not those of others, the fact that his death occurred a day or two before the claim was paid does not deprive him of the fruit of his labor.

On the 13th of March, 1873, the jury rendered a verdict for the plaintiff for $9,185.18.

Thereupon the defendants moved for a new trial; which motion was overruled on the nineteenth of that month.

May 3, 1873, the bill of exceptions was signed by the presiding justice, and filed nunc pro tunc Aug. 13, 1874.

Sept. 29, 1873, the motion for new trial was heard at the general term of the court on appeal. The decision of the special term was affirmed, and judgment rendered on the verdict of the jury.

The defendants thereupon sued out this writ of error.

Mr. Thomas J. Durant for the plaintiffs in error.

The plea of lis pendens filed by defendants below was good in law, and should have been sustained. The court below possesses the same powers and exercises the same jurisdiction as the circuit courts of the United States. Rev. Stat. relating to the District of Columbia, sect. 760. The court of New London County, Conn., was not a foreign court to that of the Supreme Court of the District of Columbia. The courts of the United States are not foreign to the States. U.S.C.onst., art. 4, sect. 1; Rev. Stat., sect. 905. The judgment of a State court conclusive in that State is conclusive everywhere. It is put upon the same footing as a domestic judgment. 3 Story on the Const., p. 183, sect. 1307. Hence the pendency of a suit in a State court may be pleaded in an action for the same cause in the courts of the United States. To tolerate the pendency of several suits at the same time for the same cause would be a reproach to the administration of justice. Earl v. Raymond, 4 McLean, 234, 235.

A contract to prosecute and collect a claim from one of the departments of the government, in consideration of a percentage on or portion of the amount to be collected, is against public policy and the laws, since it virtually assigns a part of the claim, and an interest therein, to him who undertakes the service.

The statute in force at the time this contract is alleged to have been made, and the services were rendered, was sect. 1, act of Feb. 26, 1853 (10 Stat. 170), and is now Rev. Stat. sect. 3477, p. 693.

On the question of public policy the following cases are relied on: Marshall v. B. & O. R. R. Co., 16 How. 374. Tool Co. v. Norris, 2 Wall. 56; Trist v. Child, 21 id. 541.

The act of 1853 is designed to prevent maintenance and champerty in claims before the departments. Such a contract as the one here in question would be held tainted with both. Earle v. Hopwood, 99 Eng. Com. Law Rep. (Phila. ed.) 546; In re Attorneys' and Solicitors' Act, 1870; Law Reports, division 1, Chancery, 1876, part 4, April 1; vol. i. p. 573.

The objection of the defendant in error that the bill of exceptions in this case is not properly a part of the record cannot be sustained. The eleventh section of the act of March 3, 1863 (12 Stat. 762), reorganizing the courts of this District, provides that any final judgment, order, or decree of said court that is, the court created by that act-may be re-examined and reversed or affirmed in this court upon writ of error or appeal in the same cases and in like manner as was then provided by law, in reference to the final judgments, orders, and decrees of the Circuit Court of the United States for the District of Columbia. Therefore a writ of error to the Supreme Court of the District of Columbia is governed by the same regulations as is a writ to the circuit courts of the United States. Thompson v. Riggs, 5 Wall. 663; Pomeroy's Lessee v. Bank of Indiana, 1 id. 602.

The record shows that the exceptions were duly taken at the trial. They were subsequently reduced to writing, signed by the justice who presided thereat, and filed nunc pro tunc. The case is clearly within the settled practice of courts of error. Dredge v. Forsyth, 2 Black, 568.

title: Stanton v. Embrey


text: Talk:Stanton v. Embrey

title: Talk:Stanton v. Embrey


text:
Stanton v. Embrey/Opinion of the Court

Mr. Edward Lander, contra.

The filing of pleas in bar, after judgment sustaining the demurrer to a plea in abatement, is an acquiescence in such judgment. Bell v. Railroad Company, 4 Wall. 598; United States v. Boyd, 5 How. 29; Townsend v. Jennison, 7 id. 706; Morsell v. Hall, 13 id. 212; Shepherd v. Graves, 14 id. 505; Spencer v. Lapsley, 20 id. 264.

There was no error in the judgment of the court below sustaining the demurrer. Bowen et al. v. Joy, 9 Johns. 219; West v. McConnell, 5 La. 424; 7 Am. Com. Law, 357; Lowry v. Hall, 2 Watts & S. (Pa.) 133; McJilton v. Dove, 13 Ill. 494; Walsh v. Durkin, 11 Johns. 99; Salmon v. Wootten, 9 Dana, 422.

The courts of the District of Columbia are not, in the constitutional sense, courts of the United States. They are in the nature of territorial courts, and were established in the exercise of the power of exclusive legislation over the territory selected as the seat of government.

The bill of exceptions filed in this case, Aug. 13, 1874, nunc pro tunc, is not legitimately a part of the record. It was not settled and signed within the time required by the sixty-fourth rule of the Supreme Court of the District of Columbia. Being defective, it will not be considered by this court. Miller et al. v. Ehler, 91 U.S. 249.

The services rendered for which this suit was brought were strictly professional, and clearly within the rule announced in Wright v. Tebbitts, 91 U.S. 252; Wylie v. Coxe, 15 How. 415; Trist v. Child, 21 Wall. 450.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

Services were rendered by Robert J. Atkinson, in his lifetime, as attorney for the defendants in prosecuting a claim, in their behalf, against the United States, before the accounting offi ers of the Treasury Department; and the plaintiff instituted the present suit in the Supreme Court of the District to recover compensation for those services, including a claim for services rendered by the decedent and by himself, as such administrator, in the same case, since the decease of the intestate.

Process was served; and the defendants appeared and pleaded in abatement the pendency of a prior suit in a State court for the same cause of action, and tendered a certified copy of the prior writ and return in support of the plea; to which the plaintiff demurred, and assigned for cause that the pendency of a prior suit in a State court is no stay or bar to a suit in the court below. Hearing was had; and the court sustained the demurrer of the plaintiff, and gave leave to the defendants to plead to the merits.

Pursuant to that leave, the defendants pleaded nil debet and non assumpsit; upon which issues were duly joined. Subsequently the parties went to trial; and verdict and judgment were for the plaintiff, in the sum of $9,185.18. Exceptions to the rulings and instructions of the court, and to the refusals of the court to instruct the jury as requested, were filed by the defendants; and they sued out a writ of error, and removed the cause into this court.

Ten errors are assigned by the plaintiffs in error; but, in the view taken of the case, it will not be necessary to give them a separate examination.

Two questions are presented, arising out of the ruling of the court in sustaining the demurrer of the plaintiff below to the plea in abatement filed by the defendants: 1. Whether the defendants did or did not waive the demurrer, by subsequently pleading to the merits. 2. Whether the pendency of a prior suit in a State court is a bar to an action subsequently commenced in the Supreme Court of this District.

Authorities are referred to by the defendant in error, which support the proposition that pleading over to a declaration adjudged good on demurrer is a waiver of the demurrer; and there are many other decided cases to the same effect. Aurora City v. West, 7 Wall. 92; Bell v. Railroad, 4 id. 602; Clearwater v. Meredith, 1 id. 42; United States v. Boyd, 5 How. 51; Evans v. Gee, 11 Pet. 85; Jones v. Thompson, 6 Hill, 621.

Suppose it were otherwise, still it is insisted by the defendant in error that the pendency of a prior suit in another jurisdiction is not a bar to a subsequent suit in a circuit court or in the court below, even though the two suits are for the same cause of action; and the court here concurs in that proposition.

Repeated attempts to maintain the negative of that proposition have been made, and it must be admitted that such attempts have been successful in a few jurisdictions; but the great weight of authority is the other way. Bowne v. Joy, 9 Johns. 221; Hatch v. Spofford, 22 Conn. 497; Maule v. Murray, 7 Term, 466; Imlay v. Ellefsen, 2 East, 457; Colt v. Partridge, 7 Met. 572; Smith v. Lathrop, 44 Penn. St. 328; Cox v. Mitchel, 7 C. B. N. S. 55; Wood v. Lake, 13 Wis. 91; Wadleigh v. Veasie, 3 Sumn. 167; Loring v. Marsh, 2 Cliff. 322; White v. Whitman, 1 Curt. 494; Salmon v. Wotten, 9 Dana, 422; Yelverton v. Conant, 18 N. H. 124; Walsh v. Durkin, 12 Johns. 99; Davis v. Morton, 4 Bush, 444.

Attempt is also made by the defendant in error to maintain the proposition that the allowance of the bill of exceptions is irregular, and that the assignment of errors founded thereon is not properly before the court for re-examination; but the court here is entirely of a different opinion. Due attention to the act reorganizing the courts of the District will remove all doubt upon the subject. 12 Stat. 764.

Provision is made for exceptions to be taken in the trial at the special term, before a single justice. As there provided, exceptions may be reduced to writing at the time, or they may be e tered in the minutes of the justice, and settled afterwards, in such manner as the rules of the court provide. Such exceptions must be 'stated in writing, in a case or bill of exceptions, with so much of the evidence as may be material to the questions; but the case or bill of exceptions need not be signed or sealed.' Sect. 8.

Special regulations are also enacted in respect to motions for new trials; and it is provided that a motion for new trial on a case or bill of exceptions shall be heard, in the first instance, at a general term. Appeals and writs of error to this court are regulated by the eleventh section of the act. Writs of error and appeal, under the prior law, applicable to the District, were required to be prosecuted in the same manner and under the same regulations as in case of writs of error and appeals from judgments and decrees rendered in the circuit courts of the United States. 2 Stat. 106; United States v. Hooe, 1 Cranch, 318.

Important changes were undoubtedly made by the act reorganizing the courts of the District; but the eleventh section provides that any final judgment, order, or decree of said court may be re-examined and reversed or affirmed in the Supreme Court of the United States upon writ of error or appeal, in the same cases and in like manner as is now provided by law in reference to the final judgments, orders, and decrees of the Circuit Court of the United States for the District of Columbia. 12 Stat. 764.

Grant that, and it follows that writs of error from this court to the courts of this District are governed by the same rules and regulations as are writs of error from this court to the circuit courts of the United States. Thompson v. Riggs, 5 Wall. 676; Pomeroy's Lessee v. Bank of Indiana, 1 Wall. 597.

Unless the exceptions to the rulings of the court in the progress of the trial, or to the instructions of the court given to the jury, are signed by the judge, or sealed with his seal, it is not a bill of exceptions within the meaning of the statute authorizing such proceeding, nor does it become a part of the record. Instead of that, the established rule is, that the exception must show that it was taken and reserved by the party at the trial; but it may be drawn out in form, and signed or sealed by the judge, at a later period. United States v. Breitling, 20 How. 254.

Decided cases to that effect are very numerous; nor would it be difficult to show that the practice in that regard has been uniform ever since the statute allowing bills of exception was passed by Parliament. Phelps v. Mayer, 15 How. 260; Turner v. Yates, 16 id. 28.

Anciently the bill of exceptions was required to be sealed; but it is sufficient, in the practice of this court, if it be signed by the judge, as it was in the case before the court. Pomeroy's Lessee v. Bank, 1 Wall. 599; Generes v. Campbell, 11 id. 193; Mussina v. Cavazos, 6 id. 355.

Beyond doubt, the record must show expressly or impliedly that the exception was taken and reserved by the party at the trial; but it is a mistake to suppose that it has ever been decided by this court that it must be drawn out and signed or sealed by the judge before the jury retire from the bar. Manifest inconvenience would result from such a requirement; and, in point of fact, there is no such rule. On the contrary, it is always allowable, if the exception is seasonably taken and reserved, that it may afterwards be put in form and filed in the case, pursuant to the order and direction of the judge who presided at the trial. Dredge v. Forsyth, 2 Black, 568.

Apply that rule to the case before the court, and it is clear that the objection of the defendant in error is without merit, as it appears by the record that the exceptions were 'taken at the trial of the cause,' and that the bill of exceptions was signed by the judge at the request of the defendants, and filed in the case nunc pro tunc, which brings the case within the settled practic of courts of error, even if governed by the strictest rules of the common law.

Coming to the merits, the first objection of the plaintiffs in error is that the contract set up in declaration is one for a contingent compensation. Such a defence, in some jurisdictions, would be a good one; but the settled rule of law in this court is the other way. Reported cases to that effect show that the proposition is one beyond legitimate controversy. Wylie v. Coxe, 15 How. 415; Wright v. Tebbitts, 91 U.S. 252.

Professional services were rendered by an attorney, in the first case cited, in prosecuting a claim against the Republic of Mexico, under a contract that the attorney was to receive five per cent of the amount recovered. Valuable services were rendered by the attorney during the lifetime of the claimant; but he died before the claim was allowed. Subsequently, the efforts of the attorney were successful; and he demanded the fulfilment of the contract, which was refused by the administrator of the decedent. Payment being refused, the attorney brought suit; and this court held that the decease of the owner of the claim did not dissolve the contract, that the claim remained a lien upon the money when recovered, and that a court of equity would exercise jurisdiction to enforce the lien, if it appeared that equity could give him a more adequate remedy than he could obtain in a court of law.

Courts of law also adopt the same rule of decision, as sufficiently appears from the second case cited, where the same rule of decision was applied and enforced without hesitation or qualification. Contracts for lobbying stand upon a very different footing, as was clearly shown by the Chief Justice in commenting upon a prior decision, in which the opinion was given by Justice Swayne. Trist v. Child, 21 Wall. 450.

Nothing need be added to what is exhibited in the case last mentioned to point out the distinction between professional services of a legitimate character, and a contract for an employment to improperly influence public agents in the performance of their public duties. Tool Company v. Norris, 2 Wall. 53.

Professional services, to prepare and advocate just claims for compensation, are as legitimate as services rendered in court in arguing a cause to convince a court or jury that the claim presented or the defence set up against a claim presented by the other party ought to be allowed or rejected. Parties in such cases require advocates; and the legal profession must have a right to accept such employment, and to receive compensation for their services; nor can courts of justice adjudge such contracts illegal, if they are free from any taint of fraud, misrepresentation, or unfairness.

By the contract in question, the amount of compensation to be paid was not fixed; and, in order to enable the jury to determine what the plaintiff was equitably entitled to recover, he called other attorneys, and proved what is ordinarily charged in such cases; and the defendants excepted to the ruling of the court, in refusing to charge the jury that they should disregard such testimony.

Attorneys and solicitors are entitled to have allowed to them, for their professional services, what they reasonably deserve to have for the same, having due reference to the nature of the service and their own standing in the profession for learning, skill, and proficiency; and, for the purpose of aiding the jury in determining that matter, it is proper to receive evidence as to the price usually charged and received for similar services by other persons of the same profession practising in the same court. Vilas v. Downer, 21 Vt. 419.

Tested by that rule, the court is of the opinion that the prayer for instruction was properly refused. Certain other prayers for instructions were also presented by the defendants, which were refused by the court below; but, in the view taken of the case, it must suffice to say that we are all of the opinion that the ruling of the court in efusing to give the requested instructions was correct.

Enough has already been remarked to show that the theory of the plaintiffs in error, that the contract is prohibited by certain acts of Congress referred to, cannot be sustained, for the reason that the contract was a legitimate one for professional services of an attorney who held no official station at the time the contract was made, nor at any time during the period he was engaged in prosecuting the claim.

Exceptions were also taken to numerous detached portions of the charge of the court; but the remarks already made render it unnecessary to give those exceptions a separate examination. Such an examination would extend the opinion unnecessarily; nor is it necessary, as the court is unanimously of the opinion that the exceptions must all be overruled.

Judgment affirmed.

title: Stanton v. Embrey/Opinion of the Court


text: Talk:Stanton v. Embrey/Opinion of the Court


text:
Huff v. Doyle

ERROR to the Supreme Court of the State of California.

Submitted on printed arguments by Mr. John B. Harmon for the plaintiff in error, and by Mr. S. F. Leib, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Huff v. Doyle


text: Talk:Huff v. Doyle

title: Talk:Huff v. Doyle